TORONTO — Two girls who pleaded guilty in the alleged fatal swarming of a homeless man in Toronto will not face further time in custody after an Ontario judge found Tuesday that the strip searches they underwent while detained had violated their right to privacy.
Ontario Court Justice David Stewart Rose rejected the girls' bid to have the charges against them stayed over the searches, however, opting instead to give them a reduced sentence.
“It would shock the community to stay the charges,” especially when an alternative remedy is available, Rose told the court Tuesday.
One of the girls pleaded guilty last year to manslaughter in the death of 59-year-old Kenneth Lee, while the other pleaded guilty to assault with a weapon and assault causing bodily harm.
The girl who pleaded guilty to manslaughter will serve two years of probation and participate in a community-based program, while the girl who pleaded guilty to the assault charges will serve a year of probation. Both face additional conditions while under probation, including that they continue going to counselling.
Police allege Lee, who was living in the city’s shelter system, was swarmed and stabbed by a group of eight girls in December 2022.
Defence lawyers for the two girls had argued their clients' rights under the Charter of Rights and Freedoms were violated when the girls were repeatedly strip searched while detained at a youth facility after their arrest.
The standards set out by the Ministry of Children and Youth Services allow routine strip searches under certain circumstances, but an updated version that came into effect in 2018 requires that youth “not be completely undressed for any period of time,” court has heard.
The girl who pleaded guilty to the assault charges was 13 at the time and was strip searched three times. The other girl was 14 and underwent strip searches seven times. The girls were completely nude on at least some of those occasions, court heard.
The searches were not “an isolated incident” but rather a “systemic issue,” defence lawyer Karen Lau Po Hung, who represents the younger girl, argued in a recent hearing.
The girls were in a vulnerable position and the strip searches had a “profound impact” on them, said Anne Marie Morphew, the defence lawyer for the older teen. Only a stay of proceedings could address the scope of the issue and ensure such searches don't occur in the future, she argued in recent submissions.
The Crown countered that a stay of proceedings should not be the remedy because of the "catastrophic impact” that would have on the justice system.
In his ruling Tuesday, Rose said he found it "troubling" that young people were being subjected to routine strip searches without any specific suspicion that they had weapons or other contraband.
The judge found both the routine nature of the searches and the way in which the girls were searched were unreasonable, and stressed the Youth Criminal Justice Act includes enhanced privacy protections beyond those granted to adults in detention.
Rose also pointed to strip searches as a major mitigating factor last year in sentencing two other girls who pleaded guilty to manslaughter in the case. In those cases too, the girls were sentenced to probation with no additional time in custody.
The case now shifts to Ontario Superior Court, where the remaining four girls are set to face trial.
A judge-alone trial is scheduled to begin in the coming days for two of the girls on charges of second-degree murder. The remaining two are expected to be tried before a judge and jury in May, one of them for second-degree murder and one for manslaughter.
This report by The Canadian Press was first published Jan. 28, 2025.
Paola Loriggio, The Canadian Press
