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R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83

 

Ian Vincent Golden                                                                                          Appellant

 

v.

 

Her Majesty The Queen                                                                               Respondent

 

and

 

The Attorney General for Ontario,

the Aboriginal Legal Services of Toronto,

the Canadian Association of Chiefs of Police,

the African Canadian Legal Clinic, and

the Canadian Civil Liberties Association                                                     Interveners

 

Indexed as:  R. v. Golden

 

Neutral citation:  2001 SCC 83.

 

File No.:  27547.

 

2001:  February 15; 2001:  December 6. 

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

 

on appeal from the court of appeal for ontario

 


Constitutional law -- Charter of Rights  -- Right to be secure against unreasonable search and seizure -- Search incident to arrest -- Strip search of accused in public place resulting in seizure of crack cocaine -- Whether strip search infringed accused’s right to be secure against unreasonable search and seizure -- Canadian Charter of Rights and Freedoms , s. 8 .

 

Criminal law -- Search and seizure -- Search incident to arrest -- Strip search of accused in public place resulting in seizure of crack cocaine -- Whether scope of common law “search incident to arrest” power broad enough to encompass authority to strip search arrested individual -- If so, whether common law reasonable -- Whether strip search of accused was carried out in reasonable manner.

 

Police officers set up an observation post in an unoccupied building across from a sandwich shop, in an effort to detect illegal drug activity in an area where trafficking was known to occur.  One of the officers observed G,  who was in the shop, and testified that he saw two transactions in which persons entered the shop and received a substance from G.  The officer testified that given the place where this transaction occurred, the manner in which it took place, and the colour of the substance, he believed the substance was cocaine and that G was trafficking in drugs, and he instructed the take‑down officers to arrest G.  During the arrests, the police found what they believed to be crack cocaine under the table where one of the suspects was arrested and G was observed  crushing what appeared to be crack cocaine between his fingers.

 


Following the arrests, a police officer conducted a “pat down” search of G and did not find any weapons or narcotics.  The officer then decided to conduct a visual inspection of G’s underwear and buttocks on the landing at the top of the stairwell leading to a basement where public washrooms were located.  The officer undid G’s pants and pulled them back along with G’s long underwear.  The officer saw a clear plastic wrap protruding from between G’s buttocks, as well as a white substance within the wrap.  The officer tried to retrieve the plastic wrap, but G  “hip‑checked” and scratched him.  G was then escorted to a seating booth at the back of the shop.  The officers forced him to bend over a table and his pants were lowered to his knees and his underwear was pulled down.  The officers tried to seize the package from his  buttocks, but were unsuccessful.  Following these attempts, G  accidentally defecated; however, the package did not dislodge.  An officer then retrieved a pair of rubber dishwashing gloves and again tried to remove the package while G was face‑down on the floor, with another officer holding down his feet.  Finally, the officer was able to remove the package once G unclenched his muscles.  It contained 10.1 grams of crack cocaine.  G was placed under arrest for possession of a narcotic for the purpose of trafficking, and for police assault.  He was strip searched again at the police station, fingerprinted and detained pending a bail hearing.

 

On a voir dire hearing, G applied to have the evidence obtained from the search excluded under ss. 8  and 24  of the Canadian Charter of Rights and Freedoms .  The application was denied, and the evidence was admitted.  G was found guilty of possession of a narcotic for the purpose of trafficking, but acquitted on the police assault charge.  The Court of Appeal dismissed his appeal from his conviction and sentence.

 

Held (McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting):  The appeal should be allowed.  The accused’s conviction should be overturned and an acquittal entered.

 


Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.:  Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.  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 then simply determining after the fact whether the search should have occurred.

 


The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches.  Strip searches are 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 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”.  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 detainee’s possession, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by the detainee.  In addition to reasonable and probable grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search.  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 .  If there is no prior judicial authorization for the strip search, several factors should be considered by the authorities in deciding whether, and if so how, to conduct such a procedure.  Strip searches should generally only be conducted at the police station except  where there are exigent circumstances requiring that the detainee be searched prior to being transported there.  Clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts.

 

The common law of search incident to arrest, which permits strip searches, does not violate s. 8  of the Charter .  The common law rule ensures that such searches are only carried out where the police establish reasonable and probable grounds for a strip search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested.  Furthermore, the factors set out ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible.  Attention to these issues will also ensure that the proper balance is struck between the privacy interests of the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring the safety of police officers, detained persons and the public. 

 


While in this case the arrest was lawful and the strip search was related to the purpose of the arrest, the Crown has failed to prove that the strip search was carried out in a reasonable manner.  This case was not one involving an urgent and necessary need to conduct a strip search “in the field” for the purpose of preserving evidence, and the decision to strip search was premised largely on a single officer’s hunch, arising from a handful of personal experiences.  The police officers’ decision to strip search G in the restaurant was accordingly unreasonable.  Moreover, the manner in which the strip search was conducted in the restaurant did not comply with the requirements of reasonableness contained in s. 8  of the Charter .  G was not given the opportunity to remove his own clothing; the strip search was conducted without notice to, or authorization from, a senior officer; and the search was carried out in a manner that may have jeopardized G’s health and safety.  Where the circumstances of a search require the seizure of material located in or near a body cavity, either the individual being searched should be given the opportunity to remove the material himself, or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed.  Further,  if the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter  rights.  In this case, G’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances.

 

Since the accused has already served his 14‑month sentence in full, it is neither necessary nor useful for this Court to determine whether the evidence deriving from the illegal strip search should have been excluded at trial.  It is preferable to rest our disposition on the premise that the courts below erred in finding the strip search of the accused reasonable in the circumstances and consistent with s. 8  of the Charter  and consequently erred in allowing the impugned evidence to be admitted. 

 


Per McLachlin C.J. and Gonthier and Bastarache JJ. (dissenting):  The common law does not require police to prove that they had reasonable and probable grounds to justify a strip search.  The existing common law rule that police demonstrate an objectively valid reason for the arrest rather than for the search is consistent with s. 8  of the Charter , provided that the strip search is for a valid objective and is not conducted in an abusive fashion.  The common law requirements that the evidence sought be related to the reason for the arrest and that the search be conducted in a manner that is not abusive apply to protect accused persons from indiscriminate or unreasonable searches regardless of whether the search occurs at the station or in the field.  The discovery of evidence should thus not be postponed to a time where the search can take place at a police station.  Police officers are not always close to a station; they operate in remote areas and are often alone.  The proposed rule that all strip searches proceed at a police station absent exigent circumstances should be left to Parliament.

 

The searches must be looked at individually and justified according to the circumstances applicable to each of them.  The first search was perfectly justified as  the reasonable and probable grounds for the arrest provided the authority to search for evidence related to the crime and the manner in which the search was conducted was not abusive.  The second search did violate G’s s. 8  rights as the police had actual knowledge that G was in possession of what was thought to be narcotics, providing a greater opportunity to ensure that the evidence would not be lost before reaching the station.  In addition, G’s refusal to give up the evidence meant that it could be seized at the scene only if the police conducted the strip search in less than private conditions and applied a degree of force which may not have been necessary had the search been conducted at the station.  Given these circumstances, the police should have concluded that close custody and immediate transfer to the station were the appropriate means of pursuing the ends of justice.  However, a s. 24(2) analysis shows that the administration of justice would not be brought into disrepute by admitting the object  of the search.

 


Per L’Heureux‑Dubé J. (dissenting):  Bastarache J.’s reasons were agreed with, subject to the following comment.  One factor in assessing the reasonableness of a relatively intrusive search, such as the strip search carried out in this case, is the existence of reasonable and probable grounds to justify the search.  While that factor was established in this case, the second search violated s. 8  of the Charter  for the reasons given by Bastarache J.

 

Cases Cited

 

By Iacobucci and Arbour JJ.

 


Distinguished:  Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney, [1999] 1 S.C.R. 652; referred to:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Leigh v. Cole (1853), 6 Cox C.C. 329; Bessell v. Wilson (1853), 17 J.P. 52; Adair v. M’Garry, [1933] S.L.T. 482; Lindley v. Rutter, [1980] 3 W.L.R. 660; R. v. Naylor, [1979] Crim. L.R. 532; United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973); Illinois v. Lafayette, 462 U.S. 640 (1983); Schmerber v. California, 384 U.S. 757 (1966); Giles v. Ackerman, 746 F.2d 614 (1984); State v. Audley, 894 P.2d 1359 (1995); Swain v. Spinney, 117 F.3d 1 (1997); Nurse v. Canada (1997), 132 F.T.R. 131; Blouin v. Canada (1991), 51 F.T.R. 194; Gottschalk v. Hutton (1921), 36 C.C.C. 298; R. v. McDonald (1932), 59 C.C.C. 56; Yakimishyn v. Bileski (1946), 86 C.C.C. 179; R. v. Brezack (1949), 96 C.C.C. 97; Re Laporte and The Queen (1972), 8 C.C.C. (2d) 343; Reynen v. Antonenko (1975), 20 C.C.C. (2d) 342; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Morrison (1987), 35 C.C.C. (3d) 437; R. v. Ferguson (1990), 1 C.R. (4th) 53; R. v. Flintoff (1998), 16 C.R. (5th) 248; R. v. Stott, [1997] O.J. No. 5449 (QL); R. v. K.D.S. (1990), 65 Man. R. (2d) 301; R. v. Miller, [1993] B.C.J. No. 1613 (QL); R. v. King, [1999] O.J. No. 565 (QL); R. v. Kalin, [1987] B.C.J. No. 2580 (QL); RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Pan, [2001] 2 S.C.R. 344, 2001 SCC 42; R. v. Christopher, [1994] O.J. No. 3120 (QL); R. v. Toulouse, [1994] O.J. No. 2746 (QL); R. v. Coulter, [2000] O.J. No. 3452 (QL); R. v. Garcia‑Guiterrez (1991), 5 C.R. (4th) 1.

 

By Bastarache J.  (dissenting)

 

 R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Cloutier v. Langlois, [1990] 1 S.C.R. 158; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136; United States v. Robinson, 414 U.S. 218 (1973); R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51.

 

By L’Heureux‑Dubé J. (dissenting)

 

R. v. Stillman, [1997] 1 S.C.R. 607.

 

Statutes and Regulations Cited

 

Cal. Penal Code § 4030 (West 2000).

 

Canadian Charter of Rights and Freedoms , ss. 8 , 24 .

 

Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code of Practice C), Annex A.

 

Colo. Rev. Stat. Ann. § 16‑3‑405 (West 1998).

 

Competition Act, R.S.C. 1985, c. C‑34 , s. 15 .

 


Crimes Act 1914 (Austl.), Part 1AA, c. 3C, s. 1 “strip search”.

 

Criminal Code, R.S.C. 1985, c. C‑46 , ss. 254(3) , 487 , 487.04  to 487.09 .

 

Customs Act, R.S.C. 1985, c. 1 (2nd Supp .), s. 98 .

 

Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I‑3 , s. 7 .

 

Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60.

 

Public Inquiries Act, R.S.O. 1990, c. P.41, s. 17.

 

Wash. Rev. Code Ann. § 10.79.070(1) (West 1990).

 

Wildlife Act, R.S.B.C. 1996, c. 488, ss. 92 [am. 1999, c. 24, s. 21], 93(c).

 

Authors Cited

 

Canada.  Commission of Inquiry into Certain Events at the Prison for Women in Kingston.  The Prison for Women in Kingston.  Toronto: The Commission of Inquiry, 1996.

 

Canada.  Law Reform Commission of Canada.  Report on Recodifying Criminal Procedure, vol. 1.  Ottawa:  The Commission, 1991.

 

Canada.  Law Reform Commission of Canada.  Working Paper 30.  Police Powers ‑- Search and Seizure in Criminal Law Enforcement.  Ottawa: The Commission, 1983.

 

Canada.  Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide:  A Report on Aboriginal People and Criminal Justice in Canada.  Ottawa: Royal Commission on Aboriginal Peoples, 1996.

 

Canada.  Task Force on the Criminal Justice System and Its Impact on the Indian and Metis People of Alberta.  Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta, vol. II.  Edmonton:  The Task Force, 1991.

 

Cohen, Stanley A.  “Search Incident to Arrest” (1989‑90), 32 Crim. L.Q. 366.

 

Cohen, Stanley A.  “Search Incident to Arrest:  How Broad an Exception to the Warrant Requirement?” (1988), 63 C.R. (3d) 182.

 

Corpus Juris, vol. V.  New York: American Law Book, 1916.

 

LaFave, Wayne R.  Search and Seizure: A Treatise on the Fourth Amendment, vol. 3,  3rd ed.  St. Paul, Minn.: West Publishing Co., 1996.

 


Lyons, Jeffrey S.  Toronto Police Services Board Review.  Search of Persons Policy -- The Search of Persons -- A Position Paper, April 12, 1999.

 

Manitoba.  Public Inquiry into the Administration of Justice and Aboriginal People.Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People.  Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991.

 

Newman, Dwight.  “Stripping Matters to Their Core:  Intrusive Searches of the Person in Canadian Law” (1999), 4 Can. Crim. L.R. 85.

 

Ontario.  Commission on Systemic Racism in the Ontario Criminal Justice System.  Report of the Commission on Systemic Racism in the Ontario Criminal Justice System.  Toronto:  The Commission, 1995.

 

Shuldiner, Paul R.  “Visual Rape:  A Look at the Dubious Legality of Strip Searches” (1979), 13 J. Marshall L. Rev. 273.

 

Stuart, Don.  Charter  Justice in Canadian Criminal Law, 3rd ed.   Scarborough, Ont.: Carswell, 2001.

 

Toronto Police Service.  Policy & Procedure Manual: Search of Persons, Arrest & Release, July 1999.

 

APPEAL from a judgment of the Ontario Court of Appeal, [1999] O.J. No. 5585 (QL), affirming the decision of the Ontario Court (General Division), [1998] O.J. No. 5963 (QL).  Appeal allowed, McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting.

 

David M. Tanovich, for the appellant.

 

J. W. Leising and Morris Pistyner, for the respondent.

 

Michael Bernstein, for the intervener the Attorney General for Ontario.

 

Kent Roach and Kimberly R. Murray, for the intervener the Aboriginal Legal Services of Toronto.

 


David Migicovsky and Lynda Bordeleau, for the intervener the Canadian Association of Chiefs of Police.

 

Donald McLeod and Julian K. Roy, for the intervener the African Canadian Legal Clinic.

 

Frank Addario and Jonathan Dawe, for the intervener the Canadian Civil Liberties Association. 

 

The reasons of McLachlin C.J. and Gonthier and Bastarache JJ. were delivered by

 


1                                   Bastarache J. (dissenting) -- This case is not about the determination of the scope of a free-standing right to privacy.  It simply concerns the reasonability of a specific search executed without a warrant, in the context of a defence under s. 8  of the Canadian Charter of Rights and Freedoms .  While this Court recognizes that s. 8  protects an individual’s reasonable expectation of privacy, it also recognizes that the expectation is one that must be balanced against the competing interest of law enforcement; see R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Cloutier v. Langlois, [1990] 1 S.C.R. 158.  Following the adoption of the Charter  and the articulation therein of the right to be secure against unreasonable search and seizure, this Court established a general presumptive requirement obligating law enforcement authorities to obtain a warrant before conducting a search; see Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  Nevertheless, several exceptions to the general presumption that prior authorization is required exist; see R. v. M. (M.R.), [1998] 3 S.C.R. 393.  Among the exceptions recognized by this Court as constitutionally valid is the long-standing common law authority to search incident to arrest without prior authorization; see R. v. Beare, [1988] 2 S.C.R. 387, and Cloutier, supra. The particular circumstances of this case do not require a new definition of this broad common law exception, but rather require a closer examination of the prerequisites for the reasonable exercise of this power when the nature of the search, in this case a strip search, affects more directly the privacy interests of the accused.  The privacy interest is upheld not by removing or limiting the actual authority to search, but rather by ensuring the reasonableness of the search.

 

2                                   My colleagues Iacobucci and Arbour JJ. have provided the factual background and summarized the decisions at trial and on appeal.  They have also given a thorough description of the historical development of the right to search incidental to an arrest.  I need not return to this.  I would however note that the law has not categorized personal searches according to the degree of intrusiveness of the search.  The same requirements justifying the conduct of a search incident to arrest apply regardless of whether the accused is subjected to a “frisk”, a fingerprinting, the taking of a bodily sample or a strip search.  These requirements were summarized by my colleagues (at para. 75) and include that the search be carried out for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence, and that it not be conducted in an abusive fashion.  In addition, the power to search incident to arrest is a discretionary one and need not be exercised where police are satisfied that the law can be effectively and safely applied in its absence; see Cloutier, supra, at p. 186.

 


3                                   The unworkability of an approach that would create distinct categories of searches rests in the fact that all of the types of searches listed above may take many forms ranging from a low degree of intrusiveness to a high degree of intrusiveness, depending on the circumstances of the case.  For example, on the facts of this case, the strip search of the accused which occurred in the stairwell was possibly not more intrusive than “pat-down” or frisk searches.  By contrast, the search in the restaurant impacted more severely on the privacy and dignity of the accused.  The standard of justification to which police will be held depends on the circumstances of the specific search in question, not upon the category into which it is placed.

 

4                                   An approach which would categorize searches according to the degree of intrusiveness also risks confusion.  The taking of a hair or other easily obtainable bodily sample may seem no more intrusive than a full strip search.  The taking of a hair sample in the absence of a warrant may nonetheless be found to violate s. 8  if police are not able to justify the search on the basis that it was for the purpose of discovering and preserving evidence or seizing weapons incident to arrest; see R. v. Stillman, [1997] 1 S.C.R. 607.  By contrast, a strip search conducted in the absence of prior authorization may be lawful if it meets the common law requirements of a search incident to arrest even if the search was very intrusive.

 


5                                   In all cases, providing the arrest is lawful and the object of the search is related to the crime, the sole issue is the reasonability of the search.  My colleagues assert that the fact that police have reasonable and probable grounds to carry out an arrest does not confer on them the authority to carry out a strip search, even where the strip search is related to the purpose of the arrest.  They add an additional requirement in the case of strip searches that the police must establish reasonable and probable grounds justifying the conduct of the strip search itself.  By placing strip searches in a category distinct from other types of searches, my colleagues have bypassed this Court’s decision in Cloutier, supra, at pp. 185-86, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a police power to search.  I agree with my colleagues that the more intrusive the search and the higher the degree of infringement of personal privacy, the higher degree of justification; however, I disagree that the common law requires police to prove that they had reasonable and probable grounds to justify the strip search.  Interpreting the common law in a manner consistent with Charter  principles does not require the Court to redefine the common law right by adding this additional requirement.  The existing common law rule that police demonstrate an objectively valid reason for the arrest rather than for the search is consistent with s. 8  of the Charter , provided that the strip search is for a valid objective and is not conducted in an abusive fashion.

 

6                                   The common law right to search incidental to an arrest is justified in part by the need to discover and preserve evidence. The courts have long acknowledged that the effectiveness and the legitimacy of the law enforcement system depends on the ability of police to find and preserve relevant evidence which may assist in the investigation and prosecution of the accused: see Cloutier, supra; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont. H.C.J.); Beare, supra.  My colleagues would severely limit the availability of this justification for strip searches by requiring police officers to conduct all strip searches at the police station. I do not agree that the discovery of evidence should be postponed to a time where the search can take place at a police station.  The common law requirements that the evidence sought be related to the reason for the arrest and that the search be conducted in a manner that is not abusive apply to protect accused persons from indiscriminate or unreasonable searches regardless of whether the search occurs at the station or in the field. 

 


7                                   The fear that evidence may be destroyed or lost before arriving at the police station is genuine. The common law rules must have regard to the realities of the situation. Police officers are not always close to a station.  They operate in remote areas and are often alone.  In my view, the argument that the risk of the detainee getting rid of the evidence is minimal is as unrealistic as the belief that an accused can never escape during his transfer to the police station or that a detainee can never escape from a prison. Also unrealistic is the assumption that evidence dropped or left behind by an accused could “easily” be linked circumstantially back to the accused. 

 

8                                   My colleagues refer to the English legislation, the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, as authority for the requirement that searches be conducted in police stations. Although foreign legislation can be useful as a source of criteria to determine the reasonableness of a search, I think it is clearly excessive to adopt foreign legislation to reinvent the common law rule in Canada.  This is particularly inopportune given that the foreign legislation referred to by my colleagues was specifically adopted to supersede the common law.  In my view, the proposed rule that all strip searches proceed at a police station absent exigent circumstances should be left to Parliament.

 


9                                   Furthermore, by stating that exigent circumstances will only exist where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten safety, my colleagues have in fact abolished the right to search for evidence upon arrest.  In doing so, they have drawn an unprecedented and unworkable distinction between the objective of discovering and preserving evidence and the objective of searching for weapons; objectives which they recognized in their reasons as the “twin rationales for the common law power of search incident to arrest” (para. 95). There is no demonstrated need for such a radical change to the common law power.  My colleagues come to the conclusion that the trial judge erred in determining that the search was reasonable in all of the circumstances principally on the basis that there were no exigent circumstances to justify a search outside the police station.  I disagree with their conclusion on the basis that the police are under no obligation to defer the search.

 

10                               With regard to the manner in which the search was conducted, I would agree with the Crown that the three searches must be looked at individually and justified according to the circumstances applicable to each of them.  In my view, the first search was perfectly justified.  As provided for in Cloutier, supra, the reasonable and probable grounds for the arrest provided the authority to search for evidence related to the crime.  The arresting officers had reasonable cause to believe the accused was hiding evidence.  Information that the accused had been observed passing a white powdery substance to other persons and receiving cash in return was passed onto the arresting officers by the surveillance team, giving rise to a suspicion that the accused would have crack cocaine on his person.  In addition, as the arresting officer approached the accused, he observed the accused crushing something between his fingers that left a white residue.  During the course of the arrest, the police found what looked to be cocaine under the table where one of the suspects was arrested.

 

11                               The manner in which the first search was conducted was not abusive.  The search was minimally intrusive on the accused’s privacy.  It was conducted in a private place and by one officer of the same gender as the accused.  The officer did not remove the accused’s clothing but only pulled back his underwear in order to visually inspect his buttocks.  The officer used minimal force until the accused hip-checked and scratched him, at which point the officer responded with force only to regain control of the situation.

 


12                               With regard to the second search, I would dispute in particular the obligation that my colleagues put on the arresting officer to obtain the authorization of a senior officer at para. 113.  I find no authority for such a requirement and see no value in submitting the evaluation of the situation to a person who is not present nor independent of the police.  Furthermore, similar to the obligation that police conduct searches only at the station, the imposition of this requirement negates the purpose of the common law power by imposing an additional barrier to the ability of the police to immediately seize evidence or weapons.  The case law has always recognized that the search power is applicable to the arresting officer, the very person who is in the position to act with the immediacy justified by the exception.  Given the problems inherent in the requirement for prior authorization, the preferred approach to protecting the rights of the accused is to hold police to a higher degree of justification when a highly intrusive search has been conducted; see S. A. Cohen, “Search Incident to Arrest” (1989-90), 32 Crim. L.Q. 366.

 

13                               In finding the manner of the search unreasonable, my colleagues emphasized not only the “unilateral” decision of the officers, but also the danger to the health and safety of the accused and the failure of the police to give the accused the opportunity to remove his own clothing.  In my view, too much was made of the issue of the appellant’s health and safety, which is but one factor to be considered in the context of the reasonableness analysis.  While it may have been preferable to conduct the search in more sanitary conditions, the appellant adduced no evidence of any health risk or health effect resulting from the use of the gloves.  In circumstances such as this, I believe that regard must be had to the need for a police officer at the time of arrest to make instantaneous decisions without having the luxury of reflection; see United States v. Robinson, 414 U.S. 218 (1973).

 


14                               I also disagree with my colleagues’ insistence that police must always give the accused an opportunity to remove his own clothing.  In this case, the officer might have given the accused the opportunity to undo his pants during the search in the stairwell, but his failure to make such a request by no means rendered the search unreasonable.  With respect to the second search in the restaurant, regard must be had to the fact that the accused struggled with the officers such that they required another officer to assist them.  In circumstances where the accused resists arrest or acts violently toward police, it seems unlikely that the accused will comply with a request to remove his or her own clothing.  I strongly disagree with an approach which would turn this factor or any of the other factors into hard and fast requirements that must be met each and every time a strip search is conducted, without regard to the particular circumstances of the case.

 

15                               On the other hand, my colleagues give practically no importance to the lack of cooperation and resistance of the accused, stating at para. 116 that there is “no requirement [to] cooperate with the violation [of one’s rights]”.  I disagree with my colleagues that resistance to a lawful arrest is justified as a refusal to cooperate with a violation of s. 8 .  In my opinion, resistance to arrest can be met with the minimal force necessary.  It is also an important consideration in determining the breach of the accused’s privacy interests.  All persons must be treated with dignity and respect, but the expectation of privacy of the accused in the circumstances of this case must be measured in light of his conduct.

 


16                               Despite my disagreement with the emphasis my colleagues have placed on certain aspects of the second search, I agree that the second search did violate the accused’s s. 8  rights.  In this case, the police had actual knowledge that the accused was in possession of what was thought to be narcotics, providing a greater opportunity to ensure that the evidence would not be lost before reaching the station.  In addition, the accused’s refusal to give up the evidence meant that it could be seized at the scene only if the police conducted the strip search in less than private conditions and applied a degree of force which may not have been necessary had the search been conducted at the station.  Given these circumstances, the police should have concluded that close custody and immediate transfer to the station were the appropriate means of pursuing the ends of justice.

 

17                               Having found a breach of s. 8 , it is necessary to conduct a s. 24(2) analysis to determine whether the evidence obtained contrary to s. 8  should have been excluded at trial.  As my colleagues point out, this is a theoretical exercise in this case since the appellant has already served his sentence.  I will not proceed to a detailed analysis, in these circumstances, but find that the administration of justice would not be brought into disrepute by admitting the object of the search.

 

18                               In deciding this issue, the Court must consider whether the admission of evidence would render the appellant’s trial unfair, whether the violation was serious and whether the exclusion would have a more serious impact on the repute of the administration of justice than admitting it; see R. v. Collins, [1987] 1 S.C.R. 265.  In this case, the appellant concedes that the admission of the evidence would not jeopardize the fairness of the trial.  The evidence of the narcotics was not conscriptive of the accused and was otherwise discoverable.

 


19                               Regarding the seriousness of the violation, this Court has considered the obtrusiveness of the search, the individual’s expectation of privacy in the area searched, the existence of reasonable and probable grounds and the good faith of the police; see R. v. Caslake, [1998] 1 S.C.R. 51, at para. 34.  The search was quite intrusive due to the exposure of the accused’s buttocks and genitalia and the attempt by police to retrieve the evidence.  In addition, the accused had a reasonably high expectation of privacy with respect to the physical area of his body that was searched.  The actions of the accused nonetheless led to a diminished expectation of privacy.  Had the accused cooperated with police during the first search and permitted them to retrieve the evidence, the second more intrusive search would not have been necessary.  In addition, the circumstances of the arrest provided the police with reasonable grounds to believe that the evidence would be found on the accused, a conclusion supported by the factual findings of the trial judge.  Finally, there is no evidence to suggest that the officers acted out of bad faith or that they were plainly aware that they were violating the accused’s s. 8  rights.

 

20                               The question of whether the exclusion of the evidence would have a more serious impact on the repute of the administration of justice than its admission must be answered in the affirmative.  Drug trafficking is recognized as a serious crime.  Although we do not have the benefit of conclusion of the trial judge on this issue, it is reasonable to assume that the use of this evidence at trial played an important role in linking the accused to the commission of the crime.

 

21                               For the above reasons, I would dismiss the appeal.

 

The following are the reasons delivered by

 


22                               L’Heureux-Dubé J. (dissenting) -- I concur with Bastarache J., except I wish to reiterate the view I expressed in R. v. Stillman, [1997] 1 S.C.R. 607, at para. 167, that one factor in assessing the reasonableness of a relatively intrusive search, such as the strip search carried out in this case, is the existence of reasonable and probable grounds to justify the search.  In my view, that factor was established in this case; nonetheless, I agree the second search violated s. 8  of the Canadian Charter of Rights and Freedoms  for the reasons articulated by Bastarache J.

 

The judgment of Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by

 

IACOBUCCI AND ARBOUR JJ. –

 

I.  Introduction

 

23                               The constitutional right to privacy requires that unjustified searches by the state be prevented.  Accordingly, our Court has held that prior authorization, where feasible, is a precondition for a valid search and seizure (Hunter v. Southam Inc., [1984] 2 S.C.R. 145).  At the same time, the power to search “incident to arrest” has developed as a long-standing exception to this customary rule.  As a concept that has evolved at common law, the search incident to arrest power has been framed by nebulous parameters.

 

24                               This Court has, however, taken important steps toward defining the nature and scope of this power within Canadian law.  As a result, it has been established that this search power may include the authority to fingerprint or conduct a “frisk” search of an arrested individual (see respectively R. v. Beare, [1988] 2 S.C.R. 387, and Cloutier v. Langlois, [1990] 1 S.C.R. 158).  It may also authorize the search of a motor vehicle driven by an arrested person (R. v. Caslake, [1998] 1 S.C.R. 51).  On the other hand, it does not entitle law enforcement authorities to conduct more invasive searches of the person, with a view to obtaining bodily samples as evidence (R. v. Stillman, [1997] 1 S.C.R. 607).


 

25                               Whether the search incident to arrest power is broad enough to encompass the authority to strip search an arrested individual is the question before us, and is one that has never been put directly in issue before this Court.  In addition, an issue arises as to whether the common law, if it includes the power to strip search as incidental to an arrest, is reasonable.  Finally, the Court must address whether the strip search conducted in the instant case was carried out in a reasonable manner.

 

26                               For the reasons that follow, we are of the opinion that the common law search incident to arrest power does include the power to strip search.  At the same time, this power is subject to limitations, which are discussed below.  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.  Given the proportionality created by these criteria, we conclude that the common law is reasonable.  However, in the present case, the strip search of the appellant did not meet the requirements for a valid strip search incident to arrest.  This being so, we find that the strip search to which the appellant was subject was unreasonable, and violated s. 8  of the Canadian Charter of Rights and Freedoms .  Accordingly, in all of the circumstances, we would allow the appeal.

 

II.  Factual Background

 


27                               On January 18, 1997, in an effort to detect illegal drug activity in an area where trafficking was known to occur, officers from the Metropolitan Toronto Police Force set up an observation post in an unoccupied building across from a Subway sandwich shop that was approximately 70 feet away.  From this vantage point and through the use of a telescope, one of the officers manning the observation post, Constable Theriault, observed the appellant, a black male, who was in the shop.  Constable Theriault testified that he had a clear view into the shop and saw two transactions in which persons entered the shop and received a substance from the appellant.  The officer testified that he saw the appellant take the substance from the palm of his hand with his thumb and forefinger, and that the substance was white.  He further testified that, given the place where this transaction occurred, the manner in which it took place, and the colour of the substance, he believed the substance was cocaine.

 

28                               After the second transaction, Constable Theriault communicated with the five other police officers involved in the operation who were not stationed at the observation post: the “take-down” members of the team.  He gave them descriptions of the persons involved, including the appellant.  Given what he had witnessed, Constable Theriault believed the appellant was trafficking in drugs, and he instructed the take-down officers to arrest the appellant.

 

29                               When the take-down occurred, the officers entered the shop and arrested the appellant for trafficking in cocaine.  Two other individuals in the shop were also arrested.  During the arrests, the police found what they believed to be crack cocaine under the table where one of the suspects was arrested.  Constable Ryan, one of the two officers who first entered the shop and the officer who arrested the appellant, also observed the appellant crushing what appeared to be crack cocaine between his fingers.

 


30                               Following the arrests, Constable Ryan conducted a “pat down” search of the appellant and looked in his pockets.  He did not find any weapons or narcotics. This officer then decided to conduct a visual inspection of the appellant’s underwear and buttocks.  Constable Ryan obtained from the shop’s employee the key to a door leading to the basement where public washrooms were located.  On the landing at the top of the stairwell, Constable Ryan undid Mr. Golden’s pants and pulled back the appellant’s pants and long underwear.  Looking inside the appellant’s underwear, he saw a clear plastic wrap protruding from between the appellant’s buttocks, as well as a white substance within the wrap.  Constable Ryan testified that when he tried to retrieve the plastic wrap, the appellant “hip-checked” and scratched him, so that he lost his balance and almost fell down the flight of 14 stairs.  Constable Ryan subsequently pushed the appellant into the stairwell, face-first.

 

31                               Concerned that the landing was not a safe place to continue the search, Constables Ryan and Powell escorted the appellant to a seating booth at the back of the shop.  Patrons remaining inside were asked to leave, and the front door was locked.  However, the two other arrested suspects, five officers, and the shop’s employee remained inside.

 

32                               The officers forced the appellant to bend over a table.  At this point, the appellant’s pants were lowered to his knees and his underwear was pulled down.  His buttocks and genitalia thus were completely exposed. According to the evidence, the partitions between the booths in the shop were high enough to block the view from the outside of the part of the shop where the search was conducted.  The employee of the shop testified that passersby would not have been able to see what was taking place inside, but someone, “[i]f . . . look[ing] carefully by the side of the window”, would have been able to see the appellant’s leg.

 


33                               Inside the shop, the officers tried to seize the package from the appellant’s buttocks, but were unsuccessful, given that the appellant continued to clench his muscles very tightly.  Following these attempts, the appellant accidentally defecated. The package, however, did not dislodge.  Constable Powell then retrieved a pair of rubber dishwashing gloves from the shop’s employee, put them on and again tried to remove the package.  According to the testimony of the shop’s employee, these gloves were used for cleaning the shop’s washrooms and toilets.  By this point, the appellant was face-down on the floor, with Constable Ryan holding down his feet.  The officers instructed the appellant to “let it out” and to “relax”.  Finally, Constable Powell was able to remove the package once the appellant unclenched his muscles.  It contained 10.1 grams of crack cocaine, with a street value of between $500 and $2,000.

 

34                               The appellant’s pants were pulled up and he was placed under arrest for possession of a narcotic for the purpose of trafficking, and for police assault.  The appellant was then brought to 51 Division, located about a two-minute drive from the Subway shop.  He was strip searched again at the police station, fingerprinted and detained pending a bail hearing.

 

35                               On a voir dire hearing, the appellant applied to have the evidence obtained from the search excluded under ss. 8  and 24  of the Charter .  The application was denied, and the evidence was admitted.  The appellant was found guilty by a jury of possession of a narcotic for the purpose of trafficking, but acquitted on the police assault charge.  He was sentenced to 14 months imprisonment, which he had served by the time this case was before our Court.  The Court of Appeal for Ontario dismissed the appellant’s appeal from his conviction and sentence.

 

III.  Relevant Constitutional Provisions

 

36                               Canadian Charter of Rights and Freedoms 

 


8. Everyone has the right to be secure against unreasonable search or seizure.

 

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

IV.  Judicial History

 

A.  Ontario Court (General Division), [1998] O.J. No. 5963 (QL)

 

37                 In a judgment delivered orally on a voir dire, McNeely J. stated that he was being asked to rule on whether the appellant’s Charter  rights had been breached by reason of an unreasonable search, and by reason of a violation of his privacy rights in the course of that search.  Moreover, the court was required to consider whether it ought to exclude from the evidence the material that was seized during the search.

 

38                 McNeely J. stated that it is “beyond question” that a search incident to a lawful arrest is an exception to the general rule that a warrantless search is prima facie illegal.  Referring to this Court’s decision in Stillman, supra, he noted that three conditions must be satisfied in order for a search to be valid under the common law power of search incident to arrest:  (1) the arrest must be lawful; (2) the search must have been conducted as an incident to the lawful arrest; (3) the manner in which the search is carried out must be reasonable.

 


39                 In regard to the first question, McNeely J. held that an officer is entitled to arrest someone whom he or she believes on reasonable and probable grounds has committed an offence.  In this case, the police had an operation underway that provided visual observations of the appellant engaging in two transactions in an area known for drug trafficking.  In this regard, McNeely J. stated at para. 9:

 

The nature of activity, the small quantity apparently involved, the manner in which it was handled, the colour of the substance, the locale in which it occurred, all of these would provide an objective basis on which the officer could found a belief, which he did form, on those reasonable and probable grounds that trafficking had occurred. 

 

Moreover, the arrest took place immediately after the second transaction, and was based on information and descriptions provided by Constable Theriault, who was stationed at the observation post and had witnessed the transactions through a telescope.  Thus, not only did this officer have reasonable and probable grounds for believing the appellant committed an offence, but so did Constable Ryan, the arresting officer on the “take-down” team.

 

40                 With respect to the second question, McNeely J. held that the search was conducted as an incident to the lawful arrest.  Given that the appellant was arrested for drug trafficking, it was reasonable for the officers to believe that narcotic substances might be found on his person.  It was not only necessary and reasonable that the appellant be patted down to make sure that safety concerns were satisfied, but also, that a search be made to see whether there was evidence that should be preserved for use at trial.  McNeely J. thus stated at para. 20:

 


So having regard to the offence for which the arrest was made and the need to preserve evidence, I am satisfied that it is clear that the second requirement, I am satisfied that this was a search incident to a lawful arrest. 

 

41                 In regard to the third and final requirement, McNeely J. found that the police search was reasonable and did not attract a Charter  violation.  In this regard, he reiterated that the arrest was for drug trafficking, and emphasized the importance of obtaining and preserving evidence for the purposes of trial.  McNeely J. also stated that, if the appellant had relaxed and not attempted to retain the package, the search could have been much shorter and less intrusive.  Finally, he stated that although the search took place in a restaurant, the officers conducted it at the back of the store, and the evidence was that passersby outside would not have been able to see it take place. Finding that the search was reasonable and did not violate the appellant’s right to privacy, McNeely J. held that the evidence obtained from the search would be admissible at trial.  He thus concluded his reasons for judgment as follows at para. 26:

 

I am satisfied that having regard to the nature of the offences on which the accused was arrested and the need to preserve evidence and the non-cooperation of the accused, that the officers acted in a reasonable manner. Accordingly, I am satisfied that the search in question was a search incident to a lawful arrest and carried out in a reasonable manner, and, therefore, was not an unreasonable search or an undue invasion of the privacy interests of the accused, and for that reason the results of the search will be admitted in evidence.

 

B.  Court of Appeal for Ontario, [1999] O.J. No. 5585 (QL)

 

42                 McNeely J.’s ruling was unanimously upheld by the Ontario Court of Appeal.  The entire judgment of Osborne A.C.J.O. (for the court) stated:

 


McNeely, J.  correctly set out the applicable legal principles.  He found as a fact that the appellant held the bag containing cocaine in his buttocks.  This is therefore not a body cavity search case.  We see no basis upon which to interfere with this finding, or any of the other findings of fact made by the trial judge. We agree that there was no s. 8  violation in the circumstances and in doing so we accept the Trial Judge’s reasons on the s. 8  issue. The appeal is dismissed.

 

V.  Issues

 

43                 This appeal raises two issues:

 

1.    Did the Court of Appeal for Ontario err in concluding that the strip search of the appellant did not violate s. 8  of the Charter ?

 

2.    If the strip search of the appellant violated s. 8  of the Charter , would the admission of the evidence bring the administration of justice into disrepute under s. 24(2)  of the Charter ?

 

VI.    Analysis

 

A.    Introduction

 

44                 This Court has held that a search will be reasonable within the meaning of s. 8  of the Charter  where (1) it is authorized by law; (2) the law itself is reasonable; and (3) the search is conducted in a reasonable manner (R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot, [1989] 2 S.C.R. 1140; Cloutier, supra; Stillman, supra, at p. 633; Caslake, supra).  Applying this analytical framework to the present case, the Court must address the following questions:

 

(1) Was the search authorized by law?


(2) Is the law itself reasonable?

 

(3) Was the search conducted in a reasonable manner?

 

45                 If these questions are answered in the affirmative, there will be no s. 8  violation (Collins, supra, at p. 278;  Debot, supra, Caslake, supra; Stillman, supra).  Conversely, if any of the questions is answered in the negative, then the strip search will violate s. 8  and it will be necessary to consider whether the evidence obtained as a result of the search should be excluded pursuant to s. 24(2)  of the Charter .  Applying this analytical framework to the present case, the first question is whether the common law of search incident to arrest authorizes the police to conduct strip searches.  If it does, the next question is whether the common law is reasonable.  If the strip search was authorized by law and the law is reasonable, the final question is whether the strip search of the appellant was conducted in a reasonable manner.

 

46                 This Court has emphasized on many occasions the need to strike the appropriate balance between the privacy interests of the accused on the one hand and the realities and difficulties of law enforcement on the other hand, most recently in the case of R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65.  Similarly, in the present case, an appropriate balance must be achieved between the interest of citizens to be free from unjustified, excessive and humiliating strip searches upon arrest, and the interests of the police and of society in ensuring that persons who are arrested are not armed with weapons that they may use against the police, themselves or others, and in finding and preserving relevant evidence.

 


47                 The appellant submits that the term “strip search” is properly defined as follows:  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.  This definition in essence reflects the definition of a strip search that has been adopted in various statutory materials and policy manuals in Canada and other jurisdictions (see for example: Toronto Police Service,  Policy & Procedure Manual: Search of Persons,  Arrest & Release (1999), at p. 3;  Crimes Act 1914 (Austl.), Part 1AA, c. 3C, s. 1 “strip search”; Cal. Penal Code § 4030 (West 2000); Colo. Rev. Stat. Ann. § 16-3-405 (West 1998); Wash. Rev. Code Ann. § 10.79.070(1) (West 1990)).  In our view, this definition accurately captures the meaning of the term “strip search” and we adopt it for the purpose of these reasons.  This definition distinguishes strip searches from less intrusive “frisk” or “pat-down” searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions.  While the mouth is a body cavity, it is not encompassed by the term “body cavity search”.  Searches of the mouth do not involve the same privacy concerns, although they may raise other health concerns for both the detainee and for those conducting the search.

 


48                 Applying this definition of strip search to the facts, the appellant was subjected to three strip searches in the present case.  The first strip search occurred in the stairwell when Constable Ryan undid the appellant’s trousers,  pulled back the long underwear the appellant was wearing and looked down the long underwear at the appellant’s buttocks.  The second strip search occurred in the back of the restaurant at which point the appellant’s pants and underwear were pulled down to his knees while the officers tried to seize the package from between the appellant’s buttocks.  This second strip search also involved the police officers using rubber dish gloves to forcibly remove the package containing the cocaine from between the appellant’s buttocks.  This physical contact with the appellant’s buttocks in the course of the second strip search places this search farther along on the spectrum of intrusiveness than the first search, although on the evidence it falls short of being a body cavity search.  The third strip search occurred at the police station.

 

B.        Did the Court of Appeal for Ontario err in concluding that the strip search of the appellant did not violate Section 8  of the Charter ?

 

 

(1)   Does the Common Law “Search Incident to Arrest” Power Include the Power to Strip Search?

 

49                 It is clear that the common law in Canada recognizes the power of police to search a lawfully arrested person for the purpose of seizing weapons or evidence that may be in his possession (Cloutier, supra, at pp. 180-81).  What is not clear, however, and what must be decided in this case, is the scope of this power to search incident to arrest.  Specifically, does the common law authorize strip searches and, if it does, are there any restrictions at common law on the power to conduct such searches?  In considering whether the common law in Canada authorizes strip searches carried out as an incident to arrest and, if so, whether the common law is consistent with s. 8  of the Charter , it is helpful to review the law concerning warrantless personal searches in the United Kingdom and the United States as well as the case authorities in Canada both before and after the enactment of the Charter .

 

(a) United Kingdom

 


50                 The common law power of police officers to search a person as an incident to arrest is a long-standing principle in English common law.  However, the practice of carrying out such searches predates the common law authority for doing so (Law Reform Commission of Canada, Working Paper 30, Police Powers -- Search and Seizure in Criminal Law Enforcement (1983), at p. 48).  The tolerance of such searches appears to be attributable to the historical tolerance of intrusive acts towards persons accused of crimes, as well as the fact that most objects seized upon arrest, such as bags of coins or weapons, could be found without any lengthy personal search:  Law Reform Commission, supra.

 

51                 The first reported cases in which individuals challenged the legality of personal searches appeared in the nineteenth century.  In Leigh v. Cole (1853), 6 Cox C.C. 329, in an action against police for assault by an individual who was arrested, searched, beaten and locked in a cell overnight for drunkenness, Williams J. made the following comments about the common law search power at p. 332:

 

With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that any general rule can be applied to such a case.  Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case. 

 

52                 In Bessell v. Wilson (1853), 17 J.P. 52 (Q.B.), decided in the same year as Leigh, supra, Campbell C.J. criticized the searching of the plaintiff at the station house and made the following general comments about when it is appropriate to search a prisoner at p. 52:

 

 

It is often the duty of an officer to search a prisoner.  If for instance, a man is taken in the commission of a felony, he may be searched to see whether the stolen articles are in his possession, or whether he has any instruments of violence about him, and, in like manner, if he be taken on a charge of arson, he may be searched to see whether he has any fire-boxes or matches about his person.


53                 In the Scottish case of Adair v. M’Garry, [1933] S.L.T. 482 (H.C.J.), the power to fingerprint an accused was held to be encompassed by the power to search incident to arrest.  The court also indicated that stripping an accused for identification purposes could be justified at common law (at pp. 487-88):

 

As regards undue invasion of the personal rights of the accused, one must have a sense of proportion. Certain it is that in practice, hitherto unchallenged, a person who is suspected of crime may be brought -- with reasonable violence in the event of his resistance -- to the police station, that he may be paraded for purposes of identification, that he may be stripped, and that he may be searched for any incriminating natural or artificial mark upon his person. . . .  All these things are done with a view to establishing the identity of the suspect.

 

54                 The power of search and seizure incident to arrest was considered more recently in England in the cases of  Lindley v. Rutter, [1980] 3 W.L.R. 660 (Q.B.), and R. v. Naylor, [1979] Crim. L.R. 532.  Both cases involved searches of female detainees at the police station carried out by female officers, and the removal of articles worn by the detainees.  In Lindley, the article removed was a brassiere.  In Naylor, the officer removed the detainee’s earrings, rings and necklace.  In both cases, it was a matter of police policy to remove the items in question.  The detainees in both cases resisted the search and seizure and were charged with assaulting a police officer.  In Lindley, the defendant successfully appealed her conviction for unlawfully assaulting a police officer.  The court concluded that, as the search and removal of the brassiere was not justified, the defendant was entitled to use reasonable force to resist and the assault charge could not stand. In Naylor, the trial judge directed the jury to return a verdict of not guilty on the basis that the police officers did not have the right to search the plaintiff and remove her jewellery and that the defendant was therefore entitled to resist in the way that she did.

 


55                 The common law power to search arrested persons is expressed as follows in Halsbury’s Laws of England, 4th ed., vol. 11, 1976, at para. 121, quoted in Lindley, supra, at p. 665: 

 

There is no general common law right to search a person who has been arrested, but such a person may be searched if there are reasonable grounds for believing (1) that he has on his person any weapon with which he might do himself or others an injury or any implement with which he might effect an escape, or (2) that he has in his possession evidence which is material to the offence with which he is charged. 

 

56                 What emerges from the cases above is that while the power to conduct warrantless searches as an incident to arrest did exist at common law in England, it was also subject to some limitations.  Specifically, the cases suggest that the power is limited to searching for weapons or for evidence relevant to the offence for which the individual was arrested.  These limitations on the scope of the power to search incident to arrest suggest a concern with balancing the privacy rights of the arrested person against the duty of the police to protect themselves and others against any weapons that may be in the detainee’s possession and to preserve and seize evidence in furtherance of their role enforcing the criminal law (see Lindley, supra, at p. 665).

 

57                 The common law power to carry out a personal search upon arrest in England has been superseded by the statutory powers of search set out in the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (“P.A.C.E.”).  The four main categories of search under the P.A.C.E. scheme are the “superficial” search, “full” search, “strip” search and “intimate” search.  Superficial searches do not require the suspect to remove any indoor clothing, while a full search may involve the removal of clothing but does not involve the removal of underclothing.

 


58                 A strip search, which is defined in Annex A to P.A.C.E. Code of Practice C as “a search involving the removal of more than outer clothing” may only be carried out in compliance with the rules relating to strip searches set out in the P.A.C.E. Code.  Such a search must always be carried out by a person of the same sex as the person being searched, out of sight of anyone of the opposite sex and anyone who does not need to be present.  Normally two people must be present in addition to the person searched.  Although the search involves the removal of all clothing, it should be done in such a way that the person is never completely undressed and should be conducted as quickly as possible.  While a visual inspection of genital and anal areas may be conducted, no physical contact may be made.  If objects are discovered in any body orifice other than the mouth and the person refuses to hand them over, their removal would constitute an intimate search which must be carried out in accordance with the rules pertaining to intimate searches.

 

59                 An “intimate” search under the P.A.C.E. is analogous to a body cavity search.  It involves a physical examination of a person’s body orifices other than the mouth.   Intimate searches are only permitted under the P.A.C.E. where the police have reasonable grounds for believing that the detained person is concealing a weapon or that the person is concealing a listed drug that he intended to supply to another or to export and that an intimate search is the only practicable means of removing the weapon or drug in question.  Such a search may only be carried out at a hospital or other medical premises, or a police station, in the case of a weapon, and it must be carried out by a registered medical practitioner or registered nurse unless this is not practicable.  In addition, no person of the opposite sex who is not a medical practitioner or nurse shall be present.

 

(b) U.S.A.


60                 While Canadian common law is derived primarily from British common law, as L’Heureux-Dubé J. noted in Cloutier, supra, at p. 175, it is nevertheless of assistance to look at the American law of warrantless searches of the person in considering the appropriate balance between the rights of individual being searched and the right of the police to search in Canada.

 

61                 The common law rule of search incident to arrest is expressed as follows in the Corpus Juris (1916), vol. V, at p. 434:

 

After making an arrest an officer has the right to search the prisoner, removing his clothing if necessary, and take from his person, and hold for the disposition of the trial court any property which he in good faith believes to be connected with the offense charged, or that may be used as evidence against him, or that may give a clue to the commission of the crime or the identification of the criminal, or any weapon or implement that might enable the prisoner to commit an act of violence or effect his escape.

 

62                 As noted by Professor LaFave in his text Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), vol. 3, at pp. 132-34, the American courts have upheld a wide variety of search procedures carried out in the context of warrantless searches as an incident to lawful arrest, including:  “the placing of the arrestee’s hands under an ultraviolet lamp; examining the arrestee’s arms to determine the age of burn marks; swabbing the arrestee’s hands with a chemical substance; taking scrapings from under the arrestee’s fingernails; taking a small sample of hair from the arrestee’s head; obtaining a urine sample from the arrestee; giving the arrestee a breathalyzer examination; swabbing the arrestee’s penis; taking dental impressions from the arrestee; or taking pubic hair combings from him”.

 


63                 The U.S. Supreme Court has considered the common law power to search incident to arrest on several occasions.  In United States v. Robinson, 414 U.S. 218 (1973), the police arrested the accused for operating a vehicle after his operator’s permit had been revoked.  They conducted a “pat-down” search of the accused’s clothing and pockets and found a quantity of heroin on his person.  The majority held that this search did not contravene the Fourth Amendment to the Constitution.  In determining whether the police had the power to conduct such a search, the majority reviewed the U.S. precedents, and concluded that they had recognized a power to search a lawfully arrested person as an incident to arrest. Such power was found to be well-rooted in the American legal tradition, and served the practical function of removing weapons from an arrestee and preventing the destruction of evidence in his or her possession. In reaching its conclusion, the majority (per Rehnquist J., as he then was) stated the following (at p. 235):

 

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.  A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.  It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.

 

The reasoning in Robinson was reiterated by the Supreme Court in Gustafson v. Florida, 414 U.S. 260 (1973), a companion case to Robinson, which also involved a pat-down and a search of the arrestee’s pockets upon arrest.

 


64                 The U.S. Supreme Court has not stated explicitly whether strip searching falls within the scope of the power to search incident to arrest.  However, comments made in Illinois v. Lafayette, 462 U.S. 640 (1983), suggest that strip searches may be permitted as an incident to placing an individual in custody: Lafayette, supra, at p. 645, per Burger C.J.  The Fourth Amendment will not necessarily protect an arrestee against “minor intrusions” into the body carried out as an incident to arrest, such as blood tests taken incident to arrest for driving under the influence of alcohol:  Schmerber v. California, 384 U.S. 757 (1966), at p. 772.

 

65                 Aside from decisions of the U.S. Supreme Court, American appellate courts have considered the common law power to search incident to arrest and, in particular, whether it permits strip searches of arrestees.  Routine strip searches of persons held in custody for minor offences have been held to be unconstitutional:  Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984).  On the other hand, legislation authorizing warrantless strip searches has been held to be constitutional provided that the search was based on “individualized, reasonable suspicion that the arrestee is concealing contraband”:  State v. Audley, 894 P.2d 1359 (Wash. Ct. App. 1995), at p. 1365.  In Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997), at p. 7, the First Circuit concluded that strip and “body cavity searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons”.

 

(c) Canada

 


66                 In contrast with searches of the person incident to arrest, there is a plethora of legislative provisions dealing with searches of premises.  In addition to s. 487  of the Criminal Code, R.S.C. 1985, c. C-46 , which provides that reasonable grounds are required before a justice may issue a warrant authorizing the search of a “building, receptacle or place”, there are many other provisions in the administrative and regulatory context governing the search of premises (see for example Competition Act, R.S.C. 1985, c. C-34 , s. 15 ; Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I-3 , s. 7 ; Wildlife Act, R.S.B.C. 1996, c. 488, ss. 92 and 93(c); Public Inquiries Act, R.S.O. 1990, c. P.41, s. 17).  The Law Reform Commission of Canada in its Working Paper on Police Powers, supra, at p. 20, remarked on this situation as follows:

 

The restricted availability of powers of personal search in this context [the criminal law context], however, is due less to a heightened respect for personal integrity on the part of Anglo-Canadian lawmakers than to the historical association of the warrant with searches of private dwellings.  Indeed, the development over the last three centuries of the warrant, with its safeguards against unjustified entry into private domains, has been accompanied by the accrual of relatively discretionary warrantless powers to search persons.

 

Thus, searches of the person incident to arrest fall to be governed by the common law.

 

67                 There are relatively few reported pre-Charter  cases in Canada dealing with the lawfulness of searches of the person carried out as an incident to arrest.  The lack of case authority on this issue is not surprising given the lack of effective remedies for unlawful searches, whether strip searches or other types of personal searches.  Prior to the advent of s. 8  of the Charter , the only possible remedy for an unlawful strip search would have been a tort action for assault, battery or false imprisonment.  The cost of bringing such an action, the low amount of damages potentially recoverable and the ineffectiveness of civil actions as a remedy when real evidence was seized through an unlawful search likely explains the dearth of case law.  Recent cases illustrate that damage awards in tort for unlawful strip searches remain low, and the costs of bringing a civil action would far exceed the nominal damages awarded:  Nurse v. Canada (1997), 132 F.T.R. 131; Blouin v. Canada (1991), 51 F.T.R. 194.


 

68                 One of the earliest Canadian cases referring to the power to search as an incident to arrest at common law is Gottschalk v. Hutton (1921), 36 C.C.C. 298 (Alta. S.C.A.D.), which concerned an action for the return of property taken by the police.  In that case, the court adopted the statement of the law concerning search incident to arrest set out in the Corpus Juris, quoted above in these reasons.  The later case of R. v. McDonald (1932), 59 C.C.C. 56 (Alta. S.C.A.D.) was an appeal of an acquittal of two police officers on charges of assault, arising out of a search incident to arrest.  Harvey C.J.A. reviewed the law on point, citing Gottschalk for the principle “that the right to detain property found on a prisoner upon a search has its limitation” (p. 61).  In Yakimishyn v. Bileski (1946), 86 C.C.C. 179 (Man. K.B.), another action involving property seized by the police upon arrest, the court again adopted the statement of the law set out in Gottschalk.

 

69                 In R. v. Brezack (1949), 96 C.C.C. 97 (Ont. C.A.), the accused appealed his conviction of having unlawfully assaulted a police officer engaged in the lawful execution of his duty for having bit and struck a police officer while the officer was attempting to search inside the accused’s mouth for illegal drugs.  Robertson C.J.O. concluded that the search was lawful as an incident to the arrest, relying on the authority of Bessell, supra, and Leigh, supra, and dismissed the appeal from conviction.

 


70                 The case of Re Laporte and The Queen (1972), 8 C.C.C. (2d) 343 (Que. Q.B.) represents the high water mark in Canadian law as far as the degree of intrusiveness of searches of the person.  In that case, the police sought a search warrant authorizing them to conduct a search of the body of Mr. Laporte for one or more bullets which were alleged to have been fired by police into Laporte’s body during a hold-up that occurred a year and a half earlier.  The warrant issued authorized surgery upon Laporte to have the bullets removed and seized.  Upon an application by Laporte to quash the search warrant, Hugessen J. concluded that the warrant could not be justified under either the common law power of search incident to arrest or any of the statutory provisions of the Criminal Code .  Accordingly, he set aside the warrant in order to prevent what he described as “a grotesque perversion of the machinery of justice and an unwarranted invasion upon the basic inviolability of the human person”: Laporte, supra, at p. 354.

 

71                 Another pre-Charter  case dealing with a highly intrusive personal search is Reynen v. Antonenko (1975), 20 C.C.C. (2d) 342 (Alta. S.C.T.D.).  In that case, the plaintiff brought a civil action for assault and battery and exemplary damages arising out of a body cavity search carried out on the plaintiff to search for drugs secreted in his rectum.  The search was carried out by a doctor at a hospital on the basis of the common law authority to search incident to arrest.  MacDonald J. dismissed the plaintiff’s action and concluded at p. 348 that

 

the police in this case had not only the right but also a duty to conduct a search of the plaintiff for drugs, and to seize any drugs found as evidence to be presented to the Court.  In making this search and seizure the police are clearly authorized to use such force as is reasonable, proper and necessary to carry out their duty, providing that no wanton or unnecessary violence is imposed.

 


72                 In the post-Charter  era, there are many examples of cases dealing with personal searches in general, and strip searches in particular, carried out as an incident to arrest.  The greater number of strip search cases is at least in part due to the greater availability of remedies with the advent of the Charter , particularly the possibility of excluding evidence under s. 24(2)  of the Charter  as a remedy for unlawful searches.  However, the cases also suggest a disturbing trend towards strip searching detained persons as a matter of routine police policy, regardless of the particular circumstances surrounding the arrest.

 

73                 While the constitutionality of strip searches incident to arrest has not previously been addressed by this Court, this Court has addressed the constitutionality of a strip search and “bedpan vigil” of a person detained at airport customs carried out pursuant to s. 98  of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp .).  In R. v. Simmons, [1988] 2 S.C.R. 495, and R. v. Monney, [1999] 1 S.C.R. 652, this Court concluded that strip searches of travellers carried out under the customs legislation did not violate s. 8  of the Charter .  However, this Court also made it clear that its conclusion that s. 8  was not violated in the circumstances was based upon the “unique factual circumstance” that border crossings present.  The unique nature of the border crossing context was described as follows in the following passage from Iacobucci J.’s reasons in Monney, at para. 42, quoting from the majority reasons of Gonthier J. in R. v. Jacques, [1996] 3 S.C.R. 312, at para. 18:

 

The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495.  Dickson C.J., writing for the majority, said (at p. 528):

 

National self-protection becomes a compelling component in the calculus.

 

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations.  People do not expect to be able to cross international borders free from scrutiny.  It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.  

 


74                 Given the unique context of border crossing searches, the reasoning in the customs cases is not directly applicable in the present case.  While this Court has never pronounced on the lawfulness of strip searches conducted as an incident to arrest prior to the present appeal, it has made comments in obiter concerning such searches in the cases of Beare, supra, and Cloutier, supra.  The Beare case was concerned with the constitutionality of legislation that provided for the fingerprinting of individuals charged but not convicted of an indictable offence.  In the course of concluding that the legislation was not in violation of the Charter , La Forest J. made the following comments, at pp. 403-4: 

 

As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person; see R. v. Morrison (1987), 20 O.A.C. 230.  This authority is based on the need to disarm an accused and to discover evidence.  In the course of custodial arrest an accused may be stripped.  Of particular relevance, height, weight and natural or artificial marks on the body, such as birth marks or tattoo marks, may be used for purposes of identification; see Adair v. M’Garry, [1933] S.L.T. 482 (J.).

 

75                 In Cloutier, supra, this Court considered the common law power of search incident to arrest for the first time.  The case involved a “frisk” or “pat” search of a motorist stopped for a traffic violation.  L’Heureux-Dubé J., writing for the Court, surveyed the British, American and Canadian case authorities and concluded at pp. 180-81 that:

 

[I]t seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him.

 


She noted, however, that while the existence of such a common law power is accepted, there is uncertainty as to the scope of the power.  In Cloutier, supra, at p. 186, L’Heureux-Dubé J. stated the following three propositions in relation to the common law of search incident to arrest:

 

(1)  The police have the power to conduct a search at common law but are not under a duty to exercise the power;  

 

(2)  The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence; and

 

(3)  The search must not be conducted in an abusive fashion.

 

A search that did not meet these three criteria would be unreasonable under s. 8  of the Charter .

 

76                 Since Cloutier, this Court has addressed the constitutionality of the seizure of bodily samples at common law in Stillman, supra.  Cory J., speaking for the majority, held that the seizure of bodily samples, namely hair samples, buccal swabs and dental impressions, was not authorized by the common law power to search incident to arrest.  Such a serious interference with a person’s bodily integrity required statutory authorization and could not be justified under the common law power to search incident to arrest.  Cory J. distinguished the situation in Stillman from other cases, such as Cloutier, supra, where searches incident to arrest had been found not to infringe the Charter  on the basis that “completely different concerns arise where the search and seizure infringes upon a person’s bodily integrity, which may constitute the ultimate affront to human dignity” (Stillman, supra, at para. 39).

 


77                 At the appellate and trial court levels in Canada, strip searches and even body cavity searches have been held to be lawful at common law as an incident to arrest.  At the appellate level, the only court in Canada that has addressed whether strip searches incident to arrest are constitutional is the Ontario Court of Appeal.  In R. v. Morrison (1987), 35 C.C.C. (3d) 437, the Court of Appeal concluded that a strip search of a female detainee arrested for theft and possession of stolen goods and cash did not violate s. 8  of the Charter  and that the evidence discovered in the search, namely marijuana, was therefore admissible.  At p. 442 of Morrison, Dubin J.A. expressed the principles applicable to such searches as follows:

 

As incident to a lawful arrest, a peace officer has the right to search the person arrested and take from his person any property which he reasonably believes is connected with the offence charged, or may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested, but he need not have reasonable grounds to believe that either such weapons or evidence will be found.  It is the fact that the search of the person is made as incident to a lawful arrest which gives the peace officer the authority to search the person arrested.

 


78                 In two subsequent cases, the Ontario Court of Appeal held that strip searches did violate s. 8 .  In R. v. Ferguson (1990), 1 C.R. (4th) 53, the accused was observed for several hours at a house where police suspected drug trafficking took place.  The police later stopped the accused’s vehicle, searched his vehicle and checked his name on CPIC.  They then noticed a bulge in the accused’s pants, and discovered, after undoing his pants, that he was concealing a bag containing cocaine.  The Court of Appeal ruled that the search violated s. 8  because it was conducted on the basis of mere suspicion, rather than reasonable and probable grounds.  Although the violation of s. 8  was found primarily on the basis that there was a lack of reasonable and probable grounds, the court also noted the intrusive method of the search.  The court held that the s. 8  violation was serious and that the evidence should therefore be excluded under s. 24(2)  and an acquittal entered. 

 

79                 In R. v. Flintoff (1998), 16 C.R. (5th) 248 (Ont. C.A.), the accused was arrested for impaired driving and taken to the police station for a breathalyzer test.  Prior to the breathalyzer test, the accused was strip searched as part of the routine policy of the police department and not on the basis of any circumstances related to the particular case.  After the strip search, the appellant was taken to the breathalyzer room and failed the test.  The Ontario Court of Appeal concluded that it was unreasonable to strip search the appellant and that the breach of s. 8  was serious.  Accordingly, the court held that the breathalyzer evidence should be excluded and the decision of the trial judge dismissing the charge restored.

 


80                 At the trial level, there are numerous examples of cases involving strip searches performed as an incident to arrest.  In some cases, the courts have concluded that the strip searches did not constitute a s. 8  violation, while in other cases similar searches have been held to violate s. 8 .  In R. v. Stott, [1997] O.J. No. 5449 (QL) (Prov. Div.), a strip search of an individual arrested for impaired driving carried out as a matter of routine police policy was held not to violate s. 8 .  Similarly, in R. v. K.D.S., (1990), 65 Man. R. (2d) 301 (Q.B.), the strip search of a young offender at the police station as part of normal police procedure following his arrest for possession of a stolen licence plate was held not to be a violation of s. 8 .  Strip searches accompanied by the threat of a subsequent body cavity search as an incident to arrest have also been found not to infringe s. 8 R. v. Miller, [1993] B.C.J. No. 1613 (QL) (S.C.).  On the other hand, a routine strip search of a female accused arrested for theft and possession of stolen property was held not to be authorized by the common law of search incident to arrest in R. v. King, [1999] O.J. No. 565 (QL) (Gen. Div.).  Also, in R. v. Kalin, [1987] B.C.J. No. 2580 (QL) (Co. Ct.), a routine strip search conducted at the police station following an arrest for impaired driving was held to be unreasonable under s. 8  of the Charter .  As these cases illustrate, there is inconsistency in the lower court decisions as to when strip searches are reasonable and when they are unreasonable under s. 8 .

 

(d)   The Preconditions of a Lawful Strip Search Incident to Arrest at Common Law

 


81                 The appellant’s position is that, given the negative impact of a strip search on an individual’s privacy interests and psychological well-being, s. 8  should demand that at least probable cause be required to authorize strip searches and, absent exigent circumstances, a warrant.  The intervener African Canadian Legal Clinic (ACLC) agrees with the appellant that probable cause and a warrant requirement should be required for strip searches to be constitutional under s. 8  of the Charter .  The ACLC says that given the negative stereotyping of African Canadians by police and the large number of African Canadians who are stopped and searched by police, a public process of obtaining a warrant is required to reduce the danger of racist stereotyping by individual police officers, who are more likely than a neutral arbiter to conclude that a strip search of a black person is appropriate.  The intervener Aboriginal Legal Services of Toronto (ALST) also advocates a regime of prior authorization for strip searches and submits that the common law does not authorize warrantless strip searches except in the most exceptional circumstances, such as where there is an immediate threat to the safety of police and the public or a threat of immediate destruction of evidence.  For its part, the intervener Canadian Civil Liberties Association proposes three limits on strip searches incident to arrest: (1) strip searches should be prohibited when less intrusive investigative steps are available; (2) police must have reasonable grounds to conduct strip searches, and (3) prior authorization in the form of a warrant should be required except in rare exigent circumstances.

 

82                 The respondent’s position is that the common law authorizes strip searches and is reasonable within the meaning of s. 8 .  The respondent says that the restrictions on searches outlined by this Court in Cloutier, supra, and Stillman, supra, are adequate to ensure that strip searches incident to arrest meet the requirements of s. 8 .  The interveners Attorney General for Ontario and the Canadian Association of Chiefs of Police both agree with the respondent that the common law authorizes strip searches and is reasonable. 

 


83                 While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent 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.  Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are overrepresented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches (Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol. 1, The Justice System and Aboriginal People, at p. 107; Cawsey Report, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (1991), vol. II, p. 7, recommendations 2.48 to 2.50; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide (1996), at pp. 33-39; Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995)).  As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur.

 

84                 The law is clear in Canada that warrantless searches are prima facie unreasonable under s. 8  of the Charter  (Hunter, supra).  Where a search is carried out without prior authorization in the form of a warrant, the burden is on the party seeking to justify the warrantless search to prove that it was not unreasonable (Hunter, at pp. 160-61).  Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.  In considering the constitutionality of strip searches carried out as an incident to arrest, it is still important to bear in mind that warrantless searches are the exception and not the norm in Canadian law.  While characterized as an exception to the normal rule that a search warrant is required for a lawful search, however, warrantless personal searches incident to arrest are an exception whose importance should not be underestimated.  The practical reality is that warrantless searches of persons incident to arrest constitute the majority of searches conducted by police (see S. A. Cohen, “Search Incident to Arrest: How Broad an Exception to the Warrant Requirement?” (1988), 63 C.R. (3d) 182, at p. 184; LaFave, supra, at pp. 68-69; D. Newman, “Stripping Matters to Their Core:  Intrusive Searches of the Person in Canadian Law” (1999), 4 Can. Crim. L.R. 85, at p. 94; D. Stuart, Charter  Justice in Canadian Criminal Law (3rd ed. 2001), at pp. 206-7; and Law Reform Commission of Canada, Report on Recodifying Criminal Procedure (1991), vol. 1, at p. 46).

 


85                 There have been some legislative developments in Canada concerning specific types of personal searches, such as breathalyzer and blood sample demands in the impaired driving context (s. 254(3) (a) and (b) of the Criminal Code ) and the taking of DNA evidence (ss. 487.04  to 487.09  of the Criminal Code ).  However, these specific areas of legislation governing searches of the person are directed at the circumstances under which particular types of evidence may be obtained from a person.  In this sense, they are more concerned with how and when particular evidence may be seized from a person rather than with the scope of police powers to conduct personal searches for evidence or weapons incident to arrest.  In the absence of legislative guidance, it falls to this Court to determine the scope of the common law power to search as an incident to arrest, and what the limits are to this power in the context of strip searches. 

 

86                 This Court has stated in many previous decisions that the common law must be interpreted in a manner that is consistent with Charter  principles (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Salituro, [1991] 3 S.C.R. 654; Cloutier, supra).  Where the common law is out of step with the Charter  and it is possible to change the common law rule without upsetting the proper balance between judicial and legislative action, then the common law rule should be changed (Salituro, supra, at pp. 675-76; R. v. Pan, [2001] 2 S.C.R. 344, 2001 SCC 42).

 


87                 While the common law authorities discussed above support the general proposition that a warrantless search conducted incident to arrest is permitted under the common law, the scope of this common law search power is less clear: Caslake, supra, at paras. 14-15.  Thus, the task in the present case is to delineate the scope of the common law power as it pertains to warrantless strip searches carried out as an incident to lawful arrest in a way that is consistent with the Charter  right to be protected against unreasonable search and seizure.  As Lamer C.J. stated in Caslake, because there are no clear limits on the power to search incident to arrest it is “the courts’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right to privacy” (Caslake, supra, at para. 15).  It is important to note that the discussion below relates only to the permissible scope of strip searches incident to arrest, as defined in these reasons.  For greater clarity, if it appears during the course of a strip search that the detainee is concealing a weapon or evidence inside a body cavity, and the detainee refuses to co-operate, then in order to obtain the object in question the police officer must likely exceed the realm of the strip search and enter the realm of the body cavity search.  More intrusive searches of the person such as this involve a higher degree of infringement of personal dignity and privacy as well as additional medical concerns and, accordingly, a higher degree of justification will be required before such a search can be carried out.  In addition, more intrusive searches will be subject to greater constraints as to the manner in which they may be reasonably performed.

 

88                 As noted by Dickson C.J. in Simmons, supra, the different types of searches raise different constitutional considerations: the more intrusive the search, the greater the degree of justification and constitutional protection that is appropriate: Simmons, at p. 517.  The party seeking to uphold the validity of a warrantless personal search will face a lower burden in the case of a quick pat or frisk search than in the case of a highly invasive body cavity search.

 


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 arrestee’s 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 appellant’s 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 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.

 


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 detainee’s 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 detainee’s 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 .

 


100             Parliament could require that strip searches be authorized by warrants or telewarrants, which would heighten compliance with the Charter .  At a minimum, if there is no prior judicial authorization for the strip search, several factors should be considered by the authorities in deciding whether, and if so how, to conduct such a procedure.

 

101             In this connection, we find the guidelines contained in the English legislation, P.A.C.E. concerning the conduct of strip searches to be in accordance with the constitutional requirements of s. 8  of the Charter .  The following questions, which draw upon the common law principles as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter :

 

1.     Can the strip search be conducted at the police station and, if not, why not?

 

2.     Will the strip search be conducted in a manner that ensures the health and safety of all involved?

 

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

 

4.     Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched? 

 

5.     Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?


6.     What is the minimum of force necessary to conduct the strip search?

 

7.     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? 

 

8.     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? 

 

9.     Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? 

 

10.   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?

 

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

 


102             Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station.  Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station.  Strip searches conducted in the field could 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.  The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field.  Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.

 

103             Having said all this, we believe that legislative intervention could be an important addition to the guidance set out in these reasons concerning the conduct of strip searches incident to arrest.  Clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts. 

(2)      If the Common Law Power to Search Incident to Arrest Permits a Strip Search, is the Common Law Unreasonable?

 


104             Given our conclusion that the common law does permit a strip search to be conducted as an incident to a lawful arrest, the question is whether the common law is unreasonable in this respect within the meaning of s. 8  of the Charter .  In our view, as interpreted above, the common law power to search incident to arrest conforms with the constitutional protection against unreasonable search and seizure contained in s. 8  of the Charter .  The common law rule as delineated above governs the conduct of strip searches incident to arrest and ensures that such searches are only carried out where the police establish reasonable and probable grounds for a strip search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested.  Furthermore, the factors set out above ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible.  Attention to these issues will also ensure that the proper balance is struck between the privacy interests of the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring the safety of police officers, detained persons and the public.  We conclude therefore that the common law of search incident to arrest, which permits strip searches, does not violate s. 8  of the Charter .

 

(1)      Was the Strip Search Conducted in this Case Carried Out in a Reasonable Manner?

 

105             In light of the constitutional requirements set out above for a valid strip search incident to arrest, we are of the view that the search at issue in this appeal was unreasonable, and violated the appellant’s rights guaranteed under s. 8  of the Charter .  In this respect, it is critical to underscore that where the reasonableness of a strip search is challenged, it is the Crown that bears the onus of proving its legality.  It thus must convince the court on a balance of probabilities that either (1) reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search “in the field” was warranted and was conducted in a reasonable manner; or (2) that reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable manner.  Because strip searches are of such an invasive character, they must be considered prima facie unreasonable.  It is up to the state to rebut this presumption because it is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did.  This onus rests upon the Crown in any case involving a strip search, as defined in these reasons.

 


106             In the present case, the Crown sought to distinguish the first part of the search in the stairwell from the subsequent efforts to seize the plastic wrap from the appellant’s buttocks after he was brought back into the Subway shop.  We are unwilling to accept such a distinction.  The search in the stairwell, whereupon the police pulled back the appellant’s pants and underwear in order to visually examine his buttock area, cannot be looked at in isolation.  Rather, it must be assessed within the complete context of the events that took place after the appellant’s arrest. According to the definition adopted in these reasons, the first part of the search in the stairwell was a strip search, although it was clearly of a less intrusive character than the subsequent search in the restaurant.  This visual inspection of the appellant’s buttocks, in and of itself, interfered with his privacy, dignity, and integrity.  The Crown’s burden of proof in regard to this first part of the search is thus the same as that required to justify the subsequent search and seizure that took place in the shop.  However, as discussed above, the more intrusive the search, the greater will be the degree of justification required and the greater the constraints as to the way it may be conducted. 


107             In this appeal, the Crown has failed to prove that the strip search of the appellant was carried out in a reasonable manner.  More specifically, the evidence adduced at trial fell far short of establishing that a situation of exigency existed so as to warrant a strip search outside of the police station.  The Crown asserted that this search was necessitated by Constable Ryan’s observance of the appellant crushing what appeared to be crack cocaine between his fingers just after his arrest.  In addition, this officer testified that he had made at least 12 narcotics-related arrests in his experience as a police officer, in which he discovered cocaine secreted by arrested persons in their buttocks or groin area.  The Crown argued that these circumstances gave rise to reasonable and probable grounds for believing that the appellant was concealing evidence on his person.  Further, it was submitted that exigency arose from the risk that this evidence might be lost or destroyed if police waited to conduct the strip search until the appellant was transported to a police station.

 

108             We find these submissions unpersuasive for the following reasons.  First, Constable Theriault, the officer stationed at the observation post, testified that 51 Division police station was located on the corner of Dundas and Regent streets, a two-minute drive away from the shop where the strip search of the appellant took place.  This fact alleviated any sense of exigency in this case.  In our view, it seems highly improbable that the appellant, who was handcuffed, could have somehow surreptitiously ridded himself of the evidence concealed on his person during the very brief time it would have taken police to relocate him to 51 Division.  Had he succeeded in dropping the evidence on the sidewalk or in the police cruiser, it is difficult to conceive that he would have been able to do so unobserved, given the number of officers involved in his arrest.  Furthermore, the circumstances surrounding the discovery of any drugs dropped close to the appellant would have provided strong circumstantial evidence of the appellant’s connection to the evidence.  As such, we conclude that this case was not one involving an urgent and necessary need to conduct a strip search “in the field” for the purpose of preserving evidence.

 


109             The trial judge made no findings as to whether there were reasonable and probable grounds to conduct a strip search; he relied on the grounds for the arrest.  As mentioned, Constable Ryan testified that in his experience, he had made at least a dozen drug arrests in which an arrested individual was concealing evidence in his private areas.  At the same time, this officer also testified on cross-examination that he had arrested well over 200 persons dealing in crack cocaine.  If  these individuals were all strip searched, which is not evident in the record, he admitted to having found evidence hidden in an individual’s private parts in merely five percent of drug arrests.  If only a few of these individuals were strip searched, it raises the question: which ones and why?  Constable Ryan thus knew that the chances of discovering evidence as a result of strip searching the appellant were quite slim. 

 

110             Other than Constable Ryan’s personal experience, the arresting officers had no reasonable and probable basis for conducting the strip search in the restaurant.  No information was given to them by Constable Theriault that the appellant had reached into his pants to remove any substances, nor had they ever witnessed such conduct themselves.  There was no bulging or protrusion in the appellant’s buttock area to suggest that he was concealing evidence.  In the result, the decision to strip search was premised largely on a single officer’s hunch, arising from a handful of personal experiences.  These circumstances, coupled with the absence of exigency discussed above, compel us to conclude that the police officers’ decision to strip search the appellant in the restaurant was unreasonable.

 

111             Having so concluded, we should note, however, that there was some evidence suggesting the possibility of concealment of narcotics.  The appellant was arrested for trafficking after police observed him engage in two transactions involving what they believed was a narcotic substance.  Further, the arresting officers found what they thought was crack cocaine under the table where another suspect was arrested.  Constable Ryan also observed the appellant crushing a substance that looked like crack cocaine between his fingers during the arrest. Finally, Constable Ryan did have some experience, albeit in relatively few cases, with drug arrests involving suspects who secreted evidence in their groin or buttock areas.

 


112             Taken together, these circumstances would have been sufficient to create reasonable and probable grounds to conduct a strip search of the appellant at the police station.  However, by deciding to carry out the strip search in a public restaurant rather than the nearby station house, without appropriate safeguards in place, the police failed to meet a condition essential to the validity of such an intrusive, warrantless search.  There were no reasonable and probable grounds to believe that this strip search had to be conducted with such urgency.

 

113             In addition, the manner in which the strip search was conducted in the restaurant did not comply with the requirements of reasonableness contained in s. 8  of the Charter .  The appellant was not given the opportunity to remove his own clothing, a measure that might have reduced the sense of panic he clearly experienced. Rather, Constable Ryan pulled back the appellant’s pants and underwear during the initial part of the search in the stairwell. He and Constable Powell then lowered the appellant’s pants and underwear after the appellant was brought back into the main area of the restaurant. Also, the strip search was conducted without notice to, or authorization from, a senior officer. The decision to search the appellant was made unilaterally by the arresting officers, in particular, by Constable Ryan. Finally, the search was carried out in a manner that may have jeopardized the appellant’s health and safety.

 


114             Where the circumstances of a search require the seizure of material located in or near a body cavity, the individual being searched should be given the opportunity to remove the material himself or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. In this case, the plastic wrap was located between the appellant’s buttocks. The police had no way of knowing whether it was physically lodged inside him in such a way that it could not be safely retrieved without medical intervention. Nevertheless, the arresting officers undertook to remove the package themselves, through physical coercion and forceful probing and tugging at the package, and by instructing the appellant to “let it out” and to “relax”. The risk this presented to the appellant’s health was made more acute by the fact that after the appellant accidentally defecated, Constable Powell retrieved a pair of rubber gloves that had been used for cleaning the shop’s washrooms and toilets to continue in his attempts at dislodging the package.  The entire episode created as well unsanitary conditions in a public restaurant, which would have been avoided had the search been conducted in a less precipitous manner.

 

115             The relevance of the appellant’s resistance to the search also merits comment. At the voir dire hearing, McNeely J. held that had the appellant “relaxed and not attempted to retain the substance”, the search would have been shorter and less intrusive.  The respondent endorsed McNeely J.’s reasoning, relying on the British Columbia Court of Appeal’s decision in R. v. Garcia-Guiterrez (1991), 5 C.R. (4th) 1. In that case, police observed the accused reach into his mouth, remove something and give it to another person, who gave the accused money in return. After arresting the accused for possession of cocaine for the purpose of trafficking, an officer grabbed his throat to prevent him from swallowing and breathing, and instructed him to open his mouth.  The accused refused and a second officer punched him in the stomach.  A majority of the Court of Appeal held that the search was reasonable, as it was found necessary to preserve the evidence. In this regard, Macdonald J.A. held (at para. 17) that the accused was “in complete control” of the violence inflicted upon him, since, had he simply opened his mouth, the police would have ceased applying physical force.

 


116             We particularly disagree with the suggestion that an arrested persons non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety.  If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter  rights.  Any application of force or violence must be both necessary and proportional in the specific circumstances.  In this case, the appellant’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances.

 

117             In light of the foregoing reasons, we conclude that the manner in which the strip search in this case was conducted was unreasonable.  It therefore amounted to a breach of the appellant’s constitutional guarantees under s. 8  of the Charter .

 

C.    If the strip search of the appellant violated Section 8  of the Charter , would the admission of the evidence bring the administration of justice into disrepute under Section 24(2)  of the Charter ?

 

118             As the appellant has already served his 14-month sentence in full, and because the courts below did not engage in a s. 24(2)  analysis, we believe it is neither necessary nor useful for this Court to determine whether the evidence deriving from the illegal strip search should have been excluded at trial, and if so, whether a new trial should be ordered. In these circumstances, examining and ruling on s. 24(2)  of the Charter  would be a mere theoretical exercise.

 


119             In preference to this analysis, our disposition rests on the premise that the courts below erred in finding the strip search of the appellant reasonable in the circumstances and consistent with s. 8  of the Charter  and consequently erred in allowing the impugned evidence to be admitted.  These errors provide a sufficient basis for our conclusion that this appeal must be allowed; in light of all the circumstances mentioned above, we conclude that an acquittal is the proper result.

 

 

 

VII. Disposition

 

120             For all of the foregoing reasons, the appeal is allowed, and the judgment of the Ontario Court of Appeal is set aside.  The appellant’s conviction is thus overturned and an acquittal is entered.

 

Appeal allowed, McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting.

 

Solicitors for the appellant:  Pinkofsky Lockyer, Toronto.

 

Solicitor for the respondent:  The Attorney General of Canada, Toronto.

 

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.   

 

Solicitor for the intervener the Aboriginal Legal Services of Toronto:  The Aboriginal Legal Services of Toronto Inc., Toronto.

 

Solicitors for the intervener the Canadian Association of Chiefs of Police: Perley‑Robertson, Hill & McDougall, Ottawa.

 


Solicitor for the intervener the African Canadian Legal Clinic:  The African Canadian Legal Clinic, Toronto.

 

Solicitors for the intervener the Canadian Civil Liberties Association:  Sack Goldblatt Mitchell, Toronto.

 

 

 

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