Strip Searches & Underwire Bras

A strip search is “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.”

R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3S.C.R.

The common law search incident to arrest power includes the authority to conduct a strip search.  However, the serious infringements of privacy and personal dignity that are inevitable consequences of strip searches require that, to be constitutionally valid, the strip search must be:

1.   Conducted as an incident to a lawful arrest

A strip search will be incident to a lawful arrest in two situations: 

a.    where it is conducted to discover evidence related to the reason for the arrest itself; and/or

b.    for the purpose of discovering weapons in the arrestee’s possession if a frisk or pat-down search reveals a possible weapon secreted on the arrestee’s person or the circumstances of the case raise the risk that a weapon is concealed on the arrestee’s person. 

2.   Based on reasonable and probable grounds for concluding a strip search is necessary in the particular circumstances of the arrest; and

3.   Conducted in a reasonable manner.

See R. v. Golden, at para. 99.

Strip searches must not be carried out as a matter of routine, an inevitable consequence of every arrest.

R. v. Golden, at paras. 90-95.

The removal of a female detainee’s bra constitutes a strip search.

R. v. Lee, 2013 ONSC 1000 (CanLII).

It is not uncommon for police to require an individual temporarily detained in police cells to remove her bra, purportedly because the underwire in some bras can be used by a detainee to self-harm or to harm others, including other prisoners or police.

As with all strip searches, police must have reasonable and probable grounds to conclude that a strip search is necessary in the particular circumstances of the arrest/detention. 

While a strip search can be justified when an individual is being introduced into the prison population to prevent her/him from bringing in contraband or weapons, different considerations arise where an accused is being held for only a short time in police cells and will not be mingling with the general prison population.

A policy, applied without exception, which requires a strip search of any short-term female detainee wearing an underwire bra will in its application contravene section 8 of the Charter, as it fails to consider whether the particular circumstances necessitate this form of intrusive search.

R. v. Lee, 2013 ONSC 1000 (CanLII), at para. 42;

R. v. Judson, 2017 ONCJ 439 (CanLII).

Stuart O'Connell, O'Connell Law Group. www.leadersinlaw.ca

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