Just because cops found a woman slumped over the wheel of her car, an apparent drunk-driver, they didn't have the right to strip-search her in an Ontario jail cell, a Toronto-area judge ruled last week.
The 26-year-old told a court that she left a club in 2014 where she, as the judge put it, "drank to excess." When she pulled over to the right lane of traffic to vomit, she stayed put. Then a police officer arrived, pulled her from the car, and arrested her for drunk driving.
It's what happened after that has Canadian cops in hot water.
The woman was put in the back seat of the police cruiser, and taken to a police station near Newmarket, Ontario. According to security camera footage reviewed by the court, "she was paraded before the duty sergeant, searched by two female police officers and then put in the cells."
"As the officers described it, virtually any and all items of personal clothing could potentially be a weapon of some sort."
For some time, she was left in the cell with her handcuffs behind her back. Then, for "security" reasons, the police at the station removed the woman's clothing, except her underwear, and put her in a "bunny suit" — a white paper overalls.
The woman told the court that "when inside the cell, she was told to take off her pantsuit, and she did so. She was not wearing a bra and her entire breasts and back were exposed." She was left in only a thong.
The two female officers that were with the woman at the time, who had patted her down and ordered her to remove her jacket and belt, forced her to strip after discovering she had a belly button ring. They ordered her to remove it.
"Neither of the officers were of the opinion that this was a 'strip search,'" Judge Peter Bourque wrote in his ruling.
But the judge disagreed, and drew up a scathing rebuke of the officers' actions in a March 7 ruling. He called the whole affair a "humiliating exercise" and cleared the accused of all charges. He determined that the strip search compromised her constitutional rights.
The judge questioned why she was forced to change at all. "Why is it necessary if she has the clothes that she came to the police station in. If they did not take them away, why the need to put her in coveralls?" Bourque wrote.
Bourque proceeded to tear apart the testimony of two officers from the York police force, Lisa Moskovitz and Benita Fong.
"Simply put, if local Counsel don't litigate these issues the police force doesn't respond to them."
"[Moskovitz] could not, in my opinion, (nor could officer Fong) give any satisfactory explanation why this jacket, which was clearly part of her outfit that evening, would pose some sort of issue of danger to herself or to any other person at the police station," Bourque wrote.
"As the officers described it, virtually any and all items of personal clothing could potentially be a weapon of some sort," Bourque continued. "It is hard to see how a ring could be any real danger to a person sitting in a cell for a few hours, by themselves and under constant video surveillance."
The ruling adds to the body of case law underlining that police in Canada do not have the authority to conduct strip searches whenever they please. The Supreme Court has already limited when police are allowed to force someone to remove their clothing.
"Strip searches cannot be carried out simply as a matter of routine police department policy applicable to all arrests," Bourque wrote, and noted that it must be either necessary to uncover evidence, or to discover weapons on the person's body. He adds that police do not have the same power to conduct a strip search on a person sitting in a holding cell or a drunk tank as they do for a prison inmate.
Jason Dos Santos, a Toronto lawyer who represented the woman in her court challenge, says that while things are getting better, he still sees at least one unjustified strip search a year. "I was raised in a moderately rough area of Toronto and saw a lot of this stuff as a kid on the streets," he said, referring to a frisk of a suspected drug dealer with his pants pulled down to look for drugs in his boxers, or lifting a crack-addicted prostitute's shirt to look for drugs in her bra.
The limited data shows that strip searches in Canada are common.
In January, drunk driving charges were dropped against a different Ontario woman after police conducted an unconstitutional strip search on her. A similar case was thrown out for the same reason in 2012. Reports also emerged that police were regularly using strip searches during the G20 summit in Toronto.
"I am concerned that police forces put vague concepts of police safety before the human dignity."
And despite the Supreme Court ruling, and the repeated trouble that cops find themselves in for conducting these searches, there exists no national policy on the matter, according to the Canadian Association of Chiefs of Police. The Toronto Police Service has also resisted calls to draw up guidelines for strip searches.
A statement from the Ontario Association of Chiefs of Police (OACP) reads that "restricting strip searches in favor of 'pat downs' would, in the opinion of the OACP, pose a significant safety threat to officers and detainees." They specifically cite an example where a 12-year-old boy had weapons charges dropped after a judge slammed the "egregious" strip search conducted by police.
Dos Santos said, in his years of fighting cases on this issue, he's seen cops use strip searches as punishment, arbitrarily, in public, and bluntly as a "this is how we do things" approach. He says he's only ever seen one instance where police have written guidelines that are designed to tell cops when, and when not to, conduct a strip search. "If there's a policy I don't know it," he said.
There is magnitude to the issue. 2011 numbers indicate that 60 percent of all arrests by the Toronto Police Service — more than 30,000 arrests — resulted in strip searches. That number went down significantly by 2013, the last year for which numbers were published, but still occurred in roughly 30 percent of arrests. It's unclear if those numbers include strip searches that occurred when no arrest was made, or whether the majority of those searches occurred when an individual was held in a prison prior to getting bail.
While York Regional Police, the force that was the focus of this case, don't publish similar statistics, they've also been in trouble for adopting a policy that requires all women wearing underwire bras to remove them while in custody.
Dos Santos said particular attention should be paid to those smaller police forces who maintain a "what's the big deal" attitude.
"In my experience it's worse outside of major population centers where either the police are less sensitive and/or local counsel don't or won't raise the issue," he said in an email to VICE News. "Simply put, if local counsel don't litigate these issues the police force doesn't respond to them."
In throwing out the charges against the woman — also known as a "stay" — Bourque wrote: "I am concerned that police forces put vague concepts of police safety before the human dignity of people they have in detention. While police safety can clearly (in the appropriate case) trump the dignity of a detainee, I do not see how that was the case here. I am concerned that there was no thought given to this."
While he underlined the seriousness of driving drunk, the judge said that it "is far from the worst criminal offense committed by the worst offender" and that this "is one of the clearest of cases calling for a stay."
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