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Toronto Police Plan to Purchase Full-Body Scanners by 2020

Written on Behalf of Affleck & Barrison LLP

Toronto Police have requested at least one and up to ten full-body scanners to replace strip searches.  According to the public tender documents, Toronto Police Service “is committed to increasing the level of dignity and respect provided during our search process”.

A six-month pilot project using a full-body scanner to scan a subject’s body to reveal concealed weapons or drugs ended last April at one of the busiest divisions of the Toronto Police Service.  This pilot project allowed for the training of officers, outlining procedures and consulting with officers and members of the community. 

The scanners cost at least $250,000 per unit, require approximately $20,000 in maintenance, and there are additional costs associated with training and possible facility renovations as well.

REPORT REGARDING INVASIVE STRIP SEARCHES

A report published earlier this year prepared by the Office of the Independent Police Review Director found that police in Ontario conduct too many unwarranted strip searches. 

The report also determined that police procedures for conducting strip searches were inconsistent across Ontario.  Toronto police officers were found to use strip searches more often than other forces in Ontario.  The report disclosed that strip searches were conducted by Toronto police at a rate of 40 times higher than in similar jurisdictions, such as Ottawa or Hamilton.  Toronto police conduct strip searches in just under 40% of arrests compared to other large police forces (who use strip searches under 1% of the time).

The report indicates that some individuals that are subjected to strip searches may suffer psychological harm. 

Michael Bryant, executive director of the Canadian Civil Liberties Association, stated:

The Toronto Police Service continue having this obsession with searching where the sun don’t shine – without legal authority. 

Mr. Bryant believes that the full-body scanner technology is invasive “instead of being told to disrobe, you’re just being disrobed electronically.”

THE PILOT PROJECT

A recent report filed prior to a Toronto Police board meeting confirms that the full-body scanners that were tested at a downtown police division were a success for both the police and individuals being scanned. 

During the project, 594 strip searches were approved with 311 of the individuals opting to have their search conducted by a full-body scan.  According to the report, 296 of the 311 individuals had been previously strip searched and 95% of them preferred the full-body scan. 

According to the report, 80% of Toronto police officers had a positive judgment of the full-body scanner.

The scanners being tested were similar to the technology used at airports and correctional facilities.  The body scan can find items on or inside a person.  They are able to detect metal, plastic and other items both outside of or hidden inside of the body.  During the project, the body scanners detected a knife, crack pipe, safety pins and heroin wrapped in toilet paper inside someone’s buttocks.

Toronto Police spokesperson Meaghan Gray stated:

The Toronto Police Service believes there is technology available that allows us to modernize our current search processes, increase public trust and accountability, and reduce the intrusiveness of such searches.  These are reasons alone to consider such a project. …  Each circumstance is evaluated on a case-by-case basis and officers must make a determination, based on reasonable grounds, to conduct any level of search.  If a Level 3 search (strip search) is determined to be appropriate, the Full Body Scanner will be used.

During the project, those individuals that were deemed to require a full-body scan could refuse, but were then subjected to a physical strip search.

Due to radiation, pregnant women were excluded from being scanned.  Youth were also excluded from being scanned as a “faint outline of genitalia can be seen” in the saved images. 

Officers conducting and viewing the scans are the same gender as the individuals being scanned.  Those that identify as transgender could either choose a full-body scan or a strip search and could request that the scan or search be conducted by a male, female or both officers.

During the pilot project, the data from the full-body scan was stored for 90 days if nothing was found during the scan.  However, if an item was located during the scan and criminal charges were made, the images would be retained as evidence for court.

The project will continue at Toronto’s 14 division for another three years as it has received funding from the Ministry of the Solicitor General’s Community Safety and Policing Grant. 

Toronto Police have no immediate plans to implement the scanners in other police divisions, but it is recommended that the technology be installed “at each central lock-up facility within the service”.

We will continue to report on any developments regarding full-body scanners in Ontario in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Strip Searches in Ontario are Occurring Too Often

Written on Behalf of Affleck & Barrison LLP

A new report released by the Office of the Independent Police Review Director (an independent civilian oversight agency responsible for overseeing all complaints regarding the police in Ontario) concludes that police officers in Ontario are conducting unnecessary, and sometimes unlawful, strip searches which interfere with privacy rights and negatively impact criminal court cases.

Gerry McNeilly, the Independent Police Review Director since June 2008, authored the report entitled “Breaking The Golden Rule:  A Review of Police Strip Searches in Ontario” (the “report”).

WHAT IS A STRIP SEARCH?

In 2001, the Supreme Court of Canada, in the case of R. v. Golden (“Golden”), defined the elements of a strip search and explained how strip searches are to be lawfully conducted.  A strip search is defined as the removal or rearrangement of some or all of someone’s clothing to allow for an officer to visually inspect their genitals, buttocks, breasts or undergarments.   

The majority of the Supreme Court of Canada emphasized the importance of preventing unjustified strip searches and recognized that these searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy”.

The Court went on to explain that strip searches are only constitutionally valid when they are “conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest.  In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest”.

However, despite this decision, it has been found that courts in Ontario repeatedly find that strip searches conducted by police officers are unlawful or unreasonable, resulting in the exclusion of evidence or the stay of charges.

STRIP SEARCH FINDINGS BY THE NUMBERS

The report found that police in Ontario conduct approximately 22,000 strip searches a year, with the majority being conducted by Toronto Police Service. 

According to the report, in 2016 Toronto police conducted 17,654 strip searches (occurring in approximately 37.5% of all arrests that year).  Strip searches were found to have occurred in more than 40% of all arrests in Toronto in 2014 and 2015.  This was found to be 40 times higher than the rate of strip searches conducted by police services in Hamilton, Durham Region, Ottawa, Windsor and the Ontario Provincial Police during the same time period.

A spokesperson for the Toronto police, Meaghan Gray, has advised that the Toronto police are “addressing the challenges and sensitivities associated to strip searches for the last few years”.  Toronto police are reviewing procedures and training of their officers and have recently launched a full body scan pilot project, which is aimed at reducing strip searches.  Ms. Gray emphasized that when strip searches are conducted appropriately, “they can be a necessary safety requirement resulting in the seizure of weapons and drugs which pose a significant risk to the person and those around them.”

According to the report, since the ruling in the case of Golden, Toronto police were involved in 40 of the 89 criminal court decisions where a judge found that a police strip search had violated the defendant’s Charter rights.

RECOMMENDATIONS

The report provides a template for strip search procedures and a sample strip search form.  The report also offers 50 recommendations on how Ontario police services should conduct, document, and train their officers on strip searches.  These recommendations include, but are not limited to the following:

  • ensure that all police services comprehend the law regarding strip searches and the implications of violations;
  • enhance training for strip searches and incorporate strip searches into police services annual or biennial training;
  • clearly define what constitutes a strip search in keeping with the Supreme Court ruling in Golden;
  • strip searches should ordinarily be authorized in advance and be carried out by an officer of the same gender;
  • every Ontario police service should be made aware of judicial findings of Charter violations in strip search cases, and take measures to address the issues raised;
  • all Ontario police service must keep accurate statistics of the number of persons arrested or detained, the number of persons strip searched, and the justifications provided for conducted strip searches; and
  • statistics kept by Ontario police service should identify the race of the person subjected to a strip search in an effort to evaluate whether race plays a role in the decision to conduct strip searches.

We will continue to follow any developments in the news and in case law regarding strip searches in Ontario and will provide updates in this blog as they become available. 

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

U.S. Border Agents Can Demand Access to Your Cell Phone

Written on Behalf of Affleck & Barrison LLP

As schools go on holiday for March Break, many of those living in Ontario will begin their vacation by crossing the border into the United States. But be aware.  U.S. border agents can demand access to your cell phone and request your password to unlock your cell phone without probable cause.

In 2017, U.S. border agents inspected more than 30,000 phones and other devices. This was found to be an increase of nearly 60% from 2016.

The U.S. Customs and Border Protection released an updated directive governing border searches of electronic devices on January 5, 2018 stating:

…border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.

U.S. DIRECTIVE: BORDER SEARCH OF ELECTRONIC DEVICES

The recently issued directive in the U.S. entitled “Border Search of Electronic Devices” provides the government with wide legal authority to search travellers’ belongings without a warrant at the border, including personal electric devices.

Basic Search

During this “basic search”, the officer may review and analyze information on the device that would be ordinarily visible by scrolling through the phone manually, including contact lists, call logs, calendar entries, text messages, pictures, videos and audio files.

Advanced Search

Border agents are authorized to perform an “advanced search” by connecting a phone to a hard drive to copy its contents for analysis when the need arises. This type of search may arise in cases where a traveller is on a watch list, there is “reasonable suspicion” of law-breaking or national security concerns. This type of analysis requires the approval of a supervisor.

Password

According to the new directive, agents have been granted the authority to request a password to open your phone without probable cause. You are allowed to refuse this request, however, doing so could result in your device being detained for further examination, your travel may be delayed, you can be denied entry if you are not a U.S. citizen or it may become difficult for the traveller to enter the U.S. on future occasions.

The Cloud

Border agents are not authorized to download old files from the cloud. They are allowed to search the data that is apparent on the phone, but cannot access anything that may be stored remotely. Officers can ask that travellers put their devices in an offline mode (airplane mode) or disable their network connectivity.

Sensitive Information

Lawyers who are crossing the border may claim solicitor-client privilege over documents by identifying sensitive documents. The officer must then consult with customs’ legal counsel and the U.S. attorney’s office to determine which files should be isolated from the regular search.

Destruction of Records

Copies of information held by U.S. customs must be destroyed following a search and any electronic devices must be returned, unless a security threat has been discovered.

WHAT TO DO WITH YOUR ELECTRONIC DEVICES WHEN CROSSING INTO THE U.S.?

It is recommended that individuals crossing the border be patient and allow the U.S. border agents to do their job. Canadians should be prepared to turn their phones over to the U.S. border agents, if asked. Canadians may be denied entry to the U.S. if they do not comply with requests made by the border agents. If assistance is requested to access your personal device, it is recommended that you comply to avoid any challenging situations.

Canadians are advised to put their mobile phones on “airplane mode” to protect their privacy, as border agents cannot download remotely or from the cloud without giving a reason.

It is highly recommended that private material be deleted from your electronics or transferred to the cloud prior to crossing the border. You may want to consider having backups of sensitive or important information on your phone in the event that your phone is detained by the government.

If you have questions regarding your rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all perspective clients.