A. BACKGROUND AND EVIDENCE
(i) History
[1] On December 18, 2022, shortly after midnight, eight girls in their early to mid-teens set upon Kenneth Lee. Mr. Lee was with his friend, Erika Tong, in a small “parkette” in a busy area of downtown Toronto. The parkette is adjacent to a prominent hotel and across the street from Union Station, a major railway hub. Mr. Lee suffered many blunt force injuries in the assault, leaving him bloodied and bruised. His death, however, resulted directly from a stab wound to the heart which caused fatal blood loss.
[2] Mr. Lee was at the time a homeless man, sometimes residing in shelters. He had no criminal record and no apparent history of addiction or antisocial behaviour. It is not suggested that he provoked the attack or did anything else to trigger it. His first engagement with the accused girls appears to have been in response to their aggression toward his companion, Ms. Tong, from whom one of the girls took a bottle containing alcohol, without making a request or receiving permission.
[3] The youth of the accused, the brazenness of the attack, the vulnerability of Mr. Lee, and the collective nature of the group violence combine to make this a case of unusual gravity and acknowledged public concern. SC, CU, and AW faced charges of second degree murder. TGV was charged with manslaughter.
[6] At the date of this ruling, SC remains on trial for second degree murder with my judgment on the merits of that charge on reserve…
(ii) The Constitutional Claims
[7] It is common ground that all four applicants were subjected to what are known as “routine” strip searches while held in pre-trial custody in youth detention facilities after their arrests early on December 18, 2022. This resulted in custodial staff at the detention centres seeing their completely unclothed bodies for several seconds on several separate occasions. In the terminology employed by the detention facilities, a “routine” strip search is one that may be conducted without any specific grounds for the search related to the conduct of the detainee or an articulable suspicion that they might possess weapons, drugs, or other forms of contraband. These routine searches took place on initial admission to a facility; upon return from court appearances; following family visits; and following possible access to potentially dangerous implements, such as kitchen utensils.
[8] An explicit ministerial standard from the Ministry of Children, Community and Social Services (MCCSS), to which each of the three detention facilities in the case was required to adhere, prohibited “complete” nudity in the course of strip searches and the Crown has conceded that, in this respect, the searches were conducted in an unreasonable manner and violated s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This, the Crown agrees, may merit some remedy for the applicants, but not the stays of proceedings requested.
[9] The applicants argue that the breach of rights was much broader in its factual and legal scope. Most significantly, they argue that the pervasive practice of routine strip-searching, on no specific grounds, was a serious and repeated violation of s. 8. They argue that s. 12 of the Charter is engaged as well on the basis that the searches were “cruel and unusual treatment”. They argue s. 7 is engaged on the basis that the searches were deprivations of bodily integrity without adherence to the principles of fundamental justice, and were inadequately supervised by ministerial authorities. Finally, they argue that s. 15 was violated, on the basis that the searches had differential impacts on the applicants – who are all Black adolescent females – based on their race, sex, and ages.
[12] The issue of routine strip searches was addressed by Justice Rose of the Ontario Court of Justice in earlier proceedings arising from the events leading to Kenneth Lee’s death. The routine strip searches were considered in determining the sentences of two young persons, AB and MJ, who entered guilty pleas before Justice Rose. They were also considered in an application for stays of proceedings by two other accused girls, JF and SS, in a ruling released on January 28, 2025, which was the subject of submissions before me on the present application. In R. v. J.F., 2025 ONCJ 54, 2025 CarswellOnt 1124, Justice Rose held that the strip searches of these two girls breached their rights under s. 8 of the Charter, but that this breach could be remedied by sentence adjustments rather than through a stay. In that case, the stay was requested following guilty pleas by both applicants to included offences – manslaughter, in the case of JF, and assault with a weapon and assault causing bodily harm, in the case of SS.
[16] SC was placed in a small washroom off the facility’s intake office and given a towel. With the bathroom door closed, she removed her own clothing and wrapped the towel around herself. The officer then opened the door, took out the clothing, searched it, and placed it in a bag.
[17] SC was then directed by the searching officers to position the towel in front of herself and to squat and cough. This procedure is understood to promote the involuntary opening of bodily cavities – the rectum and vagina – where contraband might be secreted.
[18] She was then told to drop the towel to the floor and turn around 360 degrees with her arms extended. With the towel on the floor, she was directed to show the areas behind her ears and inside her mouth, and to shake her hair. After this, she was handed an institutional uniform to wear. She asked for a menstrual pad and one was provided.
[19] SC described feeling “completely disgusted and embarrassed” following the search. She noted, to emphasize how intrusive she felt the search to be, that she would not have allowed even her parents to look at her body in that manner.
[20] SC was strip searched twice more at Sundance, in a similar manner, upon returning from routine court appearances. Her affidavit is unchallenged in its assertion that while at these court appearances, she had travelled alone in a police wagon, been placed in a cell by herself at the courthouse, and remained handcuffed throughout the proceedings.
[21] SC was one of a group of girls flown late at night to the Creighton Youth Services Centre, in Kenora, after their Toronto area facility became suddenly uninhabitable due to flooding. SC was surprised by the routine strip search at Creighton since she was aware of an earlier order from Justice Sirivar forbidding strip searching of another accused girl. She pleaded and argued with the staff at Creighton not to strip search her but was told the only alternative to the search would be isolation in her room and separation from other detainees and from the available programming. She submitted to the search.
[22] SC described the search at Creighton as similar to the ones at Sundance. It included removal of clothing, inspection of the feet, ears, and mouth while SC was in underwear, and then removal of undergarments and provision of a towel. With the towel in front of her, SC was directed to squat and cough, then drop the towel and turn around in a full circle before putting on facility clothing. SC recalled this as the worst of the searches she had experienced because she was able to see that a male manager was just outside the room – though not looking at or paying attention to her.
[24] Dr. Vitopoulos made several other observations in her report and testimony, about SC personally and about the impact of the strip searching of adolescents generally. They included:
Entrance into custody itself is a very difficult and likely traumatizing experience for adolescents, representing a) the abrupt removal from familial and/or primary care setting and caregiver safety and support; b) disruption to daily life; c) as well as exposure to the exertion of control by adult strangers in an unfamiliar environment. Multiple transfers between institutions, some of which were quite far from her family, likely aggravated the already difficult experience of being an adolescent in custody. Early adolescence represents a neurobiologically and psychosocially sensitive period of development (please see expert report for literature summary and references). Thus, [SC] entered a custodial setting and experienced being strip searched during this particularly sensitive period of development.
While [SC], her mother, father, as well as her mental health court worker, all discussed the broader impacts of her custodial experience on her well-being and mental health, [SC] and her mother discussed the specific impacts of the strip searches. [SC] indicated that following her release from custody she had frequent intrusive thoughts, nightmares, and dreams about the searches. She noted that, generally, she tried to avoid thinking about these and any related triggers. However, she explained that often, till this day, reminders of the searches can be triggered by her own body or the act of undressing. She described this as being “disgusted” with herself due to shame associated with the experiences. Both [SC] and her mother reported that [SC]’s relationship to her body changed after custody, noting that she began covering her body in larger clothing to conceal it, whereas she had dressed in a more commonly adolescent and sometimes more revealing manner prior to custody. [SC]’s mother described the strip searches as traumatic, causing [SC] to be “uncomfortable in her own skin,” as well as fearful and paranoid of the searches occurring again while she was in custody. She posited that they have been further disruptive to her sleep on an ongoing basis. Taken together, though [SC] certainly evidences a clear history of long-standing complex PTSD, these particular reported impacts are in keeping with a specific trauma response to the searches.
(ii) The Institutional and Regulatory Context
[36]… Section 68 of the Regulation sets broad standards which implicitly treat strip searches as one form of search permitted by s. 155. It says:
68. A search authorized by a person in charge of a place of open custody, of secure custody or of temporary detention shall be carried out in accordance with the following rules:
1. In no circumstance shall a search involve a body cavity search.
2. All searches shall be conducted in a manner that,
i. respects the dignity of the person being searched and does not subject the person to undue embarrassment or humiliation,
ii. considers the cultural, religious and spiritual beliefs of the person being searched,
iii. respects any personal property or clothing that has cultural, religious or spiritual value to the person being searched, and
iv. respects any personal property so that it will not be wilfully discarded, broken or misplaced.
4. A search that could involve physical contact between the staff member and the person being searched or the removal of some or all clothes, other than outer garments, of the person being searched may only be performed on a young person and the following rules apply to such searches:
i. At least two staff members shall be present for the search.
ii. The young person being searched shall not be searched by a person of the opposite sex unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place, or to the safety or security of the place.
iii. Despite subparagraph ii and unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place or to the safety or security of the place, a trans young person shall have the option of,
A. requesting that the search be conducted by only a male staff member,
B. requesting that the search be conducted by only a female staff member, or
C. requesting that the search be conducted by staff members of both sexes and identifying how each of those persons may perform the search.
[Emphasis added.]
[37] Section 71 compels the head of a custodial facility to ensure staff receive training and education in “the policies and standards established by the Ministry” under the CYFSA.
[38]….The standard directs:
Routine strip searches
The person in charge of the custody/detention facility may authorize that a strip search of a young person be carried out in order to safeguard the security of the facility or the safety of staff or young persons:
when a young person enters or leaves the facility, other than when the young person is being released from custody
when a young person leaves an area (such as a kitchen or workshop) where there was a reasonable likelihood of the young person having access to contraband (e.g. items that may not be approved outside of the program area) that is capable of being hidden on or in the body, and all of the following conditions are met:
a staff member believes on reasonable grounds that the young person is carrying contraband
the young person refuses, resists or fails to co-operate with the staff member’s request to turn over contraband
a non-intrusive search has failed to recover contraband
the person in charge determines that a strip search is necessary to find contraband
[Emphasis added.]
[41] The Standard also contrasts “routine” strip searches with “non-routine strip searches”, which may be conducted at any time, but only in response to a specific belief, based on reasonable grounds, that the young person “is carrying contraband or evidence relating to a criminal offence” and that the young person has declined to turn over the items of concern, that a less intrusive search will not secure the items, that safety is at immediate risk and that a strip search is necessary. These non-routine, event-driven searches, based on reasonable grounds for belief, require written authorization in advance from the person in charge of the facility.
[44] The policy at Sundance in 2023 had a similar threshold for routine searches – upon admission, after re-entry to the facility from an outing, including court, and after a family visit….
(vi) Recommendations and Reforms
[59] In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, the Supreme Court of Canada issued a major judgment on the constitutionality of strip searches by the police following an arrest, finding that such searches, performed without a defined standard and on a routine basis at the police station, violated s. 8 of the Charter and required the exclusion of seized evidence. The Court has not broadened its analysis to address strip searches in custody in the years since. The issue has, however, arisen in other cases and has been the subject of recent reports and recommendations from governmental and advocacy groups. These reports, from which I will quote at some length, have been critical of the regime permitting “routine” strip searches of persons in detention and have urged the adoption of more rigorous standards for conducting such searches, which, they urge, should be based on reasonable grounds to believe the search is necessary and a requirement for supervisory approval.
[60] In 2019, the Office of the Independent Police Review Director (OIPRD) released a report entitled Breaking the Golden Rule: A Review of Police Strip Searches in Ontario, which surveyed the practices and policies of the province’s policing services and made a series of detailed recommendations, which included the following:
17. Every police service in Ontario should ensure that their procedures pertaining to strip searches explicitly set out the threshold preconditions to a valid strip search, with particular emphasis on the requirement that the police must believe, on reasonable and probable grounds, that a strip search is necessary in the particular circumstances of the case either for safety (that is, for the purpose of discovering weapons in the detainee’s possession) or to discover evidence related to the reason for the arrest. …
21. Every police service in Ontario must communicate effectively to their officers, through illustrations informed by existing jurisprudence, what would amount to unlawful routine strip searches. Such communication should form an essential part of officer training. However, such police services would also be well advised to briefly include in their procedures several prominent examples of unlawful strip searches done routinely. These examples might include:
(a) Strip searches inevitably done, regardless of the individual circumstances, based on the nature of the charge(s) (e.g. drug offences) faced by the arrested individual.
(b) Strip searches inevitably done because the arrested individual will be held for a show cause hearing, regardless of whether that individual will be detained or transported with others, and regardless of whether reasonable grounds exist that a strip search is necessary for the safety of that individual or others.
(c) The automatic removal of bras or underwire bras, and string bikini tops, regardless of the individual circumstances.
[61] In 2022, the Ontario Human Rights Commission (OHRC) made a recommendation to the Ontario Solicitor General for the reform of strip searches in adult correctional institutions. The recommendations echoed the call for specific grounds to search and supervisory approval. The OHRC’s submission says:
Strip searches cause harm to all people and cause disproportionate harm to members of Code-protected groups. Given this reality, Ontario’s regulatory framework for strip searches must be premised on minimizing such searches in all instances.
In most if not all cases, this will require that strip searches be conducted only when there are reasonable and probable grounds for such a search. The OHRC is aware that many groups are calling for the elimination of all “routine” strip searches in Ontario’s correctional facilities. The OHRC supports that goal.
To the extent that there are particular situations where Ontario believes that security concerns require strip searches without individualized reasonable and probable grounds, it should demonstrate that need. While courts have acknowledged the unique security needs of correctional facilities, they have also highlighted the overuse of policies that require frequent “routine” strip searches. Given current body scanning technologies that are used to search individuals, and the need to balance security and safety risks with Code and Charter rights, there should not be a “one size fits all” approach on entry into correctional facilities. Strip searches for individual prisoners should never be “routine.”
[62] Two years later, in March 2024, Ontario’s Ombudsman released his Submission to the Ministry of Children, Community and Social Services Regarding Searches of Staff, Visitors and Young Persons at Youth Justice Facilities. Recognizing the constitutional value of minimizing the invasiveness of any permitted search, the Ombudsman characterized strip searches as a “last resort.” His observations continued:
Many Canadian sources highlight the importance of severely limiting the use of strip searches for young people. In R. v. Golden, the Supreme Court of Canada held that strip searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out.” The Court emphasized that “[t]he importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy.” …
In some cases, advances in search technology may eliminate the need for more intrusive types of searches. Full-body security scanning systems can safely scan bodies for external and internal contraband not detected by existing security measures and do not require the person being searched to undress. The province has successfully used these types of scanners for years at some adult correctional facilities. While these types of scanners do not exist at all youth justice facilities, I urge the Ministry to provide specific guidance on how and when body scanning devices should be used as an alternative and less intrusive search method for young people.
Ontario Regulation 155/18 should be amended to specifically provide that strip searches will only be used as a last resort, when all other options to ensure safety and security in a youth justice facility have been exhausted. …[Emphasis added]
[63] Under the heading “Prohibiting routine strip searches” the Submission continues:
The Ministry states that proposed regulatory amendments may outline the circumstances when a strip search of a young person can be conducted, such as during admission to the facility, leaving the facility (e.g. to attend court), and when the young person re-enters the facility and they have not been directly observed by staff at all times. I am concerned that these rules could lead to routine strip searches of young persons, contrary to the Charter.
Under section 8 of the Canadian Charter of Rights and Freedoms, everyone has the right to be secure against unreasonable search or seizure. In considering the scope of the power of police to conduct strip searches, the Supreme Court of Canada has held that “[t]he fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter.” In R. v. A.(Z.), a strip search of a young person was found to have violated section 8 of the Charter because, amongst other things, “the strip search was carried out as a matter of routine policy without regard to the individual circumstances of the youth and the necessity for a strip search in his case.” I encourage the Ministry to prohibit routine strip searches of young persons, such as when they enter or leave facilities, and to state that all searches must be conducted in a manner that has regard to the individual circumstances of the youth and the necessity for a strip search.
[Emphasis added.]
C. THE CONSTITUTIONALITY OF THE STRIP SEARCHES
(i) Summary of Findings
[68] I conclude that s. 8 was violated in the strip searches of the applicants at the Sundance, Craigwood, and Creighton facilities. The violation goes well beyond the manner of search, which required complete nudity, contrary to ministerial policy – a breach conceded by the Crown. It extends to the “routine” performance of strip searches in circumstances where no prior authorization is required and no grounds for belief or suspicion about the need for the search must be held by the staff member performing it. I will explain this finding at length below.(Emphasis added by PJM)
[71] Section 7 of the Charter is invoked in three parts of the applicants’ claim. I conclude, firstly, that the strip searches, performed without specific grounds or any process for advance consideration and approval, deprived the four girls of the security of their persons in a manner that did not accord with the principles of fundamental justice. Second, I conclude that the breadth of the practice, and the failure of senior officials to detect and prevent the harms, did not constitute a violation of s. 7 separate from and in addition to the practice itself. Third, I conclude that the evidence makes out an abuse of process under the “residual category”, calling for a remedy under s. 24(1) of the Charter to preserve the integrity of the justice system. An abuse of process affecting the liberty interests of accused persons is a violation of s. 7.(Emphasis added by PJM)
[72] I will expand on these conclusions, beginning with s. 8.
[77] This recognition that a balance must be struck between the public’s interest in exposing concealed physical objects or unearthing hidden information, and the private interest of every citizen against the “encroachment” by the state on a reasonable expectation of privacy, has been fundamental to the law of search and seizure over the decades since Hunter was decided. Two themes of particular relevance to this case have shaped the law permitting searches and piercing privacy.
[78] The first is the importance of prior authorization for a search—an official, with independence and at some distance from the searches—should, where feasible, assess, in the particular circumstances, the justification for an intrusion on privacy, giving weight to the interests on both sides of the question: Hunter, at pp. 160-161. The Court’s discussion of the warrant requirement includes recognition that the impracticality of obtaining prior authorization may obviate the need for it but that it remains a linchpin of reasonableness, at p. 161:
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.
[Emphasis added.]
[79] Section 8 is not merely a mechanism for assessing, after the fact, whether an intrusion on privacy took place and evidence obtained as a result should be admitted in court. Its purpose is not to assist defendants in litigation, but to protect the privacy of everyone as they live their lives. Unjustified searches should be stopped before they occur, not criticized and penalized afterward.
[80] A second organizing principle of the law of search and seizure is the minimization of intrusions into privacy, even when they are justified and authorized. A lawful search inside a large, shared building does not permit a search of every office or apartment or even every common area: R. v. Nguyen, 2023 ONCA 367, 426 C.C.C. (3d) 350. Gaining lawful entry to a digital device or to electronic communications for a legitimate police inquiry does not permit access to its entire contents, most of them likely unrelated to the investigation underway but expected by the owner of the device to remain permanently private: R. v. Finlay, 11 O.A.C. 279; R. v. Rogers Communications Partnership, 2016 ONSC 70, 128 O.R. (3d) 692, at paras. 39-45.
[81] These two pillars of a reasonable search – prior authorization of a search where possible and a minimal degree of intrusiveness into a target’s privacy – are captured in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 21-22:
Section 8 of the Charter — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. In addition to the overriding requirement that a reasonable law must authorize the search, this balance is generally achieved in two main ways.
First, the police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant. The prior authorization requirement ensures that, before a search is conducted, a judicial officer is satisfied that the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance the goals of law enforcement: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160. Second, an authorized search must be conducted in a reasonable manner. This ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives. In short, prior authorization prevents unjustified intrusions while the requirement that the search be conducted reasonably limits potential abuse of the authorization to search. [emphasis added]
[82] The law on searches incident to arrest, or searches pursuant to exigent circumstances, demonstrates the constant concern for a permissible search not going beyond the scope of the reason for allowing it: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195 at paras. 103-105; R. v. Caslake, [1998] 1 SCR 51, at paras. 17-19; R. v. Stairs, 2020 ONCA 678, 170 O.R. (3d) 671 at paras. 58-60. This concern is also apparent in the law on interception of private communications and more generally in the Criminal Code’s restrictions on the duration, scope, and targeting of orders permitting wiretaps and similar privacy intrusions. As illustrations, see ss. 184.2(2) and (4); 186(1)(b), (4), (5.2) of the Criminal Code.
[84] There is no question that what one is carrying on one’s person is the subject of a reasonable expectation of privacy – that is why we have a body of law related to the limits of the police search of persons after an arrest. Much of the law related to the subject under discussion, however, draws on the understanding that in some settings and circumstances, what would otherwise be a reasonable expectation of privacy may be “reduced”, “lowered”, or modified. Searches in schools are one example: R. v. Jarvis, 2019 SCC 10, 433 D.L.R. (4th) 195, at para. 73. Searches of one’s luggage and person at a national border are another: R. v. Simmons, [1988] 2 SCR 495, at pp. 526- 529; R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, at paras. 50-54.
[85] Prison or jail is recognized as another setting where a person’s expectation of privacy is reduced. Inmates are persons who have been found guilty of a crime, or about whom reasonable grounds to believe they are guilty of a crime exist. A person’s status as an inmate will shape their reasonable expectation of privacy; inmates cannot reasonably expect that the state can be kept at arm’s length within a facility designed to hold them against their will. Cells will be examined with flashlights – perhaps frequently – and searched for contraband routinely or in response to some perceived concern. Cameras are almost everywhere. Phone calls, other than to counsel, are subject to monitoring. These examples are intrusions into zones where privacy is taken for granted by persons out of custody but which cannot reasonably be expected to remain private in custody, because of the lowered expectation of privacy behind bars.
[86] Still, defining what the expectation of privacy is in respect of a specific kind of search based on the broader setting in which the search occurs is a needlessly blunt and binary way of understanding the issues in this case. Pike, at para. 27, holds that the reduced expectation of privacy, which shapes searches of luggage and containers at the border, cannot justify, by itself, a search of a personal digital device. Students in schools have a reduced expectation of privacy, but images of female students captured for prurient purposes on a camera concealed in a pen, by a teacher, even in common areas of the school, will violate an expectation of privacy: Jarvis at para. 73.
[88] The point to be drawn from this discussion is that it is reductive to resolve a s. 8 claim arising in circumstances of reduced expectations of privacy simply by reference to that reduced expectation. The question that remains in any such case is how far the reduced expectation extends and whether the intrusion complained of falls outside, or remains inside, reasonable expectations.
[98] The Golden reasoning was applied in R. v. Muller, 2014 ONCA 780, 326 O.A.C. 242, at paras. 81-83, where the Court of Appeal for Ontario found a police station strip search to have been a violation of s. 8, noting that “no supervisory authorization was sought, much less obtained.”
[99] The same approach, with the same criteria, has been approved for the taking of penile swabs in R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 78. There is an analogue as well at the border, where s. 98 (2) and (3) of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), permit a person subject to a search to demand a separate assessment of the purported grounds by a senior customs officer.
[100] I take the adoption of the P.A.C.E. approach for police station strip searches in Golden and Muller and for penile swabbing in Saeed, to recognize that if a judicial authorization process (by warrant or telewarrant) is not feasible, internal supervisory authorization has meaningful value in achieving “compliance with the Charter”: Golden at para. 100. This makes sense. A police desk sergeant or a detention centre superintendent or officer in charge lacks some important features of a judge deciding on issuance of a warrant – legal training and judicial independence to name two. But a supervisor is likely to have experience, seniority, good judgment of security risks, appreciation for the psychological toll of strip searches, and a distance from the reactions of the frontline officers contemplating a search. At a minimum, a supervisory authorization requirement adds a second person’s judgment to the consequential decision to undertake an invasive procedure.
[104] These examples of requirements for internal prior approval of strip searches persuade me that the approach is feasible in the youth detention setting, where staff-to-detainee ratios are generally higher and the ability to make a reasoned assessment of the merits of a proposed strip search is, if anything, greater than in urban police stations and adult jails. The acceptance of a supervisory approval criterion as a constitutional requirement in Golden and Saeed, both analogous settings, suggests that the same standard should be observed in youth facility strip searches to meet the standards of s. 8, barring exigent circumstances.(Emphasis added by PJM)
[105] My conclusions are grounded in logic as well as authority and analogy. Strip searches should be recognized as exceptional and consequential, not routine. This is especially true when they are performed on young persons who, because of their circumstances, are extremely vulnerable. Requiring that officials think about, and explain to a supervisor, the specific reasons for a strip search in a particular set of circumstances can only produce better decision-making and greater respect for, and compliance with, the standards of s. 8.(Emphasis added by PJM)
[106]….Justice Rose proposed a test of “reasonable suspicion” at paras. 95-96 of his ruling in J.F.
[108]….For present purposes, it is enough to determine that a warrantless, standardless search with no prior authorization, or even consideration of the reason for it, falls well short of s. 8 requirements and constitutes a serious breach of rights.(Emphasis added by PJM)
[109] In making this determination, I also note that the modern model of a jail or prison – sometimes housing scores or hundreds of inmates, behind layers of concrete walls and steel doors, with a high ratio of inmates to staff and little personal insight by custodians into their prisoners – does not reflect the reality of the cases before me. I am dealing here with adolescents in their midteens. There are low numbers of young persons in absolute terms, and a generally lower ratio of detainees to staff. The perceived need in adult prisons to treat every inmate identically and according to broad criteria, with relatively little individual assessment and relatively little awareness of individual circumstances, does not apply, on the evidence I have heard, to the youth detention facilities in these cases.
[111] In Weatherall v. Canada (A.G.), [1993] 2 SCR 872, the Supreme Court of Canada addressed complaints about searching practices in adult federal penitentiaries, including frisk searches of male inmates by female staff and unannounced range inspections that might catch an inmate unclothed or using a toilet. LaForest J. dealt with the inmates’ claims under s. 8 (as well as s. 7) briefly at p. 877:
Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.
[Emphasis added.]
[112] This analysis is regularly cited in rulings on the entitlement of correctional officers to intrude on the privacy of persons in custody. Examples include R. v. Beare, [1988] 2 S.C.R. 387, at paras. 63-64; R. v. Wiggins, [1988] 2 SCR 387, at para. 59; R. v. Stillman, [1997] 1 SCR 607, at para. 61; R v. Paterson, 2019 SKQB 305, at paras. 17-18; and R. v. Wilczewski, 2023 ONSC 3820, at paras. 69-73.
[116] I have already referred to the first in some detail. In Golden, at paras. 83, 90-99, the Supreme Court of Canada addressed a strip search incident to arrest. The majority stressed that strip searches are often “humiliating, degrading and traumatic” and may be experienced as “equivalent to a sexual assault” by women and minorities as well as by victims of abuse. The Court also noted what the evidence before me tends to confirm: routine strip searches may also be “difficult and distasteful” for the officers conducting them. See also Vancouver v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 64.
[117] The effect of Golden was to prohibit routine strip searching, without individualized grounds, at police stations following arrest: “[T]he mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”: para. 94. In Golden, the Court found a s. 8 violation and also held that the evidence uncovered in the strip search should be excluded. The search in Golden took place during an arrest in a public restaurant: para. 112. In their judgment, the Court declined to extend its ruling on strip searches incident to arrest to jails and prisons: paras. 96-97.
[119] While the majority in Golden was careful not to rule on custodial strip searches, I find the logic underlying the line it drew (and the example it offered) to be significant and helpful. The case held that when police arrest a person who is both intoxicated and completely unknown to them, and bring the person to a police station and a cell area, it is not reasonable to strip search them. This is true even though the police can have no basis to be confident that this intoxicated, unknown person will not produce a hidden weapon or ingest a hidden stash of drugs secreted under their clothing. Officers in that case can, and will, conduct a careful frisk search, but they can go no further without authorization from a superior and specific grounds.
[121] I take the same view about a detainee transferred from police custody after arrest to a youth detention centre, though it is a more controversial issue and was expressly left undecided in Golden. I conclude that it is unreasonable that a youth who has spent hours in the presence and custody of police officers – often an arresting officer, a transporting officer, a booking officer, and an investigating officer – and has not been strip searched, nor displayed behaviours suggesting the need for a strip search, should then be subjected to an automatic strip search simply because she has entered a detention centre that will hold her for days or weeks instead of hours, and place her in the company of other detainees. The logic of Golden affirms its unreasonableness.(Emphasis added by PJM)
[122] My conclusion takes account as well of the fact that staff are free to take a range of less intrusive security measures when admitting a youth to custody. They can review their records for past violence or weapons offences and perhaps find grounds for a strip search; they can look at the nature of new charges; they can ask the detainee specific questions about possession of contraband. Staff can also perform full searches of clothing before issuing institutional clothing. They can search the detainee’s room virtually at will, whether routinely, on the basis of suspicion, or as part of a facility sweep. And, of course, if they have any plausible grounds for believing that contraband is concealed on the body, they can share those grounds with supervisory staff and obtain approval for a strip search.
[128] On this key question, I agree with the reasoning of Justice Rose in the related cases where young persons accused in this homicide cited unconstitutional strip searches as a basis to stay their prosecutions or mitigate their sentences after guilty pleas. In J.F., at paras. 93-94, His Honour said:
If the ratio of Rootenberg applied to this case, the Applicant’s Charter Application would be dismissed. I find, however that it does not. Rootenberg was an adult being held on straightforward charges in an adult facility. JF and SS are youths. As was seen above youth proceedings are very different than adult proceedings. I find that s. 3(1)(b)(iii) of the YCJA requires all justice system participants to deliver enhanced procedural protections to young persons facing criminal proceedings, including their right to privacy. That provision has been in place since April 1, 2003, and has remained intact. Parliament can expect this to be firmly embedded in the minds of all justice system participants. Simply put, the privacy enjoyed by youths in custody is greater than that of adults.
In her recent decision R. v. S.M. 2024 ONCJ 656 Henschel J. (then in the Ontario Court) found that search and seizure provisions applying to adults attract a different balancing exercise when applied to youths. In S.M. the impugned search was a penile swab incidental to arrest. Her Honour said at par. 312,
The privacy interests engaged where the youth is the subject of the search are greater than in cases involving an adult. The potential impact of such an investigative technique on a young person is more profound than in the case of an adult.
I agree, and would apply the same reasoning to a strip search upon entry to a custodial facility.
[129] This passage captures determinations by two judges that young persons have a higher expectation of privacy in respect of searches by state agents than adults. Both Justice Rose and Justice Henschel rely on the YCJA’s explicit policy of elevated protection of privacy of young persons in s. 3 (1)(b) (iii) of the Act to support this view. That sub-paragraph says:
Policy for Canada with respect to young persons
3 (1) The following principles apply in this Act:
b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: …
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected [emphasis added]
[133] I summarize my reasons for concluding that s. 8 of the Charter was violated in the conduct of the strip searches of the applicants as follows:
The searches were not conducted with prior authorization, or independent consideration, addressing specific facts and circumstances, when such authorization, a basic component of most reasonable non-exigent searches, was feasible and could have been built into the strip search process.
These searches, of the most intimate kind, do not represent a minimal intrusion into privacy. In most circumstances, they go well beyond the measures practically necessary for ensuring institutional security.
The searches, which may have damaging psychological impacts, are an unjustified intrusion on the reasonable expectations of privacy of young persons, even in a custodial setting, recognizing that the reasonable expectations of detained youth are not the same as those of similarly situated adults.(Emphasis added by PJM)
[139] To round out the three-stage Collins analysis under which the parties framed their arguments, I am satisfied, first, that strip searches of detainees were authorized by Regulation 155/18, issued pursuant to the regulatory authority granted by s. 344 (13) in relation to custodial searches permitted by s. 155 of the CYFSA.
[140] Second, insofar as the law permits or authorizes routine custodial strip searches of young persons, the law is unreasonable because of the defect I have identified. A law allowing strip searches is not in itself unreasonable and these types of laws will likely—pending the wide availability of highly effective electronic scanners—continue to operate, in both adult and youth detention centres. However, when there is no limiting provision in the authorizing law, and when on its face that law permits a routine search based on no meaningful criteria (rather than a search resting on articulated grounds), the law itself is unreasonable. I conclude that when a law (at the second stage of the Collins analysis), permits officials to search in an unreasonable manner (at the third stage), then the law itself, as well as the manner of search conducted under it, is unreasonable. The only way a law authorizing a search can be reasonable is if the law permits a search which, if conducted, would be performed in a reasonable manner. This, I believe, is suggested by the approach of the Supreme Court of Canada to s. 10 of the Narcotic Control Act in R. v. Grant, [1993] 3 S.C.R. 223, at pp. 238-243. The same follows from the judgment of the Court of Appeal for Ontario in Pike, at paras. 90-99.(Emphasis added by PJM)
[143] Third, as I have said, the manner of the searches in this case was unreasonable, insofar as they were conducted by requiring the complete nudity of the applicants, a measure that was not necessary and elevated the degree of their intrusiveness.
(iii) Section 7: The Violation of the Right to Security of the Person
(a) The routine and standardless strip searches
[144] I am satisfied that s. 7 of the Charter was violated by the way in which the strip searches were conducted and, by extension, by the law permitting their conduct. The coerced exposure of the applicants’ naked bodies constituted a diminution of their “security of the person”. The applicants rely on observations in R. v. S.F., [2003] O. J. No. 92, 102 C.R.R. (2d) 288, at para. 106, with which I agree:
This particular strip search invaded the right of each girl to hold secure from view, the private and intimate parts of her body. In the inspection of her naked body, the policy stripped each girl of her right to that security of her person. It was a state interference with the bodily integrity of each of them that was both unnecessary and unreasonable in the circumstances. That, in turn, fed a psychological stress of each of them that was also unnecessary and unreasonable. Both girls are in the midst of adolescence, a time in life where, as a matter of common sense and simple human experience, undesired exposure to private parts of one’s body is a particularly acute discomfort. The security of their person fell prey to the police for fear of the unknown.
(Emphasis added by PJM)
[145] That reasoning supports a finding, which I would make in any event, that security of the person includes the right to remain clothed and to control the exposure of one’s body, and especially its intimate areas, to others. This right is, however, closely aligned with the right to privacy, and the reasonableness of a person’s expectation of privacy, embraced by the s. 8 analysis. Among the rights of the applicants violated by the searches in this case was their entitlement under s. 7 to maintain the security of their persons in this very sensitive aspect of that right.
[147] It is also apparent that there was no scrutiny of the justification for the individual strip searches, as I conclude s. 8 demands. Strip searches are obviously not outside the authority of state agents, if they are conducted reasonably by the standards of that section. Examined under s. 7, which requires that a deprivation of security of the person by state agents occur only in accordance with the principles of fundamental justice, I conclude that the requirements of prior authorization and minimal intrusion into privacy demanded by s. 8 are co-extensive with the demands of fundamental justice under s. 7. If there are refinements to the analysis that might differentiate the application of the two rights to strip searches, they can only be on inessential matters. In substance, the searches deprived the applicants of security of their persons in a manner that did not accord with the principles of fundamental justice for the same reasons it deprived them of their entitlement to privacy in a manner that was not reasonable.(Emphasis added by PJM)
[150] Justice Rose held at para. 66 of his ruling that a separate analytical treatment of the unconstitutional searches as a violation of s. 7, when they so clearly are unreasonable under s. 8 (for the same reasons), would be “redundant” and continued at para. 67:
In this case the Charter arguments can be analyzed completely by asking whether the strip searching was completed under a reasonable law and whether it was reasonably completed. When the constitutional standard under parallel Charter sections is engaged it is not necessary to make findings under both, or all particularly where the remedy would be the same, see R. v. Malmo-Levine 2003 SCC 74 at paras 159 – 162.
[Emphasis added.]
[151] I agree, though I would add that the extent of the departure from constitutional standards is illustrated by the fact that non-compliance with the Charter can be so convincingly demonstrated under more than one section.
D. AN APPROPRIATE AND JUST REMEDY UNDER S. 24(1) OF THE CHARTER
[182] I turn to a discussion of the appropriate remedy for breaches of s. 8 and s. 7 of the Charter based on the unjustified warrantless strip searches of the applicants and the complete nudity of the applicants during the searches.
[220] Also telling in favour of a remedy less blunt than a stay of the prosecution is the institutional separation between the prosecutorial and judicial processes and the custodial process, where the constitutional wrongs occurred. It is more straightforward to order a stay of criminal proceedings for a wrong committed within the investigative and prosecutorial apparatus, by persons directly involved with the case, than for wrongs done in custody, which is at least a step removed from the work of the police, prosecutors and courts: See R. v. Ahmad, 2008 CanLII 54312 (ON SC), at para. 11.
[221] The remedy of sentence reduction is also, for related reasons, especially appropriate here. Custodial facilities exist, in large part, to provide a means of holding offenders accountable by the imposition of “just sanctions”: YCJA, s. 38 (1). This objective may call, in serious cases, for lengthy periods of custody. A reduced sentence reduces the capacity of a facility to hold offenders for as long as they otherwise might have. It provides the accused the relief of spending less time in the setting where their rights were violated. The remedy operates within the very custodial system where the wrongs took place. It is, in my view, fitting that a constitutional remedy be felt by the institutions responsible for the constitutional wrong. This, I expect, will add further incentives to improve, rather than maintain, the unconstitutional practices.
[222] Looked at in this way, a sentence reduction in these cases, with the possibility of further reductions or stays of proceedings in later cases, should also have a chastening effect on senior ministerial officials whose attentiveness to what took place within facilities holding vulnerable youths appears to have been lacking and whose inspection system was not able even to maintain compliance with the constitutionally inadequate procedures in place.
(iii) Conclusion
[223] I began my discussion of remedy by noting the criteria of responsiveness and effectiveness highlighted in Doucet-Boudreau. I will close there as well.
[224] I believe that a sentence reduction – and the prospect of more such reductions if reforms are not implemented – will be effective in spurring constitutionally compliant strip search practices in youth facilities. It will operate as a “specific deterrent” to the practices seen in the evidence I have heard, as Tobiass contemplates.
[225] The remedy is directly responsive to the wrongs. It will be situated in, and felt by, the very institutions where the wrongs occurred, connecting their unconstitutional conduct with their ability to perform their statutory functions in full. Shortening the applicants’ time in custody will directly “address the circumstances in which the right was infringed”: Doucet-Boudreau, at para. 55.
[235] In the result, I find that ss. 8 and 7 of the Charter have been violated by unconstitutional strip searches and that the remedy will be reflected in adjustments to the penalties imposed on the applicants found guilty of a crime. I have made clear the broad societal focus of my determination and the outcomes to which I expect the ruling and the remedy will contribute.