Search of Persons

Question 1

When did 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.

Answer 1

In December 2001,

Question 2

Officer in Charge notification mandatory

Answer 2

 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

Question 3

Searches of persons shall be conducted keeping in mind…..

Answer 3

that the safety of Service members, the person being searched, and the public are paramount. All searches of the person should be conducted thoroughly and in a methodical manner. Searches of the person shall not be conducted in an abusive fashion or be conducted to intimidate, ridicule or induce admissions. Regardless of what type of search is undertaken, the dignity and the privacy of a person must always be given consideration.

Question 4

All searches of the person shall be conducted by peace officers of the same…..

Answer 4

gender unless circumstances make it impractical to do so, having regard to the immediate risk of injury, escape, or the destruction of evidence. Consideration shall be given when dealing with trans persons, wherever practicable

Question 5

Section 1 of the Ontario Human Rights Code states

Answer 5

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.”

Question 6

The Service acknowledges its obligation and responsibility, short of undue hardship, to accommodate self-identified trans or gender diverse persons. Members conducting searches of self-identified trans or gender diverse persons shall comply with Appendix C by

Answer 6

 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  explain to the individual the following 3 options for a Search  male officers only or  female officers 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  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 or gender diverse 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  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.

Question 7

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.

Answer 7

• make appropriate entries in the memorandum book, including the Booking and Search template 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.

Question 8

Section 2 of the Canadian Charter of Rights and Freedoms (Charter) gives everyone the fundamental

Answer 8

“freedom of conscience and religion”.

Question 9

Section 8 of the Charter states that

Answer 9

everyone has the right to be secure against unreasonable search or seizure”

Question 10

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

Answer 10

 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.

Question 11

The Service has a duty to accommodate persons with disabilities under the….

Answer 11

Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act.
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.

Question 12

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…

Answer 12

as soon as practicable upon completion of the search.

Question 13

When it is determined that a person cannot be accommodated,

Answer 13

members must clearly articulate the reasons for the determination in their memorandum book including all accommodation options considered
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.

Question 14

For a search to be lawful it must be…

Answer 14

reasonable and justified given all the circumstances and it must be conducted for a valid reason.

Question 15

However, for safety reasons, except in extenuating circumstances, all persons under arrest must be searched…..

Answer 15

prior to being placed in a police vehicle, prior to being brought into a police station, and prior to being placed in a police cell.

Question 16

The searching officer must obtain authorization from the Officer in Charge to determine if there is….

Answer 16

reasonable and probable grounds to authorize a Strip search. The more intrusive the search the more justification is required, and officers must be able to articulate the need for the more intrusive search

Question 17

A police officer may search a person…

Answer 17

 with a person’s consent
 when authorized by statute
 after an arrest has been made (common law – incident to an arrest)

Question 18

A police officer must be able to demonstrate that consent for a search was…..

Answer 18

informed and freely given. A person giving consent for a search must understand the possible consequences of the search prior to giving consent. A Consent search, in most instances, should not be used where other lawful authority exists.

Question 19

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. (Cloutier v. Langlois, 1990)
As an incident to arrest a police officer may search for

Answer 19

 weapons
 anything that could cause injury (including drugs and alcohol)
 anything that could assist in a person’s escape
 evidence

Question 20

Full details of all searches shall be recorded in the memorandum book including….

Answer 20

the grounds for the type of search conducted. Appropriate entries shall be recorded in the applicable eReport for all Strip and Body Cavity searches and must be completed in its entirety.

Question 21

Member

When conducting a search shall

Answer 21

 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 in compliance with Procedure 04–09, 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
 search the area within the person’s immediate surroundings, if applicable
 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
 seize all evidence obtained
 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

Question 22

when required to remove an item of religious significance make reasonable effort to ensure the removal and search occurs in a private setting…

Answer 22

 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 or a gender-affirming prosthetic from a trans or gender diverse person (see Appendix C)

• Prosthetic devices are attached to the body; therefore, improper removal can injure the person and/or damage 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
• record all relevant details in the memorandum

Question 23

When conducting a consent search of a person shall

Answer 23

 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

Question 24

Prior to transporting an arrested person shall

Answer 24

 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  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

Question 25

After arrival at the station with an arrested person shall

Answer 25

 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
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 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

Question 26

When reasonable and probable grounds have been satisfied and a Strip search is deemed necessary by the Officer in Charge, the searching officers shall

Answer 26

 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,  ask the person to remove clothing one article at a time,  document whether the arrested person removed items of clothing themselves, and  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 is reasonable grounds to believe it is necessary to do so - 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

Question 27

When a Strip search has been completed shall

Answer 27

 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

Question 28

Police Officer
Where there are reasonable grounds to believe that a person under arrest has secreted weapons or evidence in a body cavity shall

Answer 28

 consult with the Officer in Charge
 escort the person to the hospital
 comply with Procedure 03–06
 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
- ensure that the search is conducted by a qualified medical practitioner - 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)
- 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
 advise the Officer in Charge
 restrain the person and hold in isolation pending a Show Cause Hearing
 continuously monitor the person to ensure their safety and the safety of Service members until recovery of the item or substance is made
When a Body Cavity search has been completed shall complete a Body Cavity Search Template in compliance with item

Question 29

Officer in Charge

An Officer in Charge of a unit where persons are detained shall ensure

Answer 29

 the decision to search a person has been evaluated based on reasonable and probable 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 Strip and Body Cavity searches
 every effort is made to provide persons who do not speak English or, who by reason of disability have difficulty communicating
 with the services of an interpreter in compliance with Procedure 04–09, or
 other person who can assist the person in understanding the process
 prisoners’ property is handled in compliance Procedures 01–03 and 09–06, 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 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
Note: Staff Sergeants shall book prisoners and authorize Strip Searches, unless at a Central lock-up where a designate can be appointed

Question 30

OIC
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

Answer 30

 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  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.  where reasonable grounds do not exist, ensure a Strip search is not conducted

Question 31

OIC

Upon being consulted regarding a Body Cavity search shall

Answer 31

 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 ensure the search is conducted by a qualified medical practitioner at a medical facility
 are the same gender unless the person has self-identified as a trans person and requests otherwise Appendix C  ensure a Body Cavity Search template is completed

Question 32

Risk Factors

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

Answer 32

 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)

Question 33

Risk Factors
In addition to any factors being considered pertaining to the individual person, the following set of circumstances represents the heightened safety concerns that are common to all persons held for a Show Cause hearing

Answer 33

 lodged in a cell awaiting transportation
 direct contact with other prisoners during transportation and lodging, creating the potential for conflict and/or weapons/contraband being passed from one person to the next
 unsupervised while being transported in a prisoner transportation wagon
 lodged in court cells with other prisoners and prisoners arriving directly from the correctional system
 transportation, lodging, escorting of prisoner at court conducted by unarmed court officers
 direct contact with booking officers, court officers, correctional officers, lawyers, and other court staff who are unarmed and have an expectation that every prisoner has been thoroughly searched to ensure officer, prisoner and public safety
 the duty to protect prisoners while in custody and their expectation that while in custody their safety is not compromised
 the Officer in Charge cannot know the background/history/state of mind of all the prisoners that will be brought into the system on any given day, but is required to ensure their protection

Question 34

The Supreme Court has ruled that Strip searches in the field will only be justified where there is a demonstrated necessity and urgency to search for….

Answer 34

weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. In this case, officers would have to show why it would have been unsafe to wait and conduct the search at the police station.
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Strip searches shall not be conducted in the field for the sole purpose of preserving evidence.

Question 35

When a Strip search must be conducted in the field, the searching officers shall…..

Answer 35

immediately notify the Officer in Charge upon their arrival at the police station.

Question 36

Body Cavity Search

If the person is not willing to have the medical practitioner assist with the removal, they shall

Answer 36

be restrained and held in isolation pending a Show Cause Hearing. The person shall be continuously monitored to ensure their safety and the safety of members of the Service until recovery of the item or substance is made.

Question 37

For the purpose of search, when an individual has self–identified as trans, the Officer in Charge shall

Answer 37

 refer to the person in their chosen name and gender pronoun(s)
 after discussion with the prisoner, lodge the prisoner 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
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 explain to the individual the following 3 options for a Search
a) male officers only or
b) female officers only or
c) 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  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 or gender diverse 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  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 documented in the memorandum book including all accommodation options considered.  make appropriate entries in the memorandum book, including the Booking and Search template 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.

Question 38

When handling the item of religious significance, members shall be cognizant of human rights and unless circumstances make it impractical to do so, comply with the process below, having regard for the

Answer 38

 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.

Question 39

The following process shall be followed when handling an item of religious significance.

Answer 39

Ask the person if they have an item of religious significance on their person or in their possession.
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a) Members shall advise the person if an item of religious significance will be removed, the reason the item is being removed, and provide the person with the opportunity to remove the item themselves if self–removal does not pose potential risk of safety/injury to the person or member.
b) When practicable, members shall use gloves when handling an item of religious significance.
c) When practicable, members shall facilitate the replacement of an item of religious significance as soon as possible when the item (apparel or clothing only) is removed and held for any purpose and is not being immediately returned to that person
d) Members shall place an item of religious significance in a separate property bag
- In general, it is acceptable to store items of religious significance together in one property bag
e) A sealed property bag containing an item of religious significance may be sealed within the main property bag when the person is being transported or held for a show cause hearing