The
Canadian Charter of Rights and
Freedoms declares that “everyone has the right to be secure against
unreasonable search or seizure” (http://laws.justice.gc.ca/en/charter/).
As
it applies to policing, in general,
Section 8 precludes police from searching people randomly.
It has also been taken by the courts to mean
that police can only conduct searches for specific reasons and in
special circumstances.
When dealing with a person who is not being introduced into the general
prison
population, police imposed searches are only legal when: (1) they are
authorized by a judicial warrant; (2) the police can make a case for a
warrant
but the circumstances are too urgent for them to obtain one; or (3) an
appropriate search follows a lawful arrest. Police and prison officials
have a
greater power to strip search inmates.
The
police power to search as an “incident
to an arrest” often involves a “pat down” or “frisk” search where the
police
just feel the outside of a person’s clothes and pockets.
At other times, it includes the strip search
of a person. Arrestees report being made
to stand in the nude and bend over at the waist while spreading their
buttocks.
Over
the years, there have been a
considerable number of reports of police strip-searching people in
questionable
places and under questionable circumstances.
A
grandmother left a restaurant and
was arrested because there was a debate about whether or not she had
properly
paid her bill. She was reportedly taken to the police station and
strip-searched.
An
attractive young woman was at
home with her daughter when the police came to her apartment.
Apparently, her
ex-boyfriend told the police that she had misappropriated his car.
While she
claimed that the car was properly in her possession, she surrendered
both the
keys and the car. She was then taken to
the police station, strip searched, (allegedly with the door open so
that male
officers could see), and released within the hour.
(Shortly thereafter, all charges against her
were dropped.)
Two
girls, aged 15 and 17, came
forward to the police with the CD player they had earlier stolen from a
classmate. The girls and their parents arrived at the police station
where they
were charged with robbery and were held until their hearing later that
day.
Their parents were told to wait in the reception area. According to
reports,
one of the girls was told she had to hand over her glasses, even though
she
could not see without them. Allegedly, the girls were then taken to a
room
where they were told to take off all their clothes all at once. They
had to
hold their arms out, squat down, and cough. These events were recorded
on
videotape.
The
police suspected a woman was
selling drugs, so they arrested her. Before taking her to the station,
they
took her into an alleyway in view of a busy street and reportedly
strip-searched her.
Golden
- A Supreme Court Case
about
Strip-Searches
In 2001 the
Supreme Court of Canada ruled in R v. Golden that police must
meet
certain criteria before it is permissible to strip search someone.
In Golden,
the police set up an observation post across from a sandwich shop in an
area
known for drug trafficking (which was very close to a police station). One officer reportedly saw two different
people enter the store and observed Mr. Golden, the defendant in the
case, pass
them something. Based on several
factors, the officer thought a drug trade had occurred and they
arrested Mr.
Golden.
During the arrest,
the officers saw a substance that looked like cocaine under a table,
and some
between Mr. Golden’s fingers. The
officers conducted a “pat-down” search, but did not find any weapons or
drugs. Then an officer took him to the top
of the
stairs, undid his pants, pulled back his pants and his underwear, and
looked at
his buttocks. He saw a plastic wrap with
a white substance inside. He tried to pull
out the wrap but Mr. Golden resisted.
The officers made
everyone leave the restaurant, took Mr. Golden to a back booth in the
restaurant, forced him to bend over a table, pulled down his pants and
his
underwear and tried to take the package. When
that didn’t work, they got him face-down on the
floor, held his
feet, and, using rubber dishwashing gloves from the kitchen, told him
to
unclench his muscles while they removed the package.
The package contained cocaine. Subsequently,
at trial, Mr. Golden was found guilty of drug possession and
trafficking, based
on the evidence that had been forced from him. He
argued that his basic Charter right to be free
from an unreasonable
search and seizure had been violated.
The Supreme Court
started by saying that strip-searches invade peoples’ privacy and
injure their
personal dignity — strip-searches are humiliating and degrading, no
matter how
they are carried out. Although police
can do a “pat-down” search when arresting a person, they cannot
automatically
strip-search every person they arrest. Police can only strip-search the
person for
the purpose of: (1) discovering weapons in their possession — to ensure
the
safety of police, the person being arrested, and other persons; or (2)
to
discover evidence related to the offence for which the person was
arrested.
The Court said
that not only must police have “reasonable and probable grounds” (in
other
words, good and likely reasons) for the arrest, the police must also
have
“reasonable and probable grounds” to justify the strip-search. In addition, the Court ruled that, in order
to protect a person’s right under section 8 of the Charter, strip
searches
must, if at all possible, be conducted at the police station. And, but for dire circumstances, people being
strip-searched should be able to take off their own clothes, one item
at a
time. In other words, the search should
be done as non-invasively as possible.
The
Court also noted that “whereas strip searching could be justified when
introducing an individual into the prison population to prevent the
individual
from bringing contraband or weapons into prison, different
considerations arise
where the individual is only being held for a short time in police
cells and
will not be mingling with the general prison population.
While we recognize that 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.”
In this case, the
Court ruled that, though the arrest of Mr. Golden was lawful, the
strip-search
was not. Since the police were acting
mostly on an officer’s hunch, this was not good enough reason for the
strip-search. Even more than this, the
strip-search in this case could have been conducted at the police
station
(which was very nearby), and there was no urgent reason to violate Mr.
Golden’s
section 8 Charter rights (as mentioned above), to affront his
dignity,
and risk his physical well-being.
The Debate
Arguments from
Different Sides
Strip-searches have been the source of
considerable controversy, both before and after Golden. Some
police
groups have denounced the decision and think it unduly restricts
police.
Privacy rights advocates generally favour the decision, but still worry
that
police will either find a way around the decision, or will not abide by
it
fully.
The
Canadian Civil Liberties intervened in
the Golden case. In its submissions to the Supreme Court, CCLA
stated
that strip-searches required special treatment under section 8 of the Charter
because of “their intrusive nature, and their high potential for
abuse.” CCLA
continued that strip-searches “are exceptionally destructive of
individual
privacy and dignity” and “are a matter of exceptional public concern.”
CCLA argued
that because of the highly intrusive nature of strip-searches, police
were
constitutionally required to use the “least intrusive means that are
reasonably
likely to achieve the legitimate objectives of the search.” In
addition, CCLA
argued that the Supreme Court needed to establish guidelines for police
regarding the power to strip-search. When CCLA submitted its factum to
the
Court, very few police departments had adequate written policies for
their
officers outlining when and how to conduct a strip-search.
Following
Golden, the Toronto Star
interviewed Norm Gardner, chair of the Toronto Police Services Board.
He stated
that after the decision the Toronto Police would no longer be carrying
out
strip-searches as a matter of “routine procedure” but that officers
would still
do them when an individual was in custody. According to Mr. Gardner,
“If you’re
going into a cell, and there’s other people in that cell, then maybe
you ought
to be searched. We can’t cut them out altogether, otherwise you’re
endangering
people. And we’d be subject to liability if something went wrong if we
didn’t
do a search.”
Some
police groups have stated they feel
the police should have the same power as prison guards when it comes to
strip-searching. Inmates have fewer privacy rights, and the standards
for
strip-searching prisoners are not as rigid. Therefore, the police claim
that
any one who is in detention should be subject to a search.
The
Toronto Police Accountability Coalition
(TPAC) disagrees and has stated that “those consigned to a prison have
arrived
there after a judicial determination that they should lose their right
of
freedom. Those who are arrested have undergone no such determination.
They
should not be subject to strip-search unless, as the Supreme Court has
said,
the officer has reasonable and probable grounds for determining that
such a
search is required.”
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