Location: Hamilton Ontario Court of Justice 

BACKGROUND

Our client was arrested by police on the strength of a valid arrest warrant for failing to comply with a recognizance in relation to a domestic allegation. The client was transported to Central station in Hamilton where a search was conducted. The search was conducted during the booking process prior to entering a holding cell to await transport for bail. During this search, Hamilton police located suspected narcotics (“purple heroin”) within our client’s buttocks. Due to the amount of suspected drugs discovered by police, our client was charged with possession for the purposes of trafficking a schedule I substance and was held for bail. 

THE ISSUE 

In the decision of R v Golden, the Supreme Court of Canada defined a strip search to include “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.” In this case, the defence believed that the client’s right to privacy was significantly breached when his buttocks was exposed at the front desk of central station and a strip search of his buttocks conducted. 

THE STRATEGY

Immediately a disclosure request was prepared to obtain the video evidence capturing the booking process of the client on the date of arrest. Video evidence can easily be lost if lawyers do not act quickly to request it as police often have poor retention periods and video evidence is often destroyed when not sought by defence in a timely manner. Once the video was received, it was clear that the client was strip searched. The matter was scheduled for trial and a Charter application was prepared seeking the exclusion of the drugs based on the breach of the client’s right to not be unreasonably searched by police. Once the Federal Crown received the Charter Application and reviewed the law and materials provided by the defence, the Crown agreed that the case should immediately be stayed. 

THE RESULT

Our client was facing significant penitentiary time for a charge of possession for the purpose of trafficking fentanyl. Due to our understanding of the Charter of Rights and Freedoms, an application was prepared that was so strong that the Crown conceded the breach and stayed all of the charges.