Custody, Detention, and the Charter

• Author: Karen Jokinen/Peter Keen
• Pages: 429-448

429

Custody,

Detention,

and the

Charter

21

I. Introduction ............................................. 430

II. Strip Searches ............................................ 430

A. What Is a Strip Search? ............................... 430

B. Authority for a Strip Search ........................... 431

C. Charter Compliance for Strip Searches Incident to Arrest ... 431

D. The Charter Application .............................. 432

E. Routine Strip Searches and Prisons ..................... 433

F. The Remedy for a Strip Search Breach ................... 434

G. Bra Removal ....................................... 436

H. A Final Word About Strip Searches ..................... 436

III. Video Recording of Private Moments of Persons in Custody:

R v Mok ................................................. 436

A. The Issue .......................................... 436

B. Rationale for Video Recording in Police Cells ............. 437

C. The Relevant Factors ................................. 438

IV. Overhold: Section 9 ....................................... 441

A. The Section 9 Charter Right ........................... 441

B. Duties of Arresting Ocers ........................... 441

C. Analyzing the Overhold .............................. 443

D. Establishing a Section 9 Breach Based on Overholding ..... 444

E. The Remedy ........................................ 445

F. Obtaining a Remedy ................................. 447

V. Hold for Bail ............................................. 447

VI. Conclusion .............................................. 448

© 2023 Emond Montgomery Publications. All Rights Reserved.

430 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

This chapter focuses on the treatment of the accused person after arrest and when

in police custody. In 2008, the “evidence to the contrary” defence1 was largely abol-

ished. Defence lawyers shifted their focus away from the amount of alcohol consumed

by the accused prior to arrest to areas such as reviewing police conduct while the

accused was in custody. This shift has been aided by the increased availability of video

surveillance in police detachments.

This chapter examines the post-arrest issues defence counsel look for in an eort

to challenge the state’s treatment of the accused: strip searches on arrest or arrival at

the station (the Golden issue), video recording detainees in their cell when a detainee

is using a washroom (the Mok issue), holding accused persons for too long (overhold-

ing), and decisions made by the police to hold the accused for a show-cause hearing.

This chapter also explores remedies for Charter breaches.

II. Strip Searches

The 2001 Supreme Court of Canada’s decision in R v Golden2 is the leading case on

strip searches. Golden was recently rearmed by the Supreme Court in R v Ali.3

A. What Is a Strip Search?

The Supreme Court adopted the following definition of strip search in Golden: “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.”4 This type of search is distinguished from

a “frisk” or “pat-down search,” as the latter two are less intrusive and do not involve

the removal of clothing. It also does not include a more intrusive body-cavity search,

which would involve a physical inspection of the detainee’s genital or anal region.

Searches of the mouth are excluded from the term “body-cavity search” because

these do not involve the same privacy concerns as searches of other body cavities.5

Requesting an accused to remove her bra before being placed into a cell was held to

be a strip search.6

Strip searches are viewed by the Supreme Court as representing “a significant

invasion of privacy and are often a humiliating, degrading and traumatic experience

for individuals subject to them,” regardless of the way they are carried out.7

1 Also known as the Carter defence, after Regina v Carter, 1985 CanLII 168, 7 OAC 344 (CA). It

was abolished by the Tackling Violent Crime Act, SC 2008, c 6, s 24.

2 R v Golden, 2001 SCC 83.

3 R v Ali, 2022 SCC 1.

4 R v Ali, ibid at para 47.

5 R v Ali, ibid.

6 R v Deschambault, 2013 SKPC 112; R v Lee, 2013 ONSC 1000.

7 R v Golden, supra note 2 at paras 83, 90.

© 2023 Emond Montgomery Publications. All Rights Reserved.