Strip Searches
| This page was last substantively updated or reviewed October 2022. (Rev. # 96698) |
General Principles
The police power to search incident to arrest can include, on an exceptional basis, a search underneath clothing.
A strip search refers to "the 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 a female), or undergarments."[1]
- Level of Intrusion
They are considered highly intrusive because:[2]
- They represent a significant invasion of privacy;
- They are often a humiliating, degrading and traumatic experience; and
- Even the most sensitively conducted strip search is highly intrusive.
Given the serious "infringement of privacy and personal dignity" of a strip search, it will only be valid at common law where it is "conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest."[3]
- Purpose of Seach
The purpose relating to the search for evidence is "governed by the need to preserve the evidence and to prevent its disposal by the arrestee."[4]
- Necessary Grounds
It is not sufficient to establish reasonable and probable grounds for arrest. A strip search on an individual can only be performed where there is additional reasonable and probable grounds to do so or there are exigent circumstances.[5]
- Burden or Onus
The onus is upon the Crown to establish the sufficiency of grounds to conduct the strip search.[6]
- It Should Not be Routine
Given the level of intrusion, strip searches should not be carried out "routinely or under policy."[7] There should be a "compelling reason" to undertake one.[8]
Manner of Search
The strip search must be conducted in a reasonable manner. It cannot be done "abusively or for the purpose of humiliating or punishing the arrestee."[1] However, no matter what the search will be "humiliating and degrading."[2]
Guidelines suggest that the following questions should be considered before undertaking a strip search:[3]
- Can the strip search be conducted at the police station and if not, why not?
- Will the strip search be conducted in a manner that ensures the health and safety of all involved?
- Will the strip search be authorized by a police officer acting in a supervisory capacity?
- Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
- Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
- What is the minimum force necessary to conduct the strip search?
- Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
- 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?
- Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
- If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
- Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
- Force
The use of force must be necessary and proportional.[4] Gratuitous use of force will be unconstitutional.[5]
- Duration of the Search
The length of time that the detainee spends undressed will be a relevant factor t o consider in the search. [6]
- Note taking and Recording Process
The lack of contemporaneous notes of the process undertaken in the search is an important consideration whether the search was reasonable.[7]
- Taking Place at Station
It is rarely justified that a strip search should occur outside of the police station. It will usually only be under exigent circumstances that it will take place at the location of the arrest.[8]They represent an even greater intrusion upon the privacy and bodily integrity of the accused.[9]
Where a search is conducted outside of the station, the Crown will have the additional burden of establishing that there were "reasonable and probable grounds to believe that it [was] necessary to conduct the search in the field rather than at the police station."[10]
There must be 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" and that it would be "unsafe to wait and conduct the strip search at the police station."[11]
The risk of disposal of drugs found on the person is not justified when the accused is detained and transported in a police cruiser to the station where continuity will be maintained.[12]
- Deviation from Guidelines
The established guidelines can be deviated from where there are "exigent circumstances" that do not permit less intrusive procedures.[13]
Mere non-cooperation or resistance is not enough to make out exigent circumstances.[14]
- ↑ Golden, ibid., at para 95
- ↑ Golden, ibid.
- ↑ Golden, ibid., at para 101
- ↑ Golden at para 116 ("Any application of force or violence must be both necessary and proportional in the specific circumstances.")
- ↑ e.g. R. v. McGuffie, 2016 ONCA 365 (CanLII), at para 23, <https://canlii.ca/t/grhl0#par23>, retrieved on 2024-11-03
- ↑
e.g. see McEwan at para 70 and 75
- ↑ R. v. McPhail, 2011 ONCJ 315 (CanLII), at para 22, <https://canlii.ca/t/fm0hz#par22>, , per Maresca J
- ↑
Golden, supra, at para 102
- ↑
Golden, supra, at para 102
- ↑
Golden, supra, at para 102
- ↑
Golden, supra, at para 102
- ↑
Golden, supra, at para 93
- ↑
R v Black, 2022 ONCA 628 (CanLII) (working hyperlinks pending), per Pepall JA, at para 41
R v Kelsy, 2011 ONCA 605 (CanLII), 280 CCC (3d) 456, per Rosenberg JA, at para 35 - ↑
Black, ibid., at para 42
Golden, supra, at para 116