R v Gessen: Stripping the Police of Harmful Systemic Practices - Bruna Maciel

Introduction

The Manitoba Court of King’s Bench recently released a decision that reveals to any police enforcement skeptics that officers of the Winnipeg Police Services (“WPS”) do, in fact, follow policy very closely. There is a catch, of course. The policy followed by the police officers entailed practices that were deemed by the Supreme Court of Canada, over 20 years ago, to constitute breaches of an individual’s Canadian Charter of Rights and Freedoms (“Charter”) rights.[1]

In R v Gessen (“Gessen”), Mr. David Gessen, charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime, sought to exclude, under s. 24(2)of the Charter, evidence of drugs, money and drug paraphernalia collected from a warranted search. He submitted that the evidence found in the searches should be excluded because the police violated his rights under s. 8 and s. 10(b). Because police officers closely followed WPS policy in this case, Mr. Gessen was able to achieve the desired exclusion.[2]

Background of R v Gessen

On March 17, 2017, police obtained warrants to search two apartment suites in Winnipeg, based on information that Mr. Gessen was the head of a drug network trafficking in crack cocaine. Upon executing the warrants, police found drug-packaging materials, several cell phones, over $12,000 in cash, crack cocaine with a street value of $55,000, small amounts of other drugs, sim cards, digital scales, score sheets, a cash counter, a safe containing about $85,500 and a laptop.

Sgt. Douglas Onagi, who was in charge of monitoring the scene and overseeing the execution of the search warrants, along with other officers, followed Mr. Gessen into the apartment building’s parkade and arrested Mr. Gesser. Cst. Sean Prawdzik, who took over custody of Mr. Gessen in the parkade, did a pat down search of Mr. Gessen and advised him of his right to counsel, to which he said he wanted to exercise by talking to his lawyer. At police headquarters, Mr. Gessen underwent a second pat-down search conducted by Cst. Prawdzik, and it did not stop there. Mr. Gessen was also subjected to a strip search conducted by Cst. Prawdzik, who testified at trial he could not recall details of the strip search and had no notes of it other than that nothing was found. Cst. Prawdzik testified that the reason he strip-searched Gessen was because it was police practice to strip-search everyone who is arrested for a drug charge.[3]

Although Mr. Gessenhad asked to speak to his lawyer, Cst. Prawdzik did not facilitate access to counsel because it was police practice to delay access until the search was completed. Sgt. Onagi testified that this was, indeed, police policy—it was always the practice when he was with the WPS, and it was still the practice when he retired in the summer of 2022.Cst. Ray, who assisted in the arrest, also testified that strip searching and delaying access to counsel was the usual practice in such circumstances. He claimed that the policy had recently changed, and police are now required to have reasonable grounds to justify a strip search and accused individuals are given access to counsel as soon as they go through central processing. Could this be because of the attention brought to the issue by this case’s voir dire?[4]

Ultimately, the court held that the strip search and delay in access to counsel breached Mr. Gessen’s s. 8 and 10(b) rights, and excluded the evidence collected under the warranted searches given that its admissibility would bring the administration of justice into disrepute. Justice Greenberg noted that “the Charter breaches in this case were part of systemic practices that endured for years.”[5] Although the Supreme Court of Canada (“SCC”)decision in Golden outlined limitations to the power of police officers to perform strip searches in 2001, the practice of routine strip searches by the WPS endured long after.[6] Similarly, the practice of delaying access to counsel remained years after the SCC held that, in the absence of police or public safety concerns, access to counsel must be given immediately after detention.

As evidence at trial suggested that the policy of the WPS has recently changed, this case might not reflect current policies. However, it a) reflects that individual officers do not always adapt their practice to adhere to new policy, and b) exposes how deeply rooted harmful policies can become within the criminal justice system, even long after having been denounced by the courts.

Harmful Practices Linger in Law Enforcement, Correctional Services, and Beyond

In June 2022, the Canadian Civil Liberties Association (“CCLA”) launched a constitutional challenge to Ontario’s law governing strip searches in Ontario prisons. Ontario’s Ministry of Correctional Services Act[7] and its regulations grant administrative officials power to authorize strip searches under any circumstances—no justifications needed.[8] The CCLA argues that “we need clear, strong laws constraining the use of this power to prevent abuse and unnecessary trauma.”[9] It appears that a powerful entity can get away with unconstitutional policies until litigation shines a light directly on said entity.

Inconsistent implementation of policies and continued use of denounced practices are seen across professions. Lawyers and judges can also maintain outdated policies within their work in the courts. For example,in “A Saskatchewan Contribution to Enduring Inconsistencies in Bail Law”[10], Kane Fritzler argues that despite recent guidance from the SCC in R v Antic[11] (“Antic”) and R v Zora[12] (“Zora”), the province of Saskatchewan continues to contribute to an inconsistent approach to bail law. According to Fritzler, the decision in R v Raheem-Cummings[13] (“Raheem-Cummings”) showed a failure to abide by the guidance of the SCC by implementing conditions, such as the “abstain” and “keep the peace conditions” without consideration of their scrutiny in Zora, and without consideration of the cumulative effect of all conditions. While it is fortunate that some trial-level decisions like Gessen can shine a light on inconsistent policy practices within law enforcement, decisions like Raheem-Cummings remind legal practitioners to look in the mirror for similar behaviour.

Conclusion

A strong body of case law regarding strip searches and right to counsel did not affect WPS policy for over 20 years. This is evidence that systemic changes are slow coming and until there is a meaningful change in the mentality of individuals within a group, system-wide policy changes will not be enforced, individuals’ rights will continue to be violated, accused will continue to walk away from serious criminal charges despite reliable evidence, and the public will continue to have mistrust in the police.

[1] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act,1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11. [2] R v Gessen, 2022 MBKB 210. [3] Ibid. [4] Ibid. [5] Ibid at 44. [6] R v Golden, 2001 SCC 83. [7] Ministry of Correctional ServicesAct, RSO 1990,c M.22. [8] “Strip Searches in Ontario Prisons”, online: Canadian Civil Liberties Association <https://ccla.org/major-cases- and-reports/strip-searches-in-ontario-prisons/> [perma.cc/3GAZ-8AYM]. [9] Ibid. [10] Kane Fritzler, “A Saskatchewan Contribution to Enduring Inconsistencies in Bail Law” (2 February 2022), online: Law Society of Saskatchewan <https://www.lawsociety.sk.ca/saskatchewan-law-review-articles/a-saskatchewan- contribution-to-enduring-inconsistencies-in-bail-law/> [perma.cc/7DJ4-L7FZ]. [11] R v Antic, 2017 SCC 27. [12] R v Zora, 2020 SCC 14. [13] R v Raheem-Cummings, 2020 SKQB 342.