Oh, S***! Court of Appeal Rules on One Man’s Bowel Movements and Charter Rights

Print This Post Print This Post

criminal law

In R. v Poirier [2016] ONCA 582 the Ontario Court of Appeal excluded the drugs excreted from Mr. Poirier’s rectum because of the manner of the police investigation that led to its discovery. Without that evidence, Mr. Poirier was acquitted of all charges.

Mr. Poirier was arrested after five confidential informants advised police that Mr. Poirier concealed drugs in his rectum until he made a sale. Police arrested him and obtained a general search warrant that authorized the following: Mr. Poirier was to remain detained by police unless and until he had a bowel movement that was to the satisfaction of the officers, and produced the drugs in question. This meant that every time Mr. Poirier had to use the washroom, he had to advise police, who would monitor and examine his excretions. After over 30 hours of detention, the police were finally satisfied and brought Mr. Poirier to court before a Justice of the Peace the following morning for bail. He excreted only three packages, containing crystal meth, heroin and cocaine.

Problem is, police seem to have forgotten about Section 503 of the Criminal Code of Canada (among other things), which remains fundamental: every person who is arrested must be brought before a Justice within 24 hours of their arrest without unreasonable delay. The Court of Appeal found that the search warrant was invalid on that basis alone: Section 503 is “mandatory and cannot be overridden by the terms of a general warrant.”

Also, police did not search Mr. Poirier in a manner that had as little impact as possible on Mr. Poirier’s rights and dignities— rights and dignities that are protected by the Charter. Mr. Poirier was strip searched in a room where the door was left open, and the entirety of the search was recorded on camera. He was left in a dry cell thereafter (meaning he had no access to water, a sink or a toilet). He was handcuffed to the bars in the cell. He was detained in this manner for over 21 hours. After 21 hours, his hands were placed in oven mitts, secured by duct tape that was wrapped around his wrists to prevent him from “accessing his rectal area.” He was still in handcuffs, though no longer chained to the bars of the cell. He was detained in that position for over eight hours. After those eight hours, he was taken out of the dry cell. His handcuffs were finally removed, but he was held overnight before taken to bail court the next morning.

I hope you are gasping at the outrageousness of such a detention.

.. police did not search Mr. Poirier in a manner that had as little impact as possible on Mr. Poirier’s rights and dignities— rights and dignities that are protected by the CharterIf you didn’t gasp, it’s probably because you’re thinking: ‘what’s the big deal? The police did what they had to do to get the drugs off the streets. This guy is clearly guilty.’ In all fairness, this line of thinking is partly accurate: Mr. Poirier was, technically speaking, guilty of possessing unlawful drugs. However, as the Court of Appeal held in this case, the police could have gone about this investigation more appropriately, and in line with his constitutionally protected rights. By not doing so, Mr. Poirier was acquitted of all charges.

What the police could have done was taken Mr. Poirier into bail court as soon as possible, in accordance with Section 503 of the Criminal Code, and asked for a three-day investigative detention for the purpose of monitoring Mr. Poirier’s excretions. The detention would have been court monitored.

The police could have also conducted the strip search in such a manner that Mr. Poirier’s dignity was preserved by simply ensuring that the door was shut behind them before they examined his naked body.

The police also could have used the oven mitt technique originally, a far less evasive but equally effective manner in which to prevent any tampering with possible evidence, the Court held.

The Court of Appeal also found that police must take reasonable steps to ensure the safety and security of the person in their custody— a duty which cannot be compromised for the sake of carrying out a search. For instance, the police were very much aware that Mr. Poirier was an addict: according to one officer, he was aware that Mr. Poirier would be suffering from withdrawal symptoms which would be “like getting the flu times ten.” And yet, a doctor was never contacted to assess Mr. Poirier, nor was even a simple offering of Tylenol provided to him.

The police also took no steps to determine what health risks could arise if a package were to break apart in his rectum.

Those who disagree with Mr. Poirier’s acquittal should point their fingers not at defence counsel, nor the Court of Appeal. Instead, the finger ought to be pointed at the police, for simply ignoring and defying our human rights law in such an egregious manner that could have been easily avoided. Had the police acted in accordance with The Charter, the Criminal Code, and our common law, Mr. Poirier would have almost certainly been found guilty of the charges he faced. In other words: if the police acted in good faith and followed the law, the Crown’s case wouldn’t have been flushed down the toilet.

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
About Melody Izadi

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.

A Publication of CPLEA