Criminal law

Drugs

What is a body search?

A police officer can carry out several types of body searches. First, a police officer can carry out a search on someone he is placing under arrest (whether adult or adolescent). This is called a frisk search incidental to arrest. This type of search is mostly meant to protect the police and to preserve evidence that’s at risk of being destroyed or lost.

Following arrest, a person may be subject to more than one search. The search can be more or less intrusive depending on the circumstances and the nature of the charges. In all cases, however, the search must be carried out in a reasonable and non-abusive manner, and as non-invasively as possible. For example, in order to respect these criteria, a female police officer would be allowed to search a teenage girl but not a teenage boy, and vice versa.

Other than the frisk search incidental to arrest, a search may also be carried out under a warrant.

Can the police search whomever they want, whenever they want?

No. The police aren’t allowed to search people whenever they feel like it! Canadian citizens are protected against "unreasonable search" under the Canadian Charter of Rights and Freedoms.

The police power to search someone is generally tied to an arrest. When an adolescent is arrested, for example, the police can carry out a frisk search before that person gets into the police car to be driven to the station. This means that the police will pat down the person’s clothes and check the contents of his pockets and bags. The goal is to make sure he is not carrying any weapons, and also to seize evidence that is at risk of being destroyed or lost. It’s up to the police to decide whether to carry out a frisk search upon a person’s arrest. In practice, however, it is done as a matter of routine.

If Patrick had been pulled over for a violation of the Highway Safety Code instead of for possession of a stolen vehicle, the police would only have checked his driver’s license, registration and insurance. But they would still have kept an eye out for possible violations of the Criminal Code, such as driving under the influence or transporting illegal goods.

Do the police have to inform Patrick of his rights before searching him?

Yes. As soon as the police arrest someone, they must inform him of his rights. This means they must tell him that he has the right to a lawyer, the right to remain silent, etc. To learn more about this topic, read the Infosheets entitled Understanding your right to a lawyer and What you should know about the right to remain silent.

Once they have fulfilled this duty, the police can go ahead and carry out the frisk search at the place of arrest. They are allowed to carry out the frisk search without any further formalities, and without the presence of either the young person’s lawyer or his parents.

Could the police have strip-searched Patrick?

A strip-search is a search that is carried out on a naked person and can include a body cavity search (mouth, rectum, etc.). Because it constitutes a serious violation of the person’s privacy and dignity, strip searches generally require judicial authorization (a search warrant). Without a warrant, police must consider several factors before deciding whether a strip-search is appropriate under the circumstances. Above all else, they must have reasonable grounds for carrying out a strip-search following an arrest.

Strip-searches should generally be carried out at the police station and they must respect certain strict conditions, in order to respect the person’s right to privacy and dignity as much as possible.

Are there some types of body searches that the police cannot carry out on an adolescent arrested on a drug charge?

No. Adolescents are subject to the same kinds of searches as adults. However, certain searches are only carried out in exceptional cases and require authorization from a judge (a warrant). This is the case, for instance, if a police officer wants to obtain a sample for a DNA test, such as a skin or hair sample, or cells from the lips, the tongue or the inside of the cheeks.

Regardless of whether the search is done on an adult or an adolescent, it must always be carried out non-abusively and as non-invasively as possible.

What can an adolescent do if he believes he has been abusively searched?

Let’s say that an adolescent is the victim of an abusive search, i.e. a search that was not carried out in a reasonable manner. In such a case, the victim must speak to a lawyer immediately, and inform him of all the details of the search. In order to determine whether the search was carried out legally, the adolescent’s lawyer will ask the trial judge to examine the circumstances that led the police to carry out the search.

Depending on the facts of the case and the police officers’ alleged behaviour, the lawyer in charge of the case can also file a complaint on behalf of the adolescent with the Police Ethics Commissioner. The victim himself can also lodge a complaint; he simply has to get the necessary form from a police station and hand it in directly to the Ethics Commissioner. This will begin an investigation into whether the police were at fault in carrying out the search in the way they did. If they are found to be at fault, disciplinary action may be brought against them.

What happens if a judge declares a search to have been abusive?

If a judge concludes that a search was abusive, he must decide whether evidence obtained in the course of the search may be used against the accused.

For example, let’s say that the police search an adolescent even though he is not under arrest, and obtain a sample of his hair against his will and without a warrant. The judge could decide that the results from the DNA tests using that sample cannot be used as evidence against him. If it was the only evidence that the Crown attorney had against the teenager, the charges against him will be dropped or the judge will acquit him.

Even if a judge declares that a search was done abusively, he may still decide that the evidence collected in the course of the search can be used. This would be the case, for example, if the judge decides that the evidence in question would have been discovered anyway by legal means during the investigation and if there was no bad faith on the part of the police officers.