Case law legislation and violations regarding strip searches within canada
Strip searches are arguably one of the most intrusive forms of searches performed by police officers in course of criminal procedures. This essay will examine case law, legislation, and violations regarding strip searches within Canada. In regards to searches of a person, searches have varying degrees of intrusiveness, which often make them difficult procedures. An operational definition of what a strip search is can be found in the legal case of The Supreme Court of Canada vs. Golden. For the purposes of this case, the Crown sought to define 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." (Golden. V. R, 2001). This definition, although very explanatory as far as the act of a strip search, fails to define circumstances which do or do not warrant a strip search to take place. Due to the innate nature of strip searches the issue lies not with the definition of the act itself but instead within the reasoning and decision to perform a strip search. The Canadian Charter of Rights and Freedoms, is the backbone of our criminal procedure rights, and is what one can look to in determining the validity of conduction a strip search. The Canadian Charter of Rights and Freedoms does not seek to empower the Canadian government but rather it seeks to protect individuals against unreasonable search and seizure (H. Ramadan, Crim. 3302 lecture, September 23, 2010). Within the Charter, section 8 clearly defines this stating, “Everyone has the right to be secure against unreasonable search or seizure" (Canadian Charter of Rights and Freedoms [CCRF], 1982). With this in consideration, strip searches bring about the issue of determining which situations warrant a strip search and within what manor a strip search should be conducted.
Case law continues to grow with each year, giving individuals who work within the criminal justice system, an extensive source to guide court proceedings. One can look to multiple past cases in regards to strip searches, and adopt rulings or use them as guides for current cases. As discussed earlier, the case of The Supreme Court of Canada vs. Golden was a ground breaking case which provided the Canadian Criminal Justice System with a uniform definition of strip searches. In the case of The Supreme Court of Canada v. Golden, one is able to outline the exact caution with which strip searches must be treated. In this case, the accused Ian Golden was suspected by police officers to have been, dealing drugs in a known drug trafficking area. Officers moved in to make an arrest and upon the arrest performed a pat down search to ensure their own safety. At this time the police found nothing illegal on Golden. A strip search was conducted soon thereafter in which a baggie of Cocaine was obtained (Golden v. r., 2001). The main issue in this case pertained to the accused rights under section 8 of the Charter. The reasonableness of the search was brought into questions during court proceedings. The judge used decision from the case of Hunter v. Southam. In Hunter v. Southam the court found that, “the guarantee of security from unreasonable search and seizure only protects a reasonable expectation" (Hunter v. Southam, p.159, 1984). For example, an officer cannot just strip search an individual anywhere in plain view for any reason. The judge adopted this definition in Golden’s case and determined that the search was unreasonable (Golden v. r., 2001). Exceptions do exist for which one’s assumption of privacy is deemed to be reasonably less. These circumstances often involve searches at border crossings or airports. In such locations as these it is reasonable for individual to have a lower expectation of privacy due to the nature of protecting the general safety of society at large. In Golden’s eventual acquittal, a number of concerns were raised. The courts in this case overturned the original decision and the evidence obtained was excluded. This case set precedent for future as it provide new and precise rules concerning who can conduct a strip search as well as when and where they should be conducted.
Enacted legislation governs the occurrence of strip searches in Canada. The most important piece of legislation is section 8 of The Canadian Charter of Rights and Freedoms. This section of the charter is an integral part of our rights as Canadians and often is the first law brought into questions with regards to questionable strip searches. There are two important requirements for a strip search to take place. These requirements were determined in the case of R. v. Caslake. As a result of Caslake, a search must be preceded by an arrest of an individual that is lawful or done for legitimate reason, and the search must be incident to the arrest or in other words the search must be in direct relation to the arrest (R. v. Caslake, 1998). Strip searches are one of many searches that can be conducted by police officers. Two other less intrusive form of search are known as pat downs and frisks. These are often the first tool used by police officers in the incident of arrest. The intent these searches are to ensure the safety of officers, the individual being placed under arrest as well as the general public. Legislation which determines the use and conduct of strip searches is known as The Corrections and Conditional Release Act (1992). Section 48 discusses the issues with strip searches and who conducts them. Section 48 reads, “A staff member of the same sex as the inmate may conduct a routine strip search of an inmate, without individualized suspicion, (a) in the prescribed circumstances, which circumstances must be limited to situations in which the inmate has been in a place where there was a likelihood of access to contraband that is capable of being hidden on or in the body; or (b) When the inmate is entering or leaving a segregation area" (Corrections and Conditional Release Act, 1992). This is an important statute as it determines strip searches must be conducted by members of the same sex. It is especially important to define this aspect clearly because it prevents the already intrusive strip search from becoming far more humiliating. It also serves to protect individuals against sexual assaults occurrences while in custody. In certain circumstances, these rules become null and void, for example in emergency situation which then can allow for opposite sex strip searches. “(4) Where a staff member (a) satisfies the requirements of paragraph (3)(a), and (b) believes on reasonable grounds that the delay that would be necessary in order to comply with paragraph (3)(b) or with the gender requirement of subsection (3) would result in danger to human life or safety or in loss or destruction of the evidence, the staff member may conduct the strip search without complying with paragraph (3)(b) or the gender requirement of subsection (3)" (Corrections and Conditional Release Act, 1992). If there is a question of immediate safety or the loss of evidence, it is acceptable practice for officers of the opposite sex to conduct a strip search. The issues surrounding opposite sex searches came into question in the case of R. v. Mattis (1998). Notwithstanding exigent circumstances, failure to comply with these rules may result in a violation of section 8 of the Charter. In the case of Mattis, she was witnessed accepting money from an individual and giving something in exchange. The officers who witnessed this, later found cocaine on the other individual and thus Mattis was charged with possession of cocaine with the intent to traffic. The evidence in this case was dismissed due to the fact that male officers conducted a strip search of Ms. Mattis (R. v. Mattis, 1998).
A clear violation of section 8 of the charter was committed here. As stated previously, certain exigent circumstances allow for opposite sex strip searches. Upon reading the facts of this case, the officers were not in any real danger. It is quite evident that there was no real effort made to locate a female officer. The case refers to a report called The Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston. In this report there is a clearly defined process which strip searches must follow. The report reads, “Men may not strip search women. The only exception is where the delay in locating women to conduct the search would be dangerous to human life or safety, or might result in the loss of evidence" ( Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, 1996). This report set precedence for cases such as R. v. Mattis, in regards to strip search conduct. In the current case the courts adopted this model that came from the Kingston report and dismissed the charges brought against Ms. Mattis due to the breach of charter rights during the strip search. According to Judge Bigelow, the crown was unable to prove that the male officers who conducted the strip search were in imminent danger and that the search they conducted was on the terms of an emergency situation. Thus the breach was seen and the evidence dismissed (R. v. Mattis, 1998).
As seen in the previous cases, strip searches that are improper do directly violate every individual’s rights against unreasonable search and seizure. In the case that one’s rights have been violated, there are a number of remedies that can be issued. An example of this can be seen in the case Vancouver v. Ward. The details of this case involve the strip search of a falsely accused individual, Ward. Police got word that there was an individual who had planned to throw a pie at the prime minister who was visiting Vancouver for a ceremony. Ward was falsely identified as the individual who had plotted this pie throw and was arrested. Once under arrest he was transported to the local police station where multiple officers performed a strip search. Shortly thereafter it was discovered that the police had in fact arrested the wrong individual and Ward was let free (Vancouver v. Ward, 2010).
As with most strip search procedures, section 8 of the Charter was brought into question in regards to Wards right to protection against unreasonable search and seizure (CCRF, 1982). It does not appear that the officers had reasonable grounds to believe that Ward was the individual rumored to be plotting a pie throw at the Prime Minister. Furthermore, the description of the suspected individual did not exactly match that of Mr. Ward. Ward filed action against the city of Vancouver, due to his belief that his rights guaranteed under the charter, specifically section eight, had been violated. It was found that with when it concerned the strip search conducted on Mr. Ward, it was unreasonable and violated his rights under section 8 of The Canadian Charter of Rights and Freedoms. With this result Ward therefore had the right under section 24(1) of the Charter to apply for a remedy (Vancouver v. Ward, 2010).The guidelines for such remedies read, “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" (CCRF, 1982). In the event one’s rights have been infringed and an unlawful search has occurred, the individual can look to section 24(1) for a remedy. References to Golden v. R, are found throughout this case as the circumstances can be used interchangeably. Section 24(1) was used in the case as a means of restoring Ward’s position had his rights not been violated in the first place. Remedies are not used to further benefit an individual and place them in a better position. The judge in this case therefore decided that damages should be awarded to Mr. Ward due to the fact that his rights had been breached (Vancouver v. Ward, 2010). I tend to agree with this decision as there was not just reason for the strip search. Had Mr. Ward proven to be a risk to the officer, this would have provided a different scenario however he did not act in a dangerous manor and therefore any strip search would serve to violate his charter rights.
Strip searches continue to be a very invasive form of search, but in certain situations an appropriate form of search to ensure safety and preserve evidence. With these aspects in mind the criminal justice system must maintain a standard of reasonableness when it comes to strip searches. As with most criminal procedures, the procedure of strip searches as evolved over the year through case law and has been modified to ensure the rights of citizens. Cases like Golden v. R provide us with prime examples of how the laws have changed. The expectation of privacy in regards to one’s body is of a very high standard in Canadian society and thus strip searches unfortunately often leave an individual feeling violated or humiliated. This is the reason we have The Canadian Charter of Rights and Freedoms, in particular section 8, which aims to protect individuals against unreasonable searches. In a more current context, cases such as that involving a Canadian border guard by the name of Daniel Greenhalgh, who is charged with sexual assault for performing a strip search of 3 females, bring light of and new concerns involving the conduct of criminal justice agents when it comes to dealing with strip searches. Due to the nature specific nature of such searches and the rights of citizens, strip searches should be treated with the utmost care. This recent case of Daniel Greenhalgh, which has yet to be heard in court, is sure to have interesting implication on the current system. The Criminal Justice System must continue to govern strip searches as a last resort form of search and not a standard practice form of search in order to protect our rights under the Charter.