Submission of the Ontario Human Rights Commission to the Ministry of the Solicitor General call for submissions on Modernizing the Regulatory Framework for Searches of People in Custody in Ontario’s Adult Correctional Institutions

 

October 31, 2022

 

Introduction

On September 29, 2022, Ontario’s Ministry of the Solicitor General (Ontario) announced its proposal to create an updated regulatory framework under the Ministry of Correctional Services Act for strip searches of people in custody in Ontario’s adult correctional institutions.

The Ontario Human Rights Commission (OHRC) supports Ontario’s decision to take steps to better regulate the use of strip searches in its correctional institutions.

For decades, courts, international authorities and experts across Canada have agreed that strip searches are inherently degrading, humiliating and traumatic. Strip searches can cause irreparable harm, particularly for women, people with mental health disabilities, Black and Indigenous people, and members of the LGBT2SQ+ community.

In 2017, Ontario’s Independent Advisor on Corrections found that Ontario law does not provide explicit limits on strip searches and is extremely broad compared to other jurisdictions.

The OHRC welcomes the opportunity to make submissions on this issue. The OHRC recommends that Ontario:

1. Place strict limits on when a strip search can be conducted
2. Provide detailed definitions, policies and procedures for conducting strip searches
3. Prescribe protections in the way a strip search can be conducted
4. Require training to ensure that corrections staff understand the need to minimize the use of strip searches, and the way those searches must be completed
5. Increase access to rehabilitative programs and trauma-informed counselling
6. Implement accountability measures.

 

A. The Ontario Human Rights Commission

The OHRC is a statutory human rights body established under the Ontario Human Rights Code (Code) and is responsible for promoting and advancing human rights and preventing discriminatory practices in Ontario.

The OHRC's submissions are based on years of extensive work advocating for Ontario’s correctional practices to meet the government’s obligations under the Code, the Canadian Charter of Rights and Freedoms (Charter), and international law. The OHRC is recognized internationally as an expert in correctional policy and acted as an expert reviewer for Penal Reform International’s “Mental Health in Prison: A short guide for prison staff.”

 

B. Particular harms for Code-protected groups

While courts and researchers have consistently recognized the harmful effects of strip searches on all people, those harms are experienced disproportionately by Code-protected groups – including people with mental health disabilities, women, Indigenous, Black and transgender people. Strip searches can have a disproportionately negative impact because of the history of trauma experienced by members of these groups and the fact that systemic discrimination results in greater contact with police and correctional officials.

It has been consistently recognized that aspects of the criminal justice system that allow for unfettered discretion have a disproportionate impact on vulnerable and marginalized groups.[1]

In recognizing the inherently humiliating and degrading nature of strip searches, the Supreme Court of Canada in R v Golden identified the increased risk and scope of harm that such practices have on women and other Code-protected groups, who “may experience such a search as equivalent to a sexual assault.”[2] The Supreme Court further recognized that the “psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse.”[3]

Similarly, the federal Office of the Correctional Investigator has recognized that the experience of trauma and abuse means routine use of strip searches can be distressing and “may trigger previous trauma and increase trauma-related symptoms and behaviours,” particularly for women.[4]

Transgender people can also experience different and disproportionate harms from strip searches.[5]

In Ontario, the Independent Advisor on Corrections reported in 2017 that people incarcerated in provincial correctional facilities were being routinely strip searched in many circumstances, including every time a person was moved into segregation, and that “many of the routine strip searches mandated in Ontario extend this search power to situations that are far beyond what is occurring across the rest of Canada.”[6]

 

C. Recommendations

1. Place strict limits on when a strip search can be conducted

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.[7] 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.”

Reasonable grounds might arise from identified risk such as intelligence, observed conduct or a positive detection of contraband following the use of alternative search technologies and devices.

 

2. Provide detailed definitions, policies and procedures for conducting strip searches

To ensure that the use of strip searches is minimized, the OHRC recommends that Ontario adopt a detailed framework governing the use and documentation of strip searches.

In its March 2019 Report, Breaking the Golden Rule, the Office of the Independent Police Review Director (OIPRD) reviewed the practice of strip searches by police in Ontario and developed 50 recommendations to reduce and regulate the use of such practices.[8] Most of the recommendations can and should be adopted in the correctional context with only minor modification.

Minimizing the use of segregation will require Ontario to establish a clear definition of a strip search, consistent with the definition given by the Supreme Court of Canada in R v Golden, namely:

The removal or rearrangement of some or all the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.[9]

Such a definition should clearly demarcate between strip searches and other forms of less and more intrusive searches (such as frisks and body cavity searches).

Based on such a definition, Ontario should ensure that every strip search conducted by corrections staff is fully documented, and then reported on through the public release of data.

In documenting strip searches, regulations and rules should ensure that the circumstances of the strip search are fully recorded, including the race and gender of the individual being searched, as well as their creed and physical and/or mental health disability, if any.

Ontario should use that information to keep accurate statistics of the number of persons strip searched, the manner in which they are searched, and the justification for such searches.[10]

Those statistics should be publicly reported on an annual basis, with public reporting including disaggregated data on race, gender, creed and physical and/or mental health disability of people who were subjected to strip searches.[11]

 

3. Prescribe protections in the way that strip searches can be conducted

To protect the rights of prisoners, and ensure compliance with the Code, the OHRC recommends that the way strip searches are conducted should be highly regulated and documented.

Again, the OHRC submits that many of the recommendations identified by the OIPRD in its 2019 Report can and should be adopted in the correctional context.

In particular, the OHRC recommends that strip searches in correctional institutions be conducted in a way that limits as much as possible the degrading nature of such searches. This includes clear policies, procedures and guidelines to ensure that:

1. Strip searches are conducted in a private, fixed location within the correctional facility.[12]
2. Frisk and/or wand searches are used whenever possible to avoid the need for a strip search.[13]
3. Strip searches are pre-authorized in writing by the superintendent.[14]
4. Strip searches are conducted by staff of the same gender as the person being searched, unless specific circumstances relating to the person’s self-identification of their gender require a different approach – including the potential for officers of different genders to search different parts of their body.[15]
5. Strip searches are conducted by no more than two officers, unless extraordinary security concerns require the presence of others in the vicinity.[16]
6. Whenever practicable, strip searches are conducted by officers who did not make the initial determination that there were reasonable and probable grounds for such a search.[17]
7. Individuals being strip searched are given the opportunity to remove their own clothing, and the fact of whether they removed their own clothes is documented.[18]
8. The removal of items of clothing during a search is done sequentially, and the searched individual is never completely naked (and this information is documented).[19]
9. Strip searches are conducted visually, rather than with physical contact, and any physical contact is accurately documented.[20]
10. Strip searches accommodate any needs relating to the person’s creed.[21]
11. Strip searches accommodate the needs of persons with disabilities.[22]
12. When there are reasonable grounds to believe that drug ingestion has taken place, less intrusive options than a strip search should be considered.

 

4. Require training to ensure that corrections staff understand the need to minimize the use of strip searches, and the way those searches must be completed

To achieve the goal of minimizing the use of strip searches, and to ensure that those searches that are necessary are conducted in a way that respects the dignity and human rights of the person being searched, Ontario must ensure that staff are provided with a full and comprehensive training regime on this issue.

Training should be designed to ensure that corrections staff are aware of, and are able to implement:

1. the rules, criteria and jurisprudence limiting the use of strip searches
2. the rules and criteria for conducting a strip search
3. the rules and criteria for fully documenting a strip search.

In addition, provision should be made to ensure that the training developed and provided to corrections staff can be linked to measurable outcomes.

 

5. Increase access to rehabilitative programs and trauma-informed counselling

If Ontario seeks to justify strip searches based on a need to prevent importing contraband into facilities, particularly narcotics, the OHRC recommends that Ontario take steps to address the causes that contribute to increased contraband use. Ontario should use this opportunity to implement or expand its support for mental health and addiction programs to decrease drug dependencies and self-harming behaviour.

Also, given the risks posed by strip searches to Code-protected groups, the OHRC recommends that Ontario provide for the resources and supports necessary to ensure that gender-responsive and evidence-based rehabilitative programs are routinely scheduled and consistently available in each institution based on individualized risk/needs assessments.

 

6. Implement accountability measures

Ultimately, if Ontario is to achieve its goal of making its practices constitutionally compliant and addressing the harms of strip searches in its correctional institutions, it must adopt some form of independent oversight of the correctional system as a whole.

Such oversight is necessary to ensure compliance with restrictions on strip searches, and to make sure there is someone in a position to effectively monitor conditions on the ground and to collect and assess data, so the government and the public can know whether correctional policies are being effectively implemented.

Similarly, the Final Report of the Independent Reviewer in the Jahn settlement emphasized the need for external oversight to address concerns across the entire system – including the treatment of prisoners with mental health disabilities and collecting and analyzing human rights data.

Establishing an independent oversight body is essential for protecting the Code and Charter rights of prisoners, and to assure the public that Ontario is doing everything it can to operate the corrections system in a fair, humane and effective way.

While Ontario may take the view that establishing an independent corrections oversight body is beyond the scope of its regulatory powers, experience shows that in corrections, regulatory changes cannot be expected to be truly effective without such oversight. Accordingly, Ontario should take all possible steps to implement an independent oversight system, whether it be regulatory or legislative.