Indexed as:
R. v. Mattis

Between
Her Majesty the Queen, respondent, and
Elizabeth Mattis, applicant/accused

[1998] O.J. No. 4332

Ontario Court of Justice (Provincial Division)
Bigelow Prov. J.

October 29, 1998.
(10 pp.)

   Narcotic control — Offences — Trafficking — Possession for purposes of trafficking — Possession of narcotic offences — Evidence and proof — Criminal law — Procedure — Verdicts, discharges and dismissals — Dismissal — Civil rights — Security of the person — Lawful or reasonable search — Strip search — Cross gender searches — What constitutes unreasonable search and seizure — Canadian Charter of Rights and Freedoms — Denials of rights — Remedies, exclusion of evidence.

   Trial of Mattis on charges of trafficking, possession of cocaine for purposes of trafficking, and possession of drug trafficking proceeds.  Mattis applied for the exclusion of evidence obtained in a strip-search.  Two officers observed Mattis accept money and give something to a woman.  Later, cocaine was found with the woman in a taxi.  Later, a third officer had seen Mattis exchanging something with two men. After her arrest, Mattis was strip searched in the presence of male police officers.  She was reluctant but physically aggressive. She was not warned about the consequences of refusing to cooperate or about male involvement in the search. At trial, she argued that evidence from the search should be excluded as the search violated her right against unreasonable search and seizure in section 8 of the Canadian Charter of Rights and Freedoms.  The police and Mattis had contradictory evidence about the observed exchanges.  Mattis admitted to purchasing a small amount of cocaine from the woman; but, she denied having sold or given anything to two men when she spoke with them.  She argued that money found in the taxi indicated that the woman was a trafficker, and that any money Mattis had on her was from family benefits payments or her boyfriend. Also, the two officers' notebooks were identical although they claimed they had prepared them separately.

   HELD:  The charges were dismissed and the evidence from the search was ordered excluded.  Involvement of male officers made the search unreasonable and was a serious Charter breach. Excluding the evidence would not bring the administration of justice into disrepute.  Although Mattis refused to comply, she did not attack anyone.  No effort was made to find other female officers, or to advise Mattis of the results of her failure to cooperate.  A brief delay in the search to do these things would not have endangered the officers or the evidence. The female officers had no immediate concerns for their safety or for the immediate loss of evidence.   Absent confirming evidence, it was dangerous to base a guilty finding on the two police officers' evidence.  The copied notebooks, the lack of any explanation as to how this occurred, and the lack of specific recollection by both officers had a significant impact on the reliability of the evidence.  Absent confirmation of that evidence, it was unsafe to base a conviction the two officers' evidence.  The other potentially corroborative evidence was equally consistent with both the Crown's and Mattis' evidence.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 24(2).

Counsel:

 

R. Rusonik, for Ms. Mattis.
G. Lennox, for the Crown.

 


 1      BIGELOW PROV. J.:— Ms. Mattis is charged with the offences of trafficking in cocaine, possession of cocaine for the purpose of trafficking and possession of the proceeds of drug trafficking, to wit $348.25.  She elected trial in the Provincial Division.  Defence counsel has brought an application pursuant to section 24(2) of the Charter of Rights for the exclusion of certain evidence as a result of an alleged breach of his client's rights to be free from unreasonable search and seizure.  It was agreed that the evidence called at trial would apply to both the Charter Application and the trial proper.

1.  The Charter Application

 2      The basis for the Charter Application is the manner in which Ms. Mattis was strip searched after her arrest.  Counsel does not take issue that in the circumstances a strip search was lawful in and of itself.  However, he argues that the presence of male police officer(s) during the search made an otherwise lawful search unlawful.

a.

 

The Facts

 

               i.  Crown Evidence

 3      The Crown's evidence concerning the strip search came from a number of police officers.  Officers Peters and Hughes, both female officers, indicated that after the arrest of Ms. Mattis she was placed in an interview room and told to remove her clothing.  She was initially "uncooperative and argumentative" [See Note 1 below] but did remove her clothing. She was then told to turn around and bend over.  She refused to do this and backed herself up against a wall.  The two officers approached her and she pushed them away.  Officer Hughes grabbed her by the arm and Officer Peters called for assistance.  The evidence is unclear as to exactly what Officer Peters said and as to how many officers entered the room after her call for assistance.  However, it is clear that at least one male officer entered the room and on his evidence he grabbed either Ms. Mattis' arm or leg and assisted in taking her to the ground.  [See Note 2 below] Officer Hughes indicated that the period of time from when she and Officer Peters entered the interview room until Ms. Mattis was taken to the ground was "a matter of a minute or two."  [See Note 3 below]


   Note 1:  Evidence of T. Hughes, transcript of the evidence Oct. 1, 1998, p. 95.

   Note 2:  Evidence of J. Birrell, transcript of evidence October 1, 1998, pp. 68-69.

   Note 3:  Evidence of T. Hughes, transcript of evidence October 1, 1998, p. 97.


 4      No attempt was made to determine if there were other female officers available to assist Officers Peters and Hughes.  As well I beard no evidence of any explanations given to Ms. Mattis with respect to the potential consequences of her refusal to cooperate in a strip search.  In particular I heard no evidence of her being warned that if she refused to cooperate, she would be physically forced to cooperate or that male officers could become involved in the search.

               ii.  Defence Evidence

 5      The defence evidence on the application consisted of that of Ms. Mattis.  She indicated that after her arrest she was placed in an interview room and told to remove her clothing.  At that time there were two female officers and one male officer present in the room and the door was open.  She did remove her clothing but when told to turn around and bend over, she refused because she was frightened.  One of the police officers called for assistance and a number of male officers entered the room and she was thrown to the ground and her legs were spread.  She admitted that she had a small piece of crack cocaine which she had purchased earlier that evening held between the cheeks of her buttocks.  The piece of crack was smaller than a pea.

       b.   The Law

 6      During argument I suggested to counsel that the law with respect to the manner in which a strip search of a woman should be carried out was as suggested by Madam Justice Arbour in the Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston although that report dealt specifically with strip searches of women in the penitentiary context.  Both counsel were of the view that the law as set out by Madam Justice Arbour was also applicable to a search of a woman incident to arrest as in the present case.

 7      In that report the law is summarized as follows:

 

Men may not strip search women.  The only exception is where the delay in locating women to conduct the search would be dangerous to human life or safety, or might result in the loss of evidence.  [See Note 4 below]

 


   Note 4:  Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, 1996, p. 58.


 8      In other words, the involvement of male police officers in the strip search of a woman is only acceptable where there are reasonable grounds to believe that there is some danger to the female officers involved in the search of the accused or to the accused herself or where there are reasonable grounds to believe that the failure to proceed with the search without the involvement of male officers would result in the loss of evidence.

       c.   Ruling

 9      In my view, it is not necessary to make findings of credibility with respect to the versions of the search put forward by the defence and the Crown.  In the present case the evidence of both Officers Hughes and Peters was that although Ms. Mattis was refusing to comply with their request, she was not attacking them.  She was trying to prevent them from forcing her to comply.  Neither officer indicated that they had any fear for their physical safety or that they were concerned about the immediate loss of evidence, nor is there any evidence before me which would support a reasonable belief that a brief delay in the search to advise Ms. Mattis of the potential consequences of her refusal to comply and to attempt to obtain the assistance of other female officers if necessary, would have resulted in either any danger to the officers or result in a loss of evidence.  Accordingly, I find that the involvement of the male police officers in the search of Ms. Mattis made the search unreasonable and a breach of her rights pursuant to section 8 of the Charter.

 10      Having found a breach of the Charter I must now consider whether the evidence found as a result of the unreasonable search should be excluded.  It is clear that the cocaine sought to be excluded is real evidence found as a result of the unreasonable search but would have been found in any event.  As indicated above counsel for Ms. Mattis did not raise an issue as to the authority to perform a strip search in and of itself but objected to the manner in which it was performed.  In R. v. Collins [See Note 5 below] the Supreme Court of Canada stated that in determining whether evidence should be excluded there are three types of factors to be considered:

1.

 

The fairness of the trial;

 

2.

 

The seriousness of the Charter breach; and

 

3.

 

Whether excluding the evidence would bring the administration of justice into disrepute.

 


 

 

Note 5:

(1987) 33 C.C.C. (3d) 1 (S.C.C.).

 


 11      The evidence is real evidence and would have been discovered absent the Charter breach and, therefor, would not effect the fairness of the trial.

 12      It is helpful in considering the issue of the seriousness of the breach to review the recent decision of the Ontario Court of Appeal in R. v. Flintoff [See Note 6 below]. That case dealt with the strip search of a male who had been arrested for impaired driving pursuant to a policy of the police that all persons brought into the station under arrest were required to be strip searched.  The issue before the Court of Appeal with respect to the search was whether it was a violation of section 8 and, if so, should the results of a breathalyser test be excluded.  The Court found a breach of section 8 and that the fairness of the trial would not have been effected by the introduction of the evidence, as I have, but also found that as a result of the seriousness of the violation the evidence should be excluded.  In commenting on the authority of police to conduct strip searches, the Court stated:

 

[S]trip searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power.  Though the common law allows the police to search a person incident to arrest, the degree of intrusion must be reasonable and in pursuit of a valid objective such as safety.  [See Note 7 below]

 


 

 

Note 6:

(1998) 126 C.C.C. (3d) 321 (Ont. C.A.).

 

 

Note 7:

Flintoff, op.cit, p. 333.

 


 13      The comments of the Court concerning the intrusive nature of a strip search of a male and the requirement for reasonable grounds, in my view, apply to the present case.  Certainly not only must there be reasonable grounds for the strip search but the search itself must be conducted in a reasonable manner.  Of particular note in this case are the comments of the LaForest, J. in Weatherall v. Canada [See Note 8 below], "the effect of cross-gender searching is different and more threatening for women than for men. [See Note 9 below]".


 

Note 8:

(1993) 23 C.R. (4th) 1 (S.C.C.).

 

 

Note 9:

At p. 8.

 


 14      In this case the police were aware of the need for a strip search of a woman to take place out of the presence of any males.  No effort was made to either determine if other female officers were available to assist, if required or to advise Ms. Mattis that if she did not cooperate, the officers would use force or that male officers could become involved.  On the evidence of the two female officers, there was no immediate concern about either their safety or the loss of evidence.  On the whole I find that the breach of section 8 involving the involvement of a male officer in the forced strip search of Ms. Mattis is of such seriousness that the evidence should be excluded.

 15      I am also of the opinion, as was found in Flintoff, that "a reasonable person, dispassionate and fully apprised of the circumstances of the case, would conclude that the seriousness of the Charter violation in this case overshadows the impact of the exclusion of the evidence on the administration of justice.  [See Note 10 below]


 

Note 10:

Flintoff, op. cit., p. 340.

 


 16      Accordingly the evidence found by the police during the strip search of Ms. Mattis is excluded.

1.

 

The Trial

 

 

1.

 

Evidence

 

               i.   Crown Evidence

 17      The evidence of the Crown consisted of the evidence of a number of police officers.  Officers Peters and Birrell stated that they had observed Ms. Mattis accept a sum of money from another woman and Ms. Mattis hand something to that woman.  A short time later a taxi, that the other woman was in, was stopped and a quantity of cocaine was found in the cab.  Officer Styler stated that shortly after the first alleged transaction he saw Ms. Mattis in conversation with two men, saw the men hand her some money and she then dropped something into each man's hand.  Neither of the men were arrested or identified.

 18      Officers Peters and Berrill whose evidence was clearly crucial to the Crown's case both stated that they had made up their notes of the events separately.  In cross-examination they both admitted that their notes with respect to that incident were identical save and except for some short forms of words used by Officer Peters in her notebook.  Neither were able to provide any explanation for how this could have occurred.

               ii.  Defence Evidence

 19      Ms. Mattis gave evidence on her own behalf.  She indicated that she in fact had purchased a small amount of cocaine from the woman on the street on the evening of her arrest, but had neither sold cocaine to anyone nor given anything to two males although she agreed to having spoken to two males.  Subsequently she had then done some window shopping and then was arrested.  She agreed that she had $348.25 on her person at the time of her arrest and indicated that she had received a family benefits payment the day before and had also received some money from her boyfriend.

       2.   Issues

 20      Obviously credibility is a major factor in this case.  Mr. Rusonik argues that there are significant concerns with respect to the credibility of the police witnesses.  As well Ms. Mattis has given evidence on her own behalf contradicting that of the police witnesses.

               i.   The Notebooks

 21      The only reasonable inference which can be drawn from the fact that the notebooks were identical is that one of the officers copied the notes of the other.  In the recent decision of R. v. Green [See Note 11 below] Malloy, J. commented on the importance of police officers preparing their notes independently:

 

[para19]  There are important reasons for requiring that officers prepare their notes independently.  The purpose of notes made by a police office is to record the observations made by that officer.  The notes themselves are not admissible as evidence for the truth of their contents.  An officer with relevant evidence to offer may testify at trial as to the act or observations made by him or her.  However, that officer is not permitted to testify as to the information received from other officers for the purpose of proving their truth.  Such evidence [is] hearsay and inadmissible.

 

 

[para20]  An officer's notes perform a valuable function at trial.  It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial.  Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best.  If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing" his or her own memory with observations made by someone else.  In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else written into the notes without attribution.

 


 

 

Note 11:

[1998] O.J. No. 3598 (Ont. Ct. Gen. Div.).

 


 22      The concerns raised by Malloy, J. are particularly relevant in the present case where it was clear that neither Officer Peters nor Officer Birrell had a clear recollection of the events and both wore relying heavily on notes in giving their evidence.

 23      Malloy, J. went on to comment on the effect of collaboration in the making of notes would have on the credibility of the testimony of police officers:

 

[para24]  The fact that officers have collaborated on their notes will always cause a trier of fact to give careful consideration to the reliability of that officer's evidence.  There will, however, be situations in which such collaboration, although not good police practice, will not undermine the testimony of the officers.  The extent to which the collaboration renders the evidence of the officers' unreliable will depend on the circumstances of each case and the explanation given by the officers.

 

In the present case no explanation was offered as to how the notebooks could be identical.  The obvious fact that the notebooks were copied combined with the lack of any explanation as to how this occurred and the lack of specific recollection by both officers has a significant impact on the reliability of the evidence.  Absent confirmation of that evidence in material particulars, it would be unsafe to base a conviction on it.

               ii.  Other Evidence

 24      Potentially corroborative circumstantial evidence would be the finding of the cocaine in the taxi and the evidence that, shortly after the alleged transaction observed by Officers Peters and Birrell, Ms. Mattis is seen to be accepting money from two men and dropping something into their hands.

 25      The position of the defence with respect to the finding of the cocaine in the taxi is that in fact the woman in the taxi was a trafficker and had sold cocaine to Ms. Mattis.  The defence points out that a significant sum of money was found in the possession of the woman in the taxi and her companion which could have been the proceeds of trafficking.

 26      The finding of the cocaine in the taxi is equally consistent with both the evidence of Officers Peters and Birrell and that of Mr. Mattis and is therefore of no assistance to the court.

 27      With respect to the alleged transaction with the two men, Officer Styler's evidence was that he observed the two males hand her what he "thought was cash.  [See Note 12 below]"  He described it as small tight little bundles.  He also indicated that it appeared that Ms. Mattis took whatever she gave to the males from her right coat pocket.  There was no evidence of anything being found in Ms. Mattis' right coat packet at the time of her arrest or thereafter.


 

Note 12:

Transcript of October 1st, 1998 at p. 106.

 


       3.  Judgement

 28      As indicated above absent confirming evidence, it would be dangerous to base of finding of guilt in this case on the evidence of Officers Peters and Birrell.  The remaining admissible evidence in my view does not sufficiently confirm their evidence to allow me to be satisfied beyond a reasonable doubt of Ms. Mattis' guilt.  Further, although I have significant concerns about her evidence, I am not prepared to completely reject it.  Accordingly, all three charges are dismissed.

BIGELOW PROV. J.

QL Update:  981104
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