Legal Brief

Case Brief

---CASE NAME & CITATION---

R. v. Golden

Golden v. The Queen; Attorney General for Ontario et al.,

Interveners

159 C.C.C. (3d) 449

Supreme Court of Canada

Court File No. 27547

Mc Lachlin C.J.C., L'Heureux-Dube, Gonthier,

Iacobucci, Major, Bastarache,

Binne, Arbour and LeBel J.J.

February 15, 2001;

DECEMBER 6, 2001

---HISTORY---

Ontario Court (General Division), [1998] O.J. No. 5963 (QL)

Court of Appeal for Ontario, [1999] O.J. No. 5585 (QL)

---FACTUAL BACKGROUND---

On January 18, 1997 officers from the Toronto Police Force set up an observation post in an unoccupied building across from a Subway sandwich shop (approximately 70 feet away) in an effort to detect illegal drug activity in an area where trafficking was known to occur. Constable Theriault, observed a the accused (a black male) in the shop. The Constable testified that he had a clear view into the shop and saw two transactions in which persons entered the shop and received a substance from the accused.

After the second transaction, Constable Theriault communicated with the four other police officers involved in the operation who were not stationed at the observation post: the "take-down" members of the team. He gave them descriptions of the persons involved, including the accused. Given what he had witnessed, Constable Theriault believed the accused was trafficking in drugs, and he instructed the take-down officers to arrest the accused.

When the take-down occurred, the officers entered the shop and arrested the accused for trafficking in cocaine. Two other individuals in the shop were also arrested. During the arrests, Constable Ryan, one of the two officers who first entered the shop, and the officer who arrested the accused, observed the accused crushing what appeared to be crack cocaine between his fingers.

After the arrests, Constable Ryan conducted a pat down search of the accused and looked in his pockets. He didn't find any weapons or narcotics. This officer then decided to conduct a visual inspection of the accused underwear and buttocks. Constable Ryan obtained from the shop's employee the key to a door leading to the basement where public washrooms were located. On the landing at the top of the stairwell, Constable Ryan undid the accused pants and pulled the pants and long underwear back. Looking inside the accused underwear, he saw a clear plastic wrap protruding from between the accused buttocks, as well as a white substance within the wrap. the Constable testified that when he tried to retrieve the plastic wrap, the accused "hip-checked" and scratched him, almost causing the Constable to lose his balance and fall down the flight of fourteen stairs. The officer then pushed the accused into the stairwell, face-first.

Concerned the landing wasn't a safe place