SIU Concludes Strip Search Investigation in Toronto
Case Number: 13-TSA-029
Mississauga (23 August, 2013) --- The Director of the Special Investigations Unit (SIU), Ian Scott, has concluded that there are no reasonable grounds to charge a Toronto Police Service (TPS) officer with any criminal offence in relation to the strip search of 25-year-old Ohene Darteh in September of 2010.
This matter was referred to the SIU by the TPS on January 30, 2013 after Mr. Darteh’s lawyer complained to the TPS that her client was sexually assaulted during his arrest on September 1, 2010 by Constable Irwin Correa. A Charter application was heard at Mr. Darteh’s trial on a charge of possession of cocaine for the purpose of trafficking. The application to exclude the evidence of cocaine found in a police cruiser proximate to the complainant’s arrest was heard before Mr. Justice Brian O’Marra of the Superior Court of Justice in 2012 leading to a decision released on January 23, 2013. In that decision, O’Marra J. acceded to the defence application and found that the police had breached Charter protections against unreasonable search and seizure and arbitrary detention. As a result, he excluded the evidence and Mr. Darteh was acquitted of the cocaine related charge. That decision is reported at 2013 ONSC 233.
In his decision, O’Marra J. made findings of fact on which the SIU is relying to determine whether there are grounds to lay a charge of sexual assault. The trial judge accepted the following version of events leading to the defence’s successful Charter application. Mr. Darteh was riding his bicycle in the St. Clair and Runnymede area of Toronto in the early afternoon of September 1, 2010. Cst Correa and witness officers Csts Jason Uher and Shaun Roy from the Toronto Anti-Violence Intervention Strategy were in the vicinity. Mr. Darteh was motioned over by Cst Correa who accused him of riding his bicycle on a pedestrian crosswalk, an assertion Mr. Darteh denied. All three officers got out of their van. Csts Uher and Roy each held one of the complainant’s arms while Cst Correa asked him if he had anything on him. He replied ‘no’, and Cst Correa asked him to lift up his shirt. Mr. Darteh complied with the request.
In the words of the trial judge, at para 17 of his decision, the following events ensued:
Mr. Darteh claims that Officer Correa then grabbed and pulled his shorts and underpants down to his ankles. He felt disgraced and wondered why this was happening. He says the officers laughed at him. He was exposed naked below the waist for about one minute.
At para 58, O’Marra J. stated that he accepted Mr. Darteh’s evidence on this point:
The most serious allegation made by Mr. Darteh is that he was subjected to an unlawful and humiliating strip search in a public place in daylight. Based on the significant findings of credibility I have made I accept Mr. Darteh’s evidence. The conduct of Officer Correa in particular was intimidating, overbearing and oppressive. Despite his denials I find he was in fact conducting a drug investigation from the outset. When Mr. Darteh denied having anything in possession Officer Correa told him to lift his shirt. He then proceeded to pull down Mr. Darteh’s shorts and underwear. That constituted an egregious violation of s. 8 and s. 9 of the Charter.
In his decision, Director Scott said, “In essence, Cst Correa with the assistance of two other officers pulled down Mr. Darteh’s shorts and underpants in broad daylight in a public area without his consent, exposing his buttocks and genitals for approximately one minute while the officers laughed at him.
“There would appear to be no justification for this strip search. According to the TPS Policy and Procedure Manual on Search of Persons, ‘due to the high degree of intrusiveness of this type of search, it shall only be conducted when it is reasonable and necessary, considering the purpose and the grounds that exist at the time, which justify the search.’ Given the trial judge’s finding that this search was an ‘egregious’ violation of s. 8 and s. 9 of the Charter, this strip search was neither reasonable nor necessary. Further, even it were justified, it breached the TPS directive on Level 3 searches by not taking place in a private area.
“Even though this strip search was a violation of the Charter rights of Mr. Darteh, and breached the provisions of the TPS directive on searches, does it amount to reasonable grounds for believing that a sexual assault occurred? While it would appear that Cst Correa intended to embarrass the complainant by pulling his pants down, I am of the view that his actions, while deplorable, do not amount to an intrusive enough level of violation of Mr. Darteh’s sexual integrity to found a charge of sexual assault. Further, there is no suggestion that his genitals were touched by any of them. All in all, I do not have reasonable grounds to believe that the actions of Cst Correa amounted to a sexual assault even though he was actively engaged in humiliating Mr. Darteh. It is up to Toronto Police Service to pursue disciplinary charges against Cst Correa and the other involved officers if it so chooses.”
The SIU is an arm’s length agency that investigates reports involving police where there has been death, serious injury or allegations of sexual assault. Under the Police Services Act, the Director of the SIU must
- consider whether an officer has committed a criminal offence in connection with the incident under investigation
- depending on the evidence, lay a criminal charge against the officer if appropriate or close the file without any charges being laid
- report the results of any investigations to the Attorney General.
SIU Communications/Service des communications, UES
Telephone/No de téléphone: 416-622-2342 or/ou 1-800-787-8529 extension 2342