Criminal law

Drugs

What is a body search?

A police officer can carry out several types of searches.

First, a police officer can carry out a search of an adult or adolescent he is arresting. This is called a frisk search incidental to arrest. This type of search is mostly meant to protect the police and preserve evidence that could be destroyed or lost.

After being arrested, a person may be searched again. The search can be more or less intrusive depending on the circumstances and the nature of the charges. However, the search must always be carried out in a reasonable and respectful manner, with the least possible invasion of privacy.

Searches can also be carried out under a warrant (authorization from a judge).

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

No. The police aren’t allowed to search people whenever they want. Canadian citizens are protected against "unreasonable search" by the Canadian Charter of Rights and Freedoms, a law that protects human rights.

The police power to search someone is often tied to an arrest. For example, during an arrest, the police can do a frisk search of the person and search the immediate surroundings, including the person's vehicle.

A frisk search means that they 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 to seize evidence at risk of being destroyed or lost. It’s up to the police to decide whether to carry out a frisk search when they arrest someone. In practice, they do always do a search in this situation.

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

Yes. As soon as the police detain or arrest someone, they must inform him of his rights.

(A person is considered to be “detained” the moment he believes he is not free to leave or that he must obey a police officer’s instructions.)

To learn more about this topic, read the Infosheets entitled About Arrests: 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 search of body cavities (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).

The police must consider several factors before deciding whether a strip-search is appropriate. Above all, they must have good reasons for carrying out a strip-search following an arrest.

Strip-searches should generally be carried out at the police station and they must 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 skin or hair, cells from the lips, the tongue or the inside of the cheeks.

Before this kind of search can be carried out, an adolescent has a right to consult a lawyer and a parent, adult relative or any other appropriate person he chooses. The adolescent can also request that the lawyer and parent, adult relative or other person be present during the search.

Regardless of whether this search is done on an adult or an adolescent, it must always be carried out respectfully and with the least possible invasion of privacy.

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

Let’s say that an adolescent is the victim of a search that was not carried out in a reasonable manner. The victim should immediately contact a lawyer and inform him of all the details of the search.

Depending on the facts of the case and the police officers’ behaviour, the lawyer can file a complaint with the Police Ethics Commissioner. The victim can also file a complaint himself by filling out a form available at a police station. There will then be an investigation into whether the police were at fault. If they were at fault, they could be disciplined.

For more information, you can visit the website of the Police Ethics Commissioner.

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

If a judge decides a search was done in an unreasonable way, she must decide whether the evidence gathered during the search can be used against the person accused of a crime.

For example, if the police take a sample of hair without a search warrant and against the wishes of the accused, a judge might decide that results of any tests on the hair cannot be used as evidence against the accused at his trial. If this is the only evidence against the accused, the charges against him will be withdrawn and the judge will declare him not quilty.

However, even if a search is unreasonable, a judge could decide that evidence found during the search can be used in court. This could happen if the judge finds that the evidence is so reliable that it is important to use it during a trial in order to discover the truth.