01-02 Appendix B – Risk Assessment – Type of Search

Question 1

The right to search as an incident to a lawful arrest is found in common law, and has been upheld by the Supreme Court,
as long as the search is conducted for a valid objective and is not conducted in an abusive fashion.

Question 2

Case law search

Answer 2

• Cloutier v. Langlois (Supreme Court of Canada) (1990)
• R. v. Flintoff (Ontario Court of Appeal) (1998)
• R. v. Coulter (Ontario Court of Justice) (2000)
• R. v. Golden (Supreme Court of Canada) (2001)
• R. v. Clarke, Heroux and Pilipa (Ontario Superior Court of Justice) (2003)
• R. v. Mann (Supreme Court of Canada) (2004)
• R. v. McGuffie (Ontario Court of Appeal) (2016)
• R. v. MacPherson (Ontario Native Council on Justice) (2018)
• R. v. Tonkin (Ontario Superior Court of Justice) (2020)

Question 3

Strip Searches
In 2001, the Supreme Court of Canada, in the matter of R. v. Golden

Answer 3

while upholding the common law right to search a
person who had been lawfully arrested, placed restrictions on police officers contemplating Strip searches.
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In light of this decision, the Toronto Police Service has adopted the following official policy in regard to Strip searches of
persons who are in custody, incident to arrest.
When a person has been lawfully arrested and transported to a police facility, an assessment of the risk factors shall be
conducted. Where reasonable grounds exist to conduct a Strip search, a Strip search shall be conducted. Where
reasonable grounds do not exist for a Strip search, a Frisk search shall only be conducted. (A Strip search may be
conducted if reasonable grounds are established as a result of a Frisk search first.)

Question 4

Officers contemplating a Strip search of a person shall consider all the circumstances, including but not limited to

Answer 4

 the details of the current arrest
 the history of the person
 any items already located on the person during a Protective or Frisk search
 the demeanour or mental state of the individual
 the risks to the individual, the police, or others, associated with not performing a Strip search
 the potential that the person will come into contact with other detainees, creating an opportunity for the person to
hand off contraband, weapons, etc…to another prisoner (R. v. Coulter)