Police actions in dynamic situations not assessed under 'microscope' with 'benefit of hindsight'
The Ontario Court of Appeal has ruled that the strip search of a male accused in the presence of a female officer did not violate the accused’s Charter rights because the search took place in “exigent circumstances.”
“The Court of Appeal’s reasons affirm that the involvement of an officer of the opposite gender of the accused will not necessarily render a search illegal, as long as there was a true emergency and the officer reasonably perceived the extent of their involvement to be necessary to respond to that emergency,” says Michelle Psutka of Toronto criminal law boutique Scott Fenton Barristers in an email response to written questions from Law Times.
Anthony Black was driving a Honda Civic at night with his headlights off. Police officers Stacey McCabe and Christopher Ferko, who were on patrol, ran a vehicle license plate check that described the Civic’s plate as “missing.”
The officers stopped Black and asked him to produce his driver’s license, ownership and insurance. He was unable to provide a driver’s license or proof of insurance. He did provide the plate portion of the vehicle ownership but explained that he had purchased the vehicle the day before and was using a friend’s license plates to drive the car home.
Black also initially said his surname was “Brown,” but the officers could not identify any licensed driver with that name. They arrested and handcuffed him, following which he provided his real name. Subsequently, the officer found his driver’s license in a pouch that Black had with him.
Further checks revealed that Black was on probation, and there was an outstanding warrant on a robbery charge. Searching the vehicle also turned up a jacket with bullet-resistant panels that contained a bandanna and a knife in one of the pockets.
McCabe informed Black that he was under arrest for robbery, breach of probation and obstruction of a police officer. The officers read him his rights.
The booking officer authorized a strip search at the station based on the seriousness of the outstanding charges and the intention to keep Black in custody. The officers took Black to an interview room and began to search him.
Initially, as a female, McCabe did not participate in the search. Instead, officer Anthony Tomei assisted Ferko.
When the officers asked Black to remove his socks, he refused and stuck his hand down his pants. Concerned that he was reaching for a weapon or other contraband, the officers tried to stop him but couldn’t and resorted to “distractionary strikes” to his upper body and head to remove Black’s hand from his pants. They eventually succeeded, but Black continued to kick, push, bang his head against the wall, and insist that the officers should “kill him.”
Ferko called for assistance. McCabe and another male officer responded. The four managed to handcuff and shackle Black, but he continued his resistance.
McCabe left to get scissors, which Ferko used to cut away Black’s clothing, revealing a baggie of heroin, other drugs and a set of electronic scales.
Although naked at this point, Black continued to resist and refused an offer to put on a jumpsuit. Three officers, including McCabe, carried Black to a holding cell, where he continued his aggressive conduct until he finally put on the jumpsuit.
The trial judge ruled that there were sufficient grounds for a strip search, which the officers intended to carry out along the Supreme Court of Canada’s guidelines in R. v. Golden. Black’s resistance, however, meant that the search did not go as planned.
Black’s counsel acknowledged that McCabe might have been justified in responding to Ferko’s call for assistance. But he argued that McCabe should have stepped aside once the officers had removed Black’s clothes and subdued him.
The trial judge disagreed. McCabe, he noted, was “reacting in real time to a dangerous and challenging situation which could have involved serious injury to her fellow officers” as well as Black. It was not practical or feasible to leave him in the interview room, and the officers, including McCabe, were justified in carrying Black to a holding cell.
The Court of Appeal affirmed the trial judge’s conclusion that Black’s behaviour constituted a “true emergency.” The court agreed with the trial judge’s observation that “there is a danger associated with reviewing dynamic situations in a way that amounts to ‘an over-analytical parsing of events into static moments without practical regard for the overall picture’.”
It followed that the trial judge’s findings that there were “exigent circumstances” and that McCabe’s continued involvement in the strip search was “fully justified,” “supported by the evidence,” and “reasonable.”
According to Psutka, the decision confirms Golden as the framework for assessing whether a strip search was reasonable.
“The application of that framework to the assessment of whether a particular strip search was illegal, however, is a highly fact-specific exercise, as it was in this case. The decision also affirms that an officer’s actions in a dynamic emergency situation will not be assessed under a microscope with the benefit of hindsight.”
Would the result have been different if the accused had been a female, and one of the officers had been a male?
Golden’s instruction that officers of the same gender as the accused should carry out strip searches, Psutka opines, does not differentiate how that guideline applies among genders.
“However, Golden also recognizes that strip searches can be particularly traumatic for women and minorities, and so the analysis will not necessarily be identical across all genders and races of accused persons. This being said, in the particular circumstances of this case, I don’t think the result would have been different had the accused been female.”