In Canada, police can lawfully search you in a ‘pat down’ under certain circumstances, such as: if they have reasonable grounds connected to a specific criminal activity; are in the process of making an arrest (“search incident to arrest”) or if they have cause to believe you might be carrying a weapon that could be of danger to others. However, unlawful ‘pat downs’ or searches of a detained person that go beyond the original grounds for a search may be a violation of someone’s Charter rights. If evidence was discovered on you during this unlawful search, your defence lawyer may have grounds for having the evidence against you excluded.
On the other hand, if you are in a situation where the police have a legitimate reason or grounds to complete a pat down, you need to allow them to search you; it’s never a good idea to be rude or argue with the police as these actions can bias them against you. However, you have the right to calmly and politely ask them for the reason for their proposed search. Anytime you are detained or arrested by police, you also have the right to consult with a lawyer within a reasonable amount of time of being detained.
On December 23rd, 2000, two Winnipeg police officers responded to a report of a break-and-enter, and they also received the description of a suspect. On their way to the scene, the officers saw a man fitting the suspect’s description walking along the road. The individual, Mr. Mann, was stopped and readily identified himself to the officers and also agreed to a ‘pat down’ search for possible concealed weapons. In the process of searching Mr. Mann, the officers felt a soft object in his pocket and reaching in, discovered a small bag containing marihuana. They also found valium pills in another pocket. Mr. Mann was subsequently arrested on the charge of possession for the trafficking of marihuana.
In the subsequent trial, R. v. Mann, 2004, the officers were found to have had reasonable grounds to search, given Mr. Mann’s proximity to the scene of the crime and his similarity to the description of a suspect. However, the officers’ decision to check the contents of Mr. Mann’s pocket after detecting a soft object was incidental and unrelated to the initial grounds for the protective search. Therefore the search of Mr. Mann’s pockets was deemed to be warrantless and a breach of his rights under the Charter. Accordingly, the drugs were inadmissible and the charge against him was dismissed.
Under what circumstances can police search me?
If you are arrested, the police can search you in the following situations:
- if they are looking for evidence for the offence for which you were arrested;
- if they are concerned for their own safety and have reason to believe you are carrying weapons;
- if you gave them ‘informed consent’ to search you.
Regardless of the reason, if you are arrested, your first step should always be to call a lawyer to obtain expert advice regarding your rights and what future actions are in your best interests.
Police may also lawfully search you when they have a reasonable belief that you are involved in a specific criminal activity, such as:
- if they have grounds to believe that illegal goods, such as drugs, are at a particular location, and if you also happen to be at this location and police suspect you possess the searched-for items.
- if police have reason to believe that you possess an illegal weapon that was used to commit a crime and they believe that the weapon will be hidden or destroyed if they take the time to obtain a search warrant.
- if they have cause to suspect that alcohol is being consumed or transported illegally, such as if you are drinking alcohol while driving.
Police may also perform a protective search if they believe you possess a weapon that may put them or other people at risk, but the search should only involve patting down the exterior of your clothing.
When can police ‘strip search’ someone?
Even though police sometimes have lawful reasons to pat you down, a strip search is not supposed to be routine. In R. v. Golden, the Supreme Court of Canada ruled that a strip search is a significant infringement of a person’s personal dignity and privacy; it is justified only in unusual circumstances and must be conducted in a manner that does not infringe on a person’s rights under the Charter.
When associated with a lawful arrest, a strip search may be deemed necessary to check for weapons or evidence, but there should be reasonable and probable grounds to justify both the search and the arrest. Also, a strip search must be completed in a private place and by a same gender police officer.
In contrast to Golden, CBC News reported in 2011 that anywhere from 44 to 60 per cent of arrested persons were strip searched in Toronto. Toronto law enforcement officers claim that these ‘level 3’ (strip) searches are needed to keep other people in custody and police officers safe. However, critics argue that these numbers are much too high and imply that strip searches are almost routine rather than done on a case-by-case basis, contrary to the guideless set out in R. v. Golden.
What is the policy for same gender ‘pat downs’?
If a police officer of the same gender is available to search a detained or arrested person, then the same gender officer will complete the ‘pat down’. However, there are situations where that may not be possible. For example, where officers have reason to believe that a protective search is justified to ensure that the detained or accused person is not carrying a concealed weapon, a male officer will ‘pat down’ a woman if no female officers are at the scene.
If you are being held by Correctional Services Canada, regulations require that frisk searches of incarcerated women be done by female staff members. If men who are being held object to being searched by a female staff member, then every effort will be made to have the search done by a male. In the event of a strip search, the search will only be conducted by same sex staff, along with another same sex staff member to witness the search.
In Canada, pat downs are most commonly carried out when police are making an arrest. Unfortunately, strip searches have become increasingly prevalent as well, even in impaired driving arrests. As uncomfortable as this procedure is, for anyone having to undergo it, if you are placed in a situation where police request a pat down or strip search, you nevertheless need to be respectful of police. Then ask to speak with a criminal lawyer as soon as possible to make sure your legal rights are being upheld.