01-02 Search of Persons Flashcards
What is the Rationale?
The right to search a person is of paramount importance to the safety of prisoners, members, and all other persons employed within the criminal justice system. It is critical that officers make a proper evaluation of the potential risks, ensure that the appropriate type of search is conducted, and that they are diligent while searching persons in custody.
In December 2001, the Supreme Court of Canada made a ruling in the case of R. v. Golden, which directly impacted on the search of person incident to arrest.
The lawful authority for searching a person comes from statute or common law. Officers conducting searches must be able to articulate their authority and grounds for doing so. Information has been included in this Procedure that will assist officers in properly assessing the appropriate type of search to be conducted, and identify some of the risks that must be addressed (see Appendix B). In the absence of clear direction in the form of legislation, the courts have expressed some concerns with “routine police department policy applicable to all arrestees”. As a result, although this Procedure outlines possible risk factors, and places an obligation on police officers to address them, the decision as to what type of search is appropriate must be assessed on a case–by–case basis.
The Toronto Police Service (Service) agrees with the courts that clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts.
Supervision
Officer in Charge notification mandatory (When?)
after conducting a search at the station
regarding grounds and circumstances (Strip search)
there are REASONABLE GROUNDS TO BELIEVE the person under arrest has secreted weapons or evidence in a
body cavity
Procedure -Searches of persons SHALL be conducted keeping in mind that the safety of…
Service members, the person being searched, and the public are paramount.
Procedure - All searches of the person should be conducted…
thoroughly and in a methodical manner.
Procedure - Searches of the person SHALL not be conducted in an…
abusive fashion or be conducted to intimidate, ridicule or induce admissions.
Procedure - Regardless of what type of search is undertaken, the…
dignity and the privacy of a person must always be given consideration.
Self-Identified Trans or Gender Diverse Persons - Section 1 of the Ontario Human Rights Code states:
“Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”
Self-Identified Trans or Gender Diverse Persons - The Service acknowledges its obligation and responsibility, short of undue hardship, to…
accommodate self-identified trans or gender diverse persons.
Self-Identified Trans or Gender Diverse Persons -Members conducting searches of self-identified trans or gender diverse persons SHALL comply with Appendix C by
referring to the person in their chosen name and gender pronoun(s)
after discussion with the prisoner, lodge according to their self-identified gender or lodging preference in
accordance with 01-03 Appendix E unless it can be proven that there are specific overriding health and safety concerns that cannot be resolved, rendering the accommodation impossible. When a prisoner cannot be accommodated in this regard, members SHALL clearly articulate the reasons in their memorandum book; and
ensure that information regarding a trans prisoner’s gender identity or gender history is shared on a need-to-know basis only with those persons directly involved with the case
Self-Identified Trans or Gender Diverse Persons - explain to the individual the following three (3) options for a Search:
conducted by officers who are men only or
conducted by officers who are women only or
a split search
the Officer in Charge SHALL be guided by the preference of the individual to be searched in terms of the gender of the person conducting the search
Self-Identified Trans or Gender Diverse Persons - when required to remove a gender-affirming article or prosthetic device/item (including breast forms, chest binders, gaffs, packers, prosthetic penises and wigs) from a trans, gender diverse or cis-gendered person SHALL
advise the person of the reason for removing the device/item
provide the person with the opportunity to remove the device/item themselves when self-removal does
not pose potential risk of safety/injury to the person or member
be cognizant that trans and gender diverse persons may have an emotional as well as physical
attachment to their gender affirming items and SHALL treat the device/items with respect at all times
Self-Identified Trans or Gender Diverse Persons - in the case of prosthetic devices…
whenever practicable allow for the removal of the device in a private area
when self-removal is not possible, ask the person how to properly remove the device
allow adequate space and range of motion for reattachment of the device
return the device/item to the person as soon as possible upon completion of the search
Assessments regarding the retention of gender-affirming personal articles including gender-affirming prosthetics SHALL be made on a case by case basis complying with 1.9.2 Standards of Conduct considering all risk factors, including those contained in Appendix B, Appendix C and 01-03 Appendix E. All available accommodation options SHALL be considered when making an assessment.
When it is determined that a person cannot be accommodated, the reasons for the determination must be clearly articulated in the memorandum book including all accommodation options considered.
make appropriate entries in the memorandum book, including the option selected by the person, and the rationale for the course of action taken
complete the appropriate sections of the Booking and Search Template
Members SHALL document why particular actions were or were not taken.
Items of Religious Significance - Section 2 of the Canadian Charter of Rights and Freedoms (Charter) gives everyone…
the fundamental “freedom of conscience and religion”.
Items of Religious Significance - Section 8 of the Charter states that:
“everyone has the right to be secure against unreasonable search or seizure”.
Items of Religious Significance - Section 1 of the Ontario Human Rights Code states:
“Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” From this section, creed is the issue that deals with religious beliefs.
Items of Religious Significance - The Service recognizes that special arrangements may have to be made when handling
items, articles, apparel, or clothing a person identifies as having religious importance (item of religious significance).
Items of Religious Significance - Members conducting searches of persons SHALL treat an item of religious significance with
respect and handle the item appropriately.
Items of Religious Significance - Although there are a multitude of items of religious significance that differ between and amongst religions, any item of religious significance identified by a person SHALL be handled according to the process established in Appendix D, unless circumstances make it impractical to do so, having regard for the:
immediate risk of injury
immediate risk of escape
immediate risk of destruction of evidence
safety of the member
safety of the person
safety of the public
The member must be able to articulate why particular actions were or were not taken.
Duty to Accommodate Persons with Disabilities - The Service has a duty to accommodate persons with disabilities under the:
Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act.
Duty to Accommodate Persons with Disabilities - When required, any infringement of a person’s right to be accommodated must be…
minimal in nature, and no more than is necessary to achieve the desired objective.
Duty to Accommodate Persons with Disabilities - when it is deemed necessary to remove an assistive device from a person with a disability to conduct a search, the device should be…
returned to the person as soon as practicable upon completion of the search.
Duty to Accommodate Persons with Disabilities - Assessments regarding the retention of assistive devices SHALL be made on a…
case-by-case basis taking into consideration all risk factors, including those contained in Appendix B. Members SHALL also consider all available accommodation options when making their assessment.
Duty to Accommodate Persons with Disabilities - When it is determined that a person cannot be accommodated, members must clearly articulate…
the reasons for the determination in their memorandum book including all accommodation options considered.
Duty to Accommodate Persons with Disabilities - Members SHALL be cognizant that persons requiring the aid of an assistive device may have
an emotional as well as physical attachment to the device and SHALL treat the assistive device with respect at all times.
Duty to Accommodate Persons with Disabilities - When considering the continued detention of an arrested person who is accompanied by a guide dog due to blindness, visual impairment, hearing impairment, or other physical disability, members SHALL
make reasonable effort to have the guide dog accommodated by friends or relatives or call the Toronto Police Operations Centre for further resources such as Canine Vision Canada or the Humane Society. Guide dogs SHALL not be transported to court with a prisoner.
Grounds for Searching a Person - For a search to be lawful it must be…
reasonable and justified given all the circumstances and it must be conducted for a valid reason.
Grounds for Searching a Person - The onus is on the officers conducting and authorizing a search to demonstrate…
that the search is justified in law, necessary and reasonable.
Grounds for Searching a Person - Warrantless searches are prima facie unreasonable and contrary to…
s. 8 of the Charter
Grounds for Searching a Person - searches incident to the arrest of a person are recognized as…
lawful at common law and do not require a warrant.
Grounds for Searching a Person -Searches cannot be justified by citing….
standard procedures.
Grounds for Searching a Person - Why must all persons under arrest be searched at the first available opportunity?
for safety reasons, except in extenuating circumstances
Grounds for Searching a Person - as the level of intrusiveness of a search increases…
Stronger grounds are required
Grounds for Searching a Person -What must be completed prior to a strip search being conducted?
A protective search and frisk search must be completed
Grounds for Searching a Person - The searching officer must obtain authorization from whom, to determine if there is REASONABLE AND PROBABLE GROUNDS to authorize a strip search?
The Officer in Charge