National Post (National Edition)
The problem with strip searches
At some time or other, you've probably heard a libertarian jerk like me mutter that taxation is theft. I don't like to put it that way in ordinary discussion, but that is not because it isn't true. Anyone can see the very close similarities between taxation and theft, and they're not really to be disposed of by saying, “It's not theft because we had an election,” or, “It's not theft because it's perpetrated according to the law.” Or, for that matter, “It's not theft because we buy and do good things with your money.” Taxation ought to be thought of as being justifiable only under the same moral conditions that theft would be.
Maybe you don't agree. Or maybe you think that taxes as we experience them meet the criterion. But if I said that “illegal strip searches are sexual assault,” a lot of the people making angry faces at that last paragraph would instantly agree with me. And so they should.
It is settled Canadian law that police strip searches are “inherently humiliating and degrading.” The Supreme Court outlined this doctrine in 2001's R. v. Golden decision, and gave a strict list of conditions under which a strip search could be justified — essentially, to protect someone's safety, find weapons or to prevent the concealment of evidence. Even a lawful strip search has to have reasonable grounds and be done in a minimally invasive or cruel way.
Golden, in turn, was mostly an elucidation of common-law (and common-sense) principles much older than professional policing. Strip searches, even of convicts, must never be routine or be performed as a matter of course. Unfortunately, Canadian police and corrections officers continue to perform these searches in surprising quantities.
In 2019, Ontario's Office of the Independent Police Review Director reported that police in Ontario still, two decades after Golden, conduct “well over” 22,000 strip searches a year.
And, no, we're not talking about pat-downs or frisks. We're counting strip searches as defined in Golden, to wit: “The removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female) or undergarments.”
And I can only beat Ontario cops over the head with that astonishing number because they're required to count these searches. Nobody else really bothers.
On Thursday, the Civilian Review and Complaints Commission for the RCMP published the latest in a series of reports on how the Mounties handle strip searches. I picked up the report in a spirit of gloom, but the findings of the commission were not quite as awful as I feared. The RCMP's written policies on strip searches indicate that the Mounties are aware of, and give a damn about, Golden. Cadets are thoroughly instructed on Golden, although there is little explicit follow-up throughout the remainder of their careers. Cops are informally expected to keep up with the evolving case law, whether or not they have the time, and you can imagine how that goes.
Some detachments have been counting the making of an arrestee strip down to his underwear as a personal search rather than a strip search under Golden, and there are problems involving bras, which some cops seem to regard as fair game. The RCMP's national manual is not as pellucid as it could be, and local practice in the divisions conflicts somewhat with the national rules.
Record-keeping is abominable. Ideally, all Canadian police forces would compile and publish simple counts of strip searches, but if you have read the commission report you're not getting your hopes up. Publishing statistics would probably be the best means of ensuring that the searches have stopped being routine, especially in detention settings, where a charter-based objection to a lawman's behaviour may not be practical, conceivable, timely or wise.
But if the best way for the RCMP to demonstrate that it does not commit sexual abuse out of sheer habit is to have a lot of written guidelines and forms and binders … well, they meet that standard, anyway. The complaints commission is just trying to tidy up edge cases and identify the least compliant regions. But why, after Golden, did it take two decades for our national police force to get to this half-acceptable level?