R. v. Black, 2022 ONCA 628

What you need to know

- exigent circumstances that give rise to a “true emergency” may justify departure from strip search guidelines as outlined in R. v. Golden

- In this case, the appellant kicking and thrashing to resist a search justified the involvement of female officer in a strip search of a male accused such that the search did not violate s. 8 of the Charter

BACKGROUND

The appellant was driving a car with license plate reported as “missing”. Officers pulled him over. The appellant was unable to produce a driver’s license or proof of insurance. He gave a false name. Police were unable to identify any licensed drivers in the system with the name provided by the appellant. Officer Stacey McCabe explained to the appellant that he was obligated to identify himself to her, and that if he failed to do so, he would be arrested. The appellant failed to identify himself. Officer McCabe and her partner arrested him. Two other officers arrived on the scene and assisted in handcuffing the appellant. Eventually, the appellant disclosed his actual name, the officers were able to locate his ID and check his name which revealed an outstanding arrest warrant for robbery and that he was on probation. Officer McCabe informed the appellant he was under arrest for robbery, failure to comply with probation an obstruction of a police officer. He was then transported to the police station.

At the station, Officer McCabe obtained permission from her superior to conduct a strip search of the appellant given the seriousness of the charges and the fact that he was going to be kept in custody. Because she was a female officer, Officer McCabe did not initially participate in the search. Two male officers took the appellant to an interview room to conduct the search. The appellant become uncooperative. He stuck his hand down the front of his pants. The officers were concerned he might have a weapon. They attempted to remove the appellant’s hand from his pants; a fight ensued. The appellant was kicking, pushing and banging his head against the wall. One of the officers called for help. Two officers, including Officer McCabe, ran in to assist.

The four officers eventually managed to take the appellant to the ground and applied handcuffs and leg shackles. The appellant continued to resist by kicking his legs, thrashing and banging his head on the floor. Officer McCabe left to get scissors which a male officer then used to cut away the appellant’s clothing which revealed heroin, pills and marijuana. At this point, the appellant was entirely naked. Despite being shackled, he continued to resist and attempted to kick the officers. An officer offered the appellant a jumpsuit, but he refused. The officers, including Officer McCabe, carried the appellant, naked, down the hall to the holding cell.

The appellant was ultimately charged with a variety of possession and drug trafficking charges. The appellant brought a number of Charter challenges in relation to his arrest, rights to counsel and the search of his vehicle. He also brought an application arguing that the strip search violated his section 7, 8, and 12 Charter rights.

The appeal is limited to the strip search ruling.

TRIAL JUDGE’S RULING

The appellant conceded that there was lawful authority to conduct a strip search at the police station given that he had been arrested for robbery, he was going to be held in custody with other prisoners and an officer had obtained approval from the booking sergeant.

The trial judge found that, in accordance with the principles outlined in R. v. Golden, 2001 SCC 83, there were sufficient grounds for the officers to conduct the strip search.

In relation to Officer McCabe’s involvement, the trial judge noted that, pursuant to Golden, strip searches should generally be conducted by officers of the same gender. The trial judge went on to conclude, that the appellant’s resistance in this case, constituted a “true emergency” justifying Officer McCabe’s involvement in the search. As a result, her involvement did not violate the appellant’s Charter rights.

ISSUE ON APPEAL

The principal issue on appeal is whether the trial judge erred in determining that a strip search of the appellant, a male accused, in the presence of a female police officer, did not violate the appellant’s s. 8 Charter rights because the search took place under exigent circumstances.

Disposition - Appeal dismissed.

ANALYSIS

Framework Governing Strip Searches

Strip searches, by their very nature, are demeaning, no matter the circumstances. Even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience. They represent a significant invasion of personal privacy. As a result, they are presumptively unreasonable.

The Supreme Court of Canada’s decision in Golden governs the conduct of strip searches. Strip searches are only constitutionally valid when:

a) they are conducted incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the arrest;

b) the police establish reasonable and probably grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest; and

c) the strip search is carried out in a manner that does not infringe s. 8 of the Charter.

The Supreme Court also put forth guidelines in Golden describing how best to conduct a strip search so as to be in compliance with the Charter (see Golden, at paras. 101 and 105). In assessing whether a strip search violates the Charter, the guiding light is to consider whether the search maintained the privacy and dignity of the detainee. If the failure to follow a guideline has no material impact on the detainee’s dignity, there is no Charter breach. Similarly, breach of a single Golden guideline may result in a Charter breach whereas the failure to adhere to multiple guidelines may not where there is no impact on a detainee’s dignity.

Extraordinary circumstances, that are exigent, however, may excuse a departure from the Golden guidelines. The Crown bears the burden of establishing the legality and reasonableness of a search. Similarly, the Crown must show that the purported exigent circumstances rendered a less intrusive procedure insufficient.

One of the Golden guidelines is that police officers carrying out the strip search should be the same gender as the individual being searched.

For more information on the legality and reasonableness of strip searches, checkout Emond’s “Search and Seizure” - Volume 14 of the Criminal Law Series.

Application

The appellant’s primary complaint on appeal relates to Officer McCabe’s presence during the search after he had been handcuffed and shackled. He submits she should have stepped outside and allowed the male officers to complete the search.

The Court disagreed. The trial judge’s conclusions as to the reasonableness of the strip search, including Officer McCabe’s involvement, were supported by the evidence and reasonable in the circumstances. The appellant resisted arrest throughout constituting a true emergency. So much so that the two male officers involved reasonably feared for their own safety and that of the appellant who was banging his head on the wall.

Similarly, the trial judge made a finding of fact that the appellant did not stop resisting until after he was left in the holding cell. Even after he was restrained, the appellant continued to kick, punch, contort his body and bang his head on the floor. The situation was chaotic and dynamic. Even in shackles, he continued to kick and resist.

Given the emergency nature of the situation, Officer McCabe’s presence, as a female officer, during the appellant’s strip search, was justified. The conduct of the strip search did not violate the appellant’s Charter rights.

Read the full decision here.