85 police strip searches a day 'too high'

Strip searches conducted by Toronto police on suspects are often done arbitrarily and without cause, critics say, but the union representing officers insists the practice is carried out under strict controls in a "minority" of cases.

Toronto police say they're justified, critics argue they're arbitrary

Toronto police conducted strip searches in 44 per cent of arrests in 2010, according to the Toronto Police Association. (The Canadian Press)

Strip searches conducted by Toronto police on suspects are often done arbitrarily and without cause, critics say, but the union representing officers insists the practice is carried out under strict controls in a "minority" of cases.

Police figures show that 31,072 people were strip-searched in 2010 — 85 a day — up from 29,789 the previous year.

Of the total strip searches in Toronto in 2010, it was reported that an "item" was found in one-third or 9,448 of these cases without specifying whether the item was evidence, weapons or something as innocuous as a piercing.

"I think the numbers are speaking for themselves. They're too high," says Heather Pringle, Toronto director of the Criminal Lawyers' Association.

"My biggest concern is that it's happening as a matter of policy and it's wrong."

The controversy was sparked earlier this week when John Sewell of the Toronto Police Accountability Coalition (TPAC) said the figures mean 60 per cent of those arrested in Toronto were subjected to a strip search in 2010.

Sewell apparently based the figure on the number of arrests for 2010, which he extrapolated to be under 50,000.

Neither Toronto police nor Sewell responded to CBC News's request for clarification on the matter.

Mike McCormack, president of the Toronto Police Association, citing newly released statistics, said the actual number of arrests in Toronto for 2010 was 70,758, which means 44 per cent of arrestees underwent a strip search.

"When you're talking about 44 per cent not 60 per cent, it's not a systemic issue. It's a minority of cases," McCormack says, adding that Sewell is in "la-la land."

The controversy is "just John Sewell again being Chicken Little — the sky is falling. Don't let the facts clutter your arguments sort of thing," he adds.

Strip searches are part of the police duty to ensure people who are in custody are protected and safe, as well as officers, McCormack says. "We're not going to shirk our responsibility."

Legal experts and criminal defence and civil litigation lawyers, however, say the numbers are still too high and the issue is whether each strip search is justified.

A strip search, also known as a Level 3 search, is the removal of the detainee's clothing. A pat-down or thorough frisk is a Level 2 search, while a body cavity search is classified as Level 4.

Supreme Court ruling

In R. vs. Golden, the Supreme Court of Canada said strip searches are inherently demeaning and degrading and there must be reasonable and probable grounds that the search is required to discover weapons or prevent the loss of evidence related to a valid arrest.

Mike McCormack, president of the Toronto Police Association, says strip searches are conducted on a 'case-by-case basis.' ((Toronto Police Association))

"Reasonable grounds doesn't mean you have to have a 100 per cent certainty, but it seems in the majority of cases nothing is found. This relates to my concern that charter standards are not being applied in these cases," says University of Toronto law professor Kent Roach, who was among the lawyers who argued the case at the top court in 2001.

The fact that you are arrested for a certain offence or have a prior criminal record are not enough in and of themselves to justify a strip search, he says.

Damages awarded for unjust searches

Toronto Police Association president Mike McCormack says people can complain if they believe they have been unjustly strip-searched.

"If counsel or the person who is searched has an issue with that or thinks it had been an arbitrary search then they complain through the legal means," he says.

That what happened when Cameron Ward, a prominent Vancouver civil rights lawyer, was unconstitutionally strip-searched. Last year, the Supreme Court in Ward vs. Vancouver upheld a $5,000 damages award stating his charter rights were violated.

But few people have access to legal redress, says Prof. Kent Roach.

"Many people in Toronto are being subjected to strip searches where nothing is found. If a judge determined the search was not reasonable in the circumstances, that person could get damages from police, but of course most people who are subject to strip searches don't have resources to go to court and sue police for vindication for violating their charter rights."

"There has to be something more that relates to the individual person."

For example, if a person was arrested on a weapons charge and police removed a weapon during the arrest and were concerned the accused may have another weapon, that may constitute valid grounds for a search, Roach says.

"It would be wrong to say that strip searches are never justifiable, and the Supreme Court has clearly said that they are [justifiable] but these statistics suggest we need clearer guidelines for when they're actually going to be conducted.… Ideally, Parliament, the courts and police service boards could do that."

Although the Supreme Court ruling sent a clear message that strip searches were to be conducted on a case-by-case basis rather than as a matter of routine or policy, that is not what is happening, lawyers say.

Common in impaired driving cases

"It seems to be showing up most [prevalently] in impaired cases where the accused doesn't have a criminal record generally and is being strip-searched to see if anything can be uncovered," says Pringle.

"But that individual doesn't have any antecedents of criminal behaviour and hasn't misbehaved in any way, shape or form. They've been co-operative with police but they're being told to take off your pants and bend over."

Pringle says one of her clients characterized it as a sexual assault. "He never got over it. It was humiliating and debasing."

Often, a strip search is a backward way of doing police work, says Barry Swadron, a civil litigation lawyer, who represents clients suing police.

"My concern is people are strip-searched when the grounds for arrest are flimsy or even bogus in the first place. What they [police] are searching for is trying to find something that will justify the arrest."

Toronto criminal defence lawyer Sonya Shikhman says there is a difference between short-term and long-term detainees — accused who are held in custody for a show-cause or bail hearing and those who are released from the station after being charged, as happens in most impaired driving cases, for example.

Prof. Kent Roach of the University of Toronto's faculty of law, says police need clearer guidelines. ((U of T))

"If you're not being held for show cause, you will be put in a cell to sober up until they decide to release you. But before they put you in the cell they strip-search you," she says.

"If we're talking about run-of-mill cases where people are released from the station, I can hardly think of a situation where a strip search would be justified."

Shikhman blames the problem on "complete ignorance of the law by Toronto police sergeants, who she says ignore the case-by-case approach that is mandated by their own policy manual and by the Supreme Court.

She calls for "rigorous retraining" for sergeants, and says the courts also need to send a strong message.

"What needs to happens is we need to have more staying of charges — clear judicial pronouncement that this is wrong and will not be tolerated."

Transparent process

McCormack dismisses the concerns, saying the whole process is transparent and above-board.

"It's not policy. A police officer has to make an individual assessment on a case-by-case basis and has to demonstrate the search is justified in law [as] reasonable and necessary and that's exactly what we do."

He points out there are already guidelines and safeguards in place, notably that the search has to be approved by the sergeant in charge of the station.

"Because of the intrusiveness of a Level 3 search, an officer has to articulate and justify that search. It's conducted in a private area, not videotaped. We try to be as discreet as we can," he says.

"The threshold [for doing a search] is not necessarily that the person is going to be held. Not in every case is a Level 3 going into custody."

Police take no pleasure in such searches, says McCormack, who has participated in many of them in his 23-year policing career.

"It's not a lot of fun and a lot of times we find it just as uncomfortable as the accused do, but it's something we have to do as part of our jobs. It's not the greatest part of being a police officer, I can tell you that."