A 13-year-old Toronto boy arrested last year for allegedly bringing a loaded .38-calibre handgun to school in his backpack walked free from court Monday, with all charges stayed, after a provincial court judge ruled that an “egregious” strip search by police had breached his constitutional rights.
It was not that a search in and of itself was improper, Justice David Cole ruled.
Nor did he suggest that the charges – possession of a firearm, possession of ammunition, careless storage of a firearm and assault – should not have been laid after the boy was arrested last April at Oakdale Park Middle School.
Rather, what troubled the judge was that in violation of procedures laid out by the Supreme Court of Canada in a landmark decision 13 years ago, the boy was stripped naked after he was brought to the 31 Division police station and searched.
Citing long-established police protocol, the top court ruled that “although the search involves the removal of all clothing, it should be done in such a way that the person is never completely undressed.”
The correct way for clothing to be removed, Judge Cole concurred, is piece by piece, then examined and returned, so the suspect is spared the humiliation of being stripped naked in full view of anyone watching.
Toronto police protocol calls for that procedure, the judge wrote, but it was not followed here, and there have been other instances where the rules were broken.
“Leaving a 12 1/2 year-old naked in violation of expressly mandated policies prohibiting such official behaviours is not what we expect,” he ruled.
“And the repetition found by courts to have occurred with other young persons over the past decade is particularly troubling.”
Although charges that are stayed can theoretically be revived by the Crown within a year, the fact that these were stayed by a judge makes that unlikely.
The case stemmed from a fist fight between the boy, whose identity is shielded by the Youth Criminal Justice Act, and another student at Oakwood Park, in the city’s north end.
Teachers intervened, went through his backpack, discovered the loaded gun and called police.
School principal Craig Crone subsequently dispatched a letter to parents telling them that an “urgent situation” had arisen, and that school safety was a priority, without mention of the gun.
Monday’s judgment was delivered in a near-empty courtroom on Finch Avenue West.
Clearly relieved, the boy and his mother listened attentively as the judge tempered his ruling with a stern lecture on the seriousness of the criminal charges and the folly of having anything to do with guns.
“They do not make you cool, they do not make you powerful, they do not make you into a tough guy,” Judge Cole said.
“Quite the reverse. ... Be smart, make the right choices, leave guns alone.”
Outside court, defence lawyer Tyler MacDonald said the ramifications of the judge’s decision reach well beyond his young client.
“It was the right ruling in these circumstances,” he said,
“I’ve been doing this for a few years and the issue of strip searches and when police execute them on people is alive and seriously needs to be dealt with ... Sometimes it takes the case of a child being strip searched by the police to bring this to light.”
Justice Cole’s ruling feeds into a long-simmering debate on strip searches. The Toronto Police Services Board and four uniformed officers are the target of a current lawsuit in which an accused shoplifter claims that she was similarly humiliated.
The procedure also drew fierce criticism during the mass arrests that accompanied the G20 summit in 2010
Long-time police critic and former city mayor John Sewell said recently that the number of strip searches carried out by Toronto police has increased substantially in the past decade.
This was not the first time guns had intruded on the 550-student school, near Jane Street and Sheppard Avenue.
Five months earlier, a 14-year-old girl was wounded by a flying bullet as she walked past.
And in his remarks to the boy, Justice Cole made clear he did not view the charges lightly.
“It is of grave concern where guns are found in the schools and threaten the safety net for all involved,” he said.
“As such, although your case is being stayed, nevertheless the circumstances of you being before the court should not be minimized or misunderstood.”