Case at standstill over strip searches
Judge criticizes police division for ‘unconstitutional’ actions
A Toronto judge has come down hard on a police division she found continues to perform unconstitutional strip searches in violation of its own policy and in the wake of several court rulings critical of the practice.
In doing so, Ontario Court Justice Heather McArthur halted the impaired-driving case against Sung Woo Im, who the judge said was forced to remove his pants at 32 Division in North York following his arrest in 2013, even though there were no reasonable grounds for officers to have him do that.
“Sadly, the evidence before me reveals that the unconstitutional strip search of Mr. Im was not an isolated incident; indeed, the evidence highlights troubling systemic issues relating to strip searches at 32 Division,” McArthur wrote in her ruling, released last week, staying proceedings against Im.
“Despite the clear direction from the Supreme Court, numerous lower court rulings and the TPS’s own policy, officers at 32 Division still do not seem to understand the limits on their authority to conduct strip searches.
“Anything short of a stay of proceedings would amount to judicial condonation of egregious police misconduct and erode the public’s confidence in the administration of justice.”
Apolice spokesman said the professional standards unit is looking into the case. Im’s lawyer declined to comment.
Strip searching is “inherently humiliating and degrading,” the Supreme Court of Canada ruled in a landmark case 15 years ago and should only be done when there are reasonable grounds to do so, such as looking for weapons or evidence related to the arrest.
“Despite the clear direction from the Supreme Court . . . officers at 32 Division still do not seem to understand the limits on their authority to conduct strip searches.” HEATHER MCARTHUR ONTARIO COURT JUSTICE
Toronto police has attracted much criticism over the years for what critics have said is an overreliance on the practice. The police services board asked former chief Bill Blair in 2014 to do a random spot-check on all divisions to monitor the use of strip searches, after 2013 figures showed they happened in one third of all arrests.
The review examined 175 Level 3 strip searches — defined as the removal of some or all of the person’s clothing — performed between June 15 and August 15, 2014. Blair concluded each one to be “justified and lawful and no misconduct was found.”
McArthur noted that previous judges have reduced sentences of individuals improperly searched at 32 Division as a way of calling out what they have found to be police misconduct.
“Clearly though, such remedies were insufficient to drive home the message and to deter officers at 32 Division from engaging in blatantly unconstitutional behaviour,” she said, writing she felt obligated to take it a step further and halt the case.
Im, who testified he was humiliated by the experience, was arrested after driving into a parked bus in the early hours of May 12, 2013.
In her ruling, McArthur found that the officer who searched Im, Joao Fernandes, wrongly believed he was conducting a Level 2 search, which is defined as the removal of clothing but not to the point where undergarments are visible.
By having Im pull down his pants, the officer was actually conducting a Level 3 search, the judge wrote. Fer- nandes agreed on the stand he had no reasonable grounds to do so, but said he always had the individuals who were being searched remove their pants as part of “standard procedure.”
What McArthur found particularly concerning is that Fernandes testified he has conducted at least 100 strip searches which he wrongly referred to as Level 2. “By improperly referring to such searches as Level 2, his actions have escaped constitutional scrutiny,” she said.
Alan Hobbins, a senior officer who has assisted in training junior officers on strip searches, was also unsure as to whether having a person remove their pants is a Level 3 search, McArthur wrote.
The officers involved also failed to properly record the search which made the constitutional breach even more significant, she said.