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					Strip Searches - Presumptively UnreasonableThe Supreme Court of Canada recently released
its reasons in the case of R. v. Golden 2001 SCC 83. Toronto police were targeting an area
known for drug trafficking when they observed the accused traffic in what was believed to be
cocaine. An officer, who was positioned in an observation post and with the aid of a telescope,
saw the accused conduct two transactions with persons in a Subway sandwich shop. Following
the second transaction, the officer advised the take down team of his observations and instructed
these officers to arrest the accused. These officers entered the shop and arrested the accused
and two other persons. During the arrests police found what was believed to be crack cocaine
under a table where one of the suspects was arrested while the accused was observed crushing
crack cocaine between his fingers. The accused was pat frisked and his pockets were examined
but no weapons or evidence was found. The arresting officer led the accused to a landing at the
top of a stairwell where he undid the accused's pants, pulled his pants and underwear back, and
observed a clear plastic wrap with a white substance protruding from between the accused's
buttocks. While attempting to remove the package, a scuffle occurred. Officers escorted the
accused to a seating booth within the sandwich shop, asked the remaining patrons to leave,
locked the front door, forced the accused to bend over a table, lowered his pants to his knees
exposing his buttocks and genitalia, and tried to seize the package. The accused clenched his
buttocks tightly preventing the police from removing the package. The accused accidentally
defecated, however the package was not dislodged. An officer retrieved a pair of dishwashing
gloves from an employee of the shop and tried again to remove the package as an officer held
the accused's legs while he was face down on the floor. Once the accused relaxed his muscles,
the officer removed the package and found it to contain 10.1 grams of cocaine. The accused was
subjected to a further strip search at the police station. At trial the accused was convicted of
possession of a narcotic for the purpose of trafficking and his appeal to the Ontario Court of
Appeal was dismissed. The accused further appealed this decision to the Supreme Court of
Canada arguing that his s.8 Charter right to be secure against unreasonable search and seizure
was violated and that the evidence should be excluded under s.24(2) of the Charter.

The majority (5:4) of the Court examined the long-standing common law rule respecting the
power to search incidental to arrest. In reviewing the jurisprudence, the Court continued to
recognize that searches conducted in the absence of a warrant are prima facie unreasonable,
although a search performed incidental to arrest is an exception to this presumption. At common
law, the police have the right to search an arrested person for weapons or evidence related to the
arrest. Although a search incidental to arrest does not generally require reasonable grounds
beyond the grounds necessary to support the arrest, the Court carved out an exemption to this
common rule in cases of strip searches. In identifying strip searches as representing a significant
invasion of privacy, and often humiliating, degrading, and traumatic experiences, the majority held
that to undertake this type of intrusive search, the officer must possess reasonable grounds
justifying the strip search in addition to justifying the arrest. Strip searches carried out as a matter
of routine or policy, or abusively or for the purpose of humiliating or punishing the arrestee will be
unreasonable. Furthermore, the Court stated that strip searches should be conducted at the
police station unless there are exigencies requiring the search be conducted in the field. In this
case, the Court adopted the following definition of a 'strip search':

[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual
inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of female),
or undergarments.

The Court found the accused had actually been subjected to three strip searches:

    1. in the stairwell; the officer pulling back the pants and underwear of the accused and
        looking at the accused's buttocks
    2. in the restaurant; police pulling down the accused's pants and underwear to his knees
        while attempting to seize the package
    3. at the police station; the accused was again strip searched
For practical purposes, the following points are noteworthy:

       The common law power to search incident to arrest does include the power to strip
        search.
       Although permissible as an incident to arrest, strip searches are presumptively
        unreasonable and the onus lies with the police in justifying the search.
       For a strip search to be justified as an incident to arrest, the following three requirements
        must be met in balancing the privacy interests of the individual and the interests of the
        police and the public in securing evidence and ensuring safety:

            1. the arrest must be lawful. The lawfulness of the search derives from the legality
               of the arrest. If the arrest is not lawful, the resulting search will not be lawful
               either. In many cases, the belief that reasonable grounds for arrest exist is a
               condition precedent to a valid arrest. In the absence of reasonable grounds upon
               which to base the arrest, any search conducted will also be invalid
            2. the search must be incidental to the arrest. The purpose or objective of the
               search must in some way be "connected" or "related" to the arrest and the
               manner and scope of the search must bear some reasonable relationship to the
               offence suspected and the evidence sought. Searching does not envelop
               purposes that have no connection to the reason for the arrest. For example, a
               search for drugs secreted on a person following a drug arrest would be incidental
               to arrest. However, an arrest on traffic violations would not permit the search for
               drugs even if the officer had prior knowledge of the arrestee's involvement with
               drugs. In conducting a strip search, the police must not only possess reasonable
               grounds justifying the arrest, but must possess additional reasonable grounds
               justifying the strip search for safety or evidentiary purposes in the particular
               circumstances of the arrest. These reasonable grounds are independent from the
               grounds justifying the arrest. Mere possibility that a person has weapons or
               evidence upon their person is insufficient to justify a strip search.
            3. the search must be conducted in a reasonable manner. The physical manner
               or method of the search must be carried out in a just and proper fashion. The
               search must not be conducted by abusive means and the scope of the intrusion
               must be proportionate to the objectives of the search and other circumstances of
               the situation. In deciding whether the manner in which a strip search was
               conducted meets the constitutional requirements of s.8 of the Charter, the
               following questions provide guidance:
                     Was the search conducted at the police station, if not, why?
                     Was the health and safety of all involved ensured?
                     Was the search authorized by a supervisor?
                     Was the officer the same gender as the arrestee?
                     Was the number of officers involved in the search reasonable?
                     Was the minimum force necessary used?
                     Was the search conducted in private so no others not involved can observe?
                     Was the search conducted as quickly as possible?
                     Was the search conducted in a fashion that ensures a person is not completely
                         undressed at any one time?
                     Was the search only a visual inspection or was there physical contact?
                         · Was the arrestee provided the option of self-removal or medical
                     Assistance if a weapon or evidence is observed in a body cavity?
                     Was a proper record of the reasons and manner of search kept?

                         Strip searches are inherently humiliating and degrading regardless of the manner
                         in which they are conducted and therefore cannot be carried out as a matter of
                         routine or policy. Strip searches performed routinely or under policy will not be
                         rendered reasonable unless there is a compelling reason justified in the
                         circumstances.


There is a distinction between strip searches on arrest and strip searches related to safety in full
custodial settings such as a prison. The appropriateness of routine strip searches of individuals
integrated into a prison population cannot be used to justify strip searches of individuals briefly
detained by police or held overnight in cells. Although police officers have legitimate concerns
that short term detainees may conceal weapons, these concerns cannot justify routine strip
searches of all arrestees regardless of the particular circumstances surrounding the arrest and
must be addressed on a case-by-case basis. ·

Strip searches are to be generally conducted at a police station except in cases of exigent
circumstances where the police have reasonable grounds to believe that the search is necessary
in the field such as an urgency to search for weapons that could be used to harm the officer,
others, or the arrestee.

A person should be provided the opportunity to remove items themselves or the assistance or
advice of trained medical professionals should be sought to ensure material can be safely
removed.
When the reasonableness of a strip search is challenged, the Crown (police) bears the onus of
proving on a balance of probabilities that it was warranted. In the case of strip searches in the
field, the police must demonstrate reasonable grounds justifying the strip search, exigent
circumstances, and that the search was conducted in a reasonable manner.

In the case of a strip search at the police station, the police must demonstrate reasonable
grounds justifying the strip search and that the search was conducted in a reasonable manner.
Exigent circumstances need not be proven.

In this case, the majority found the search unreasonable since the officer lacked grounds to
believe the accused had drugs secreted on his body and there was an absence of exigency (the
location of the arrest was 2 minutes from the police station). Despite the officer's experience of
discovering cocaine secreted on persons in their private areas on at least 12 previous narcotic
related arrests (out of 200 arrests he made), this was insufficient to justify the strip search at the
restaurant. The officer had no information that the accused neither reached into his pants to
remove any drugs nor was there any bulging or protrusion to suggest concealment. As the Court
noted, "the decision to strip search was premised largely on a single officer's hunch, arising from
a handful of personal experiences". Interestingly though, the Court found that there would have
been reasonable grounds to conduct the strip search at the police station on the basis that the
police observed two drug transactions, crack cocaine was found under the table at the restaurant,
the accused was observed crushing crack cocaine between his fingers, and the officer's limited
experience in suspects concealing drugs. Finally, even though the accused resisted the officer's
attempts to remove the package by clenching his buttocks, the way the search was carried out
demonstrated considerable disregard for the accused's dignity and physical integrity. Since the
accused had already served his 14-month sentence in full, the Court found no merit in engaging
in a s.24(2) analysis to determine if the evidence should none-the-less be admitted despite the
Charter breach. As a result, an acquittal was entered.

Editor's Note: The search of a person may be divided into essentially four distinct categories:
· "pat down" or "frisk" search
· "strip" or "skin" search
· "body cavity" search
· "bodily substance" search

It is without dispute that the police have the power to frisk search an arrestee incidental to that
person's arrest. A frisk search is a "relatively non-intrusive procedure: outside clothing is patted
down to determine whether there is anything on the person of the arrested individual. Pockets
may be examined but the clothing is not removed and no physical force is applied. The duration
of the search is only a few seconds" (Cloutier & Langlois v. Bedard (1990) 53 C.C.C. (3d) 257
(S.C.C.)). However, the more physical or intrusive a search a greater justification by the police is
required. Body cavity searches (physical examination of a person's body orifices) are inherently
more intrusive than a routine frisk search or strip search and will require a high level of
justification (reasonable grounds)(R. v. Greffe [1990] 1 S.C.R. 755 (S.C.C.)). As noted in Golden,
the police should give the arrestee the opportunity to remove the item or seek proper medical
assistance in the item's removal. In Stillman v. the Queen [1997] 1 S.C.R. 607 (S.C.C.), the
Supreme Court carved out an exception to the scope of search incident to arrest respecting the
seizure of bodily samples (namely hair samples, buccal swabs, and teeth impressions). Absent
valid statutory authority, "the common law power of search incidental to arrest cannot be so broad
as to encompass the seizure.of bodily samples in the face of a refusal to provide them". In short,
the greater the intrusion into one's personal dignity and privacy the greater the justification and
constraints as to the manner in which they may be reasonably conducted.

				
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