La décision R. c. McKay, 2013 ONCJ 298 rappelle les principes applicable à la fouille à nu dans le cadre d’une fouille accessoire à l’arrestation.
Voici les passages pertinents :
Section 8 of the charter – general principles
[40] The section 8 charter argument raised in the case at bar relates solely to the lawfulness of the strip search. In the case at bar, Ms. McKay was strip searched upon her arrival at 53 division. The officers testified that the sole basis for the strip search was because Ms. McKay was going to be detained pending a show cause hearing on the domestic assault allegations, the impaired driving charge and the charge of refusing to provide a breath sample.
[41] In R. v. Golden, [2001] S.C.J. No. 679 the Supreme Court of Canada considered in detail the scope of the police power to conduct strip searches. In addressing this issue, the Court referenced the long standing principle that “the more intrusive the search the greater the degree of justification and constitutional protection that is appropriate” (see R. v. Golden, supra, at paragraph 88).
[42] With this in mind, the Supreme Court of Canada stated in R. v. Golden, supra, that “the importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy.” The court went on to state, “Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestees experience.” (see R. v. Golden, supra at paragraph 89).
[43] In light of the real harm caused by strip searches, the Supreme Court of Canada ultimately held that strip searches incidental to arrest will only be lawful if they are related to the reason for arrest and are conducted in a reasonable manner. (see R. v. Golden, supra, at paragraph 92).
[44] In reaching this conclusion, the Court distinguished between strip searches incidental to arrest and strip searches conducted at a police station for reasons related to safety issues in a custodial setting. The Court accepted that a strip search may be necessary when integrating a detainee into a prison population to prevent the individual from bringing contraband or weapons into prison. (see R. v. Golden, supra, at paragraphs 96-97).
[45] It is this passage from Golden that the Crown relies on to support the strip search in the case at bar. Crown counsel argued that because Ms. McKay was going to be integrated with other prisoners when she was brought to court for her show cause hearing, it was necessary to search her for contraband and weapons.
[46] Defence counsel argued that despite this passage from R. v. Golden, the search in the case at bar was still unlawful and in violation of section 8 of the Charter in two respects. Firstly, there was never any basis in law to hold Ms. McKay for a show cause hearing and secondly, contrary to the Supreme Court of Canada’s decision in R. v. Golden, Ms. McKay was only stripped searched because of a broad policy and without any thought to the reality that a strip search was not necessary to protect anyone.
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Was the strip search a product of a routine policy?
[68] Since the Supreme Court of Canada’s decision in R. v. Golden, supra, it has generally been accepted that when it is necessary to place a detainee in cells with other inmates, a strip search is usually necessary to ensure the protection of the detainee, other inmates and the officers. Having said that, the Supreme Court of Canada also held that strip searches should not be the product of a routine policy but instead, the decision of whether or not to conduct a strip search should occur on a case by case basis. The Court held at paragraph 95,
… Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting, or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of section 8 of the Charter. A strip search will always be unreasonable if it carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a “routine” strip search carried out in good faith without violence will also violate s.8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.
[69] In the case at bar, counsel argued that Ms. McKay was strip searched because of some broad policy that anyone being held for a show cause hearing will be subjected to a strip search. Counsel further argued that the officers failed to even consider whether, given her unique circumstances, a strip search was warranted.
[70] I agree with counsel that from the evidence heard at trial, the only factor considered by the police before deciding to conduct a strip search was that Ms. McKay was going to be held pending a show cause hearing. The evidence supports the finding, and I so find, that at 53 division, all persons being held for a show cause hearing are subjected to a strip search. The rationale behind this routine policy is that once a person is being held for a show cause hearing, that person is likely to mix with other inmates and detainees either in the wagon on the way to court, or while in the court cells. Given the increased risk associated with this inter-mingling the strip search is necessary.
[71] Crown counsel argued, that this approach is completely lawful. The Supreme Court of Canada in R. v. Golden, supra, recognized that a different standard is necessary to assess the validity of a search in preparation of being housed with other inmates as opposed to a search incident to arrest. The Court stated at paragraphs 96-7
96. It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population; there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: ge732] R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.).
97. The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search, carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.
[72] In R. v. V.K. [2011] O.J. No. 5128 (OCJ), Justice Katarynych highlighted the safety concerns that arise once the decision is made to conduct a show cause hearing,
[42] The decision to strip-search was inextricably tied to the decision to detain this youth for a show cause.
[43] What loomed large as a focus was the safety of those for whom police are responsible, once a detention decision is taken. As a matter of common sense, police cells and police paddy wagon transport are environments that need to be kept safe. The expectation of safety is no less important to and in relation to this youth than it is for any other person detained in police custody awaiting a bail hearing. Golden acknowledges the legitimacy of a reasonably grounded police concern about safety in custody environments (paragraphs 42 and 43)
[73] I agree that these passages support the conclusion that there is a broader search power when a person is going to be entering a prison population because of the obvious heightened safety concerns. This heightened concern, in most cases, will likely lead to the conclusion that a strip search is in fact necessary. It does not, however, allow the police to create a routine policy to this end and thereby fail to consider the personal circumstances of the person before them. In my view, it is still incumbent on the police to make decisions in a case by case manner. The police failed to do so in this case.
[74] In the case at bar, the police were dealing with a 61 year old retired school teacher with no prior criminal record. She suffered from a host of physical ailments, was in her nightgown and had no shoes on. At the time of her arrest, she was in the process of driving her boyfriend to the airport. Given these facts, there was no reason to believe that Ms. McKay was securing weapons or contraband inside her body or in places that could not be reached by a thorough pat down search. The police were required to consider these personal circumstances before deciding whether or not a strip search was warranted. Having failed to consider these relevant personal factors, the police acted as a matter of routine policy and in doing so breached Ms. McKay’s section 8 rights.
[75] In making this finding, I do appreciate that in the vast majority of cases the police will be justified in conducting strip searches when detaining a person pending a show cause hearing. However, the police must still turn their mind to whether or not there is a risk that the person being detained does in fact have contraband or weapons on them. In my view this was not done in the case at bar.
