Police set up post. Saw people walk into a shop and get a white substance from golden. Did a take down. Did pat down and found no weapon or narcotic at shop/decided to do strip search at shop. Pulled down pants and underwear in front of employees and officers. Say white substance in bum/used cleaning gloves to get it out. It was cocaine
Is a strip search possible incident to arrest in common law?
Did the strip search violate s. 8 of the Charter?
The common law search incident to arrest power does include the power to strip search, when for the purpose of discovering weapons or evidence related to the arrest, and it must be conducted in a way not infringing on s.8 rights. (TEST)
**Reasonable and probable grounds are required to justify a strip search.
Strip searches should generally be conducted at the police station, unless there are circumstances requiring that the detainee be searched prior to going to station.
**Searches in the field can only be justified where there is a necessity and urgency to search for weapons or objects that could be used to threaten safety.
Where reasonableness of a strip search is challenged - either:
1. Reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search in the field was warranted and was conducted in a reasonable manner, or
2. That reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable manner.
The manner in which was conducted was unreasonable, and is therefore a breach of s. 8 guarantees.
TEST: To determine if Strip Search is reasonable incident to arrest in the field
1. Incident to lawful arrest
2. Truly incident to that arrest (purpose of search must be related to search)
**a. Must be to preserve evidence
**b. Must be to ensure safety
3. Police must have additional grounds separate then those that justified the arrest
**a. Must have reasonable and probable grounds to justify the strip search