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Strip search on arrest was lawful

Police Powers

Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

Facts: The accused was charged with fraud and related offences. He was found asleep in the driver's seat of a car, in the early hours of the morning. When the police checked the licence plate on the car, they learned that it was linked to an identity theft. They also learned that the accused was on bail for fraud related offences, and was an unlicensed driver. They arrested him for possession of property obtained by crime. He was patted down, put in the back seat of a police car, and taken to a police station. The car was searched. The police found several counterfeit Canadian citizenship cards and social insurance cards in various names, and account opening documents for bank accounts in some of those names. They also found seven cell phones. At the police station, the officers requested permission to do a strip search. The purpose of the search was to look for any evidence of fraud or identity theft, such as small cards or documents that might be concealed in the accused's clothing or on his person. They also wanted to search for small items that could be used as a means of escape or a weapon, and that might have been missed during the pat down search. The officers knew that the accused was to be held for a bail hearing, and would be transported to a custodial facility. Approval for the strip search was given by the officer in charge of the station. The strip search was conducted in a room near the booking area. The door was kept open, but blocked off to people walking by. Only the two arresting officers were in the room with the accused. The room was audio, but not videotaped. The accused was told to remove each item of his clothing, including his underwear. The clothing was inspected and then returned to him. He was permitted to put some of it back on so that he was never completely naked. He was asked to open his mouth, lift his testicles, and spread his buttocks for a visual inspection of those areas. The officers found nothing during the strip search.

At trial, the accused sought a stay of the charges under s. 24(1) of the Charter, on the basis that he was subjected to an unlawful strip search.

Held: Application dismissed.

The trial judge found that the strip search was lawful. It was justified on the basis that the accused would be held for a bail hearing in a custodial facility where he would have contact with other prisoners and jail guards. The trial judge accepted the officers' testimony that they did not conduct strip searches as a matter of course on everyone held for a bail hearing, but rather made a case by case assessment. The police knew from the police computer databases that the accused had a history of violence and weapons. They found small identification cards in the car. The accused had been alone in the car for about half an hour while the police investigated the ownership of the licence plate. The accused had opportunity during that time to conceal a weapon or small pieces of evidence on his person. It was reasonable for the police to believe that he might have concealed small documents or weapons in his clothing. The fact that the police did a pat down search at the scene did not diminish the reasonableness of the strip search at the police station. The police had reasonable and probable grounds to believe that evidence or weapons could be concealed on the accused's person.

The trial judge also found that the manner in which the strip search was conducted was reasonable in the circumstances.

Commentary: The trial judge applied the principles set out in R. v. Golden, 2001 CarswellOnt 4301 (S.C.C.) in considering the lawfulness of the strip search. She focused on the purpose of the strip search, to determine that it was justified. It was important that there was evidence, accepted by the trial judge, that the officers did not carry out the strip search simply as a matter of routine policy applied to all arrestees. Rather, they considered the specific information available to them at the time about the accused, his history, and the fact that he was going to be entering a jail population.

R. v. Lubansa (2016), 2016 ONCJ 235, 2016 CarswellOnt 6464 (Ont. C.J.)
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