01-02 Appendix B – Risk Assessment – Type of Search

Question 1

What is the Rationale?

Answer 1

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 (Supreme Court of Canada) (1990)
* R. v. Flintoff (Ontario Court of Appeal) (1998)
* R. v. Coulter (Ontario Court of Justice) (2000)
* R. v. Golden (Supreme Court of Canada) (2001)
* R. v. Clarke, Heroux and Pilipa (Ontario Superior Court of Justice) (2003)
* R. v. Mann (Supreme Court of Canada) (2004)
* R. v. McGuffie (Ontario Court of Appeal) (2016)
* R. v. MacPherson (Ontario Native Council on Justice) (2018)
* R. v. Tonkin (Ontario Superior Court of Justice) (2020)

As an incident to arrest a police officer may search for
* weapons
* anything that could cause injury (including drugs and alcohol)
* anything that could assist in a person’s escape
* evidence

For safety reasons, every person who is brought into a police facility under arrest SHALL be subject to a search.
When assessing the type of search, the Officer in Charge / police officer SHALL on a case by case basis, evaluate the circumstances relevant to the individual to be searched and determine the appropriate type of search required to address any risk factors, keeping in mind that the safety of the officers, the individual and to others is paramount. The Officer in Charge is responsible for ensuring that the type of search appropriately addresses the risk factors associated to the current arrest including those related to the person, and logistical issues such as the type of transportation and contact with others that this individual is expected to encounter.

Question 2

Strip Searches - What case and year placed restrictions on police officers contemplating Strip searches?

Answer 2

In 2001, the Supreme Court of Canada, in the matter of R. v. Golden, while upholding the common law right to search a person who had been lawfully arrested

Question 3

Strip Searches - In light of R. v. Golden (Supreme Court of Canada) (2001), the Toronto Police Service has adopted the following official policy in regard to Strip searches of persons who are in custody, incident to arrest.

Answer 3

When a person has been lawfully arrested and transported to a police facility, an assessment of the risk factors SHALL be conducted. Where REASONABLE GROUNDS exist to conduct a Strip search, a Strip search SHALL be conducted. Where REASONABLE GROUNDS do not exist for a Strip search, a Frisk search SHALL only be conducted. (A Strip search may be conducted if REASONABLE GOURNDS are established as a result of a Frisk search first.)

Question 4

Risk Factors - Officers contemplating a Strip search of a person SHALL consider all the circumstances, including but not limited to

Answer 4

 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 5

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 5

 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 6

Risk Factors - All persons who are held in custody pending a Show Cause hearing are deemed to be…

Answer 6

entering the prison population.

Question 7

Risk Factors - In assessing the appropriate type of search, the _____________, SHALL take into account the heightened safety concerns created by this situation.

Answer 7

Officer in Charge

Question 8

Risk Factors - Nevertheless the fact that a person is being held for a Show Cause hearing and may come into contact with other persons in custody does not, on its own…

Answer 8

justify a Strip search.

Question 9

Risk Factors - Members SHALL consult with the ___________ prior to conducting a Strip search at a police station.

Answer 9

Officer in Charge

Question 10

Risk Factors - Members SHALL consult with the ___________ prior to conducting a Strip search at a police station.

Answer 10

Officer in Charge

Question 11

Prohibitions - The Supreme Court has ruled that Strip searches in the field will only be justified where there is a…

Answer 11

demonstrated necessity and urgency to search for 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.

Question 12

Prohibitions - Strip searches SHALL not be conducted in the field for the sole purpose of….

Answer 12

preserving evidence

Question 13

Prohibitions - When a Strip search must be conducted in the field, it will be done in a

Answer 13

private area with only the searching officers able to view the person being searched, where possible.

Question 14

Prohibitions - When a Strip search must be conducted in the field, the searching officers SHALL immediately notify the

Answer 14

Officer in Charge upon their arrival at the police station.

Question 15

Prohibitions - Strip searches SHALL not be

Answer 15

videotaped

Question 16

Prohibitions - Any benefit to videotaping the search is outweighed by the potential of causing…

Answer 16

unnecessary embarrassment to the person being searched.

Question 17

Prohibitions -in cases where a searching area has video equipment installed, the person being searched will be…

Answer 17

advised that the search is not being videotaped.

Question 18

Body Cavity Searches - Body Cavity searches SHALL not be performed by

Answer 18

any member of the Toronto Police Service.

Question 19

Body Cavity Searches -Where there are REASONABLE GROUNDS to BELIEVE that a person under arrest has secreted weapons or evidence in a body cavity, the person SHALL be

Answer 19

immediately transported to a medical facility for treatment.

The person may consent to having the item or substance removed by a qualified medical practitioner.

Question 20

Body Cavity Searches - If the person is not willing to have the medical practitioner assist with the removal, they SHALL be

Answer 20

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.