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Strip search did not re-trigger s. 10(b) Charter advisement


January 26, 2021
By Mike Novakowski

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In R. v. West, 2020 BCSC 1780, the police attended an address after receiving an anonymous tip that the accused would be present, and had warrants outstanding for his arrest. West was located at the home and he was arrested, handcuffed, and advised of his s. 10(b) right to counsel. When he was patted down, police found a $1,500 wad of cash in his sweatpants’ pocket along with a small glass vial containing suspected methamphetamine. West was also wearing a cellphone shoulder holster containing a wallet with $650 in cash.

After examining the items found in West’s possession, the officer arrested him for possessing drugs for the purpose of trafficking, and again advised him of his right to counsel. West was transported to the police detachment where he was again advised of his s. 10(b) rights but waived them. When he was patted down a second time as part of the booking procedure, an officer ran his hand up West’s leg toward his groin. West appeared uncomfortable. He bent over and then squatted down, taking a couple of breaths. He “pulled away” and seemed “antsy”, which was not in character based on previous police dealings with him.

West was taken into a shower room for a strip search. He became agitated, resisted, and insisted he was not going to be strip searched. He was restrained in handcuffs and his sweat pants were pulled down. A black pouch, containing cocaine and fentanyl, was found in a pocket on the outside front of his underwear. West said he did not have anything else on him. His underwear was not pulled down nor was his shirt removed. He was subsequently charged with three counts of possessing a controlled substance – fentanyl, cocaine, and methamphetamine – for the purposes of trafficking.

During a voir dire in B.C. Supreme Court, West argued, among other things, that the police were required to readvise him of his right to counsel under s. 10(b) prior to conducting the strip search. In his view, the strip search was a “new procedure” as recognized in R. v. Sinclair, 2010 SCC 35, such that he had a right to be informed about the strip search, readvised of his right to counsel, and given the opportunity to speak to counsel before the strip search occurred, if he asserted his right to counsel. Since his s. 10(b) right was denied, the strip search was unreasonable under s. 8 of the Charter.  And he wanted the evidence obtained from the strip search excluded under s. 24(2).

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The Crown, on the other hand, submitted that s. 10(b) did not require that the police tell an arrestee that they are going to be strip searched before performing it, nor did it require a separate advisement of their s. 10(b) rights and access to counsel before the strip search.

Justice Iyer noted there was no dispute that the police had reasonable grounds to search West, incidental to his arrest as well as to perform a strip search. Nor was there any dispute that the manner of the strip search complied with the requirements of R. v. Golden, 2001 SCC 83. Iyer also found West understood his s. 10(b) right to speak to counsel when arrested and had chosen not to exercise it. This waiver was clear and unequivocal.

As for whether West’s s. 10(b) right was retriggered by the strip search, Justice Iyer concluded it was not. A “new procedure” does not mean any procedure that is non‑routine for the types of offences with which the detainee has been charged.

“I conclude that Sinclair establishes that a new procedure includes those procedures that are not within the reasonable contemplation of counsel, providing advice in relation to a particular charge or charges, where the consent of the detainee is required,” said Justice Iyer. “I cannot interpret it as saying anything about the situation here; a non‑routine procedure for which the detainee’s consent is not required.”

While the strip search in this case was not routine, it was not exceptional.

“It lacks both the novelty and the degree of intrusiveness of a penile swab search,” said Iyers. “Sinclair also requires that the new procedure be beyond the contemplation of counsel providing the initial advice. Although I have no evidence on this, I find it hard to believe that if Mr. West had chosen to exercise his right to counsel, the possibility of a strip search would have been outside the expectation of the advising lawyer.”

And the strip search in this case was not conducted as a matter of routine policy.

Justice Iyers cautioned, however, that if an arrestee did assert a desire to contact counsel (and did not waive the right as West did in this case), the police must be careful in delaying access to counsel in all cases until the strip search is completed.

“Where a detainee has asserted the right to counsel … it is imperative that the police advert to all of the circumstances, including the circumstances of the alleged offence, those of the alleged offender, and the ability to mitigate risk, before deciding whether conducting the search before providing access to counsel is justified,” he said. “A consistent practice of always conducting strip searches in drug investigations before providing access to counsel would be constitutionally suspect.”

Since West did not have a right to be readvised of his right to counsel before he was strip searched, there was no s. 10(b) breach and therefore his s. 8 claim on this basis failed. His application for exclusion of the evidence was dismissed.

At the conclusion of his trial, West was convicted of possessing cocaine for the purpose of trafficking and simple possession of fentanyl and methamphetamine (2020 BCSC 1927). He was sentenced to a total of six months imprisonment plus ancillary orders (2020 BCSC 1928). However, he didn’t serve any more jail time, having been credited for time already served, which exceeded the six months’ sentence.