01-02 Search of Persons Flashcards
1
Q
What is the Rationale?
A
The right to search a person is of paramount importance to the safety of persons in custody, 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. 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.
2
Q
Supervision
- Officer in Charge notification mandatory:
A
o after conducting a search at the station
o regarding grounds and circumstances (Strip search)
o there are REASONABLE GROUNDS TO BELIEVE the person under arrest has secreted weapons or evidence in a body cavity
3
Q
Searches of persons SHALL be conducted keeping in mind that the safety of:
A
Service members, the person being searched, and the public are paramount. Searches of the person SHALL not be conducted in an abusive fashion or be conducted to intimidate, ridicule or induce admissions. The dignity and the privacy of a person must always be given consideration.
4
Q
Grounds for Searching a Person
For a search to be lawful it must be…
A
reasonable and justified given all the circumstances and it must be conducted for a valid reason.
5
Q
The onus is on the______ to demonstrate that the search is justified in law, necessary and reasonable.
A
officers conducting and authorizing a search
6
Q
Warrantless searches are…
A
prima facie unreasonable and contrary to s. 8 of the Charter.
7
Q
Searches cannot be justified by citing…
A
standard procedures. However, for safety reasons, except in extenuating circumstances, all persons under arrest must be searched at the first available opportunity.
8
Q
Stronger grounds are required as the level of…
A
of intrusiveness of a search increases.
9
Q
A Protective search and Frisk search must be completed prior to…
A
any Strip search being conducted.
10
Q
The searching officer must obtain authorization from the ______to determine if there are REASONABLE AND PROBABLE GROUNDS to authorize a Strip search.
A
Officer in Charge
11
Q
Strip searches SHALL not be conducted on persons brought into custody by Toronto Police officers based solely on:
A
the grounds that the person may come into contact with other persons in custody. Accordingly, persons in custody who have been Frisk searched are no longer restricted from being placed with those who have been Strip searched.
12
Q
Search Authorities
A police officer may search a person:
A
- with a person’s consent
- when authorized by statute
- after an arrest has been made (common law – incident to an arrest)
13
Q
Consent Search
Consent search generally applies to persons who are not:
A
under arrest.
14
Q
A police officer must be able to demonstrate that
A
consent for a search was informed and freely given. A person giving consent for a search must understand the possible consequences of the search prior to giving consent.
15
Q
Search Authorized by Statute
Specific statutes contain _____ that can be used when circumstances warrant.
A
search provisions
16
Q
The related statute should be referred to prior to conducting such searches; for example: t
A
he Criminal Code, the Controlled Drugs and Substances Act, and the Liquor Licence and Control Act.
17
Q
Search Incident to Arrest
The right to search as an incident to a lawful arrest is found in
A
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. (Cloutier v. Langlois, 1990)
18
Q
As an incident to arrest a police officer may search for
A
- weapons
- anything that could cause injury (including drugs and alcohol)
- anything that could assist in a person’s escape
- evidence
19
Q
Recording Searches
Wherever practicable, all Protective and Frisk searches including the removal of excess clothing must be
A
captured on audio and video.
20
Q
Full details of all searches SHALL be recorded in the ______including the grounds for the type of search conducted.
A
memorandum book
21
Q
Member
Special Constables may search persons in accordance with
A
this Procedure in conjunction with unit-specific policies.
22
Q
When conducting a search SHALL
A
- record all Protective and Frisk searches on audio and video, and if not able to do so, record reasons in the memorandum book
- not use any more force than is necessary and reasonable under the circumstances to conduct a search
- make every effort to provide persons who do not speak English or who by reason of disability have difficulty communicating
- with the services of an interpreter, or
- other person who can assist the person in understanding the process
- advise the person of the reason that they are being searched. Search the person
- every effort should be made, where appropriate, to have the searching officers be of the same gender as the person being searched and comply with Appendix C when searching a trans person
o search the area within the person’s immediate surroundings, if applicable
o remove weapons, anything that could cause injury (including drugs and alcohol), anything that could assist in the person’s escape, or evidence of an offence, as applicable
o seize all evidence obtained
o ask the person if they have an item of religious significance on their person or in their possession, and comply with Appendix D, when applicable
o when required to remove an item of religious significance make reasonable effort to ensure the removal and search occurs in a private setting
o when practicable, facilitate the replacement of an item as soon as possible when an item of religious significance (apparel or clothing only) is removed and held for any purpose and is not being immediately returned to that person - when required to remove an assistive device from a person with a disability(ies) or a gender-affirming prosthetic from a trans or gender diverse person (see Appendix C)
o advise the person of the reason for removing the device/item
o 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
o treat the assistive device/item with respect at all times
o 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 - Prosthetic devices are attached to the body; therefore, improper removal can injure the person and/or damage the device.
o return the device/item to the person as soon as possible upon completion of the search
23
Q
- Assessments regarding the retention of assistive devices SHALL be made on a case-by-case basis taking into consideration all ______ All available accommodation options SHALL also be considered when making an assessment.
A
risk factors, including those contained in Appendix B.
24
Q
- Assessments regarding the retention of gender-affirming personal articles including gender-affirming prosthetics SHALL be made on a case-by-case basis complying with _____ All available accommodation options SHALL be considered when making an assessment.
A
1.9.2 Standards of Conduct considering all risk factors, including those contained in Appendix B, Appendix C and 01-03 Appendix E.
25
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.
* record all relevant details in the memorandum book
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2. When a search of person has occurred in the field and the person has not been booked into a police facility SHALL
complete the Search in the Field Only Template
27
When conducting a consent search of a person SHALL
* ask for the consent of the person and explain the nature of the search
* inform the person that they have a right to refuse consent
* inform the person of potential consequences of the search, including the possibility that anything seized may be used as evidence
* immediately stop searching the person if consent is withdrawn, unless evidence has been disclosed that would permit continuation pursuant to lawful authorities
28
Prior to transporting an arrested person SHALL
* search the police vehicle prior to placing the arrested person in the vehicle
* for reasons of safety, ensure the arrested person has been searched except where the search would interfere with the administration of emergency medical assistance
o every effort should be made, where appropriate, to have the searching officers be of the same gender as the person being searched and comply with Appendix C when searching a trans person
29
After arrival at the station with an arrested person SHALL
* search the police vehicle
* advise the Officer in Charge what type of search has been conducted and what has been found thus far
* if a Frisk search has not been fully completed then ensure the Frisk search is completed in its entirety in front of the Officer in Charge and is audio and video recorded
* ensure the manner of Booking and Search Notice - Frisk Search is read to the person prior to the search
* when it is believed that reasonable grounds exist for a Strip search, articulate to the Officer in Charge and advise them of the grounds and circumstances involved
30
When REASONABLE AND PROBABLE GROUNDS have been satisfied and a Strip search is deemed necessary by the Officer in Charge, the searching officers SHALL
* read the arrested party their rights to counsel prior to the Strip search being conducted and ensure they are provided a reasonable opportunity to speak to counsel before the search commences
* advise the Officer in Charge if the person identifies that they have an item of religious significance on their person or in their possession
* search the person in a private area and ensure the search is audiotaped (if applicable), but not videotaped
* be of the same gender as the person being searched, except in exigent circumstances
* comply with Appendix C when searching trans persons
* ensure the number of police officers involved in the search are no more than is reasonably necessary in the circumstances
* where appropriate,
o ask the person to remove clothing one article at a time,
o document whether the arrested person removed items of clothing themselves, and
o record all relevant details in the memorandum book and the Booking and Search Template
* not remove of any more articles of clothing than necessary
* not seize bras, underwire bras and string bikini tops unless there are REASONABLE GROUNDS TO BELIEVE it is necessary to do so
o This action can amount to an unlawful Strip search.
* not perform any more visual inspection of the person’s body than is necessary to achieve the objectives of the search
* inspect each article of clothing in a methodical manner
* permit the person to replace articles of clothing after inspection, where appropriate
* provide replacement clothing for articles seized as evidence as soon as possible
* not leave the person in a completely naked state after the search
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* Members SHALL not conduct Strip searches in any location other than ______ unless there is an immediate safety risk where no other option is available. Members SHALL advise a supervisor prior to commencing the search, if unsafe, then at the earliest opportunity.
a private area of a secure police facility,
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* Members SHALL provide the person the highest degree of privacy possible given the circumstances. Upon completion, members will _____ The Officer in Charge SHALL complete a “Strip Search – Not in a Police Facility” occurrence and notify the Unit Commander.
report to the Officer in Charge the circumstances.
33
When a Strip search has been completed SHALL
* ensure the Officer in Charge will complete the Booking and Search Template
* if applicable, the Officer in Charge will complete the Trans Person Specific Details section of the Booking and Search Template
34
Police Officer
Where there are REASONABLE GROUNDS TO BELIEVE that a person under arrest has secreted weapons or evidence in a body cavity SHALL
* consult with the Officer in Charge
* escort the person to the hospital
* request that the person remove the item in a controlled area of the hospital and with a medical professional present, if possible
* if the person is unable or unwilling to remove the item and consents to a search
o ensure that the search is conducted by a qualified medical practitioner
o remain with the person while the search is taking place (same gender officers only, or if the person has self-identified as trans or gender diverse, in compliance with Appendix C)
o advise the Officer in Charge of the results
* where the person refuses a Body Cavity search by a medical practitioner, and the item has not been removed
o advise the Officer in Charge
o restrain the person and hold in isolation pending a Show Cause Hearing
o continuously monitor the person to ensure their safety and the safety of Service members until recovery of the item or substance is made
35
When a Body Cavity search has been completed SHALL
complete a Body Cavity Search Template
36
Officer in Charge
An Officer in Charge of a unit where persons are detained SHALL ensure
* the decision to search a person has been evaluated based on REASONABLE AND PROBABLY GROUNDS and all risk factors, including those found in Appendix B
* all arrested parties are advised on camera, of the level of search to be performed and the manner and location in which it will be carried out
* a Frisk search must be completed prior to any Strip search being conducted
* when applicable, all Frisk searches must be audio and video recorded. If not, the reason SHALL be documented accordingly
* searches are conducted appropriately, and the required Booking and Search Template has been completed for all booked persons in custody
* every effort is made to provide persons who do not speak English or, who by reason of disability have difficulty communicating
o with the services of an interpreter
o other person who can assist the person in understanding the process
* persons in custody’s’ property is handled in compliance with Procedures, as applicable
* when an item of religious significance is removed from a person that the item is treated with respect and handled appropriately in compliance with Appendix D
* assessments regarding the retention of assistive devices are made on a case-by-case basis taking into consideration all risk factors, including those contained in Appendix B, and all available accommodation options
* when it is determined that a person with a disability(ies) requiring the aid of an assistive device cannot be accommodated, the reasons for the determination are clearly articulated in the memorandum book, including all accommodation options considered
37
The Officer in Charge can authorize the use of an approved _____ to assist in the search of any person in custody at any point of the booking and search process, or at any point while the person is lodged in the station. For a search to be lawful, using the ______, it must be reasonable and justified given all the circumstances and it must be conducted for a valid reason.
Handheld Metal Detector
o Handheld Metal Detectors are only for use inside a police facility
o Where a Handheld Metal Detector has been used the appropriate entries SHALL be made in the Booking and Search Template
38
______ SHALL book persons in custody and authorize Strip searches, unless at a Central lock-up where a designate can be appointed
Staff Sergeants
39
Upon being consulted regarding a Strip search SHALL determine whether the search is appropriate, based on the information provided by the parading officer and the circumstances involved; and
* where REASONABLE GROUNDS to conduct a Strip search exist, SHALL
* advise the arrested party of the authorization to conduct a Strip search
* ensure the manner of Booking and Search Notice - Strip Search is read to the person prior to the search
* ensure the arrested party is re-read their rights to counsel prior to the Strip search being conducted and ensure they are provided a reasonable opportunity to speak to counsel before the search commences
* provide the arrested party the opportunity to speak to counsel prior to the Strip search commencing
* read the Audio Privacy notice prior to the phone call to counsel
* escort to use the phone, give audio privacy, but maintain visual for safety
* in rare circumstances, where the Officer in Charge believes that there are safety concerns that would prohibit the officer from allowing the arrested party access to counsel prior to the Strip search, SHALL explain on video to the arrested party and note the reason in the memorandum book.
* ensure the Deferred Call to Counsel Notice be read by the Officer in Charge and noted in the Booking and Search Template, if required
* where REASONABLE GROUNDS do not exist, ensure a Strip search is not conducted
40
Upon being consulted regarding a Body Cavity search SHALL
* determine whether the search is appropriate, given the circumstances
* ensure that transporting and relieving officers accompanying an accused for the purpose of a Body Cavity Search are the same gender unless the person has self-identified as a trans person and requests otherwise
* ensure the search is conducted by a qualified medical practitioner at a medical facility
* ensure a Body Cavity Search Template is completed
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Definitions 01-02
Handheld Metal Detector means
a portable, handheld security device capable of detecting metal objects authorized for use by the Service.
42
Assistive/Prosthetic Device means a
device used to replace, compensate for, or improve the functional abilities of people with disabilities or for trans or gender diverse persons to affirm gender identity. Assistive device includes a broad range of items such as mobility and visual/hearing aids, orthotics/prosthetics, speech devices, medical supplies, environmental controls and respiratory devices. Prosthetics used to express gender identity include breast forms, chest binders, gaffs, packers, prosthetic penises and wigs.
43
Disability(ies) means:
* any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device;
* a condition of mental impairment or a developmental disability.
* a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language.
* a mental disorder, or.
* an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act; (“handicap”). (Source: Ontario Human Rights Code, Accessibility for Ontarians with Disabilities Act)
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Gender:
the set of socially classified behaviours, attitudes and norms associated with and roles of men, women, trans people, non-binary people and more. Encompasses gender identity, a person’s internal sense of being a man, woman, both or neither.
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Gender Expression:
Expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common and important ways of expressing gender.
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Gender identity is
each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along or beyond the gender spectrum. A person’s gender identity may be the same as or different from the typical pairing with their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.
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Item of Religious Significance means
any item, article, apparel, or clothing a person identifies as having religious importance.
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Non-binary gender
identities outside of the expected binary of men and women.
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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.
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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.
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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.” The mere fact that portions of a person's body normally covered by undergarments are exposed because of the way the person was dressed when taken into custody does not constitute a strip search, if the removal of such clothing was not caused by the police (i.e. the arrest of a naked person does not in itself constitute a strip search). The rearrangement of clothing that permits a visual inspection of a person’s private area constitutes a strip search.
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Body Cavity Search (Formerly Level 4)
means a search of the rectum or vagina
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Service Members’ Perception Data
means information derived from a member making a determination with respect to the race of an individual by observation, solely on the basis of that member’s own perception.
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Sex:
the classification of people as male, female or intersex based on a specific combination of reproductive organs, chromosomes and hormones and assigned at birth based on observation of a person’s genitals.
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