What were the prosecutors thinking?

By David M. Tanovich, Ottawa Citizen Special November 19, 2010

By now most people are familiar with the horrific experience of Stacy Bonds, the young woman who was arrested for effectively asking why she had been stopped and questioned by the police and then assaulted, strip-searched and detained half-naked for over three hours in a police cell. Her charge of assaulting police was stayed by Justice Richard Lajoie who concluded that there was no lawful authority for any of the conduct of the police that night and that what had happened to Bonds was an "indignity towards a human being."

While the focus has quite properly been on the conduct of the police officers involved, less attention has been placed on the Attorney General, the Crown Attorney's Office and the prosecutor, all of whom it seems believed that prosecuting Bonds for a minor offence in these circumstances was in the public interest.

It bears repeating that the purpose of a prosecutor is not to secure a conviction but to serve as a minister of justice. To ensure that the administration of justice is not tainted by conduct that subverts the rule of law.

Well before the trial, the Crown had seen the videotape. What did it show him? In addition to having a hand shoved down Bonds' pants and twice violently kneed in the back, she was strip-searched in the presence, and with the assistance, of male officers, one of whom forcibly cut her shirt and bra off with a pair of scissors. She was then left half-naked in a cell for over three hours. When she was found, her pants were soiled.

In R.v. Golden, the leading constitutional case on strip-searches, the Supreme Court of Canada recognized that "[w]omen and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault." Indeed, as Bonds puts it, "I was mentally and verbally raped."

The trial judge concluded that the only reasonable explanation for the officers' conduct was "vengeance and malice." He didn't link it to any prior event but presumably it was for Bonds' questioning the authority of the police earlier on the street. As Bonds is a black woman, there is also the lurking question of whether race and/ or gender were a factor not only in their decision to stop her on the street, but also to subsequently humiliate her. Given what we know about racism in policing and given that one of the officers was earlier temporarily demoted for assaulting and repeatedly Tasering a young woman in a cell less than a week before this incident, this is a very real likelihood.

Any reasonable Crown viewing the videotape would have concluded that the only offence it revealed was the assault and sexual assault of Bonds by the officers. Any reasonable Crown would have realized that Golden prohibits strip-searches of women by male officers absent extraordinary circumstances, and that without lawful authority, the non-consensual touching of a female suspect that interferes with her sexual autonomy or dignity is a sexual assault. As the trial judge pointed out, there was no lawful authority for any of the officers' conduct in this case.

Had the Crown Attorney's office properly examined this case and identified it as a serious incident, the case would have come to the attention of the chief of police. It is hard to criticize Chief Vern White or his executive for inaction when not only was the matter not brought to their attention but an independent agency was prepared to prosecute and defend the officers' conduct. Even during the trial, the Crown prosecutor was given the opportunity to do the right thing and withdraw the charges but presumably after getting instructions from his superior, he persisted.

In staying the proceedings against Bonds, the trial judge held that to continue the prosecution would be a "travesty" and that "I certainly would not be a party to such an action." The question is why the prosecutor and his office permitted itself to be a party.

What remains to be seen is how our system responds. One officer has been banned from dealing with the public and an internal investigation has been launched. But will the province's Special Investigations Unit investigate the case as this conduct should be deemed to fall squarely within their mandate? Will these officers be charged with assault causing bodily harm and/or sexual assault? And finally, will the public find out why the Attorney General continued to prosecute Bonds in these circumstances and failed to denounce what happened to her?

David M. Tanovich is a professor of law at the University of Windsor and academic director of the Law Enforcement Accountability Project (LEAP).
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