Thursday, September 20, 2012

Strip Searches

R. v. A.(Z.), 2012 ONCJ 541 is a useful case outlining the law regarding routine strip searches of prisoners:

[66] Before setting out the law and pertinent factors relating to a strip search, it is important that certain of my factual findings be placed before the reader of this judgment: I have found in this case there were no reasonably based concerns that A.Z., a young person, was in possession of weapons, contraband or hidden evidence. Although he was rude, there is no evidence he was predisposed to or had a history of violence. The youth had already been subject to two searches. The cell phone was not a weapon. His only "violence" was a struggle over the phone in an effort to call his lawyer.

[67] In Regina v Golden, the Supreme Court stated that strip searches are

...a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. ...Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive

[68] The strip search in this case was a warrantless search. The onus falls upon the Crown to establish that it was reasonable. While a common law power to strip search incident to a lawful arrest exists, the power is subject to limitations imposed by the Charter <> . In Golden, the Supreme Court of Canada articulated a number of these limitations. The following, at the least, are relevant to the facts in this case:

* A "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified;

* Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search;

* The more intrusive the search, the greater the degree of justification and constitutional protection that is appropriate;

* Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 <> of the Charter <> ;

* A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee;

* A "routine" strip search carried out in good faith and without violence will also violate s. 8 <> where there is no compelling reason for performing a strip search in the circumstances of the arrest;

* Where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment;

* While police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees;

* A framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter <> includes the following:

o Will the strip search be authorized by a police officer acting in a supervisory capacity?

o Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

o Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

[69] In their testimony, the officers suggested a variety of reasons why the accused might have been strip searched: for the safety of others and officers because he was being placed in the cells (although the youth was to be placed in an empty youth cell, and would be handcuffed until placed there); because of his behaviour (although the behaviour was not violent, and the youth had calmed down before he was placed in the interview room); because the money in his pocket suggested he might have been selling drugs and might be in possession of drugs (although there was nothing in the evidence upon which to base this suspicion); because Z.A. might be in possession of a weapon or contraband, and had to be searched for the safety of the police and others (although there was no discussion between the officers of any suspicion relating to drugs or weapons, and the accused had already been subjected to two searches - a pat down search and a search of his pockets); that Z.A. was assaultive, (although his only "assaultive" conduct was the brief struggle in the police vehicle when the accused was attempting to call his lawyer and "protect his phone"), and because he might be a danger to himself and others resulting from the consumption of alcohol or drugs (although Sergeant James did not smell alcohol on the accused's breath and noted no credible indicia of drug use). As Justice Nakasuru pointed out in Regina v. Samuels, [2008] O.J. No. 786 (O.C.J.), the type of offence, in the case at bar the offence of refusing a breath sample, is not one which "inherently raises the potential that the accused may have a weapon, evidence connected to the offence, or general contraband upon his person."

[70] As I have indicated, based on the foregoing, my conclusion in this case is that there were no reasonably based concerns that Z.A., a young person, was in possession of weapons, contraband or hidden evidence, or that he would pose a danger to himself or others. Although he was rude, there is no evidence he was predisposed or had a history of violence. He had already been subject to two searches. The cell phone was not a weapon. The only "violence" was a struggle over the phone. In my view, the struggle with the police over the phone, and the accused's loud and insolent behaviour in the booking hall, and the other reasons suggested, may have contributed to the police willingness to strip search the accused, but were not the justification for it. This youth was originally arrested for refusing to provide a breath sample. Why then was he subjected to a strip search?

[71] Sergeant James, the officer in charge of authorizing strip searches, who denied having a blanket policy on the issue, testified that: "If he's going into custodial custody the procedure is not to lodge him until he is properly searched". By "properly searched" he meant "strip searched."PC Gill testified that "If someone is going to be held in custody for a show cause, a level 3 search will be done." I find that the most reasonable conclusion, based on the evidence, is that the accused was searched, as a matter of policy, because he was going to be held for a show cause. This policy was absolute, the practice was understood by all the officers involved, and was so routine that it was not necessary for the officers to give or note formal authorizations. As Sergeant James testified: "...the officers know my style."

[72] Even if the fact that the accused was going to be taken to court for a show cause is a compelling reason to search the accused, I find that the search was not conducted in compliance with the requirements of the Charter <> . It was conducted without regard for Z.A's youth, his right to speak to counsel, and his right to speak to a parent or other adult. There were no exigent circumstances to justify these breaches. The reason for the strip search was never explained to A.Z. There is no evidence the search was properly authorized, there was no reporting up the chain of command, and there was no proper record-keeping. Z.A. was left fully undressed at the conclusion of the search.

[73] Contrary to the requirements in Golden, the strip search was carried out as a matter of routine policy without regard to the individual circumstances of the youth and the necessity for a strip search in his case. Golden holds that "The prerequisites for and considerations surrounding the conduct of a valid strip search seek to balance the competing interests of valid law enforcement goals on the one hand, and individual privacy rights on the other." I do not find that any effort to balance these interests occurred in this case. The individual privacy rights were very high, and the evidence does not support a finding that the law enforcement goals required a strip search. In all of these circumstances I find that Z.A.'s rights under section 8 <> of the Charter <> were violated


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