Friday, 15 January 2016

Strip Searches by the police                         

 There are times when the police should strip search a suspect but those times are rare indeed. Years ago when I was practicing law, I represented a university professor in court. He was acquitted. However during the trial, he mentioned that he had been strip-searched in the police station in front of a video camera. The screen was located at the front desk where the female officers at the desk could see it. He asked me to sue the police department. I did and the police department offered him $2,000 as a settlement. He settled for that amount.

Officers Qadree and Amaro stopped Ms. Krystina D'Andrade at 4:45 a.m. on December 7, 2014 to investigate her sobriety after they saw her swerving her car in her lane. After speaking to Ms. D'Andrade, Officer Qadree made a demand on her to provide a breath sample into an approved roadside screening device (ASD). He did not have an ASD so he called for one to be brought to the scene.                                                                                

Officer McClinchey, a female officer, arrived shortly with an ASD. Ms. D'Andrade gave a breath sample and failed the test. Officer Qadree arrested her for ‘over 80’. Officer McClinchey then conducted a pat down search incident to the arrest. She and Ms. D'Andrade were standing on the road during the search. The search was necessary since she was searching for any weapon that might be on D'Andrade’s person.

However, it was the manner of the search that was wrong. During the search Officer McClinchey unzipped Ms. D'Andrade’s sweater. Ms. D'Andrade was wearing a see-through bra and her breasts were exposed. Now if they were seen only by the female officer; that wouldn’t be as bad. But they were seen by two male officers standing nearby. That was not OK.

Anyone whose rights or freedoms, as guaranteed by Canada’s Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. In this  case, she applied to the court that was dealing with her charge against her.

During her trial, her lawyer brought in a Charter of Rights and Freedoms application to stay the proceedings from proceeding any further on the grounds that the police officer who searched her in front of the male police officers breached Section 8 of the Charter that guarantees her and everyone else in Canada the right to be secure against unreasonable search or seizure. The application also stated that the police’s search of Ms. D'Andrade “constituted an unauthorized search and, therefore, an illegal strip search that was in violation of section 8 of the Charter.

The reason why the search was unauthorized was that the police officer should have asked her prisoner first if the officer could unzip her sweater. That was no different than a police 0fficer unzipping a man’s pants without asking for his permission first. In Ms. D'Andrade’s case, if the female officer had concerns that the suspect was carrying a weapon in the area of her breasts, she could have patted her down without requiring Ms. D’Andrade’s permission.

The prosecutor (Ms. Stackhouse) argued that merely uncovering the area of   Ms. D'Andrade’s breasts doesn’t really constitute a strip-search.

What does constitute a strip search? I will refer to a case heard by the Supreme Court of Canada. The incident took place in Vancouver.

The police arrested a man for creating a disturbance and while in the  custody of the jail, the guards ordered him to strip off his clothes so that the guards would satisfy themselves that the man wasn’t bringing a weapon into the jail. The man refused to remove his underwear. The guards did not insist on complete removal of his clothes and the man was never touched during the search. Did this constitute a strip-search?

The man brought an action in tort and for breach of his Charter rights against the City, the Province, and individual police and corrections officers for his arrest, detention, and his strip-search. Justice Tysoe found that the strip search violated Mr. Ward’s personal rights under  section 8 of the Charter even though he didn’t have to remove his underwear.

The Chief Justice of the Supreme Court of Canada said in his ruling for the other justices of that court, “I conclude that damages for the strip-search of Mr. Ward are required in this case to functionally fulfill the objects of public law damages, and therefore are prima facie appropriate and just.

Just as in Ms. D'Andrade’s case, a pat down would have served the same purpose for Mr. Ward and a partial strip constitutes a strip-search for both arrestees.

I will quote some of the observations of the Chief Justice of the Supreme Court of Canada with respect to strip searches.

In this case, the need for compensation bulks large.  Mr. Ward’s injury was serious.  Mr. Ward had a constitutional right to be free from unreasonable search and seizure, which was violated in an egregious fashion. Strip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests. (this would also apply to Ms. D’Andrade)

The corrections officers’ conduct which caused the breach of Mr. Ward’s Charter rights was also serious. Minimum sensitivity to Charter concerns within the context of the particular situation would have shown the search to be unnecessary and violative.  Mr. Ward did not commit a serious offence, he was not charged with an offence associated with evidence being hidden on his body, no weapons were involved and he was not known to be violent or to carry weapons. Mr. Ward did not pose a risk of harm to himself or others, nor was there any suggestion that any of the officers believed that he did. In these circumstances, a reasonable person would understand that the indignity resulting from the search was disproportionate to any benefit which the search could have provided. In addition, without asking officers to be conversant with the details of court rulings, it is not too much to expect that police would be familiar with the settled law that routine  strip-searches  are inappropriate where the individual is being held for a short time in police cells, is not mingling with the general prison population, and where the police have no legitimate concerns that the individual is concealing weapons that could be used to harm themselves or others.  unquote (this would also apply to D’Andrade)                

In my opinion, Ms. D’Andrade should sue the police officer and the police force for what she was put through.                                                                     

The object of compensation focuses primarily on the claimant’s personal loss: physical, psychological, pecuniary, and harm to intangible interests.  The claimant should in so far as possible, be placed in the same position as if her  Charter rights had not been infringed.  Strip-searches are inherently humiliating and thus constitute a significant injury to an individual’s intangible interests regardless of the manner in which they are carried out. That said, the present  search  was relatively brief and not extremely disrespectful, as  strip-searches go.  It did not involve the removal of Ms. D’Andrade clothes or the exposure of her genitals other than her breasts. She was never touched during the search and there is no indication that she suffered any resulting physical or psychological injury. While her psychological injury could be determined as serious, it cannot be said to be at the high end of the spectrum. This would suggest a moderate damages award.

The objects of vindication and deterrence engage the seriousness of the state conduct.  The corrections officers’ conduct was serious and reflected a lack of sensitivity to Charter concerns.  That said, the officers’ action was not intentional, in that it was not malicious, high-handed or oppressive. In these circumstances, the objects of vindication and deterrence do not require an award of substantial damages against the state.

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