TORONTO — A man found with a significant amount of cocaine and heroin has had his case thrown out after a three-day trial because police strip-searched him on the side of a highway and delayed his access to a lawyer.
In his decision, Ontario Superior Court Justice Cary Boswell excluded incriminating evidence because officers violated Robert Cave's constitutional rights.
"I appreciate that police officers have dangerous jobs," Boswell wrote. "(But) there were steps the police could have taken to ensure their safety, short of pulling down Mr. Cave's pants at the roadside."
Court documents show Cave was arrested in November 2017 in Barrie, Ont., when Det. Const. Jason Breedon, acting on information about a suspected drug trafficker, stopped the vehicle Cave was in. A police check turned up information that Cave was considered "armed and dangerous," even though he had no criminal record and no outstanding charges.
At one point, Breedon noted a bulge in the crotch-area of Cave's pants. While the officer and suspect offered contradictory evidence about whether the subsequent search was consensual, Breedon and another officer pulled down Cave's pants — but not his underwear — to his thighs as he stood by the police vehicle.
They found a sock containing cocaine tucked inside his boxer shorts.
The officers testified the search took only a few seconds and said Cave was never exposed to members of the public.
In his analysis, Boswell found Cave's arrest legal and the search of the truck he was in justified. In addition, the judge said, the bulge the officers observed in Cave's crotch area warranted further investigation for weapons or drugs.
"Where I have a difficulty is the manner in which the search was conducted," the judge said. "I am not satisfied that there were sufficiently exigent circumstances present to justify a roadside strip search."
While the search of the handcuffed suspect was brief and involved male officers who did not touch his private parts, Boswell nevertheless found it violated Cave's rights.
"I do not find that Mr. Cave consented to having his pants pulled down on the side of the road," Boswell wrote. "The manner in which the search was conducted was not discrete."
Cave testified he felt intimidated and humiliated and Boswell said he accepted the testimony.
The Supreme Court has made it clear strip searches are highly intrusive and humiliating, and need to be done carefully. Courts have since repeatedly stated the importance of ensuring such searches be carried out in maximum privacy.
Boswell also found police further violated Cave's rights by delaying his access to a lawyer for about 90 minutes after the arrest.
"Society's interest in the adjudication of this case on its merits must give way in this instance," Boswell wrote. "Permitting the admission of the evidence seized from Mr. Cave, in light of the numerous charter breaches I have identified, would tend to bring the administration of justice into disrepute."
The Canadian Press first published this article on Dec. 10, 2019.
Colin Perkel, The Canadian Press