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| Patrick Ducharme |
In R. v. Golden the Supreme Court of Canada determined that strip searches are inherently humiliating and degrading for detainees regardless of the manner in which they are carried out. Consequently, they cannot be carried out simply as a matter of routine policy. Because they are conducted pursuant to an arrest and therefore warrantless, the onus is on the Crown to prove the reasonableness of the search.
While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive.
Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are overrepresented in the criminal Justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches (Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol. 1, The Justice System and Aboriginal People, at p. 107; Cawsey Report, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (1991), vol. II, p. 7, recommendations 2.48 to 2.50; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide (1996), at pp. 33-39; Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995)). As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur.
Continued in Part 2…
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.
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