Toronto Police had no authority to look where the sun don’t shine.
Strip searches are supposed to be done in only restricted situations — yet it seems a sergeant in Scarborough still hasn’t read the memo. And now an alleged drunk driver is off the hook.
Stop us when this story sounds a little repetitive: Another drunk driving charge thrown out in the GTA after a judge finds police violated the accused person’s Charter rights. In the past several months, these constitutional breaches have included the rights to counsel and interpreters.
This time, it was an unauthorized and invasive strip search of Kimberly Bruce, a young woman who failed a roadside breath test after she was alleged to have been found unconscious and slumped over her steering wheel in a live lane in Scarborough at about 6 a.m. on May 15, 2016.
“I am persuaded on this evidence that the officer-in-charge lacked reasonable and probable grounds to order a level 3 search, resulting in a serious infringement of the defendant’s security and privacy interests,” ruled Ontario Court Justice Lawrence Feldman. “The humiliation and loss of dignity was unnecessary and egregious.”
As a result, the Scarborough judge excluded her over-80 breath readings of 135 mg and 130 mg per 100 ml of blood and dismissed the charge against her.
“What ultimately settled the issue was that the officer in charge of the station did not have a grasp of the Toronto Police Service policy when it comes to these matters,” says her lawyer Peter Dotsikas. “A level 3 strip search involves the removal of all clothing and bending over. It can be humiliating and upsetting.
“She had no criminal record, no outstanding charges. There was absolutely no basis to do it.”
According to the judgment, a driver came up behind Bruce at the intersection of Nielson Ave. and McLevan Rd. and witnessed her car standing still through two light changes. He honked twice and got no response. When he pulled up beside her car and saw her slumped over the wheel, he called 911.
Const. Vernon Colaco arrived and also couldn’t rouse the driver. He had a firefighter break the rear passenger window and said he noticed a strong smell of alcohol and marijuana. Bruce could barely talk and couldn’t produce her documents when asked.
After failing the roadside breath test, Colaco arrested Bruce and drove her to 41 Division for a breathalyzer. During the booking process, he recommended only a pat down search. “He felt a level 3 search was unnecessary, even though a small amount of marijuana had been found,” the judge wrote approvingly. “He noted (she) was cooperative, had no criminal record and was to be handcuffed to a bench in the report room. He felt it improbable she had hidden more drugs on her person.”
But he was overruled by the officer in charge, Sgt. David Zebeski.
“Sgt. Zebeski felt that drinking and driving indicated poor decision-making of a kind that meant this defendant might also choose to hand out marijuana to other detainees,” the judge wrote, tongue firmly in cheek. “It is unclear if the officer contemplated her doing so while handcuffed to a bench or in a cell by herself, usually the case with female prisoners.”
Bruce then had to strip naked in the police station and undergo a degrading 12-minute search by a female officer.
After years of criticism, current Toronto Police protocol only allows a level 3 search if there’s strong reason to suspect the person is hiding evidence, a weapon or drugs or alcohol, with heightened safety concerns when they’re to be placed in cells with other prisoners and could hand off contraband.
“There is no evidence that was the case here,” noted Feldman. “Sgt. Zebeski’s wish to ensure there were no more drugs was of a general nature and likely routine.”
But you can’t just order routine strip searches. So given the violation of Bruce’s constitutional rights, the trial judge excluded the breath evidence against her “in order to dissociate the court from the conduct here and to preserve public confidence in the administration of justice and the rule of law.”
And so an alleged drunk driver goes free.
Source:: Toronto Sun – Movies