Note - May 10, 2019: This article is subject to legal action by Matthew Green.

The strip search performed by Toronto police on Matthew Green was unlawful — that much everyone can agree on.

After he was forced to remove all of his clothing, including his underwear, inside Toronto police 13 Division in the early hours of November 3, 2013, Green, then 28, filed a complaint with the Office of the Independent Police Review Director (OIPRD).

Watchdog investigators ultimately determined that Green, charged with public intoxication at the time of the search, should not have been subjected to the invasive search. It constituted police misconduct.

But it was misconduct of the “less serious” variety, according to both the OIPRD and, later, the Toronto police — a designation that meant no public disciplinary hearing would be held and that Green could not know how Staff Sgt. Courtney Chambers, the officer who ordered the search, was punished.

Insisting the strip search was “serious, unconstitutional behaviour,” Green launched a judicial review of his complaint, seeking a ruling quashing the “less serious” designation and prompting a public hearing in his case.

“The characterization of an unlawful strip search as being less serious is indefensible,” said lawyer Alan Young, who represented Green at a recent hearing at Osgoode Hall, alongside lawyers Alexi Wood and Jennifer Saville.

Green’s action also aims to highlight unnecessary secrecy within the police complaints system, Young added.

“When the disposition is held secret, it doesn’t give confidence that the complaint has been taken seriously. It almost seems juvenile — what’s the point of launching the complaint if you don’t know the outcome?” he said.

The case comes amidst what legal experts have called an epidemic of unjustified strip searches, an invasive procedure the Supreme Court ruled in 2001 to be “inherently degrading” and not to be employed “routinely.”

Indeed, citing a glut of cases involving unjustified strip searches coming across his desk, Independent Police Review Director Gerry McNeilly launched a rare systemic review of such searches this summer, saying he’s “had enough.”

Green, a 31-year-old freelance technical writer, says that’s “hypocritical.”

“I find it hard to grasp how they can tell the police to take these things seriously, when you’ve told them not to (in individual cases),” Green said in an interview Tuesday.

Both Toronto police and the OIPRD are opposing Green’s application for the misconduct to be deemed serious, prompting a public disciplinary hearing.

Karla Amirault, spokesperson for the OIPRD, said in an email Tuesday that it would be inappropriate to comment on Green’s case “as the matter has been argued, but the court has not yet rendered a decision.”

But she said systemic reviews and investigations of particular incidents are “very different.” Systemic reviews “do not seek to hold individual officers accountable for misconduct — they take a much broader approach to the issues.”

A Toronto police spokesperson declined to comment on Green’s case, citing the ongoing judicial review.

The case stems from Green’s arrest on November 3, 2013, after he left a party near the Canadian National Exhibition in Toronto and flagged a cab to go home.

Once inside the taxi, Green kept changing his destination, prompting the frustrated cabbie to take Green to the nearest police station to help determine Green’s address. The investigation by the OIPRD found that Green was never violent or threatening with the driver.

However, arriving at the police station, Green immediately got into an altercation with police; according to the OIPRD report, he began swinging his arms in a threatening manner towards police, who arrested him for public intoxication and later, assaulting a peace officer. Both charges were later dropped by the Crown.

According to Green’s factum, the OIPRD report also states that outside the police station, Chambers struck Green twice in the face with an open hand technique. Once inside the booking hall, Green asked why he was hit without cause, and told the officers he would not be intimidated.

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In response, Chambers told Green he needed to undergo a strip search because he was “obviously intoxicated.”

Following the Supreme Court ruling on strip searches, Toronto police created six scenarios establishing when a strip-search, also known as a Level 3 search, can be performed — including that the officers have reasonable grounds to believe the person is carrying weapons or items that could cause injuries.

In Green’s case, five of the six justifications were checked off on a form authorizing his search, though none of the officers involved in Green’s search could recall who filled out the form or on what basis there were reasonable grounds to believe Green was carrying weapons.

According to the Toronto police factum filed as part of the judicial review, the search was requested to ensure Green had nothing on him that could harm himself or others.

The OIPRD investigation ultimately found Chambers authorized a strip search on Green “when there was no justification or legal and proper grounds to do so.” In his director’s report, which was sent to then-police chief Bill Blair, McNeilly deemed the conduct “less serious.”

After reviewing the case, Blair agreed that the conduct was less serious. Under Ontario’s Police Services Act, in cases where the chief believes there was misconduct of a less serious nature, he or she can seek an informal resolution instead of a public misconduct hearing.

In his factum, Green said he attempted on multiple occasions to ascertain how the determination was made that the misconduct was “less serious,” but was not provided with an explanation. Green also claims he repeatedly inquired about the nature of Chambers’ discipline but was ultimately told by Toronto police that such information would not be provided.

“Without knowledge of what penalty was applied, it is impossible for a complainant to know whether an officer has been fairly sanctioned and the complainant's rights vindicated,” says Green’s factum.

In its court filing, the OIPRD states that the Police Services Act does not explicitly require the chief to notify the complainant when discipline has been imposed without a hearing.

According to the Toronto police court filing in the case, Chambers was given a reprimand and attended a two-day training course on fair and impartial policing.

A decision from the judicial review is expected in the coming weeks.

Wendy Gillis can be reached at wgillis@thestar.ca