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STRIP SEARCH RULES


R. v. Golden, 2001 SCC 83, [2001] 3 SCR 679  Can LII


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 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.

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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.

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Jim O'Neil, LL.B.

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