Was forced strip-searching by police a sexual assault?

A crown attorney who was strip-searched by two Toronto police officers is asking a Superior Court judge to lay sexual assault charges against the two officers who forced him to submit to what he considered was an unlawful strip search. During the strip search, he said that he was forced to touch and manipulate his genitalia with his hands. He submits that when assessed in the context of the relevant and controlling judicial authorities, the conduct of the impugned officers satisfies the legal elements of sexual assault.

The allegation raises implications for police as it relates to their long impugned practice of conducting strip searches on short-term detainees without the requisite lawful grounds.

This isn’t the first time that this issue has been raised. In 1998, the Toronto Police Services Board had planned to hold public meetings in January of 1999 to discuss the controversial issue of police strip-searches before any new rules were put in place. Two speakers from women's groups said they felt strip-searches of women constituted a sexual assault under the Criminal Code. They wanted the new policy to include a provision that if a strip-search is found to have been conducted without justification, the officer involved would then become the subject of a sexual assault probe.

Before I deal with the question of whether or not strip searching is a sexual offence, I wish to deal with the police practice of strip searching.

Strip searching is a common practice in police forces in Canada. Confusion over just when a suspect can be strip-stripped and searched is causing chaos at some police stations where prisoners, who have obviously been following the controversy in the media, now routinely tell officers they have no right to strip-search them.
In 1998, a British lawyer was dragged off Dundas Street West in Toronto and strip-searched. According to him, they were searching in the man's body cavities and for no good reason. Since then, all sorts of other cases of intimidating strip searches of innocent people have come to light.

Before I retired from the practice of law, I represented a professor in criminal court who was charged with assaulting his wife. His wife testified it wasn’t an assault and had pleaded with the police to let her husband go. They ignored her and took him to the police station and then ordered him to take off all of his clothes before they put him in a cell with other prisoners. It's standard procedure at police stations to put people in a holding cell with other prisoners. Then, before anything else happens, even before they're allowed to call a lawyer, they're asked to strip naked, hand over their clothes and submit to a visual examination. In any case, the police strip-searched my client in front of a video camera where the monitor was at the front desk where female officers might have been at. The judge at the criminal trial acquitted him of assaulting his wife and my client sued the police for strip-searching him. During the settlement conference, I argued that there was absolutely no need to strip-search my client since they had previously searched his pockets when they arrested him. The police settled out of court for an amount that satisfied my client.

In the course of my research for the civil trial that my client had with the police, I learned that strip searching was far too common an unnecessary practice by police forces around Canada however, there are times when strip-searching is necessary. Police services have policies in regards to strip- searching, intended to keep the dignity of the person being strip-searched intact, while at the same time ensuring that there are no illegal items on the suspect’s person. Many people have died from drug overdoses in prison cells because of unfound items they had shoved into their body cavities. The strip-search is conducted to avoid such incidents, as well as to give a margin of officer safety. Some police services are leaving the actual cavity search up to medical professionals and use information at the scene or in the detention cell to form reasonable and probable grounds to believe that something dangerous is in the body cavity. You won’t believe what suspects have shoved into their rectums and how large some of those items have been.

The usual policy, of course, is that men will search men and women will search women; that's a no-brainer. But there are times when cultural issues come into play. There was also a problem with respect to my client being searched by the police. He is a Muslim and it is highly offensive for another man to see a Muslim in a state of undress.

There is also the problem of strip-searching transgender individuals. This is where a ‘woman’ is actually a man and has not had all of the operations necessary to fit the part, whether they are in the middle of the process or do not want to complete the process. In this case a female officer could be strip searching a female suspect, only to find a part of the anatomy which is not female at all.

In order to meet the constitutional standard of reasonableness that will justify a strip search, 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. All of the types of searches may take many forms ranging from a low degree of intrusiveness to a high degree of intrusiveness, depending on the circumstances of the case. Providing the arrest is lawful and the object of the search is related to the crime, the sole issue is the reasonableness of the search.

I think the policy should be as follows; Level 1: Pat down. Level 2: frisk search. Level 3: strip-search and Level 4: cavity search. A Level 3 (strip-search) should only be conducted if a Level 2 (frisk-search) provides reasonable and probable grounds for believing that the individual has something secreted on his/her body not revealed by a Level 2 (frisk-search) but which will be revealed by a Level 3 (strip-search). Similarly, a Level 4 (body cavity-search) should only be conducted if a Level 3 (strip-search) provides reasonable and probable grounds for believing that the individual has something secreted in his/her body not revealed by a Level 3 (strip-search) but which will be revealed by a Level 4 (body-cavity-search).

In the case of the professor who I defended, he had been subjected to both a Level 1 and Level 2 search and nothing was found in his pockets that could be construed as being harmful to himself or anyone else, therefore the Level 3 strip-search was unwarranted.

A very famous Canadian court case was heard by the Supreme Court of Canada in 2001. Toronto police officers had set up an observation post in an unoccupied building across from a sandwich shop, in an effort to detect illegal drug activity in an area where trafficking was known to occur. One of the officers observed a suspect named Gordon who was in the shop, and testified that he saw two transactions in which persons entered the shop and received a substance from Gordon. The officer testified that given the place where this transaction occurred, the manner in which it took place, and the colour of the substance, he believed the substance was cocaine and that Gordon was trafficking in drugs, and he instructed the take down officers to arrest Gordon. During the arrests, the police found what they believed to be crack cocaine under the table where one of the suspects was arrested and Gordon was observed crushing what appeared to be crack cocaine between his fingers.
Following the arrests, a police officer conducted a ‘pat down’ search of Gordon and did not find any weapons or narcotics. The officer then decided to conduct a visual inspection of Gordon’s underwear and buttocks on the landing at the top of the stairwell leading to a basement where public washrooms were located. The officer undid Gordon’s pants and pulled them down along with Gordon’s long underwear. The officer saw a clear plastic wrap protruding from between Gordon’s buttocks, as well as a white substance within the wrap. The officer tried to retrieve the plastic wrap, but Gordon ‘hip checked’ and scratched him. Gordon was then escorted to a seating booth at the back of the shop. The officers forced him to bend over a table and his pants were lowered to his knees and his underwear was pulled down. The officers tried to seize the package from his buttocks, but were unsuccessful. Following these attempts, Gordon accidentally defecated; however, the package did not dislodge. An officer then retrieved a pair of rubber dishwashing gloves and again tried to remove the package while Gordon was face down on the floor, with another officer holding down his feet. Finally, the officer was able to remove the package once Gordon unclenched the muscles of his buttocks. It contained 10.1 grams of crack cocaine. Gordon was placed under arrest for possession of a narcotic for the purpose of trafficking, and for police assault.(The Supreme Court of Canada later granted his appeal with respect to his conviction of assault).He was strip searched again at the police station, fingerprinted and detained pending a bail hearing.

I should add that in my opinion, the police should not have strip-searched him again in the police station since he had already been strip-searched before he was handcuffed and placed in the parole car for the trip to the station. That second strip search was an abuse of their authority.

The court said that searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable. Given that the purpose of section 8 of the Canadian Charter of Rights is to protect individuals from unjustified state intrusions upon their privacy, it is necessary to have a means of preventing unjustified searches before they occur, rather then simply determining after the fact whether the search should have occurred.

The court further said;

“The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches. Strip searches are 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 fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being ‘incident to lawful arrest’. In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by the detainee. In addition to reasonable and probable grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe section 8 of the Charter. If there is no prior judicial authorization for the strip search, several factors should be considered by the authorities in deciding whether, and if so how, to conduct such a procedure. Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported there. Clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts.” unquote

The court further said;

“The common law of search incident to arrest, which permits strip searches, does not violate section 8 of the Charter. The common law rule ensures that such searches are only carried out where the police establish reasonable and probable grounds for a strip search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested. Furthermore, the factors set out ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible. Attention to these issues will also ensure that the proper balance is struck between the privacy interests of the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring the safety of police officers, detained persons and the public. unquote

Further, the court said;

“While in this case the arrest was lawful and the strip search was related to the purpose of the arrest, the Crown has failed to prove that the strip search was carried out in a reasonable manner. This case was not one involving an urgent and necessary need to conduct a strip search ‘in the field’ for the purpose of preserving evidence, and the decision to strip search was premised largely on a single officer’s hunch, arising from a handful of personal experiences. The police officers’ decision to strip search G in the restaurant was accordingly unreasonable. Moreover, the manner in which the strip search was conducted in the restaurant did not comply with the requirements of reasonableness contained in section 8 of the Charter. Gordon was not given the opportunity to remove his own clothing; the strip search was conducted without notice to, or authorization from, a senior officer; and the search was carried out in a manner that may have jeopardized Gordon’s health and safety. Where the circumstances of a search require the seizure of material located in or near a body cavity, either the individual being searched should be given the opportunity to remove the material himself, or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. Further, if the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. In this case, Gordon’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances. The constitutional right to privacy requires that unjustified searches by the state be prevented." unquote

Finally, the court said;

“We are of the opinion that the common law search incident to arrest power does include the power to strip search. At the same time, this power is subject to limitations. The prerequisites for and considerations surrounding the conduct of a valid strip search seek to balance the competing interests of valid law enforcement goals on the one hand, and individual privacy rights on the other. Given the proportionality created by these criteria, we conclude that the common law is reasonable. However, in the present case, the strip search of the appellant did not meet the requirements for a valid strip search incident to arrest. This being so, we find that the strip search to which the appellant was subject was unreasonable, and violated section 8 of the Canadian Charter of Rights and Freedoms.” unquote

A strip-search is reasonable within the meaning of section 8 of the Charter where (1) it is authorized by law; (2) the law itself is reasonable; and (3) the search is conducted in a reasonable manner.

In Leigh v. Cole (1853), an English case, in an action against police for assault by an individual who was arrested, searched, beaten and locked in a cell overnight for drunkenness, Justice Williams made the following comments about the common law search power;

“With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that any general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case.”

There is no general common law right to strip-search a person who has been arrested, but such a person may be strip-searched if there are reasonable grounds for believing (1) that he has on his person any weapon with which he might do himself or others an injury or any implement with which he might effect an escape, or (2) that he has in his possession evidence which is material to the offence with which he is charged.

Although the search can involve the removal of all clothing, it should be done in such a way that the person is never completely undressed and should be conducted as quickly as possible. While a visual inspection of genital and anal areas may be conducted, no physical contact should be made. If objects are discovered in any body orifice other than the mouth and the person refuses to hand them over, their removal would constitute an intimate search which must be carried out by a physician because the police officer in his zeal, may end up skewing his prisoner. This is a point I made when in 1982, I addressed the First United Nations World Congress on Prison Health in Ottawa. As a result of my speech, the Canadian federal government and some of the provincial governments forbade internal searches by anyone on any prisoner in a correctional institution and instead the suspected prisoner is placed in a cell where there is no water available in the toilet while the suspect is in the cell. The authorities let nature take its course.

Now I will deal with the issue of whether or not being forced to lift one’s scrotum during a strip-search constitutes a sexual offence.

The crown attorney said that during the strip search, he was ordered to lift his scrotum and that by being forced to obey those instructions of the police officers, he was sexually assaulted. I should add that it is possible to hide small objects behind the scrotum and this is why the police insist that they be lifted during the search.

The question that will be before the Superior Court judge is; “Does ordering a suspect to lift up his scrotum during a strip-search constitute a sexual offence?”

There is no single theory that conclusively explains the motivation for sexually assaulting someone else as the motives of such offenders can be multi-factorial and are subject to debate. Several factors have been proposed: anger, a desire for power, sadism or sexual gratification.

In the case being heard in Toronto in the Superior Court with respect to the crown attorney’s complaint, he will probably raise the specter that the police submitted him to the degrading procedure of not only ordering him to stand before them while nude but also ordering him to lift his scrotum so that they could look at that particular area of his genitals and their motivation was for the purpose of humiliating him

Now why would they do that? To answer that question, you have to look at the background of his arrest. He and his girlfriend had just exited a popular after-hours club and were walking towards his car when he was approached by a female officer who is a well-known lesbian in the police force. The crown attorney made some disparaging remark about that particular officer and she immediately arrested him for causing a disturbance.

The laying of the charge by the officer was an abuse of power because to create a disturbance, one must cause a group of people or even one person in the immediate area to be disturbed by the behavior of the suspect, such as screaming, shouting or fighting. None of this was a factor and simply making a police officer angry does not come under the heading of causing a disturbance. For this reason, the charge against the crown attorney was withdrawn.

The female officer was angry enough to lay a phony charge knowing that the man she was charging would be subjected to a strip-search that in all likelihood; would entail him being ordered to lift up his scrotum. If anger was her motive, then she could be convicted of sexual assault even though she had no actual participation in the actual strip-search. It would be no different than if a man asked his friend to sexually assault his former girlfriend because he was angry at her for breaking off their relationship.

Further, the male officers that conducted the search could be held vicariously guilty of sexual assault if it is established that they acted on the request of the lesbian officer to strip-search him knowing that she was angry at him.

This is going to be a very interesting case if it goes to court. I will keep my readers abreast to this case as I get more information as it unfolds.