Case information

Constitutional law — Charter of Rights — Remedy — Stay of proceedings — Residual category — Whether Court of Appeal erred by drawing temporal and contextual distinction between discrete parts of police investigation when considering remedy for unlawful strip search — Whether Court of Appeal erred in concluding that trial judge did not consider other remedies short of a stay or the competing interests of the community and complainant

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant was involved in a road rage incident in which he is alleged to have pointed a handgun at another motorist and threatened them. The other motorist called the police who located the applicant and arrested him. An incidental search of his vehicle produced a loaded 9mm handgun. Two police officers conducted a pat-down search of the applicant; neither searched produced any evidence. While seated in the back of a police vehicle at the scene, a third police officer in the driver’s seat heard the sound of plastic rustling in the back seat. The applicant was taken to the police station, where his person was searched a third time. This search produced no evidence. The applicant was taken to another room, where he was strip-searched in the presence of four police officers with the door open. This search located 25.5 grams of cocaine on the applicant’s person.

The applicant was charged with possession of cocaine for the purpose of trafficking, and with various firearms and violent offences in relation to the road rage incident. At trial, the applicant alleged that the strip search violated his s. 8 Charter rights and sought a stay of proceedings.

The trial judge found that the police lacked the necessary grounds to conduct a strip search in the circumstances of the case, and that the search itself was conducted unreasonably. He further held that the conduct of the police prejudiced the integrity of the justice system and that the only remedy capable of redressing the prejudice was a stay of proceedings on all of the charges, which he imposed.

The Court of Appeal agreed with the trial judge’s characterization of the breach of the applicant’s rights, but held that he failed to note the temporal and contextual distinction between the lawful investigation of the non-drug offences and the unlawful investigation of the drug offence. It further held that that the trial judge failed to consider the appropriateness of other, less extreme remedies. This led to an overemphasis on the harm done to the applicant, at the expense of other factors that trial judges must consider when imposing a Charter remedy. The appeal was allowed in relation to the non-drug offences, and the case was remitted for a new trial before a different judge.