Special Bulletin on Strip Searches
1. Uncovering the Toronto Police policy on strip searches
2. Toronto Police service Search of Persons policy
3. Appendix B of the policy, Risk Assessment
4. Supreme Court of Canada decision, R v. Golden
5. Some problems with the Toronto Police policy
Toronto Police Accountability Bulletin No. 64, on Strip Searches, November 21, 2011.
This Bulletin is published by the Toronto Police Accountability Coalition, a group of individuals and organizations in Toronto interested in police policies and procedures, and in making police more accountable to the community they are committed to serving. Our website is http://www.tpac.ca
In this issue
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Special Bulletin on Strip Searches
1. Uncovering the Toronto Police policy on strip searches
2. Toronto Police service Search of Persons policy
3. Appendix B of the policy, Risk Assessment
4. Supreme Court of Canada decision, R v. Golden
5. Some problems with the Toronto Police policy
6. Subscribe to the Bulletin
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1. Uncovering the Toronto Police policy on strip searches
Regular readers of the Bulletin will be aware of our long term interest in strip search policy, and may recall from the March 2011 Bulletin No. 59, our unsuccessful attempt to obtain a copy of the policy. Our Freedom of Information request for the policy was denied on the basis that the policy was posted on the police web site http://www.torontopolice.on.ca under the heading `Procedure Information, although the chair of the Toronto Police Services Board said that was in fact not the real policy. He said the police refused to make public the real policy, perhaps for security reasons.
Klippensteins, a Toronto law firm, has had more luck and has secured the real policy, and its supporting Appendix B, Risk Assessment. We are pleased they have agreed to share these documents, and we are pleased to include copies of both in this Bulletin. For technical reasons we have not been able to maintain the formatting of each document, but the text is copied word for word, it is clear, and little turns on the formatting.
The significant paragraphs of the Supreme Court of Canada decision in the 2001 case R v. Golden is in Section 4 of this Bulletin. A brief commentary on the Toronto policy is in Section 5.
2. Toronto Police service Search of Persons policy
Toronto Police Service,
Search of Persons Policy
ARREST & RELEASE
01 02 Search of Persons
Issued: R.O. 2010.12.011493
Replaces: R.O. 2009.02.050123
Rationale
The right to search a person is of paramount importance to the safety of prisoners, members, and all other persons employed within the criminal justice system. It is critical that officers make a proper evaluation of the potential risks, ensure that the appropriate level of search is conducted, and that they are diligent while searching persons in custody.
In December 2001, the Supreme Court of Canada made a ruling in the case of R. v. Golden, which directly impacted on the search of persons incident to arrest.
The lawful authority for searching a person comes from statute or common law. Officers conducting searches must be able to articulate their authority/grounds for doing so. Information has been included in this procedure that will assist officers in properly assessing the appropriate level of search to be conducted, and identify some of the risks that must be addressed (see Appendix B).
In the absence of clear direction in the form of legislation, the courts have expressed some concerns with routine police department policy applicable to all arrestees . As a result, although this procedure outlines the risk factors, and places an obligation on police officers to address them, the decision as to what level of search is appropriate must be assessed on a case by case basis.
The Toronto Police Service (Service) agrees with the courts that clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts.
Supervision
Mandatory Notification
Officer in Charge
after conducting a search at the station
regarding grounds and circumstances (level 3 search)
where there are reasonable grounds to believe that the person under arrest has secreted weapons or evidence in a body cavity
- consult with OIC
- advise OIC of search results
Governing Authorities
Federal Criminal Code
Canadian Charter of Rights and Freedoms
Provincial Ministry of Correctional Services Act
Police Services Act
Police Services Act, O.Reg. 3/99, Adequacy & Effectiveness of Police Services
Provincial Statutes
Ontario Human Rights Code
Other Common Law (incident to arrest)
Relevant Case Law
Cloutier v. Langlois (Supreme Court of Canada) (1990)
R. v. Flintoff (Ontario Court of Appeal) (1998)
R. v. Coulter (Ontario Court of Justice) (2000)
R. v. Golden (Supreme Court of Canada) (2001)
R. v. Clarke, Heroux and Pilipa (Ontario Superior Court of Justice) (2003)
NOTE: This is not an exhaustive list of all relevant cases.
Associated Service Governance
01-01 Arrest
01-03 Person in Custody
03-06 Guarding Persons in Hospital
04-09 Interpreters
09-06 Property of Persons in Custody
13-17 Memorandum Books
Forms
CIPS Report Officer in Charge
TPS 100 Record of Arrest Officer in Charge
TPS 101 Supplementary Record of Arrest Officer in Charge
Search of Person Template Officer in Charge
Definitions
Gender/Sex means the classification of individuals as male, female or transgender/transsexual.
Item of Religious Significance means any item, article, apparel, or clothing a person identifies as having religious importance
Level I Search
means a frisk or patdown search of the clothing, including pockets, that does not include the removal of any clothing except outerwear such as jackets, hats and/or gloves/mittens.
A Level I search has commonly been referred to as a field search .
Level 2 Search
means a more thorough search that may include the removal of clothing which does not expose a persons undergarments or the areas of the body normally covered by undergarments. The removal of clothing such as belts, footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male would all be included in a Level 2 search.
A Level 2 search would normally be conducted in a location that provides some degree of privacy, such as a police facility or other safe surrounding.
A Level 2 search has commonly been referred to as a general search .
Level 3 Search
means a search that includes the removal of some or all of a persons clothing and a visual inspection of the body. More specifically, a Level 3 search involves the removal of clothing that fully exposes the undergarments or an area of the body normally covered by undergarments (genitalia, buttocks,
womens breasts).
NOTE: The mere fact that portions of a persons body normally covered by undergarments are exposed because of the way the person was dressed when taken into custody does not constitute a Level 3
search, if the removal of such clothing was not caused by the police (i.e. the arrest of a naked person does not in itself constitute a Level 3 search).
Due to the high degree of intrusiveness of this type of search, it shall only be conducted when it is reasonable and necessary, considering .the purpose and the grounds that exist at the time, which justify the search.
A Level 3 search is equivalent to the term strip search used by the courts and other government agencies.
Level 4 Search
means a body cavity search. For the purposes of this procedure, a Level 4 search means a search of the rectum or vagina.
Search of Person Template
means a statistical document created to record the pertinent details of all Level 3 and Level 4 searches.
The template allows the Service to electronically capture the data required to properly report on all Level 3 and Level 4 searches of persons (including self identified transgender/transsexual persons) conducted by members.
The template is accessed under the Employee Resources section of the TPS Network home page.
A separate template must be completed and submitted for each Level 3 or Level 4 search conducted.
Procedure
Searches of persons shall be conducted keeping in mind that the safety of Service members, the person being searched, and the public is paramount. All searches of the person should be conducted thoroughly and in a methodical manner. Searches of the person shall not be conducted in an abusive fashion or conducted to intimidate, ridicule or induce admissions.
Peace officers shall not use any more force than is necessary and reasonable in the circumstances to conduct a search.
All searches of the person shall be conducted by police officers of the same sex unless circumstances make it impractical to do so, having regard to the immediate risk of injury, escape, or the destruction of evidence. Consideration shall be given when dealing with transgender or transsexual individuals whenever practical.(see Appendix c). .
Every effort must be made to provide persons who do not speak English or who by reason of disability have difficulty communicating, with the services of an interpreter or other person who can assist in understanding the process.
Items of Religious Significance
The Canadian Charter of Rights and Freedoms, Section 2, gives everyone the fundamental freedom of conscience and religion. Section 8 of the Charter states everyone has the right to be secure against unreasonable search or seizure.
The Ontario Human Rights Code, Section 1 states Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. From this section, creed is the issue which deals with religious beliefs.
The Toronto Police Service recognizes special arrangements may have to be made when handling items, articles, apparel or clothing a person identifies as having religious importance (item of religious significance.)
Members conducting searches of persons shall treat an item of religious significance with respect and handle the item appropriately.
Although there are a multitude of items of religious significance that differ between and amongst religions, any item of religious significance identified by a person shall be handled according to the process established in Appendix D of this procedure, unless circumstances make it impractical to do so, having regard for the: immediate risk of injury; immediate risk of escape; immediate risk of destruction of evidence; safety of the member; safety of the person; safety of the public.
The member must be able to articulate why particular actions were or were not taken.
Grounds for Searching a Person
For a search to be lawful it must be reasonable and justified given all the circumstances and it must be conducted for a valid reason.
Search of a person without Warrant is prima fade unreasonable under s.8 of the Canadian Charter of Rights and Freedoms (Charter). The onus is on the officer conducting a search to demonstrate that the search is justified in law, necessary and reasonable. Searches conducted simply as a matter of routine or standard procedure are not justified in law. However, for safety reasons, except in extenuating circumstances, all persons under arrest must be searched prior to being placed in a police vehicle, prior to being brought into a police station, and prior to being placed in a police cell.
Stronger grounds are required as the level of intrusiveness of a search increases. The decision as to the appropriate level of search rests with the searching officer. The more intrusive the search the more justification is required, and officers must be able to articulate the need for the more intrusive search (see
Appendix B).
Search Authorities
A police officer may search a person; with a persons consent; when authorized by statute; after an arrest has been made (common law incident to an arrest).
Consent Search
Consent search generally applies to persons who are not under arrest. A police officer must be able to demonstrate that consent for a search was informed and freely given. A person giving consent for a search must understand the possible consequences of the search prior to giving consent. A consent search, in most instances, should not be used where other lawful authority exists.
Search Authorized by Statute
Specific statutes contain search provisions that can be used when circumstances warrant. The related statute should be referred to prior to conducting such searches; for example: the Criminal Code, the
Controlled Drugs and Substances Act, and the Liquor Licence Act.
Search Incident to Arrest
The right to search as an incident to a lawful arrest is found in common law, and has been upheld by the
Supreme Court, as long as the search is conducted for a valid objective and is not conducted in an abusive fashion. (Cloutier v. Langlois, 1990)
As an incident to arrest a police officer may search for: weapons; anything that could cause injury (including drugs and alcohol); anything that could assist in a persons escape; evidence.
Custodial Officers (Matrons)
Custodial Officers shall only perform searches in accordance with custodial duties as described in unit specific guidelines. They shall not perform searches for the intended or sole purpose of obtaining evidence.
NOTE: When handing an item of religious significance, Custodial Officers (Matrons) shall comply with Appendix D of this procedure.
Court Officers (Peace Officers)
Court Officers who have been sworn as peace officers may search persons in custody in accordance w
this procedure in conjunction with unit specific guidelines established specifically for court related duties.
Recording Searches
Full details of all searches shall be recorded in the memorandum book including the grounds for the level of search conducted. Appropriate entries shall be made in Criminal Information Processing System
(CIPS) for all Level 3 and Level 4 searches.
Police Officer
1. When conducting a search shall; advise the person of the reason that they are being searched; search the person; search the area within the persons immediate surroundings, if applicable; remove weapons, anything that could cause injury (including drugs and alcohol), anything that could assist in the persons escape, or evidence of an offence, as applicable; seize all evidence obtained; ask the person if they have an item of religious significance on their person. or in their possession, and comply with Appendix D when applicable; when required to remove an item of religious significance make reasonable effort to ensure the removal and search occurs in a private setting; when practicable, facilitate the replacement of an item as soon as possible when an item of religious significance (apparel or clothing only) is removed and held for any purpose and is not being immediately returned to that person; record all relevant details in the memorandum book.
2. When conducting a consent search of a person shall ask for the consent of the person and explain the nature of the search; inform the person that they have a right to refuse consent; inform the person of potential consequences of the search, including the possibility that anything seized may be used as evidence; immediately stop searching the person if consent is withdrawn, unless evidence has been disclosed that would permit continuation pursuant to lawful authorities.
3. Prior to transporting an arrested person shall: search the police vehicle prior to placing the arrested person in the vehicle; for reasons of safety, ensure the arrested person has been searched except where the search would interfere with the administration of emergency medical assistance.
4. After arrival at the station with an arrested person shall; search the police vehicle; if it has not already been done, conduct a search of the person and advise the officer in charge (OIC) that the person has been searched.
5. When a Level 3 search is deemed necessary, the searching officers shall: consult with the OIC and advise of the grounds and circumstances; advise the OIC if the person identifies that they have an item of religious significance on their person or in their possession; search the person in a private area and ensure the search is not videotaped; be of the same sex as the person being searched, except in exigent circumstances [NOTE: Exception: Transgender/transsexuals see Appendix C]; ensure only two (2) members of the same sex as the person being searched are present during the search, unless additional officers are required to assist; where appropriate, ask the person to remove clothing one article at a time [NOTE: The search shall not involve the removal of any more articles of clothing than necessary, or any more visual inspection of the persons body than is necessary to achieve the objectives of the search. A person should not be left in a completely naked state after a search.]; inspect each article of clothing in a methodical manner; permit the person to replace articles of clothing after inspection, where appropriate; provide replacement clothing for articles seized as evidence as soon as possible.
6. When a Level 3 search has been completed shall: complete the Search of Person Template by populating all applicable sections with the appropriate information including: a confirmation that the Case/Arrest Number and Accused Name are correct; date/time of search; level of search; badge numbers of officers conducting the search; badge number of the OIC; location where the search was conducted; authority for search based on the grounds and circumstances that existed at the time; any items found as a result of search; any additional comments/remarks; if applicable, continue populating the sections of the template under the heading entitled Transgender/Transsexual Person Specific Details with the appropriate information including: a confirmation that the search involves self identified transgender/transsexual person; the option selected regarding the gender of the searching officers as offered by OIC; any additional comments/remarks; print completed Search of Person Template and submit to OIC for review and signature upon approval.
7. Where there are reasonable grounds to believe that a person under arrest has secreted weapons or evidence in a body cavity shall: consult with the OIC; escort the person to the hospital; comply with Procedure 0306; request that the person remove the item in a controlled area, if possible; if the person is unable or unwilling to remove the item and consents to a search, ensure that the search is conducted by a qualified medical practitioner, remain with the person while the search is taking place (same sex officers only), advise the OIC of the results.
Where the person refuses a Level 4 search by a medical practitioner, and the item has not been removed, advise the OIC, restrain the person and hold in isolation pending a Show Cause Hearing, continuously monitor the person to ensure their safety and the safety of members of the Service until recovery of the item or substance is made.
8. When a Level 4 search has been completed shall complete a Search of Person Template as detailed in item 6.
Officer in Charge
9. When in charge of a unit where persons are detained shall ensure that:
the decision to search a person has been evaluated based on the risk factors found in Appendix B and; where reasonable grounds to conduct a Level 3 search exist, ensure a Level 3 search is conducted; where reasonable grounds do not exist, ensure a Level 2 search is conducted;
searches are conducted appropriately and that a Search of Person Template is completed for all Level 3 and Level 4 searches, signed and enclosed in the applicable Confidential Crown Envelope;
every effort is made to provide persons who do not speak English or, who by reason of disability have difficulty communicating with the services of an interpreter in compliance with Procedure 04-09, or other person who can assist the person in understanding the process;
prisoners property is handled in compliance Procedures 0103 and 0906, as applicable;
where an item of religious significance is removed from a person that the item is treated with respect and handled appropriately in compliance with Appendix D.
10. Upon being consulted regarding a Level 4 search shall: determine whether the search is appropriate, given the circumstances; ensure that the search is conducted by a qualified medical practitioner at a medical facility; ensure that a Search of Person Template is completed, signed and enclosed in the
applicable Confidential Crown Envelope.
Associated Documents (LINKS)
Appendix A Search of Persons Template
Appendix B Risk Assessment Level of Search
Appendix C Transgender/Transsexual Persons
Appendix D Handling Items of Religious Significance
3. Appendix B, Risk Assessment
Procedure 0102, Search of Persons. Appendix B
Risk Assessment Level of Search
Issued: .R.O. 2007.07.090928
Replaces: R.O. 2005.09.220960
The right to search as an incident to a lawful arrest is found in common law, and has been upheld by the
Supreme Court, as long as the search is conducted for a valid objective and is not conducted in an
abusive fashion. (Cloutier, 1990)
As an incident to arrest a police officer may search for: weapons; anything that could cause injury (including drugs and alcohol); anything that could assist in a persons escape; evidence.
For safety reasons, every person who is brought into a police facility under arrest shall be subject to a
search.
When assessing the level of search, the OlC/police officer shall on a case-by-case basis, evaluate the
circumstances relevant to the individual to be searched and determine the appropriate level of search
required to address any risk factors, keeping in mind that the safety of the officers, the individual and to
others is paramount. The OlC is responsible for ensuring that the level of search appropriately addresses
the risk factors associated to the current arrest including, those related to the person, and logistical issues
such as the type of transportation and contact with others that this individual is expected to encounter.
Level 3 Searches
In 2001, the Supreme Court of Canada, in the matter of R. v. Golden, while upholding the common law
right to search a person who had been lawfully arrested, placed restrictions on police officers
contemplating Level 3 searches.
In light of this decision, the Toronto Police Service has adopted the following official policy in regard to
Level 3 searches of persons who are in custody, incident to arrest.
When a person has been lawfully arrested and transported to a police facility, an assessment of the risk
factors shall be conducted. Where reasonable grounds exist to conduct a Level 3 search, a Level 3
search shall be conducted. Where reasonable grounds do not exist for a Level 3 search, a Level 2
search shall be conducted. (A Level 3 search may be conducted if reasonable grounds are established
as a result of the Level 2 search.)
Risk Factors
Officers contemplating a Level 3 search of a person shall consider all the circumstances, including but not
limited to: the details of the current arrest; the history of the person; any items already located on the person during a Level 1 or 2 search; the demeanour or mental state of the individual; the risks to the individual, the police, or others, associated with not performing a Level 3 search; the potential that the person will come into contact with other detainees, creating an opportunity for the person to hand off contraband, weapons, etc. to another prisoner (R. v. Coulter).
In addition to any factors being considered pertaining to the individual person, the following set of
circumstances represents the heightened safety concerns that are common to all persons held for a
Show Cause hearing; lodged in a cell awaiting transportation; direct contact with other prisoners during transportation and lodging, creating the potential for conflict and/or weapons/contraband being passed from one person to the next; unsupervised while being transported in a prisoner transportation wagon ; lodged in court cells with other prisoners and prisoners arriving directly from the correctional system; transportation, lodging, escorting of prisoner at court conducted by unarmed court officers ; direct contact with booking officers, court officers, correctional officers, lawyers, and other court staff who are unarmed and have an expectation that every prisoner has been thoroughly searched (Occupational Health and Safety); the duty to protect prisoners while in custody and their expectation that while in custody their safety is not compromised; the OIC cannot know the background/history/state of mind of all the prisoners that will be brought into the system on any given day, but is required to ensure their protection.
All persons who are held in custody pending a Show Cause hearing are deemed to be entering the prison
population. In assessing the appropriate level of search, the QIC shall take into account the heightened
safety concerns created by this situation.
Members shall consult with the OIC prior to conducting a Level 3 search at a police station.
Prohibitions
The Supreme Court has ruled that Level 3 searches in the field will only be justified where there is a
demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the
safety of the accused, the arresting officers or other individuals. In this case, officers would have to show
why it would have been unsafe to wait and conduct the search at the police station.
Level 3 searches shall not be conducted in the field for the sole purpose of preserving evidence. When a
Level 3 search must be conducted in the field, it will be done in a private area with only the searching
officers able to view the person being searched, where possible. When a Level 3 search must be
conducted in the field, the searching officers shall immediately notify the OlC upon their arrival at the
police station.
Level 3 searches shall not be videotaped. Any benefit to videotaping the search is outweighed by the
potential of causing unnecessary embarrassment to the person being searched. Further, in cases where
a searching area has video equipment installed, the person being searched will be advised that the
search is not being videotaped.
Level 4 Searches
Level 4 searches shall not be performed by any member of the Toronto Police Service.
If it is suspected that a person under arrest has ingested or inserted into their body, a substance or item
that may be harmful or dangerous, the person shall be immediately transported to a medical facility for
treatment.
The person may consent to having the item or substance removed by a qualified medical practitioner. If
the person is not willing to have the medical practitioner assist with the removal, they shall be restrained
and held in isolation pending a Show Cause Hearing. The person shall be continuously monitored to
ensure their safety and the safety of members of the Service until recovery of the item or substance is
made.
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Common Risk Factors for Consideration
Details of Current Arrest
Weapons offence/indication of weapons
Drug offence
Violence
Evidence related to the offence
History of the Person
Suicidal tendencies
Drug convictions/known drug user
Violence/Weapons/Assault
Demeanour
Level of Co-operation (co-operative, uncooperative, argumentative, aggressive, assaultive)
Threatening
Suicidal
Under influence of drugs
Evasive (medical, drugs. other items in his/her possession)
Actions of accused (e.g. trying to conceal objects)
Items Already Located
Weapons
Items that could cause injury
Items that could assist in escape
Evidence
Drugs/other contraband
Any concealed items
Any items discarded by accused
Items located on or near accused at time of arrest (i.e. in home/car)
Potential Contact
Contact with others at the station
Show Cause
Lodging at station (Cells)
Type of transportation (wagon/contact with others/no supervision
Lodging at other facilities (lockup/court/other)
Direct contact with other prisoners
Direct contact with others (court officers, police, correctional officers, lawyers, judges, medical personnel)
Potential for conflict with others/ exchanging property/victimization
Expectation/duty to ensure prisoner safety not compromised
Unknown history/state of mind/demeanour of other prisoners
Other
Level of Risk if Level 3 search not conducted
Information/items located/history/ of any co-accused or other person present with accused
Personal knowledge/past experiences with accused
4. Supreme Court of Canada decision, R v. Golden
The Supreme Court of Canada has set out the clearest ideas of controls on strip searches in its 2001 decision in the case R v. Golden, found at http://scc.lexum.org/en/2001/2001scc83/2001scc83.html .
The following numbered paragraphs are from that decision:
89 Given that the purpose of s. 8 of the Charter is to protect individuals from unjustified state intrusions upon their privacy, it is necessary to have a means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred (Hunter, supra, at p. 160). The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestees experience of being strip searched. Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such as pat or frisk searches. As was pointed out in Flintoff, supra, at p. 257, [s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power .
90 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: humiliating , degrading , demeaning , upsetting , and devastating (see King, supra; R. v. Christopher, [1994] O.J. No. 3120 (QL) (Gen. Div.); J. S. Lyons, Toronto Police Services Board Review, Search of Persons Policy -- The Search of Persons -- A Position Paper (April 12, 1999)). Some commentators have gone as far as to describe strip searches as visual rape (P. R. Shuldiner, Visual Rape: A Look at the Dubious Legality of Strip Searches (1979), 13 J. Marshall L. Rev. 273). Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault (Lyons, supra, at p. 4). The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse (Commission of Inquiry into Certain Events at the Prison for Women in Kingston, The Prison for Women in Kingston (1996), at pp. 86-89). Routine strip searches may also be distasteful and difficult for the police officers conducting them (Lyons, supra, at pp. 5-6).
91 In order for a strip search to be justified as an incident to arrest, it is of course necessary that the arrest itself be lawful. In the present case, there is no question that the arrest was lawful. While the appellant disputes the lawfulness of arrest, the trial judge and the Court of Appeal concluded that there were reasonable and probable grounds for making the arrest, and we see no reason to dispute this conclusion. Thus, the first requirement of a valid search incident to arrest was met in this case.
92 The second requirement before a strip search incident to arrest may be performed is that the search must be incident to the arrest. What this means is that the search must be related to the reasons for the arrest itself. As expressed by Lamer C.J. in Caslake, supra, at para. 17, a search is only justifiable if the purpose of the search is related to the purpose of the arrest . In the present case, the strip search was related to the purpose of the arrest. The arrest was for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the appellants person. Had the appellant been arrested for a different reason, such as for a traffic violation, the common law would not have conferred on the police the authority to conduct a strip search for drugs, even if the police had knowledge of previous involvement in drug related offences, since the reason for the search would have been unrelated to the purpose of the arrest. In the circumstances of the present case, we conclude that the search was conducted incident to the arrest.
93 The reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the arrestee. Where arresting officers suspect that evidence may have been secreted on areas of the body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in the circumstances. For instance, in the present case, it was suggested that the appellant might have dropped the drugs on the sidewalk or in the police cruiser on the way to the station and that it was therefore necessary to search him in the field. As we discuss below, however, the risk of his disposing of the evidence on the way to the police station was low and, had the evidence been dropped in the police cruiser on the way to the station, circumstantial evidence could easily link it back to the accused.
94 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, 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 detainees person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainees 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.
95 The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationales for the common law power of search incident to arrest. Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. 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. Yet 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.
96 It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that 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. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.)
97 The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. 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.
98 The fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being incident to lawful arrest as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required. In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra, at pp. 185-86. However, this conclusion was reached in the context of a frisk search, which involved a minimal invasion of the detainees privacy and personal integrity. In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.
99 In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainees possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.
5. Some problems with the Toronto Police policy
The policy and Risk Assessment does not fairly reflect the constraints laid down by the court. For instance, safety of the officers is used as a justification for a strip search - at one point the policy states that the safety of the officers, the individual and to others is paramount. The Golden case never gives officer safety such an elevated status.
Further, the policy and the Risk Assessment never address the question of the necessity of the strip search they focus just on the reasonableness of it. In the Golden case, the Supreme Court of Canada says the strip search must be both reasonable and necessary.
The policy fails to address the fact that a Level 2 search, a pat down, will almost always indicate something hidden in the way of weapons or relating to the offense as the Supreme Court makes clear - thus necessitating a strip search, and that if it does not, the strip search will not be necessary.
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