Strip searches, bodily samples and dignity

At 00:28, Mason Pruitt stood at the booking counter at Port Ardent's central station while Sergeant Larocque read Malhotra's notes on the screen. Two items mattered: Reyes had seen Pruitt push his right hand down the front of his waistband as she walked up to his car, and Malhotra had felt a soft, lumpy object at the front of Pruitt's groin, under his clothing, during the roadside search. Pruitt had been arrested for possession for the purpose of trafficking. Larocque asked Malhotra two more questions, looked at the property list and made her decision. 'I'm authorizing a strip search,' she said. 'Two male officers, the search room, in stages. Tell him why first.'

Riley Dunn had been booked an hour earlier. Larocque did not authorize a strip search for him. He had been arrested for assault, nothing suggested he was hiding anything, and the ordinary search at booking, along with removing his belt and shoelaces, was enough to keep him and the cells safe. Desjardins asks the class to explain the difference. 'Grounds,' Jesse Morningstar says. 'Pruitt's search had grounds connected to the offence. Dunn's would have had none.'

Why strip searches are different

A strip search means removing or rearranging some or all of a person's clothing to permit a visual inspection of the private areas of their body, such as the genitals, buttocks or breasts, or undergarments. It is one of the most intrusive things police can do short of a medical procedure. People who have been strip searched describe it as humiliating and degrading, and for people who have experienced sexual violence or other trauma, it can be retraumatizing. That is why both countries set much higher thresholds for strip searches than for ordinary searches incident to arrest.

The leading Canadian case is R. v. Golden in 2001. The Supreme Court of Canada held that a strip search incident to arrest is lawful only if the arrest is lawful, the search is conducted as an incident to the arrest, and the police have reasonable and probable grounds to believe that a strip search is necessary to discover weapons or evidence related to the reason for the arrest. Strip searches should not be routine. They should generally be conducted at the police station, unless there are exigent circumstances requiring a search in the field, such as a reasonable belief that the person has a weapon that poses an immediate danger. The Court set out questions to guide the manner of the search: whether it is conducted at the station, whether it is conducted in a way that protects the person's health and safety, whether it is authorized by a supervising officer, whether it is conducted by officers of the same gender, whether no more people are present than needed, whether it uses minimal force, whether it is done in a private area, whether it is done as quickly as possible and so that the person is not completely undressed at any one time, whether it involves only a visual inspection, whether the person has the option to remove any object themselves, whether a medical professional is involved for any body cavity search, and whether a proper record is kept.

Golden's questions describe how Port Ardent conducts every strip search, and Larocque's instruction followed them: the search was authorized by a supervisor, conducted at the station by two officers of the same gender in a private room, done in stages so that Pruitt was never fully undressed, and limited to a visual inspection, with Pruitt given the chance to remove anything himself.

The Pruitt strip search

Malhotra and Constable Tomas Ruiz conducted the search in the search room, a private space next to booking with no window and no camera covering the search area itself, under the service's policy. Before they started, Malhotra told Pruitt what would happen and why: 'We have reason to believe you have something hidden at the front of your underwear, connected to why you were arrested. We're going to search you in stages. You'll never be fully undressed. If you have something, you can take it out and hand it to us yourself.' Pruitt said nothing for a moment, then reached into the front of his underwear and handed over a small knotted plastic bag holding more blue pills. The officers completed the search in stages, found nothing else and returned his clothing.

Malhotra's notes recorded the authorization, the grounds, the start and end times, who was present, the stages of the search, what Pruitt said, what he handed over and the fact that no force was used and no body cavity search was done. Larocque added her authorization and the grounds to the custody record. Under Golden, that record is part of what makes a strip search reasonable. Desjardins points out that the strip search found evidence that would almost certainly have been lost or ingested in the cells, which shows why the power exists. 'The safeguards are not there to stop you finding evidence,' he says. 'They are there to make sure the search happens only when it is justified, and in a way the person and the public can accept.'

When strip searches go wrong

Golden was decided because strip searches had become routine in some places, including at the roadside. Two decades later, reviews in Canada found that the problem had not disappeared. A 2019 report by Ontario's police complaints agency on strip searches found that some services were still strip searching large numbers of people who were simply being held for a bail hearing, rather than deciding case by case, and recommended changes to policy, training and record keeping. Courts have excluded evidence and reduced sentences when strip searches did not meet the Golden standard. Larocque tells the class that the most common error she sees is officers treating a strip search as part of booking rather than as a separate decision that needs its own grounds and authorization.

Gender, identity and vulnerability

Same-gender searching protects dignity, but it raises questions when a person is transgender, non-binary or two-spirit, or when their gender presentation does not match their identification. Port Ardent's policy, like many services' policies developed with human rights guidance, asks the person which gender of officer they would prefer for each part of a search, and respects that preference where it is safe and practicable, including splitting a search between officers of different genders. Officers should never search a person to determine their sex or genitals, and should never make comments about a person's body or identity.

Young people, people with disabilities, people who are pregnant and people who disclose past trauma need additional care. For young persons, Golden's safeguards apply with even more force, and services often require a more senior authorization and the presence of an appropriate adult outside the room where possible. Officers should explain clearly, slow down, offer the person choices about the order of the search where possible, and consider whether a less intrusive alternative, such as a body scanner where one is available, can meet the same purpose.

Body cavity searches and bodily samples

A body cavity search, meaning a physical inspection of a body cavity beyond a visual inspection, is in a category of its own. Golden said such searches should be performed only by trained medical professionals, and they generally require judicial authorization. Police cannot force a person to undergo one as an incident to arrest. If officers believe a person has concealed drugs internally, the priority is medical: drugs packaged and swallowed or inserted can leak and cause a fatal overdose. The person should be taken to hospital, and evidence questions can be dealt with there under proper authority.

Bodily samples such as blood, hair and dental impressions are not covered by the search incident to arrest power. In R. v. Stillman in 1997, the Supreme Court of Canada held that taking such samples without consent or legal authority violated the Charter, and Parliament has created DNA warrants and other specific procedures in the Criminal Code. In R. v. Saeed in 2016, however, the Court held that police may take a penile swab incident to arrest, to collect a complainant's DNA, if they have reasonable grounds to believe it will reveal and preserve evidence of the offence, and it is done in a reasonable manner: generally at the station, authorized by a senior officer, by an officer of the same gender, in private, with the person given the option of swabbing themselves, as quickly as possible and with a proper record.

Trauma-informed practice and alternatives

Larocque tells the class that the way a strip search is conducted can make the difference between an experience a person can recover from and one that harms them for years. People in custody have higher rates of past abuse and sexual violence than the general population, and a strip search can bring back the feelings of powerlessness and violation they experienced then. Trauma-informed practice does not mean avoiding necessary searches. It means explaining what will happen and why, giving the person as much control as possible, such as choosing the order in which clothing is removed and replaced, keeping the number of people to the minimum, using calm, neutral language, never commenting on the person's body and stopping to check in if the person becomes distressed.

Some services have introduced body scanners, similar to those used in airports and some correctional facilities, which can detect objects hidden under clothing or inside the body without the person undressing. Where they are available and lawful to use, scanners can replace some strip searches, although they raise their own questions about privacy, radiation for some types and the handling of images. Other alternatives include keeping a person under close observation instead of searching them, if the purpose is to stop them using or passing on something, or seeking medical assessment when internal concealment is suspected.

Desjardins asks the class to imagine being the person in the search room. Jesse Morningstar says the thing he would most want is to be told the truth about why it was happening. Amara Okafor says she would want to know who would see her and whether there was a camera. Both are things officers can almost always provide. 'The law sets the minimum,' Desjardins says. 'Your professionalism decides how close to the minimum you operate, or how far above it.'

Larocque adds a final point about records. Strip search records are reviewed more closely than almost any other document in the cells, by supervisors, by prosecutors, by defence lawyers and sometimes by oversight bodies. The record should allow someone who was not there to answer four questions: why was the search needed, who authorized it, how was it done, and what was found. If the record cannot answer one of those questions, the search will be hard to defend, however justified it actually was. Pruitt's record answered all four on one page, with the officers' notes attached.