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Police - Strip Searches. 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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