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Police - Strip Searches. R. v. Samuels
In R. v. Samuels (Ont CA, 2025) the Ontario Court of Appeal dismissed the defendant's criminal appeal, here brought against convictions for "two counts of possession of controlled substances (cocaine and crystal methamphetamine) for the purpose of trafficking".
Here the court considered 'strip searches':[44] Both parties accept the definition of strip search in Golden, at para. 47: “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.”
[45] The parties disagree on how it should be applied.
(1) The parties’ positions
[46] The appellant argues that any search that involves a rearrangement of clothing that exposes someone’s undergarments is a strip search. He contends that the two searches at the scene were therefore strip searches: the first, conducted by P.C. Tillsley involved moving clothing to see the waistband of the appellant’s underwear where the appellant had told P.C. Tillsley that a plastic baggie was located, and the second, conducted by P.C. Wilson and P.C. Tillsley involved removing the appellant’s joggers so that his jeans could be searched – the jeans being an undergarment since there had been a layer of clothing (the joggers) over them.
[47] The appellant also argues that the search in the booking area of the police station was a strip search because it involved S.C. Loschan rearranging the appellant’s clothes, exposing his underwear, and examining the waistband of his jeans which would give a view of what was under them. The appellant further submits that this search was conducted in a busy area of the police station in the view of multiple officers, including a female officer.
[48] The Crown disputes the appellant’s interpretation that each element of the definition in Golden is considered separately, and its corollary that rearranging clothing to expose any part of an undergarment is, in all circumstances, a strip search. The Crown argues that only visual inspections of undergarments that cover a private area such as genitals, buttocks, or female breasts constitute strip searches; the searches at the scene or in the booking area do not therefore qualify as strip searches.
(2) Discussion
[49] I prefer the Crown’s approach to the definition of a strip search in Golden to that advanced by the appellant. It better comports with the reasoning in Golden and the entire definition, considered as a whole.
[50] In Golden, the majority stressed the high standard that must be met before a strip search will be considered to be reasonable.[2] The common law authorizes a search incident to arrest, consisting of a “frisk” or “pat-down” search, where the police have reasonable and probable grounds to effect the arrest, the objective of the search is to guarantee safety of the accused or police (for example by the discovery of a weapon), to prevent escape, or to find evidence related to the arrest, and the search is not conducted in an abusive fashion: Golden, at paras. 44,75. But, the majority emphasized, the fulfillment of these criteria without more will not authorize a strip search: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”: Golden, at para. 98. [51] Instead, the law imposes additional requirements that must be met before a strip search will be considered reasonable.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: Golden, at para. 98. Thus, even a 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”: Golden, at para. 95. Strip 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 such 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: Golden, at paras. 87, 95 and 98-99.
[52] What is the reason for the different standards as between a pat-down or frisk search incident to arrest on the one hand, and a strip search on the other? The majority in Golden explained that the different standards followed from the intrusiveness of a strip search and its effect on the person subjected to it. As for intrusiveness, a strip search involves “a significant and very direct interference with personal privacy” as compared to “less intrusive personal searches, such as pat or frisk searches”: Golden, at para. 89. A strip search is one of “the most intrusive manners of searching and also one of the most extreme exercises of police power”: Golden, at para. 89, citing R. v. Flintoff (1998), 1998 CanLII 632 (ON CA), 126 C.C.C. (3d) 321 (Ont. C.A.), at para. 24. As for effect, a strip search is, by its nature, a “humiliating, degrading and traumatic experience for individuals subject to them”; “inherently humiliating and degrading” no matter how carried out; may be analogized to a “visual rape”; and may be experienced by women and minorities in particular as “equivalent to a sexual assault”: Golden, at paras. 83, 90; see also, R. v. Thompson, 2025 ONCA 500, 450 C.C.C. (3d) 383, at paras. 2, 31, 48, and 51-56.
[53] The Crown’s interpretation of the Golden definition of strip search fits within the broader rationale in that case. The rearrangement or removal of clothing so as to permit the visual inspection of a person’s private areas namely genitals, buttocks, breasts (in the case of a female) or undergarments covering those private areas, is clearly a direct interference with personal privacy, a highly intrusive and invasive manner of searching, and is inherently humiliating, degrading and traumatic for any detainee. But it is much more difficult to see that description applying to the rearrangement or removal of clothing that permits an inspection of a portion of an undergarment that does not cover a private area – such as the waistband of an undergarment, which only covers the waist – or an intermediate layer of clothing such as jeans worn under joggers but over undergarments.
[54] Turning to the language of the definition as a whole, I agree with the British Columbia Court of Appeal’s decision in Choi that the word undergarments in the definition must be read in light of the earlier language that refers to, and specifies, a person’s private areas. In Choi a police officer had visually inspected the waistband of the accused’s underwear, that is, the part of the undergarment covering the waistline. In reversing the trial court’s finding that a strip search had been conducted, Dickson J.A. stated:[75] In this case, Cpl. Pollock rearranged Mr. Choi’s clothing and visually inspected the waistband of his underwear, but not his genital or anal area, either covered or uncovered. There was nothing inherently humiliating or degrading about the search given its limited nature and the context in which it took place, namely, as part of a standard booking-in procedure at police cells. Nor was there anything to suggest that Mr. Choi found it humiliating or degrading for the officer to see the exposed waistband of his underwear. On the contrary, he was apparently and predictably unfazed by that aspect of the search. As the judge recognized, in modern times the waistband of underwear may be displayed in public in an overt and intentional way.
[76] I agree with Crown counsel that the judge erred by employing an unduly literal interpretation of the Golden definition of a strip search disconnected from its underlying purpose and context. In my view, the reference in that definition to undergarments must be read in the context of the preceding phrase. To repeat, the definition of a strip search articulated in Golden is: “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”: at para. 47, emphasis added.
[77] Undergarments may well cover private areas of a person’s body, but they are not, in and of themselves, “a person’s private areas”. In my view, when the reasons in Golden are read as a whole, it is apparent that the visual inspection contemplated by the definition is an inspection of private areas of the body, whether those body areas are exposed or covered by undergarments. It follows that the salient consideration when a court determines whether a search falls within the definition of a strip search is the private nature of the body area in question, not the nature of a garment worn under an outer layer of clothing.
[78] I also agree with Crown counsel that the cases upon which Mr. Choi relied below are distinguishable from this case. In R. v. Pilon, 2018 ONCA 959, the Court found that the arresting officer conducted two searches that constituted strip searches. In the first search, the officer looked inside the appellant’s second pair of shorts, discovered he was not wearing underwear and observed the top of his buttocks and an elastic band attached to his penis. In the second, the officer pulled back the waistband of the appellant’s shorts in an effort to visually inspect his genital area. The targeted area of the appellant’s body for inspection in both searches was inherently private and, accordingly, the Court characterized the conduct as minimally intrusive strip searches. Similarly, in R. v. Byfield, 2020 ONCA 515, an arresting officer reached into the appellant’s underwear and retrieved a package of cocaine from his groin, which the Court found was a strip search because, while the appellant’s clothes were not removed, they were rearranged and his groin area was “inspected”.
[79] The important point for present purposes is that the searches in both Pilon and Byfield pertained to private areas of the body of the arrestee. Neither concerned a visual inspection of a non-private area of the body covered by an undergarment. In contrast, in this case, Cpl. Pollock intentionally limited his visual inspection of Mr. Choi’s body to his waistline area, which is not a private area. As I have explained, the elasticized waistband of his underwear inspected by Cpl. Pollock covered only this area of the body.
[80] In my view, the judge made a clear and determinative error in concluding that the search conducted by Cpl. Pollock was a strip search as defined in Golden. While I agree with the judge that, to the extent reasonably possible, a “bright line” approach to strip searches is desirable to provide certainty and promote Charter values, that line should be drawn when the search is categorized as a strip search, not when the s. 24(2) balancing exercise is conducted, as seemingly occurred in this case. Unless the area of the body inspected is inherently private, whether exposed or covered by an undergarment, the search will not fall into the category of a strip search and the additional safeguards will not apply. [Emphasis in original.] . R. v. Thompson
In R. v. Thompson (Ont CA, 2025) the Ontario Court of Appeal considered 'strip searches', a police search method:(3) The Nature of Strip Searches
[48] Close to 25 years ago, the Supreme Court set out a comprehensive framework for assessing the constitutional validity of strip searches conducted incident to arrest. The court defined a strip search as involving “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”: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 47. This, the court held, can be “humiliating, embarrassing and degrading”: Golden, at para. 89. Endorsing this court’s reasons in R. v. Flintoff (1998), 126 C.C.C. (3d), the court affirmed that “[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power”: Golden, at para. 89.
[49] The court described, in evocative terms, the impact of strip searches on detainees. As the court put it, at para. 90 (internal citations omitted):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”. Some commentators have gone as far as to describe strip searches as “visual rape”. 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. The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse. Routine strip searches may also be distasteful and difficult for the police officers conducting them. [50] The potential to perceive a strip search as the equivalent of a sexual assault is a possible source of distress for many detainees, but is of particular concern for those who have experienced sexual victimization. A strip search may be seen as particularly intrusive by Indigenous or racialized detainees who have, through historical encounters, developed a fear or distrust of police. See R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97. While not mentioned in Golden, one might infer that a strip search can heighten anxiety in those who are transgender, gender diverse, or non-binary.
[51] Since Golden, the Supreme Court has affirmed the uniquely invasive nature of strip searches. For example, in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, the court used strip searches as a yardstick for measuring the intrusiveness of a cell phone search. Cell phone searches can be intrusive, but the court observed that they are “completely different from the seizure of bodily samples in [R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607] and the strip search in Golden”, characterizing the latter as “invariably and inherently very great invasions of privacy” and “a significant affront to human dignity”: Fearon, at para. 55 (emphasis in original).
[52] So too in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, where the court affirmed an award of Charter damages for an unjustified strip search. McLachlin C.J. explained that “[s]trip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests”: Ward, at para. 64.
[53] This court has similarly held that strip searches “are demeaning no matter the circumstances”, and that “even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience”: R. v. Black, 2022 ONCA 628, at para. 38, citing R. v. Pilon, 2018 ONCA 959, 144 O.R. (3d) 54, at para. 15.
[54] It is difficult to quarrel with these observations. Within the hierarchy of interests protected by s. 8 of the Charter, bodily searches rank among the most intrusive. The removal of clothing and inspection of the body, including intimate areas of the body, falls at the most serious end of the invasiveness spectrum. The impact of a strip search goes beyond the physical. It has the potential to induce anxiety, uncertainty, distress, and embarrassment. And as noted in Fearon, it has the potential to undermine human dignity.
[55] This is not to say that strip searches should never occur. To the contrary, where police have the requisite grounds, and comply with the requisite standards, the search will be authorized by law. The police must be empowered to search for evidence that they believe on reasonable grounds to be hidden on a detainee’s person. They must also be empowered to search for items that might be used to harm the detainee or others. The point is that even when properly authorized, a strip search can have a significant impact on a detainee.
[56] To summarize:1. Strip searches must not be carried out routinely, given the level of intrusion and invasion associated with the procedure.
2. A strip search has the potential to exacerbate the power imbalance that exists between detainee and police by requiring a detainee to assume the vulnerable position of being unclothed;
3. A strip search may be perceived by some as the equivalent of a sexual assault and can cause psychological distress, particularly in those who have experienced a history of sexual violence;
4. A strip search may have an increased impact on persons with special vulnerabilities and those who are gender diverse or non-binary.
5. A strip search may be particularly intrusive for Indigenous and racialized individuals who perceive racial targeting by police; and
6. While the negative effects of a strip search can be minimized by the way in which they are carried out, “even the most sensitively conducted strip search is highly intrusive”: Golden, at para. 83. [57] Because of these unique considerations, s. 8 of the Charter requires specialized grounds before police may conduct a strip search. And as I explain below, these same considerations require that a person about to be strip searched receive another opportunity to consult counsel.
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[96] It has long been the law that a strip search requires specialized grounds above and beyond the grounds for arrest. Those grounds were conspicuously absent in this case—as the motion judge found, there was “no evidence” to support such an intrusive search. The decision to strip search was based on the nature of the charges, and the fact that the appellant had tried to escape the scene of the arrest. The first of these is a generic factor that offers no justification. The second is of similarly little significance. The fact that a detainee seeks to evade arrest says nothing about whether they have concealed drugs on their person.
[97] In Golden, the Supreme Court pointedly stated that “the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”: at para. 94. Instead, 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”: at para. 98. ....
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