Strip searches of girls accused in fatal swarming attack were unconstitutional, judge rules

CBC

16-05-2025

An Ontario judge has ruled that repeated strip searches of teen girls accused in the fatal swarming of a homeless Toronto man were unconstitutional.
Four of the eight girls accused in the attack on 59-year-old Kenneth Lee in downtown Toronto two years ago sought to have the charges against them stayed before their criminal trials would begin, arguing the searches that happened while the girls were in detention violated their rights.
In reasons released Friday, Ontario Superior Court Justice Philip Campbell found that the strip searches violated the girls' right to be secure from unreasonable search and their right to security of the person under the Charter.
But he decided that rather than granting the stay, a remedy for those violations would be to reduce the sentences of those found guilty in the case.
The four applied for a stay of proceedings in January as two of them were about to face trial before a judge alone, each on a charge of second-degree murder.
The stay was denied, but neither the arguments nor the outcome could be reported on at the time because the other two involved in the application were set to face a jury trial in May, one on a charge of second-degree murder and the other on a charge of manslaughter.
Motions argued before a jury trial are typically covered by a publication ban meant to preserve the accused's right to a fair trial.
However, both girls facing a jury trial pleaded guilty to lesser charges — one to assault and the other to manslaughter — before the proceedings began, meaning the information can now be shared.
One of the girls in the judge-alone trial is awaiting a verdict in late May. The other was sentenced to 15 months of probation on Friday after pleading guilty to manslaughter.
Teen said searches were 'highly traumatic'
In his written reasons, Campbell said that although the strip searches were unlawful, he was not persuaded by the applicants' argument that nothing less than a stay would prevent future unconstitutional strip searches.
"I believe that a sentence reduction — and the prospect of more such reductions if reforms are not implemented — will be effective in spurring constitutionally compliant strip search practices in youth facilities," he wrote in his decision.
The girls were taken to youth facilities after they were arrested in December 2022 and transferred to other facilities at various points while in detention. Court has heard they were strip searched on multiple occasions in a way that left them fully naked, which is against provincial rules.
The teen who was sentenced to probation on Friday wrote in an affidavit that the six strip searches she underwent while in custody were "highly traumatic" for her. Parts of her affidavit, which were included in Campbell's written reasons, described the impact of the searches on her body image.
"My experiences ... where I was made to undress at the demand of adult strangers, have worked to complicate further how I view myself," the girl wrote. "I am constantly thinking about how people view my body and wondering if I am being judged as a result of these experiences. It has negatively impacted my mental health and my relationship with my body."
She added that one of the searches took place after a visit with her family and despite missing them, the teen "asked them not to visit her again so as to avoid being strip searched another time."
WATCH | First teenager was sentenced in Kenneth Lee's death in September 2024:
1st teen sentenced in death of Kenneth Lee gets 15 months probation
8 months ago
Duration 4:11
The first teenager to be sentenced in the death of a Toronto homeless man will not face further time in custody and instead participate in a community-based program. The girl will serve 15 months of probation under an intensive support and supervision program.
The girls' lawyers argued the searches represented a serious violation of their Charter rights, including those to privacy and to life, liberty and security of the person, and warranted an equally serious remedy — a stay of their case.
They argued the searches were part of a "systemic pattern of non-compliance" with the provincial rules, one that would continue in the future unless something as drastic as a stay triggered a change.
"Every single girl in secure custody in Ontario is going to be strip searched without grounds," defence lawyer Boris Bytensky argued in January.
"It's a black eye to the system that we allowed this to happen to our girls," he said.
Search standards inconsistently applied, court heard
The Crown agreed the searches were conducted unreasonably, but argued a stay would be inappropriate given the seriousness of the allegations.
Court has heard the standards set out by the Ministry of Children and Youth Services allow routine strip searches under certain circumstances, including admission and return from court. An updated version that came into effect in 2018 requires that youth "not be completely undressed for any period of time."
However, three privately run facilities where some or all of the four girls were detained either allowed or required total nudity during strip searches, court heard.
One secure facility in Kingston, Ont., had a policy that required girls to undress, wrap themselves in a towel, then drop the towel, do a slow 360-degree turn and lift each breast, an administrator told the court.
Korinne Dale, director of residential services for the Sundance facility, said the entire agency misunderstood the language of the ministry standards for years, taking it to mean the nudity had to be brief.
"What was taught to me when I first started was that the statement 'for any length of time' was kind of like, 'don't leave the chicken on the counter for any length of the time because it'll go bad,"' she said.
"That's how it was presented and that's what everybody believed it to be. Now, how that came about, I have no idea."
The discrepancy was discovered in 2023, and the policy was then changed to forbid nudity, Dale said.
As of January 2024, girls undergoing strip searches are instructed to turn to face a wall and lift the back of the towel to show their buttocks, then turn back around and open the towel to show the front of their body, she said.
Dale said she believes the new policy complies with the ban on nudity "because they still have the ability to cover themselves, so they're not all naked in front of us."
A staff member at a secure facility in London, Ont., testified that when she conducted strip searches, she would offer teens a towel for privacy as they undressed but tell them that she needed to see their full front and full back unclothed at some point in the process.
Jolynne Vercouteren, who worked at the Woodview program run by Craigwood Children, Youth and Family Services, said she didn't consider her method — which she had learned during training — to contravene the ban on total nudity.
Some teens at the facility chose not to use the towel at all, possibly because it was difficult to undress while holding it, she said.
Vercouteren said she only learned last summer that the method clashed with the ministry standards and Woodview's policy. That came to light after she filled out a questionnaire sent by prosecutors to collect information on how strip searches were conducted at the facility, she said.
Afterward, she felt pressured by her supervisor to change her answer on the questionnaire, but told him she couldn't because that's how strip searches had been conducted at Woodview for some time, she told the court.
Craigwood closed permanently in March, according to its website.
Some girls were moved to avoid further searches
The fact that girls in the case were being strip searched was brought to the court's attention in 2023, and at one point, a judge moved some of the girls from a secure facility to an open one in Brampton, Ont., in an effort to avoid further strip searches, court heard.
When that facility suddenly became "inhospitable," all the teens detained there were flown in the middle of the night to another open facility in Kenora, Ont., court heard.
However, that facility, Creighton Youth Centre, also required them to undergo strip searches on admission, making it the only open facility in the province to do so, court heard.
Jennifer Fisher, a supervisor with the organization that operates Creighton, acknowledged that some of the girls objected to the searches but said they were told they couldn't enter the program without first going through that step.
One of the girls' demeanour "bordered on panic" when she realized a strip search was inevitable, the teen's lawyer suggested, but Fisher disagreed, describing the girl as angry and "pretty hysterical" even before that moment.
Creighton's procedures have youth take off everything but their bra and underwear, then hold up a towel to block staff's view before removing the rest, she said.
Staff never see anyone nude, even though the youth is fully undressed, she said.
When a defence lawyer suggested some girls ended up naked in front of staff because they couldn't hold the towel and undress at the same time, Fisher said she had in the past offered to hold the towel for any who were struggling.
Lawyers for the four girls argued the ministry had failed to notice that the facilities weren't complying with its standards, despite conducting regular inspections.
The other four girls charged in Lee's death pleaded guilty last year to lesser charges — three to manslaughter and one to assault with a weapon and assault causing bodily harm.