Monday, August 22, 2011

Windsor Police Service Strip Search Practice “Troubles” Court

Ten years ago the Supreme Court of Canada overturned the drug conviction of Ian Golden and set out constitutional limits and guidelines on the ability of the police to strip search suspects. Last week, Justice Renee Pomerance, of the Windsor Superior Court of Justice, heard “disturbing” evidence that Windsor Police are strip searching approximately 50 percent of those arrested on drug charges. However, no records are kept of the number of searches where no evidence is found and so it is hard to know the actual number and who is most likely to be searched and under what circumstances. This troubled Justice Pomerance as well as the fact that there is no prior authorization from a senior officer practice. 

In R. v. Golden, the Court confirmed that reasonable and probable grounds to arrest do not ipso facto confer automatic authority for the police to carry out a strip search. Further,
            99        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 or evidence related to the reason for the arrest.  […] [P]olice must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.  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 s. 8 of the Charter.

114      Where the circumstances of a search require the seizure of material located in or near a body cavity, 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. In this case, the plastic wrap was located between the appellant’s buttocks. The police had no way of knowing whether it was physically lodged inside him in such a way that it could not be safely retrieved without medical intervention. Nevertheless, the arresting officers undertook to remove the package themselves, through physical coercion and forceful probing and tugging at the package, and by instructing the appellant to “let it out” and to “relax”. The risk this presented to the appellant’s health was made more acute by the fact that after the appellant accidentally defecated […]
116      We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety.  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.  Any application of force or violence must be both necessary and proportional in the specific circumstances.  In this case, the appellant’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.
Justice Pomerance was presiding over the Charter application of Bart Muller to exclude evidence, including 39.5 grams of crack, 23.7 grams of cocaine and 12 oxycondone tablets hidden in his buttocks, from his trial for three counts of possession for the purpose of trafficking. 

While the court ultimately found the evidence against Muller admissible because the police had reasonable grounds to strip search – for example, they were acting on the tips of two informants, money and paraphernalia were found on or close to Muller, and he was evasive with police, Justice Pomerance observed that the officers’ failure to provide privacy and dignity was by "no means trivial”.  Contrary to the guidelines in Golden, Muller was entirely naked, in less than private conditions and not given the opportunity to voluntarily remove the baggie when strip searched at the police station.  

However, Muller was not the only individual strip searched as a result of the police investigation. After Windsor Police obtained a warrant to search the Detroit Street apartment Muller was said to be occupying, three men and a woman visiting the property were taken into custody and strip searched. All were released without charges after no evidence was found on their person. Yet, as defence counsel discovered after requesting disclosure, no record of the strip searches could be found. A Windsor police officer had permitted the police video to be destroyed.

Justice Pomerance noted that the illegal searches of these citizens and failure to keep records of the incidents was both “disturbing” and “unacceptable”. Moreover, it gives the appearance that a “disproportionate number of strip searches are being carried out by the Windsor Police Service”. Consequently, the court recommended that the Windsor Police Service revise its training procedures and strip search policy to conform to constitutional standards.

Windsor Mayor Eddie Francis indicated in an interview with The Windsor Star that he “take[s] the comments made by the court very seriously”, and that he and the Windsor Police Services Board “will raise those issues and ask for a response.”

Of course, Windsor is not the only jurisdiction with evidence or reports indicating that the number of strip searches by police is sharply increasing.  According to the Toronto Star, Toronto Police Service’s own statistics reveal that at least 60 percent of the 50,000 arrested in 2010 were strip searched, which represents a spike of 28 percent since 2001 where almost 21, 000 more arrests were made. Chief Bill Blair attributes the apparent influx to more detailed accounting of strip searches, and maintains that every situation is assessed on a case-by-case basis. Yet, the same statistics report that the Toronto police came up empty-handed in 70 percent of the strip searches performed in 2010.

Some, including John Sewell of the Toronto Police Accountability Coalition, intimate that the high percentage of searches and empty results suggests that “inherently humiliating and degrading” searches (Golden at paras. 89-90) are becoming routine and being done to “belittle” and “humiliate” people, not for investigative purposes. Sewell suggests that if police are trained to and spend more time conducting better pat down or frisk searches to see if someone is hiding something in his or her underwear, there would be less need to proceed to level three strip and cavity searches. The Toronto Police Services Board has asked Chief Blair to prepare a report on the force’s policies and practices on searches and how they could be improved.

The recent high profile cases of Stacy Bonds, Sean Salvati, and David McPhail have also called into question police accountability and suggested that strip searches are being used to humiliate and intimidate. In March, Ontario’s Special Investigations Unit charged Sergeant Steve Desjourdy with sexual assault in connection with the cellblock strip search of Stacy Bonds.

McPhail’s case made headlines in June when Justice June Maresca threw out breathalyzer evidence obtained after McPhail was arrested for driving while impaired by alcohol and over-80, and unnecessarily strip searched.  The explanation a police officer offered to the court for the strip search was that a cell phone was found in McPhail’s shoe and there might be something else secreted on him. Again, no records were kept of the search, and no approval to strip search McPhail was sought from a staff sergeant. Ultimately, Justice Maresca found that the police conduct “both in conducting the strip search and in attempting to hide it at trial” made the seriousness of the state conduct and impact on the accused’ Charter protected rights “especially egregious”. After the evidence was excluded, McPhail was acquitted. A spokesperson for the Peel Police Service stated that the force will “look into” the court’s findings of misconduct.

In spite of widespread calls for increased police training and reporting when it comes to conducting searches and the ensuing litigation that the taxpayer is left on the hook for ten years after guidelines were issued to the police and public, what should be done to streamline compliance and police accountability?

Posted by Jeremy Tatum (Windsor Law III)

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