01-02 Search of Persons Flashcards
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
The right to search as an incident to a lawful arrest is found in common law, and has been upheld b
the Supreme Court,
as long as the search is conducted for a valid objective and is not conducted in an abusive fashion. (Cloutier v. Langlois,
1990)
As an incident to arrest a police officer may search for
weapons
anything that could cause injury (including drugs and alcohol)
anything that could assist in a person’s escape
evidence
Protective Search (Formerly Level 1)
This is used generally during Investigative Detention and involves a limited search
of a person who has been detained by police when there is reasonable belief the person poses a safety risk. The scope of
the search is limited to exterior patting of clothing such as pockets, waistband or areas that may reasonably conceal such
items as weapons or implements that may be used as weapons, usually with open hands to maximize the ability to detect
weapons through clothing. This search may also be described as a “safety search”, as that is the purpose and objective.
Frisk Search (Formerly Level 2)
This is used generally for Search Incident to Arrest and means a more-thorough search
that may include emptying and searching pockets as well as removal of clothing, which does not expose a person’s
undergarments, or the areas of the body normally covered by undergarments. The removal of clothing such as belts,
footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male would all be included in a Frisk search. A
Frisk search may be commenced in the field and concluded at the station.
A Frisk search conducted incident to arrest includes the area within the immediate control of the arrested person.
Members shall make every effort to video and audio record all Frisk searches. Members are also required to articulate the
justification for the manner and circumstances under which these searches are conducted. For the purposes of this
definition, “Pat Down Search” means the same as, “Frisk Search”.
Strip Search (Formerly Level 3)
R. vs. Golden 2001 SCC 83 established that which constitutes a strip search and what
types of circumstances may justify one. A Strip search includes all steps in Protective and Frisk searches as well as a
thorough search of a person’s clothing and non-physical search of the body. That will often require removal or
rearrangement of some, or all, of the person’s clothing to permit a visual inspection of a person’s private areas: namely the
genitals, buttocks, breasts or chest, body cavity, and/or undergarments; the mouth was excluded from this definition despite
being a bodily cavity.
The Supreme Court noted that Strip searches “represent a significant invasion of privacy and are often humiliating,
degrading and traumatic” and therefore require “a higher degree of justification in order to support the higher degree of
interference with individual freedom and dignity.”
When considering whether a Strip search is justified, the Supreme Court stated, “In addition to reasonable and probable
grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search,” and
“the police must establish they have reasonable and probable grounds for concluding that a strip search is necessary in the
particular circumstances of the arrest.”
