Criminal Law

Inconsistent policies lead to inequities in searching accused

By Paul Russell, AdvocateDaily.com Contributor

Ontario police forces continue to conduct unnecessary strip searches despite constant criticism and admonishment from within the justice system, says Toronto criminal lawyer Roots Gadhia.

“They’re happening far too often, and the courts are continually trying to draw a line to say, ‘This was an unnecessary strip search, you violated his rights, and it should not have gone this far,’” Gadhia, principal of Roots of Law Professional Corporation, tells AdvocateDaily.com.

She cites a recent Canadian Press story, which states that the Office of the Independent Police Review Director said strip-search procedures across the province are “inconsistent, poorly documented and often show a misunderstanding of the law.”

The story quotes director Gerry McNeilly as calling the situation “intolerable” in light of a 2001 Supreme Court decision that established the legal parameters for these intrusive searches.

That decision defines a strip search as “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.”

“It is considered more intrusive than a frisk or pat-down search, but less intrusive than a body cavity search,” Gadhia says.

The 2001 ruling states that strip searches “cannot be carried out simply as a matter of routine policy … 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.”

“They should be conducted in a manner that interferes as little as possible with the privacy and dignity of the person being searched,” says Gadhia.

Police forces seem to routinely ignore guidelines on when strip searches can be done, she says, noting that one of her clients was forced to strip to his boxer shorts on a Toronto street in the middle of the afternoon.

“There have been stories of people who are being searched in public with the police exposing their genitalia,” Gadhia says.

Another of her clients was brought to a police station on a firearms charge after being patted down and frisked on the street to make sure he did not have any weapons.

“When they got to the station, he was told that they were going to conduct a level-three search, which involves removing his undergarments and spreading his buttocks open. On the video, you can hear my client laugh and say, ‘What, you think there’s a gun up there?’” she says.

Gadhia says invasive searches like that happen on a regular basis in police stations.

“Officers are issuing level-three searches all the time and for no reason, and sometimes I think they do it because they want to demean the person,” she says.

“It’s a violation of rights, and a violation of privacy, yet some officers think it’s a joke and a way to exert control.”

Police forces will claim that strip searches are necessary to ensure officer safety, even though a pat-down search should be able to detect any weapons on a person, Gadhia says.

“If you’re being investigated for a firearm, they may very well do a strip search on you to make sure that you haven’t secreted any items in your underwear, although you would think a pat-down would be able to locate that,” she says.

Gadhia says that in 2009, Toronto police conducted 29,789 level-three searches. The next year, the city played host to the G20 summit, with many protesters strip searched but not charged after they were arrested at the summit.

“If you are not charged, very little comes before the courts, and citizen complaints about their privacy rights being violated are not heard,” she says, adding that strip searches should only be done by those of the same gender.

The Canadian Press story notes that “Toronto police were found to be by far the most aggressive strip searchers — at close to 40 per cent of arrests compared to under one per cent for other large forces.”

The story adds that people subjected to a strip search may suffer psychological harm, especially individuals traumatized in the past or who are otherwise vulnerable.

“It’s one thing to be under arrest and be taken by the arm and led into a station,” says Gadhia. “It’s another thing entirely when you’ve got somebody lifting up your shirt and dropping your shorts, and touching your genital area.”

She says police officers have to be better trained on when a strip search is appropriate.

“Judges have written over and over again that there seems to be some sort of a missing protocol as some police services don’t even have procedures in place about strip searches,” Gadhia says.

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