Dolly's Case — Fraud (employer) — Submissions

8 September 2006

Ms K*** K***, Assistant Crown Attorney
Office of the Crown Attorney
College Park, 444 Yonge Street
Toronto, Ontario
M5B 2H4

Dear Ms K***:

Thank you for following up with me yesterday evening.

I take no issue with the grounds for arrest and the police authority to conduct a search incident to that arrest. The issue concerns the scope of the search conducted after the arrest. It is my position that no proper grounds have been demonstrated to justify the intrusive search that was, in fact, conducted upon Ms W.

The primary case I would be relying upon is R. v. Golden (2001), 159 C.C.C. (4th) 449 (Supreme Court of Canada), which held that strip searches are prima facie unreasonable, and that the Crown has the obligation of rebutting this presumption. The Court also held that the Crown has to explain why the search took place and why it was conducted in the manner and circumstances that it did. I quote here from pages 493-94 of the C.C.C. report:

In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.

In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe section 8 of the Charter.

Please find attached for your consideration the Golden case, as well as the following cases: R. v. S.F., [2003] O.J. No. 92 (Ont. C.J.) Katarynych J.; R. v. Agostinelli, [2002] O.J. No. 5008 (Ont. C.J.), Sheppard J.; and R. v. Flintoff (1998), C.C.C. (3d) 321 (Ont. C.A.) Finlayson J.A.

Thank you.

Yours sincerely,

Craig Penney

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