In a recent decision from the Ontario Court of Justice ( R. v MacPherson, 2017 ONCJ 615 (CanLII)), an accused was facing charges of possession of crack cocaine for the purpose of trafficking and simple possession of marijuana under the Controlled Drugs and Substances Act. However, Justice Sheila Ray decided to throw out all drug evidence against him.

Her ruling comes after a critical review of the events that took place prior to his arrest, the evidence given by the officers involved, and a close look at the right to not be subjected to an unreasonable search under the Canadian Charter of Rights and Freedoms.

The lead up to the unreasonable search and seizure began with the police receiving a call regarding a car that had been driving erratically. Justice Ray states in her ruling that, the police "had good reason to speak with MacPherson at that point, in order to check his sobriety and documents, and if there was no issue, to let him continue on his way."

However, after seeing movement in the vehicle before they made their way to the car, officers believed the accused may have been hiding a weapon. As a result they searched the accused at the scene, pulling back his pants and boxers to expose his skin, where they located drugs stashed near his tailbone. In her decision, Justice Ray concluded that this search was in fact a strip search. She also stated that a simple pat down in the field would have been sufficient to verify if the accused had been hiding a weapon, and that there was no need to conduct a strip search, especially outside of the police station. In her words, "there was no urgency. Nothing in Mr. MacPherson's pants was running away."

The Toronto Police Service does have a policy with respect to search of persons, and categorizes them as level 1 to level 4. Justice Ray noted that she felt at least one of the officers in the MacPherson case was not aware of the policy and that the officers believed their actions were appropriate at the time, and that the search was not a strip search. Search levels under the policy are defined as:

Level 1: Frisk or a pat-down search of clothing, pockets, and does not include the removal of any clothing except outerwear such as jackets, hats and/or gloves/mittens

Level 2: More thorough search that involves removing clothing that does not expose a person's undergarments or the areas of the body covered by them. Removal of belts, footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male are included in Level 2

Level 3: Removal of some or all of a person's clothing and a visual inspection of the body. More specifically, the removal of clothing that full exposes the undergarments or an area of the body normally covered by undergarments (genitalia, buttocks, women's breasts)

Level 4: Body cavity search conducted by a qualified medical practitioner

See the full policy on "Search of Persons" here.

In the 2001 case, R v Golden, the Supreme Court of Canada provided guidance with respect to strip searches by police and when they may be appropriate. The Supreme Court ruled that strip searches should only be conducted when there are reasonable grounds, as they are "inherently humiliating and degrading." Such searches will only be reasonable where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in a detainee's possession, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by a detainee. Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported there.

In the MacPherson case, Justice Ray concluded that the strip search of the accused was an unreasonable search and seizure and that his Charter right had been violated. As a result, she excluded all evidence of the drugs seized by the police.

This is one of a number of cases recently reported in the media, where police have been criticized for conducting strip searches. The issue has gotten so serious that the Office of the Independent Police Review Director is conducting a province wide review of police strip search practices.

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