 |
| Patrick Ducharme |
Several factors must be considered when the police conduct a strip search, including whether:
a. the search takes place at a police station, or, some other appropriate place that minimizes the likelihood of public exposure or embarrassment for the person searched;
b. it can be done in a manner that ensures the health and safety of all involved;
c. the search is authorized by a police officer acting in a supervisory capacity;
d. the search is carried out by officers of the same gender as the accused; and,
e. the search is carried out with minimal force.
Strip searches should only be conducted in police stations unless exigent circumstances exist. Strip searches conducted in the field can only be justified where there is a demonstrated necessity and urgency to search for weapons and objects that could be used to threaten the safety of the accused, arresting officers or other individuals.
To meet the constitutional standard of reasonableness, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary to discover weapons or evidence related to the reason for the arrest. Beyond this, the search must still be carried out in a reasonable manner.
A strip search is the removal or re-arrangement of some or all of the clothing of a person to permit a visual inspection of a person’s private areas or undergarments. This is distinguishable from the less intrusive “frisk” or “pat down” searches. Frisk searches do not involve the removal of clothing, or, the more intrusive body cavity searches.
For a strip search to be justified as incidental to arrest, the arrest itself must be lawful, and, the search must be truly incident to the arrest in the sense that it must be related to the reasons for the arrest. The reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the detainee. The risk of disposal of evidence must be realistically assessed by the investigating officers. A search incident to arrest may also focus on weapons.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel