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

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.

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."