R. v. Poirier (J.M.C.), (2016) 350 O.A.C. 335 (CA)

• Judge: Weiler, Simmons and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 25, 2016
• Jurisdiction: Ontario
• Citations: (2016), 350 O.A.C. 335 (CA);2016 ONCA 582

R. v. Poirier (J.M.C.) (2016), 350 O.A.C. 335 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JL.024

Her Majesty the Queen (respondent) v. Jeffrey Michael Charles Poirier (appellant)

(C60530; 2016 ONCA 582)

Indexed As: R. v. Poirier (J.M.C.)

Ontario Court of Appeal

Weiler, Simmons and Epstein, JJ.A.

July 20, 2016.

Summary:

The police obtained a general warrant to detain the accused, an addict and suspected drug dealer, until he had a bowel movement, to pass packages of drugs (i.e., to conduct a "bedpan vigil search"). The accused was arrested and taken to a police lockup where he was read the terms of the warrant, strip searched and placed in a special "dry cell" with no running water or usable toilet, meaning that when he wanted to go to the bathroom, he would have to tell police, who would then take him to a commode so police could monitor his excretions. The accused spoke to counsel. In all, the accused was detained at the police station for a total of 43 hours before being brought before a justice of the peace. For the first 21 to 22 hours, he was handcuffed to the bars of his cell above his head and he could only reach as low as his chest. During the last half of his detention, he was not chained to the bars of his cell. For approximately nine hours, he was provided with oven mitts to wear over his hands, which were duct taped together. He continued to be handcuffed. Within the first 24 hours of his detention, the accused eliminated three packages of drugs from his rectum, containing crystal methamphetamine and heroin. After the accused excreted a fourth and final package of drugs around 8:30 p.m., and about 30 hours after his initial detention, the police were satisfied he had no more drugs in his rectum, and they removed the handcuffs and oven mitts from his hands. He was brought before a justice of the peace the next morning. Over the period of his detention, the accused underwent severe withdrawal symptoms because of his addiction. Except for police supervision, no provision was made for his condition to be monitored. At his trial, the accused brought a Charter application to exclude the drugs from admission into evidence under s. 24(2). He alleged that the general warrant was unlawful and that he had been subject to arbitrary detention and imprisonment under s. 9 of the Charter, that the manner in which the bedpan vigil search was carried out violated his rights under s. 8, and that his right to security of the person had been violated under s. 7. The trial judge held that the accused's Charter rights were not violated and that, even if they were, he would not have excluded the evidence. The accused was convicted of possession for the purpose of trafficking heroin (1.5 ounces), cocaine (7 grams), and crystal methamphetamine (2 ounces). The trial judge also found the accused guilty of simple possession of a small quantity of hydromorphone. The accused appealed.

The Ontario Court of Appeal allowed the appeal. The court held that a bedpan vigil search was a "search" that could be authorized by a general warrant under s. 487.01 of the Criminal Code and constituted a "search" within the meaning of s. 8 of the Charter. The fact that detention of the individual was necessary to conduct a bedpan vigil search did not, in itself, make the warrant invalid. In this case, however, the warrant was invalid because the language purported to authorize detaining the accused indefinitely without bringing him before a justice of the peace, thereby violating s. 503 of the Criminal Code. The court also rejected a submission by the Crown that the search was nevertheless valid as a common law search incidental to arrest. The court concluded that the manner in which the search was carried out was a flagrant breach of the accused's rights under s. 8 of the Charter and aggravated by the police indifference to his rights under s. 7. Further, the failure by police to bring the accused before a justice of the peace without delay as required by s. 503 of the Criminal Code constituted arbitrary detention contrary to s. 9 of the Charter. The court stated that a violation of s. 503 had to be viewed as an arbitrary detention whether the failure to comply with s. 503 was deliberate or simply neglectful. As a result of the Charter breaches, the drug evidence was excluded under s. 24(2). The court set aside the convictions and acquitted the accused on all charges.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Bedpan vigil search - See paragraphs 64 to 89.

Civil Rights - Topic 1219

Security of the person - Lawful or reasonable search - Search defined - Bedpan vigil search - See paragraphs 29 to 50.

Civil Rights - Topic 1403

Security of the person - Law enforcement - Search warrants - See paragraphs 29 to 50.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - Hair and bodily fluid samples (incl. saliva) - Bedpan vigil search - See paragraphs 29 to 89.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 90 to 96.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - See paragraphs 51 to 63.

Criminal Law - Topic 3048.1

Special powers - Search warrants - Validity of - Interference with bodily integrity - Bedpan vigil search - See paragraphs 29 to 50.

Criminal Law - Topic 3219

Compelling appearance, detention and release - Arrest - Appearance of accused before judge or justice of the peace - See paragraphs 51 to 63.

Police - Topic 3185

Powers - Search - Following arrest or detention - See paragraphs 64 to 89.

Counsel:

Matthew Gourlay and Christine Mainville, for the appellant;

Croft Michaelson, Q.C., for the respondent.

This appeal was heard on April 25, 2016, before Weiler, Simmons and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Weiler, J.A., on July 20, 2016.