It was a routine traffic stop, all things considered: OPP officers patrolling Quinte West, outside Belleville, pulled Jillian Judson over last year for turning left on a red light. They quickly determined Judson was intoxicated, and charged her.
But while the evidence against Judson was damning, the court dismissed her case because officers had illegally strip-searched her.
It’s the latest example of law enforcement in Ontario overstepping the bounds that courts have tried and failed to impose since 2001, when the Supreme Court ruled that police can’t justify strip searches with merely an officer’s hunch and a boilerplate reference to “standard procedure.”
The court’s decision in R v. Golden is relatively simple and rests, as ever, on the presumption that we all have Charter rights and that those rights aren’t forfeit the moment our hands are cuffed. Section 8 of the Charter protects Canadians against unreasonable search and seizure, and strip searches “represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them.”
Still, elected leaders have declined to make police comply with the Supreme Court’s decision — and even cursory research shows it’s not just a few bad apples spoiling the bunch.
There’s the 2015 case of a teacher in Chatham-Kent who, like Judson, was ordered to remove her bra before taking a breathalyzer test. Or of a Peel Region woman who was strip-searched last year while male officers were within earshot, laughing. Or of a Waterloo-area father strip-searched in 2012 because his kindergarten-age daughter drew a gun in class. In Toronto, the police service says roughly one-third of arrests results in a strip search. Critics say the real number is almost certainly higher — perhaps 55 per cent.
Some of these cases were absurd; others clearly saw people who were not models of virtue go unpunished by the state. The common thread is police officers unthinkingly resorting to strip searches as standard procedure, explicitly contravening the standard set by the Supreme Court.
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Here’s where you’d normally expect someone in a position of political authority to compel police to change their ways. Even though voters aren’t historically moved by the plight of those caught breaking the law, the state usually cares a great deal about punishing the guilty. The fact that many of these cases see relatively straightforward prosecutions fatally undermined by police misconduct should motivate politicians to do something.
Ah, but welcome to Ontario, where neither the provincial government nor the police oversight boards it creates want to take responsibility for “operational matters.” Their stance is supposed to reassure people that MPPs and their appointees aren’t mucking about in criminal investigations, but it’s left police largely to their own devices. Recent moves by the Ontario government to curb abuses such as carding are the exceptions, not the rule.
For now, Ontario’s best hope is a review the Office of the Independent Review Director is conducting on strip-search use. OIPRD director Gerry McNeilly told the Toronto Star last year, “I’ve had enough … There is no regard being given to the rules.” He expects to publish his review before the end of year, according to his office.
But the OIPRD can only make recommendations to police, an institution that’s happy to ignore Supreme Court rulings. If anything’s going to change, it must happen at Queen’s Park. Ontario will have to legislate clear rules for police, and then hold them to account. Other jurisdictions have done this, some decades ago: in their 2001 ruling the Supreme Court of Canada cited the U.K.’s Police and Criminal Evidence Act, in place since 1984.
Ontarians shouldn’t hold their breath and wait for change. Minister of Community Safety and Correctional Services Marie-France Lalonde’s office reiterated to TVO.org this week that “the ministry is not directly involved in operational policing matters,” aside from expecting local police procedures to comply with provincial guidelines. They are, however, looking forward to McNeilly’s review.
The federal Liberals have recently had occasion to remind us that the Charter protects all Canadians — and that the government has to uphold it, even when doing so is inconvenient or uncomfortable. Their Ontario counterparts could use the refresher as much as anyone.
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