APEC – Commission Interim Report

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29. Complaint Category 17: Treatment of Prisoners at Richmond Cells

29.1. Richmond Detachment Unprepared for APEC Prisoners

I have already reviewed the RCMP's failure, in the planning stage for APEC conference security, to notify the Richmond Detachment that it should expect to receive and hold persons arrested on campus on November 25.

Activity in the cells at the Richmond Detachment during the morning hours of November 25 was just like any other day. As usual, one guard was on duty in the cells. That morning it was Guard Priscilla Fraser, who had been on shift since 7:00 a.m. Cst. Karina Watson, of the Richmond Detachment, was on duty as the radio room constable.

At about 10:40 a.m., as the first two UBC prisoners were being booked in to the Richmond cells, Guard Fraser received a call from S/Sgt. Randy Kuharski, the Watch Commander then on duty upstairs in the same building. He told her that the UBC Detachment was bringing prisoners to be held in the Richmond cells. Guard Fraser sought and received permission from S/Sgt. Kuharski to call in a second guard to assist with the anticipated volume of prisoners. Guard Lorill Rice-Wells was called and responded immediately, arriving for duty at 11:20 a.m., just before the first of the two busloads of prisoners arrived from UBC.

The two guards were neither RCMP members nor RCMP employees. Their employer was the City of Richmond but they worked in the cells under RCMP direction and in accordance with Detachment rules and regulations.

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29.2. The Bus Ride to Richmond

The driver of the bus that brought 38 more prisoners from UBC to Richmond, in two trips, was S/Sgt. Frank Shedden. S/Sgt. Shedden at that time was stationed at the Whistler Detachment but was brought to Vancouver at the beginning of the APEC conference. He was designated as a member of one of the Quick Response Teams and, two or three days before November 25, he was told that he might be called upon to drive one of the large prisoner vans. He was permitted to leave the Quick Response Team for a short time to go and inspect the van. He found it to be a " little wide and heavy" but otherwise normal and within his capability to operate.

On the morning of November 25, as his Quick Response Team was arriving at Seaforth Armouries, S/Sgt. Shedden was directed to pick up the van in downtown Vancouver and go to the UBC Detachment where he picked up the first load of prisoners and was directed to transport them to the Richmond Detachment.

S/Sgt. Shedden was unfamiliar with Richmond and had never seen the RCMP Detachment. He testified that, when he learned that he might be called upon to drive to Richmond, he wanted to drive the route in advance but never had the opportunity because his Quick Response Team was " pretty constantly in action" in downtown Vancouver. Some of the prisoners undoubtedly were crowded and uncomfortable in some of the cubicles within the van on the trip from UBC to Richmond.

The first trip lasted longer than it should have because, once in Richmond, S/Sgt. Shedden had difficulty finding the RCMP Detachment. In fact, he unknowingly passed it at least twice. Eventually he stopped at a gas station to ask directions. Some of the passengers thought they were deliberately being taken on a rough and circuitous ride, but that was not the case. Obviously, pre-APEC planning was deficient in not familiarizing van drivers with their responsibilities, including routes and destinations. I reject completely the suggestion that S/Sgt. Shedden intentionally made the trip uncomfortable and long. He did his best under the circumstances within which he was working.

S/Sgt. Shedden drove the first load of prisoners into the prisoner bay which was part of the lower level of the Richmond Detachment building and they were then unloaded into that large area.

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29.3. Booking In the Prisoners

Cst. Semeins was a member of the UBC Detachment. That morning he had brought prisoners Jaggi Singh and David Malmo-Levine to the Richmond cells. They had been in custody overnight and were scheduled to appear in court in Richmond. They were booked into the Richmond cells at 10:40 a.m. and 10:41 a.m., respectively, and Cst. Semeins stayed on to help with booking in the rest of the prisoners.

Cst. Watson, Cst. Semeins and Cst. Michel (Mark) Liu of the Richmond Detachment and Guards Fraser and Rice-Wells, assumed responsibilities for processing the prisoners. In the afternoon, when his other duties were mostly done for the day, Deputy Sheriff Kendall Howard helped out.

29.3.1. The Prisoners

Including Mr. Singh and Mr. Malmo-Levine, 40 prisoners were in the cells from UBC, about 15 of them having arrived in the first load delivered by S/Sgt. Shedden and the remaining 23 in the second. Of the 38, there was one female juvenile, six male juveniles, 15 female adults and 16 male adults.

None of the 38 prisoners delivered by S/Sgt. Shedden ever appeared in court to face charges. All but Mr. Doucette and Ms. Muttray had been arrested for breach of the peace pursuant to section 31(1) of the Criminal Code, many of them at the time of the collapse of the fence at the noon rally, in circumstances reviewed in Chapter 23.

Most were UBC students who had been arrested through a " negotiated arrest" process whereby the RCMP accommodated the wishes of the protesters to be symbolically arrested. Only eight of the protesters had been arrested for breaching the police line. All the other arrests were voluntary. There was nothing to indicate that any of the protesters had any weapons or were violent and there was certainly no need to preserve evidence. There was nothing to indicate that they posed a risk to each other, to the police or to other inmates.

29.3.2. The Process

The booking process is not a simple one. It involves paperwork, the receipt and safe storage of possessions, a body search and escorting the prisoner to a cell location. Cst. Watson was asked to explain the procedure:

Q: All right. Now, they all stayed in the prisoner bay for some time. And could you describe the process that you undertook to bring them forward and get them booked and the paperwork done, et cetera?

A: Sir, we have a form that's called a C-13, which is a booking in log. To facilitate the number of people, we attempted to fill in as many booking in sheets, the top part, with the person's name, prior to them entering the guard's area, and the booking area. As the booking room became free, one person would be moved from the prisoner bay into the cell area, and if it was--had been taken over by another person, as one person had to stay in the insecure area, which is where the prisoner bay is, because there was prisoners there, we had to maintain at least one Police Officer in that area. The person would be handed off to another person, taken into the booking room where their belongings would be taken and recorded on the C-13.

And then they would be moved into cells when they were finished being searched and processed.

That is generally how it worked. There is some dispute as to whether that was the precise procedure followed throughout the day but that will be considered later in this chapter.

Cst. Liu estimated that it took between five to 10 minutes that day from the time a prisoner was taken from the prisoner bay until he or she was placed in a cell.

29.3.3. Bathroom Privileges

There was a suggestion that, soon after arrival, some of the prisoners were denied bathroom privileges. While there may have been some delays caused by the confusion resulting from the unexpected arrival of so many prisoners, I am satisfied that the bathroom needs of the prisoners were not unduly delayed and I make no criticism of the police officers in that regard.

29.3.4. Crowding

On November 25 there were a few other prisoners in the cells who had no connection to the APEC-related activities at UBC. They had been brought in by sheriffs for court that day. The evidence did not reveal whether the additional prisoners were male or female, or whether any of them shared cells with the protesters, although Cst. Watson's evidence does suggest that there may have been some sharing.

There were eight cells and a drunk tank at Richmond on November 25. Two cells were designated for juveniles, two for adult females and four for adult males. There were bunk beds and a toilet in each cell. Occasionally, if there was an overflow crowd, a floor mattress could be supplied and three persons placed in one cell.

Obviously, numbers considerably in excess of normal capacity had to be accommodated in each cell that day. The allegation that the prisoners were placed in overcrowded cells is correct. Some movement was necessitated by the need to accommodate the juveniles in separate cells from the adults. The norm was five to six prisoners per cell that day but at times there were more, possibly double that number, for short periods of time. I am satisfied that the attending constables and guards did their very best in a difficult situation as they allocated cell space.

29.3.5. Delayed phone calls

The formal booking in of the first load of prisoners took from 12:25 p.m. until 1:40 p.m. and the second group from 3:07 p.m. to 5:10 p.m.

A major issue for the prisoners was what they saw as unreasonable delays in allowing them telephone access to contact lawyers and, in some instances, family members. Before the first load was booked in, it was impossible to accommodate the telephone requests. There was only one private telephone room. An officer or guard had to accompany the prisoner to the telephone room and back. In the time between the completion of the booking in of the first group and the commencement of the second, seven prisoners were escorted to make telephone calls. Those calls, including the time required to escort the prisoners to and from the telephone room, consumed 44 minutes. The guards and officers had many other duties to perform over this period. There were no bathroom facilities in the drunk tank, so some escorting was required to accommodate bathroom needs. Cst. Watson telephoned a lawyer whose telephone number had been given to many of the prisoners and she tried to arrange for that lawyer to come to the Detachment. As it turned out, someone from the law firm did attend but was not allowed access to the cells because the person was not a lawyer. All this took time and before the actual booking in of the second group, beginning at 3:07 p.m., staff had to attend to preliminary matters pertaining to this group of prisoners who had arrived some time earlier in the prisoner bay area.

Soon after the second group had been booked in the telephone calls resumed. The first was made by Ms. Muttray at 5:28 p.m. She had been booked in at 12:54 p.m. and had been in custody since her arrest earlier in the morning. It is unfortunate that she had to wait so long to use the telephone. Other telephone calls continued and by the time the UBC prisoners were released, 24 of them had made calls, some more than one.

Section 10(b) of the Charter says that everyone has the right, on arrest or detention, to retain and instruct a lawyer without delay and to be informed of that right. In R. v. Strachan (1988), 46 C.C.C. (3d) 479 (S.C.C.), Dickson C.J.C. held that, in the circumstances of that case, the right to counsel began only once the police had a potentially volatile situation under control and there was no reason why the arrestee should not have been allowed to call a lawyer. Commission Counsel cited Strachan, correctly I believe, for the proposition that a person's section 10(b) right may be qualified by what is reasonable in the circumstances.

Given all of the circumstances, I conclude that the officers who had custody of the prisoners made every reasonable effort to comply with the Charter requirement. The opportunity to make telephone calls was given as soon as those requests could reasonably be accommodated.

The exception is the case of Ms. Muttray. Even there, I am not prepared to find any conduct inconsistent with the Charter. If she was overlooked as turns were granted it was unfortunate. It may well be that, with the second group awaiting processing, the officers had to turn their attention to that task. The delay in Ms. Muttray's case was never clearly explained and I believe that it was because the officers were unaware of her circumstances, given all of the demands placed upon them at that busy time.

Cst. Semeins summarized the situation very well when answering a question about what explanation he had given to prisoners about the basis for their arrest:

I made it a point of updating the prisoners with as much information as I knew. I told them--I recall telling a group of them, like, I recall actually being--if I could just show you on the chart here. I recall being in the male prisoner area here, as well as the juvenile prisoner area, talking to a group, asking them to calm down, and I'll tell you what's going on. You're being held until APEC is completed, and phone calls will be made when such time that we can take care of all the other prisoners that were in the prisoner bay. I just--dealing with a large number of people, it's a very unique situation, and when you're dealing with single prisoners, you can--you're able--you've got a little bit more freedom in the times about, like, being more diligent about giving phone calls right at that moment. But dealing with such a large volume of people--people were getting agitated, they were pretty upset in cells. So, I tried to give them as much information as I knew it at the time.

29.3.6. Agitation in the Cells

Cst. Semeins was correct about the agitation that was building in the cells. Even though almost all the prisoners had been voluntarily arrested in order to make their point and with full knowledge that they would be surrendering their liberty for a period of time, they were quite unhappy with the circumstances under which they were being held. Tensions built up and there were unpleasant exchanges between prisoners, RCMP officers and others at the site.

For example, prisoner Christina McCarthy gave evidence about prisoners singing, chanting and making up what she called silly songs in order to pass the time and make as much noise as they could. She was asked if anyone spoke to them about the singing:

A: Yeah--at--we sang for a long time. As I said, we were making up songs and we were singing children's songs, and it was mostly to pass the time, as well as to in some--in my case, some--in some way to keep some of the fears and some of the other things I didn't want to think of at bay. And at one point--at one point we were told that we were going to be getting out around 7:00 or 8:00 p.m., I believe, and it must have been around that time, because we were starting to think we were going to be able to go soon, and this--this Police Officer or this--I don't know what he was, came in. He was perhaps in his late forties or early fifties, and he said something to the effect of " congratulations, your singing has just bought you five more hours."

...

Q: Okay. And--and when--when that person said that, what did--did you--did you believe that was true?

A: Oh yes, very much. That was the first point at which I started to cry, and in fact all of us were just--I mean, it was like pandemonium for a few moments. Screaming and swearing at him and--and yelling. And--and I just--I think that was when I--I felt a lot of--a lot of fear then, and I felt very much as that they had taken everything else from us and now they were taking--trying to take our voices away. And what ensued was a discussion amongst the women in the two cells as to whether or not we should continue singing. And there was a difference of opinion, because some people felt that maybe he was--maybe it was just a threat and that he wasn't intending to keep us there for five more hours, while others felt that well we were five more hours anyway, so what did we have to lose. But I know, we didn't end up singing, and personally I made that choice, because although I felt ready to continue singing myself, I didn't want to make that decision for another person. I mean, I felt prepared to give up some more of my freedom, but I couldn't make that decision for another person, who would--who didn't want to do that, so we stopped singing.

Q: And how long after that was it, that you were in fact released?

A: I wasn't released until close--around 11:00 o'clock, but some people began to be released shortly thereafter, perhaps around 9:00.

I accept that evidence as a sincere contribution by Ms. McCarthy to portray the environment as she perceived it to be at that stage of her confinement as well as her emotions at that time.

Guard Ronald Docherty had come on duty at 7:00 p.m. as a replacement for Guard Fraser whose shift ended at that time. He said that before she left, Guard Fraser briefed him on the situation. He acknowledged that he had said to the prisoners that the more they sang or the more noise they made, the longer they would be kept in the cells. After referring to what he described as the aggressive use of profanity by the prisoners, and " hollering, screaming, banging of cells," he said he walked to the cells and " said to the girls that if you would keep quiet you will be released a lot faster" than by causing " all this commotion, agitation and noise." I accept that Guard Docherty described the scene as he believed it to be soon after he assumed his duties on the evening of November 25.

Some of the complainants alleged that, while in the cells, prisoners were threatened with pepper spray. Of course there was no spraying at that time and place and I am not satisfied that any RCMP member made such a threat.

29.3.7. The Evening Meal

While all of this was going on, Guard Rice-Wells was in charge of preparing an evening meal for those in custody. It consisted of pork and beans, bread, butter, coffee and tea. Ms. Muttray testified, " It wasn't good, but it was O.K." For the vegetarians, of which there were many, bread, coffee and tea was all that was available. Other options such as macaroni and cheese were frozen and, for that reason, could not be served. The guards said that they could not begin to consider the menu until their booking in responsibilities were completed, after 5:00 p.m. Also, they did not know earlier in the afternoon whether the prisoners would still be there at meal time. I am satisfied that those on duty at the supper hour did their very best to meet the nutritional needs of those in custody although, for vegetarians, bread, coffee and tea was clearly not a satisfying meal.

29.3.8. Blanket Requests Denied

Staff on duty turned down requests for blankets. They generally took the position that blankets were for overnight prisoners and were reluctant to produce them earlier in the day. Cst. Watson said that was Detachment policy. Guard Fraser expressed concerns about meeting an individual request that would start a chain reaction resulting in all of the prisoners wanting blankets.

Some heaters were operating in the cells but it is unfortunate that individual needs were not taken into account when blankets were requested. Ms. Thorburn, for instance, was wearing the paper suit she was given at UBC Detachment after she removed her clothing, which was saturated with pepper spray. She should have received special consideration but, once again, the heavy work load being carried by the officers and staff on duty was obviously a significant factor.

29.3.9. Conduct was Not Inappropriate

Things were not perfect, from anyone's perspective, in the Richmond cell block during the afternoon and evening hours of November 25. All but a very few of the protesters in the police cells were there due to their own actions earlier that day which they hoped would result in their arrest and place them in custody. They achieved that goal. The service they received where they were temporarily lodged was not to their liking. Unquestionably, that service was considerably less than perfect but I reject the suggestion of inappropriate RCMP conduct. The officers did their very best to cope with the chaotic situation thrust upon them. They did all they could, under the circumstances, to meet their responsibilities.

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29.4. Were Female Prisoners Strip Searched Unnecessarily?

29.4.1. Only Women Were Strip Searched

All of the 15 adult women arrested at UBC on November 25 and booked into Richmond Detachment cells were strip searched by a female officer or guard. The 16 adult men arrested and booked the same day, under the same circumstances, were not strip searched. Rather, they were subjected to a " pat" or body hand search by male officers who felt through the prisoners' clothing, searching for contraband. The female officers and guards strip searching the women were unaware of the type of searches being done on the men, just as the male officers were unaware that the female prisoners were being strip searched. None of the juveniles were strip searched.

The strip searching of the women was done by Cst. Watson and Guard Fraser. The men were searched by Cst. Liu and Cst. Semeins. Only one of the four was present for each search. Guards only conduct searches on instructions from a police officer.

The first question that arises is: Why were the women strip-searched? Was it a result of policy, or was it a decision made by individual officers at the time?

29.4.2. Existing Richmond Policy

The existing Richmond Detachment search policy directed that prisoners be searched thoroughly by a member of the same sex. The only direction regarding the type of search provided:

Use the metal detector to assist when a strip search is not undertaken.

There was considerable evidence given at the hearing regarding the meaning of this policy and the effect it had on the type of searches carried out at the Richmond Detachment.

29.4.3. Interpretations of Policy

Guard Fraser participated at the request of Cst. Watson, who realized that the sheer number of prisoners meant she would need assistance. I am satisfied that neither Cst. Watson, Cst. Liu nor Cst. Semeins directed Guard Fraser as to the type of search she was to conduct. Guard Fraser testified that it was normal practice at Richmond Detachment in November 1997 to strip search female prisoners before putting them in cells. She said it was not up to her to decide whether to strip search a prisoner. Rather, she understood these were standing orders. She testified that she had been instructed to conduct strip searches of female prisoners as a matter of course. The only exception to the rule that Guard Fraser could think of was that juveniles are generally not strip searched. The only female juvenile booked into the Richmond cells on November 25 was not strip searched because she was just 15 years old. Insp. Speevak confirmed his understanding of the written " either/or" policy at Richmond Detachment in 1997: that any prisoner coming into cells was to be searched thoroughly, either by way of strip search or with the assistance of a metal detector. He said, however, that it really was a " procedure" rather than an absolute " policy." At another point in his evidence, Insp. Speevak explained his understanding as follows:

I do not believe our policy was that everyone was to be strip--strip-searched, rather, that all prisoners were to be searched thoroughly, and that if--and the most thorough search is a strip-search. If the officer can justify in their mind why they need not carry out a strip-search, then a strip-search need not be done. The policy specifically said that if you don't strip-search then use a metal detector.

Cst. Watson testified that the policy at the Richmond Detachment was that " if a metal detector isn't used, you're to use a strip search." Although the policy provided two options, Cst. Watson said, when questioned by Commission Counsel, that she never used a metal detector.

All of her evidence is consistent with the position that a strip search was the norm at the Richmond Detachment. However, when questioned by her own counsel later the same afternoon, she said the policy was that if the metal detector is not used, " it's my discretion to take each case individually and decide whether I feel the risk has been eliminated or whether the need for a strip search is still there."

29.4.4. Risk Elimination and Mandatory Searches

It has been most difficult to rationalize the foregoing evidence. It would not be difficult to conclude that the " either/or" policy was a black and white one and that, since no metal detector was used (Cst. Watson never used one), strip searches were a mandatory detachment requirement and they were carried out on November 25 for that reason.

That is the basis on which Guard Fraser operated that afternoon. She was not given any instructions by any officer that day other than to search. She strip searched because she understood that she was required to do so in every instance, except in the case of juveniles. She was not involved in any process of risk " elimination" and was not informed of any such process. Of the six female prisoners who gave evidence about their strip search experience, five were searched by Guard Fraser.

After Cst. Watson testified about the policy on searches if a metal detector was not used, she was asked about the considerations she took into account in searching the APEC protesters:

For these groups of individuals in this exact case, sir, I was informed that they had come from a riotous situation where they had a confrontation with Police. I was aware that they were protestors and I was unaware of if they wanted to carry their cause further into the cell area. They had been left with their belongings for a period of time in the secure bay--in the prisoner bay area, giving them opportunity to possibly secrete the items on their person. They were displaying a crowd mentality. The persons already booked into cells, showing a concern for the safe--possible safety of the others and they were also being booked into cells where I had the safety of other persons to be concerned with.

Cst. Watson testified that the objective of a search is to secure the safety of the prisoner, of the other prisoners and of police officers and guards; to find any evidence that may be on the prisoner; and to prevent the entry into the cells of contraband such as cigarettes and matches. She was asked if she had ever found items through a strip search that were missed during a pat search:

A: In the past, I have found drugs of various sorts, marijuana, heroin. I have found needles. I have found matches. I have found tobacco. I--in one incident, I found a razor blade taped under a woman's breast. And items such as money has been found in a person's buttocks, and in some females, in their pads.

Q: Would you expect a metal detector to locate those sorts of items that you've just described?

A: No, sir, I would not.

Cst. Watson said she understands that she does have a discretion to decide whether to do a strip search in an individual case. In making that decision she takes into account " who is going to be strip searched, where they've come from, what their demeanour towards the police has been, if there's a possibility that they may try something in cells, how many other persons' safety are an issue, where they've been held prior to the search." She was asked if she requires proof that certain items are hidden on the prisoner's person before searching:

No, sir. To myself, and from my experience, it's a process of elimination, and in the instance of a strip search or searching of a prisoner, I go by the assumption that everybody had the capability of bringing an item into cells, and it's up to me, in my mind, to eliminate the risk. And if I cannot eliminate the risk, and thus provide a safe environment and preserve evidence, I conduct a strip search.

She confirmed that the risks that must be eliminated relate to safety, the preservation of evidence and the need to prevent contraband from entering the cells. She was asked to explain the meaning of contraband, in the context of the police cells:

Matches, cigarettes, lighters, drugs, money, any items that could elevate a person's status while in the cell area with other prisoners, or could cause injury to themselves or the other persons, or could cause an injury of a person in the event that they have to go in and remove the items.

When questioned, Cst. Watson agreed that the policy on searches is one of " zero tolerance" when dealing with more than one person in a cell – that is, any risk at all is too much risk:

Q: Well how is it, Officer, that you ever can eliminate any risk of any of these three things occurring, of somebody bringing in something that's contraband, or--or--or a potential weapon, or evidence secreted? How can you ever eliminate that risk and allow any--any person to walk into those cells without a strip-search?

A: As I said, sir, the juvenile that went into cells was not strip searched because: a) she was going into the cells by herself. She was not being held, to my knowledge, for a long period of time and I did not feel the safety issue was as great a factor with her as it was with the other persons.

Q: So there was no risk in your perspective.

A: There was a slight risk, but not as great a risk.

Q: How slight a risk is okay from your viewpoint?

A: In a perfect world, sir, no risk would be the best. However, there's always going to be a risk.

The zero tolerance policy spoken of by Cst. Watson was endorsed by Insp. Speevak, who had had experience at Nanaimo and Whistler when jail cells received many more prisoners than their intended capacity:

Q: What are the principal concerns that arise when jail cells are overcrowded?

A: The main concerns, sir, relate to cellblock security and the safety and welfare of prisoners, officers and guards. The primary risk or the most major catastrophe that could occur in a cellblock would be a fire. Should a fire occur, each of the cellblock--you--you would have to conduct an evacuation of prisoners, each of the cellblock doors has to be opened independently, and the ability to do that in a short space of time before smoke and--and so on accumulates, implies that it is probably the highest risk in a cellblock.

Q: What level of risk would you consider to be an acceptable risk that there might be fire in cells when the cells are overcrowded?

A: We should have a--a zero risk, a zero tolerance if I can use that term, but a zero risk of fire and to prevent that, the highest level of security must be maintained when you're dealing with an overcrowded cellblock.

Q: And would you consider it necessary for your Members to take that into account when they're searching prisoners who are going to be put into cells which are over-crowded?

A: Yes, sir. At Richmond the risks in our cellblock that--that I previously outlined because of the age of the cellblock and its deficiencies, we try to make well-known to the Members. In addition to the circumstances of each arrestee, that is, the person who is being lodged in cells, and cell conditions on any given day. And this particular occasion, a very--what was potentially a very overcrowded cellblock.

Insp. Speevak testified that the strip searches done by Cst. Watson and Guard Fraser were more consistent with achieving the objective of " reducing our risks to near zero of a major incident in cells" than were the searches done on the male prisoners.

Insp. Speevak was questioned further on the subject:

Q: All right. So, if the--I'm just trying to understand your understanding of the policy. The objective is to reduce the risk to near zero of something happening in the cells then, on your evidence, it would accord with the Richmond policy to do strip-searches?

A: In this instance, yes, sir.

So, even though neither Cst. Watson nor Insp. Speevak accepted that the 1997 policy meant that if a metal detector was not used, a strip search was required, their interpretation of the policy reached, in this instance, the very same result; namely, strip search them all if the risk has not been all but eliminated.

Regardless of how one gets there, I believe Guard Fraser was correct in her conclusion that it was virtually a universal policy that all women prisoners booked into Richmond cells would be strip searched. Cst. Watson was asked for an example of an adult prisoner where she had eliminated the risk without conducting a strip search:

A: As I said, sir, if--I have to look at many situations. Off the top of my head, I believe I had a female in cells last week that I didn't strip-search, and I'm trying to remember what the charge was. I believe it was shoplifting. And I brought her in. She was not combative. There was no prior history, no prior knowledge. She had been observed by store security. It wasn't a question of evidence, and she was being detained in cells for, I believe it was half an hour while I prepared the documentation.

Q: You think- –

A: That would be--that--there's many others, but that's one example.

An alleged shoplifter with no prior history being detained for one half hour would appear to fit within the near zero tolerance policy of which Insp. Speevak spoke. My consideration of all of the evidence, both those portions that I have quoted and the much greater volume in the transcripts, satisfies me that unless she was such an obvious non-risk person such as the alleged shoplifter, a woman booked into the cells at Richmond would have been required to undergo a strip search.

29.4.5. Policy Review

Following the APEC conference, Insp. Speevak undertook a review of the cellblock policy at the Richmond Detachment, sensing that the November 25 experience signalled the need for some changes. The result was a 41-page report which recommended changes and said the reworded policy " should eliminate any question about whether or not there is a 'blanket' policy to strip search."

Insp. Speevak acknowledged that " there is a certain implication perhaps" in the policy in place in November 1997 that if a metal detector was not used, " strip searches were an automatic expectation." He said that the purpose of rewording the policy was to make it clear that there was no such automatic expectation and that " there must be a reasonable law enforcement objective" for a strip search.

29.4.6. New Richmond Policies

In August 1998, a new Richmond Detachment policy on prisoner handling was issued which reflected the changes proposed in the report commissioned by Insp. Speevak. Subsections 2(a) to (e) of the report dealing with " Booking of Prisoners" have been reworded and now read as follows:

2. Booking of Prisoners

1. Search prisoners thoroughly. Officers are strongly cautioned to ensure that all property, especially anything the person could utilize to inflict self-injury, or cause injury or damage to anyone or anything within the Cellblock area, is seized prior to the person being lodged.
2. Officers shall also ensure that before a person is lodged:
   1. All jewellery is removed
   2. All footwear is removed
   3. All strings or cords from sweatpants, shorts or hooded sweat tops or similar clothing are removed
   4. All bras and pantyhose are removed
   5. All hats and other headgear are removed
   6. All extra layers of clothing are removed.
3. DO NOT search persons of the opposite sex. Arrange for a qualified person of the same sex to undertake the search in private.
4. Should a member deem that a strip search of the prisoner is required, he/she is cautioned to bear in mind the current three tests of the Courts regarding lawfulness:
   1. The arrest must be lawful
   2. A valid law enforcement objective must motivate the search. These include:
      1. The protection of police officers, the prisoner and the public (including other prisoners) from dangerous objects on or around the prisoner;
      2. The discovery of items that may facilitate the prisoner's escape;
      3. The preservation of evidence from destruction;
      4. And the discovery of evidence in support of the offence for which the prisoner was arrested.
      5. The search must be conducted reasonably.
5. Use the metal detector to assist when a strip search is not undertaken.

These changes were brought to the attention of Cst. Watson. In particular, she was asked whether she considered all four items included as " valid law enforcement objectives" on November 25, 1997, notwithstanding that that provision was not part of the then Richmond Detachment policy. She said that they were considered. Also, an entirely new section has been added to the policy document entitled " Mass Arrest Procedures." It provides:

20. Mass Arrest Procedures

1. A mass arrest situation shall be defined as any situation where the number of prisoners exceeds our maximum capacity.
   1. The Watch Commander will immediately notify the OIC Operations and place an NCO in charge of the Cellblock area for the duration of booking and release of prisoners and as required at other times.
   2. The NCO i/c Cellblock will weigh the security needs of the Jail, including the types of prisoners being held at that time. The NCO i/c Cellblock will determine the need, if large numbers of prisonersare being brought in, to contact neighbouring Detachments or Agencies to house the prisoners.
   3. The NCO i/c Cellblock will arrange for any extra staff deemed necessary to process the prisoners in an efficient and orderly manner including call-out of off-duty personnel and call-out JP's. The NCO i/c will assign sufficient members to maintain control of the prisoners.
   4. Should the processing of these prisoners include fingerprinting and photographing, consideration should be given to having an Identification member attend the cell block/ABS room to process them.
   5. The NCO i/c Cellblock will take into account the number of prisoners to be held and the requirement for meals to be provided.

29.4.7. National Policies

The Search and Seizure section of the National Operational Manual of the RCMP was placed in evidence. Portions addressing the current subject, in place in November 1997, included the following:

G.3 Personal Search

G.3.a General

1. A body search is a thorough search of the clothing at the time of an arrest.
2. a strip search is a thorough search and examination of a person's clothing and body. It should only be conducted when there are reasonable grounds to believe the suspect is concealing evidence obtained during the commission of a crime or items that may be used to cause injury or death.

...

G.3.b Member

1. When conducting a personal search, ensure you take the appropriate precautions to protect yourself.
   1. Consult a medical practitioner if you accidentally puncture yourself or come into contact with bodily fluids from a person suspected to be in a high-risk category.
   2. Do not search a person of the opposite sex unless immediate risk of injury or escape exists.
   3. Conduct a strip search only on a person of the same sex, and in private.

29.4.8. Searches of the Male Prisoners

Cst. Liu was posted to the Richmond Detachment when he graduated from the RCMP Training Academy, six or seven months before the APEC conference. For the first six months, he was in the recruit training program where he was to learn on the job. He had completed that program less than one month prior to November 25. He searched several of the male prisoners arriving from the campus but conducted no strip searches. He understood that an officer's decision in that regard was discretionary. In deciding how to proceed, he said he tried to balance efficiency with the level of risk. He was asked what he meant by his reference to efficiency. He said:

A: That was the--one of the factors I took into account, sir. If we did a thorough search or strip-search on every prisoner it would take a very, very long time.

Q: And was there--did you have a concern about it taking a long time to process the prisoners?

A: Yes, We didn't want the--we wanted to make sure that the safety of all prisoners were--were booked into cells as soon as possible so that they could get access to lawyers as well.

He agreed that, besides efficiency and risk, privacy and dignity were factors to be considered when exercising his discretion as to the type of search to be conducted. Cst. Liu said that, on that day, he did what he called " a thorough body search, frisk type of search, not just a pat search, sir." He explained what that entailed:

The pat-search initially, in my mind, sir, is just with an open hand patting around the major areas of the body. What I'm referring to, the type of searches I did, are more thorough, including searching through waistbands, socks, hair, hats, things like that, sir.

He said that he was aware that all the female and male prisoners had been arrested under similar circumstances at UBC, that they appeared to be of similar ages and backgrounds, and that the males he was dealing with would be placed together in group cells. He said that, taking into account all the facts and the experience that he then had, he formed the opinion that a thorough body search was the appropriate type of search in the circumstances. However, with the experience he has had since the APEC conference, he said he would probably not make the same decision again if faced with the same situation. He mentioned the many concealed items that would not be found by the searches he carried out, but could not say with certainty that his practice today would be a complete change insofar as strip searches were concerned.

Cst. Semeins was the officer from the UBC Detachment. He had about four and a half years' experience with the RCMP at the time of the APEC conference. He also searched some of the males that day. He described his procedure as a thorough body search which consisted of scrunching up the prisoner's clothes in his hands, checking pockets, and feeling all over the prisoner's body. He said it was more than a pat down search: " it's a pretty intrusive search, you are rubbing your hands all over their body, scrunching up their clothes in your hand, making sure that nothing is concealed in there." Cst. Semeins testified that the purpose of searching prisoners is to protect the safety of the officers and other prisoners, and to preserve or gather evidence. He said that his experience and training had taught him that anything can be used as a weapon if the person is willing to use it in that way. He was asked in what circumstances he would do a strip search:

The type of the offence, sir. If it's a drug-related offence where the person was trafficking small amounts in deck form a strip-search would possibly be done at that point, because it has been my experience that these individuals would hide such material on their person. A strip-search would be conducted. If weapons were associated in the offence, I would conduct a strip-search to make sure. In other instances, I would not conduct a strip-search, depending on the circumstances surrounding the arrests, whether or not I felt there was a risk or not.

He was asked why, on November 25, he decided on a body search and not a strip search:

With the information that was available to me at the time, I did not believe there was a risk to conduct a strip-search. There were a lot of prisoners in the prisoner bay, more than usual, at--there's been times when it's been extremely busy in cells but the prisoners usually come in one at a time. I've experienced that in a larger Detachment before, but this is a situation where you had a large volume of prisoners in an area with a Member present. And so I was trying to get the prisoners into cells as quickly as possible, and I conducted a search that I thought was thorough enough for them to be placed in cells.

He added that factors to be taken into account in arriving at a decision also included the type of offence and whether or not there was a safety risk to himself, other officers or other prisoners: " I did not feel the risk was there therefore I did not conduct strip searches" .

29.4.9. Strip Search Procedures

Cst. Watson described the procedure she followed in conducting a strip search:

As I said, I'll have them stand in an isolated area. I will have the person lift up their top. If they're wearing a bra, I will have them remove their bra. If it is needed, I'll have them lift their breasts so I can see under their breasts. I'll check their arm--look visually under their armpits. I'll have them put their tops down. I'll have them drop their pants. I'll have them drop their underwear. If there's a pad, I'll have that removed, and supply another one to them. And if--once that's done, I'll have them spread their buttocks and I'll visually see if there's any contraband there. Have them put their underwear up, and have them put their pants up, and the--I will check their feet, physically with my hands. And I'll check their head and hair with my hands physically.

Q: Do they actually remove their entire top?

A: Most of the time, sir, they lift it up to their neck. Some people feel more comfortable taking it off if they have to take their bra off. Some people have to take their tops off to take their bra off, sir.

Q: At any point throughout the process of your strip searching, are any of the female prisoners naked from top to bottom--

A: No, sir.

Q:--at the same time?

A: No, sir.

Cst. Watson said that the removal of the bra is a precautionary measure taken based on RCMP experience that it may be used to injure the prisoner herself, or someone else. She said that, under the practice described, a women is disrobed from the waist up for about five seconds and, for the same period of time, from the waist down. Guard Fraser described a similar procedure. When asked what happens if a woman is wearing a one-piece suit or dress she said " Well, then you obviously can't do it half and half."

Ms. Muttray was the only woman searched by Cst. Watson. She was taken to a self-contained and appropriate room described on the floor plan as the supply and locker room. She said a female guard was present in the room with Cst. Watson and her. I am satisfied that that was Guard Rice-Wells. Ms. Muttray was asked how she felt about the strip search:

At that point I was just wondering why this was being done, because it didn't seem like a reason for it, because people who were coming into the jail were people who had committed themselves to civil disobedience, and, you know, there are certain guidelines and, one of them is of course, you know, don't bring any, you know, weapons, or booze, or drugs, or whatever. So, you know, for me, it was kind of, you know, I don't really understand it but, sure, I have to go along with it.

And looking at it now, like I'd say, you know, the doors--the one door I could see was closed, only females with me in the room and it was only afterwards when, you know, the--when we, the prisoners, started talking to each other about it that, you know, that it seemed that it only had happened to the women and that's when it was starting to get concerned about the whole issue. At the time of the actual strip search, you know, it was a little bit embarrassing but I, you know, my background might be a bit different so I, you know, I didn't feel, like, too embarrassed about it.

The other five women who gave evidence of their strip search experience were Ms. Bonfonti, Ms. McCarthy, Ms. Thorburn, Ms. Worton and Ms. Westergard-Thorpe. They were all searched by Guard Fraser in what is known as the Booking Room. While that location has long been used for this purpose, it is entirely unsatisfactory. It adjoins what is described as the male guard room although it is used by all guards. There is no door to close the opening between the two rooms. When a search is conducted, anyone of the opposite sex present in the guard room is asked to leave and wait out in the hallway. Unintentional mix-ups sometimes arise with people coming and going at inappropriate times. That is the exception rather than the rule but a more adequate, private searching facility is most certainly needed. Complainants' counsel in oral submission made the point in the following way and I agree with her:

The Complainants question, Mr. Hughes, a set up of a Detachment whereby these types of searches are conducted in a room with no door, adjacent to the main office of a large number of people. It doesn't really seem to make any sense. There was a room down the hallway, the supply and locker room, that was available and was used for Ms. Muttray. But, the evidence appears to be, that for the most part, searches at the Detachment are done in the booking room, in this manner, strip-searches. And again, it appears that the privacy interests of women being searched simply aren't really considered when--or weren't considered when this practice was adopted, and it wasn't an APEC specific practice. But on occasions such as APEC, where there's a large number of people coming and going, it would appear to be almost inevitable that accidentally or otherwise, men are going to be in the guard room.

The 1998 Review Committee commissioned by Insp. Speevak identified this deficiency and included a proposal to give prisoners being searched " a greater degree of privacy." He said that a request for the required renovations had gone to the City of Richmond but at the time the Inspector gave evidence in March 2000, it had not been acted upon.

Guard Fraser was fixed in her view that when she searched there was only one person present with her in the Booking Room. I am satisfied that was because that was her usual practice. The fact is that she acknowledged that she does not have any memory of doing any searches that day whether it was in the morning or the afternoon. She forgot that when she searched the five women I have identified and one other, they were in the Booking Room with her in pairs. In her oral submission, Complainants' counsel suggested that this was not routine procedure at Richmond Detachment, but probably something that occurred on this occasion " because of the sheer number." I agree.

Ms. Bonfonti was present in the Booking Room when Ms. Westergard-Thorpe was searched and vice versa. She was asked what they requested of her and what she had to do to be searched. She explained:

A: Well they took--first she was searched.

Q: Alissa, yeah.

A: And I--

Q: And can you describe that?

A: Yeah. Basic--well I was trying to, I mean it was kind of awkward, I was trying to give her some privacy even though we were in the same room and facing each other so I was not looking at her, necessarily the whole time.

Q: Yes.

A: Or trying more to look at her face, but, so I can't say so much about her but when I was--then when it was my turn, I took off everything I had on the top half of my body and then I pulled down my pants and she asked me to turn in a circle. I already had my boots off, she asked me to turn in a circle, I did, and then she says, okay you can leave on one layer of clothing for the cell.

Q: Okay. And when you say, she, who is it who is giving you these instructions?

A: I don't know who she was, actually she didn't--I wasn't sure if she was a Police Officer or not or more like a warden or something.

Ms. McCarthy, who took her turn in the Booking Room in the presence of another prisoner, described her experience:

I was in this small room with another woman, another--another woman prisoner, and a-a female guard told us to--I don't recall what she said, but we were told to either remove our clothes or to strip, I don't recall what she said. We were-we were to remove our shirts first and--thank you--and brassieres.

MR. COMMISSIONER: Pardon?

A: And brassieres, our shirts and our brassieres and we were told to lift up our breasts. I don't recall if we were allowed to put on our shirts again, before we were told to take down our pants and our underwear. I don't believe that I had to--I was--I don't believe I was told to completely remove my lower clothing, because I don't remember taking off my socks, for example. And I don't remember stepping in and out of my pants, but I think we just had to drop them down to our ankles and--and then we got dressed again, we were not allowed to keep our brassieres, we were only allowed one layer of clothing. But I was left with my watch, which I thought was unusual and they never looked--they never asked us to take off our socks, so, and she-I don't recall having my feet felt or checked or anything like that. And I remember thinking then and afterwards, that it was a very sort of summary search and I didn't understand what the point of it was, because if I wanted to conceal something, I could have had something in my socks, or whatever. And, as I said, I was left with my watch, which I understand you're not to be left--you're not supposed to be left with any jewellery or any items on your body except for clothing. My--the rest of my things were put into a plastic bag, my jewellery and my other shirts and my shoes. And I was taken to a cell.

The search process described by the other women who gave evidence was generally in accord with the evidence of Ms. Bonfonti and Ms. McCarthy.

29.4.10. An Emotional Reaction

In her final question, Complainants' counsel drew from Ms. McCarthy her deep and emotional feelings about the experience. I am satisfied she was sincere and truthful in what she said although I do not share her view that the strip search was carried out for the purpose of intimidation and humiliation. Notwithstanding that, I do believe that it was, for Ms. McCarthy, as humiliating as she said:

Q: And lastly, Ms. McCarthy, can you tell us--and I think some of it may be implicit in--in--in the way that you gave your evidence, but I'd like you to describe in words for us, if you can, how you felt or--or feel, or both, about the process of having been strip searched in the Richmond Detachment on the 25th of November 1997?

A: At the time I felt very--I was very uncomfortable, and I felt humiliated by it and shortly after--perhaps in the new year of 1998, I was told--I was informed that only women had been searched, and that--I became very angry. So in addition to the--sort of the humiliation, I was also very angry and I really felt that it had been--it had been such a, sort of, a summary search that I didn't understand the purpose of it and felt that it was for the purpose of--of intimidation and humiliation. And--and I almost, really to be honest, I didn't realize the impact it had on me, and I have to admit I was really taken by surprise by my reaction today. I didn't anticipate that at all.

Q: When you say your reaction, you're referring to your--

A: My crying--

Q: –-reaction--

A: –-my tears, I didn't--I didn't anticipate that.

29.4.11. A False Allegation

With respect to Ms. Westergard-Thorpe, counsel for 44 RCMP officers devoted many pages of written submissions to her allegation that men had watched the strip searching of female prisoners. In their summation of Ms. Westergard-Thorpe's complaint, recorded at the close of their 15 page review of that complaint, with which review I am in substantial agreement, counsel said:

The complaint of Alissa Westergard-Thorpe that women were forced to disrobe in front of men, who were deliberately watching to punish them for protesting, is one of the most serious accusations that could be made in a case of this sort. It is completely false.

I agree entirely with both propositions. Ms. Westergard-Thorpe has an anti-police bias that prompted recklessness on her part in the allegation she made. She acknowledged that she had chosen to be arrested on November 25 and, in doing so, willingly gave up her liberty for a period of time. She anticipated that her actions would result in incarceration for a period.

Ms. Westergard-Thorpe said she saw men watching the strip searching of females just before she entered the Booking Room to undergo the same process herself. She said men watched while she was searched. She was asked why she didn't say anything to the guard who was about to search her, if in fact she had seen what she said she saw:

I suppose because we'd been being punished by the police all day long and I don't think that it surprised anybody that there would be a bit of additional punishment for what we'd done. It seemed to me that we were physically punished on the site before committing any offences, by the violence of the Police and then while we were being held in custody, we were continually being punished for whatever imagined transgressions. And it seemed to us that probably this is just another thing that they were going to do to us and that there wasn't anything we could do about it anyway. You are in custody. There's not a tremendous amount you can do about some things that are done to you in custody. It doesn't matter whether they're constitutional or right or not. If you're in custody, they're going to be done to you.

That evidence, which I reject as being unsupported by the facts, clearly shows the agenda of this witness in presenting her evidence. While there may have been occasions when men were in the guard room momentarily and inadvertently while strip searching was taking place in the adjacent Booking Room, I reject completely her evidence that men stood and watched what was occurring in the Booking Room. There were never the number of male guards in that room that she suggested and to say as she did that they stood there drinking coffee while making their observations does not accord with the facts. While mistakes may have been made by officers and guards on duty in the cellblock over the 12-hour period from 11:00 a.m. to 11:00 p.m., it is my firm conclusion that they all acted with diligence and total commitment to meeting their responsibilities under difficult and trying circumstances about which they had no advance notice whatever.

My one qualification of substantial agreement with counsel's written submission is because of counsel's view that Ms. Westergard-Thorpe was not in the Prisoner's Telephone Room awaiting her turn to be strip searched. There is conflicting evidence about the use that was made of that room at that time which I have not been able to resolve but that does not detract from the conclusion I have reached about the veracity of Ms. Westergard-Thorpe's evidence. Finally, I reject any suggestion that the strip searches, under the circumstances that they were conducted on this day of protest, were a punitive measure directed at the protest activity that brought the women into custody.

---

29.5. Strip Searches of Female Prisoners

29.5.1. Section 8 of the Charter

The B.C. Civil Liberties Association and Complainants' counsel submitted that the strip searches of the female prisoners at the Richmond Detachment were unlawful and contrary to section 8 of the Charter, which reads:

8. Everyone has the right to be secure against unreasonable search and seizure.

The rights guaranteed in the Charter erect around each individual an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence: R. v. Morgentaler (1988), 37 C.C.C. (3d) 449 (S.C.C.). To resolve this aspect of the complaint, I must consider the scope of the police power to breach the " invisible fence" and interfere with a person's privacy and dignity by way of strip search.

Section 8 of the Charter protects every citizen's entitlement to a reasonable expectation of privacy. Reasonableness in this context must be evaluated by balancing the privacy interests of the citizen against the state's interest in law enforcement: Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

The law is clear that warrantless searches, such as the strip searches conducted at the Richmond Detachment, will be presumed to be " unreasonable" for the purposes of section 8. This puts the onus on the RCMP to establish that the strip searches were reasonable. In R. v. Collins (1987), 33 C.C.C. (3d) 1, the Supreme Court of Canada said that, in order for a search to be reasonable:

1. the search must be authorized by law;
2. the law itself must be reasonable; and
3. the search must be carried out in a reasonable manner.

In view of my resolution, set out below, of the complaints regarding the strip searches, it is only necessary to consider the first criterion set out in Collins.

29.5.2.1. Search must be authorized by law

Counsel for the 44 RCMP officers did not identify any statutory basis for the strip searches of the female prisoners. Instead, Counsel submitted that the warrantless strip searches were authorized by the common law police power to conduct a search as an incident to a lawful arrest, to which I now turn.

29.5.2.2. Common law power to search as an incident to arrest

The police may search a person in connection with a lawful arrest, even without reasonable and probable grounds, as the right to search arises from the mere fact of the arrest. This power is based on the need for the police to protect themselves, the accused and the public, and to prevent escape by, and provide evidence against, the prisoner: Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.); R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.). The power is an exception to the general presumption that warrantless searches are unreasonable: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.).

In order for a search to be authorized by the police power to search as an incident to a lawful arrest, the Supreme Court of Canada, in R. v. Stillman, [1997] 1 S.C.R. 607, set out three criteria that must be met:

1. the arrest must be lawful;
2. the search must be incidental to the arrest; and
3. the search must be carried out in a reasonable manner.

Before turning to those criteria, I wish to note that there are certain limits on the scope of the power to search.

29.5.2.3. Limits on scope of power to search

Although the police have the right to search as an incident to a lawful arrest, the exact scope of that power is not entirely clear. In Cloutier, the Supreme Court of Canada set out three propositions that limit the scope of the common law power to search:

1. This power to search does not impose a duty to search. Where police are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case, to determine whether a search meets the underlying objectives.
2. The search must be for a valid criminal justice objective, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or may be evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, such as, for example, to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. The search must not be conducted in an abusive fashion and, in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

A search will generally be invalid if it falls afoul of these criteria.

I now turn to the three prerequisites to a valid search incident to arrest set out in Stillman.

29.5.2.4. Arrest must be lawful

The police may only conduct a search as an incident to an arrest if the arrest was lawful. If the arrest was unlawful, the search will itself be unlawful: Caslake. All but one of the female prisoners were lawfully arrested for breach of the peace pursuant to section 31(1) of the Criminal Code. The one exception was Ms. Muttray, who was arrested for obstructing a police officer. As her arrest was instigated by a VPD officer, over whom I have no jurisdiction, I can do no more than assume that her arrest was lawful, as the RCMP officers at Richmond Detachment undoubtedly did.

29.5.2.5. Search must be truly incidental to the arrest

Searches which derive their legal authority from the mere fact of arrest must be " truly incidental" to the arrest. That is, the officer must be attempting to achieve some valid objective connected to the arrest (such as protecting the police or the public, preventing the prisoner's escape or discovering evidence): Cloutier. The officer's belief that the search will further that objective must be reasonable in the circumstances: Caslake.

I accept that Cst. Watson believed a strip search would " eliminate the risk" of any harm coming to the police, the protesters or any other prisoners and that she was motivated to conduct the searches on the basis of safety concerns. That is a valid objective of the power to search in connection with an arrest.

I also accept that her belief was reasonable, thinking as she did that the protesters had come from a " riotous situation" involving a " confrontation with police." Given that knowledge, it was reasonable for her to conclude that safety might be an issue, particularly given that multiple prisoners were to be lodged in single cells.

In Cloutier, however, the Supreme Court said that the police have a discretion whether search and implied that searches should not be conducted as a matter of " policy" . The court also said that a police officer " must be in a position to assess the circumstances of each case" so as to determine whether a search meets the objectives underlying the search power. In R. v. King [1999] O.J. No. 565 (Ont. Gen. Div.), the court held that, because the searching officer had little information other than that the prisoner had been arrested for theft but nevertheless searched on the basis of policy, she was unable to assess the circumstances of the case before deciding to search. As a result, the search was not in pursuit of a valid purpose and was not authorized by the common law rule permitting search incident to arrest.

It is tempting to conclude that, because Cst. Watson generally conducted strip searches as a matter of policy, and because she was not in a position to assess the circumstances of each prisoner, she was not entitled to conduct a search. In my view, however, it would be unreasonable to conclude that she was not entitled to search, as the need to conduct a search increases when multiple prisoners are lodged in a single cell. It would be absurd to suggest that, in a mass arrest situation where the sheer volume of prisoners overtax police resources, the police are not entitled to conduct any search at all simply because, due to the exigencies of the moment, they were not apprised of all the relevant circumstances of each individual prisoner.

Cst. Watson's evidence was clear that her " zero tolerance" policy was particularly focused upon situations where multiple prisoners are detained in a single cell:

Q: It's a zero tolerance policy from your perspective, correct? No risk – any risk is too much risk?

A: When you're dealing with more than one person in a cell, yes, sir.

Q: Well how is it, Officer, that you ever can eliminate any risk of any of these three things occurring, of somebody bringing in something that's contraband, or--or--or a potential weapon, or evidence secreted? How can you ever eliminate that risk and allow any--any person to walk into those cells without a strip-search?

A: As I said, sir, the juvenile that went into cells was not strip searched because: a) she was going into the cells by herself. She was not being held, to my knowledge, for a long period of time and I did not feel the safety issue was as great a factor with her as it was with the other persons.

Q: So there was no risk in your perspective.

A: There was a slight risk, but not as great a risk. (emphasis mine)

There is merit to her concern where multiple prisoners are involved. However, I believe a distinction must be maintained between the prison setting and police cells. There can be little doubt that a person may generally be strip searched immediately prior to commencing a sentence of incarceration in a correctional facility or penitentiary, as the dangers associated with the introduction of contraband into a true prison setting are self-evident. However, in the context of a police lockup, such as the Richmond Detachment, I do not believe that the mere fact of detention necessarily requires a strip search in every instance, even if multiple prisoners are held in a single cell. In my view, the police must be in a position to assess the circumstances of each case, as there will undoubtedly be cases where they need not resort to measures as intrusive as strip searching.

I accept that Cst. Watson was entitled to conduct a search of some type as an incident to arrest. Given the circumstances of the moment, it would be ludicrous to conclude otherwise. In any event, even if a search were not authorized by the common law power, the police had a duty to protect life and property and, therefore, some form of search would have been justified.

The critical issue is whether Cst. Watson was entitled to conduct a strip search. That falls to be decided on an assessment of the facts against the third criterion set out in Stillman; namely, whether the searches were conducted in a reasonable manner.

29.5.2.6. Were the searches conducted in a reasonable manner?

In determining whether the intrusion upon the privacy and dignity of the female prisoners was reasonable in the circumstances, I must consider whether strip searches must meet a higher standard of justification than frisk searches. Counsel for the 44 RCMP officers submitted that the law does not treat the two types of searches differently:

Strip searches are merely a form of search incidental to arrest. While they are more intrusive than ordinary pat searches, they do not constitute a separate legal category of search subject to different, or more stringent requirements than other searches incidental to arrest.

I disagree. Although some earlier court decisions drew no distinction between frisk searches and strip searches (see, for example, R. v. Morrison (1987), 35 C.C.C. (3d) 437 (Ont. C.A.)), the law has since undergone some change. Indeed, strip searching has recently been characterized as one of the most " intrusive" manners of searching and one of the most " extreme exercises" of police power: R. v. Flintoff (1998), 126 C.C.C. (3d) 321 (Ont. C.A.). Though the common law allows the police to search as an incident to arrest, the degree of intrusion must be necessary and reasonable and in pursuit of a valid objective such as safety: Cloutier. The greater the intrusion, the greater must be the justification and the degree of constitutional protection: R. v. Simmons, [1988] 2 S.C.R. 495; Flintoff.

Given the above, I have no doubt that strip searches must meet a higher standard of justification than other, less intrusive types of searches, and I am satisfied that the strip searches conducted at the Richmond Detachment were far from justified.

I believe Cst. Watson's adherence to " zero tolerance" rendered any exercise of discretion that she thought she may have had almost meaningless. Unless there was virtually no risk at all, she was going to conduct a strip search, regardless of the impact on the privacy rights of the female protesters. That is the way she thought things were done at the Richmond Detachment. Certainly Guard Fraser understood that to be so. On that basis alone, I would conclude that the strip searches were not justified.

There is, however, another reason that leads to the same conclusion. Cst. Watson was not in a position to properly assess the circumstances of each individual, including the nature of the offence, because she was not given complete and accurate information. She was labouring under the impression that the protesters had come from a " riotous situation" involving a " confrontation" with police. She was not told that the protesters were students, many of whom had been voluntarily arrested through a " negotiated arrest" process, and that the majority of the arrests did not arise out of a " riot" or " confrontation" . She was clearly misinformed in that regard. In my view, the information passed on to Cst. Watson seriously overstated the risk posed by the protesters and, as a result, she was unable to properly assess the circumstances of each case and weigh the risk of potential harm against the right of the protesters to be free from unreasonable search and seizure.

As to Guard Fraser, her evidence was crystal clear that she had no discretion whatsoever as to what type of search to conduct. Guard Fraser is not an RCMP member and I make no criticism of her in any way. Guard Fraser acted at the direction, and under the supervision, of the RCMP. She was not in a position to exercise discretion and she did not do so.

The strip searches conducted at the Richmond cells on November 25 were far too intrusive in the circumstances, and were neither reasonable nor necessary. In my opinion, a frisk or pat down search would have met legitimate safety concerns and that is precisely the type of search to which the males were quite properly subjected. I conclude that the criteria stipulated in Stillman regarding the common law power to search as an incident to arrest were not met, with the result that the strip searches were unreasonable. As noted, there is therefore no need for me to return to a consideration of Collins.

The strip searching of the female prisoners at the Richmond Detachment was both inconsistent with the Charter and inappropriate to the circumstances.

29.5.3. Responsibility for the strip searches

Major responsibility for the events at the Richmond cells on November 25 must rest with the planners who failed to advise Richmond Detachment of the role it would play that day. With all the information police had about protesters' plans, they should have known that there would be arrests, and they could have expected there to be many. With minimal prisoner handling facilities at UBC, the planners knew that arrestees would be taken to Richmond. That was contemplated by the plan formulated by Cpl. Harrison but which was never brought to the attention of the Richmond Detachment, neither by the Security Steering Committee for APEC, which apparently had given approval to it, nor by Cpl. Harrison.

As it happened, the first protesters were arriving at Richmond Detachment when the call came from Command Centre, advising the detachment of their expected involvement. If the detachment had been brought into at least the periphery of planning, and given a briefing about what was expected to happen on November 25, I am convinced that there would have been a plan in place for the appropriate handling of the volume of prisoners who arrived on its doorstep, and that would have included a search policy suitable to the occasion.

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29.6. Were Prisoners Held in Custody for an Excessive Amount of Time?

29.6.1. Releases were Orderly and Reasonable

The last prisoners were booked into cells at 5:10 p.m. A release process could not have begun before then. All admissions had to be documented and surrendered items properly listed and secured. To have failed to follow that process with every prisoner could have led to future difficulties for the RCMP. Given the limited space and the heavy demand placed upon staff, the booking process could not have been completed at an earlier hour.

The release process started at 7:47 p.m. In the meantime, some prisoners were escorted, one by one, to make telephone calls. Between 5:28 p.m. and 7:32 p.m., 19 APEC prisoners were escorted to and from the telephone room. During the same time frame, the guards prepared and served supper.

The release process was documented and completed at 11:31 p.m. It took about six minutes for each individual. The process involved was explained by Insp. Speevak and I believe that the release process was carried out in an orderly and reasonable manner.

Considering the complaints about a lack of opportunity to make phone calls, I do not believe it was unreasonable to give attention to that requirement as soon as the last prisoner was booked in, nor to take time to prepare and serve supper to the prisoners, many of whom had been in custody without food for several hours.

The release process began 15 minutes after the last prisoner making a telephone call was returned to the cells. The Watch Commander then on duty had been instructed to begin the release process at 9 p.m. He apparently made a decision to move up the time frame based on the time it took to book the prisoners into the cells. Considering that the evening hours had arrived, I believe that was a wise decision.

29.6.2. Determining the Timing of Releases

The complaint is that the release process should have commenced much sooner. I have rejected the suggestion that it could have begun before 5:10 p.m. Command Centre had decided that the releases should begin at 9 p.m. It appears that the decision was made by Insp. Moulton after discussions with colleagues at the Centre. It was communicated to Insp. Speevak when he spoke on the telephone with Insp. Moulton at 5:53 p.m. Until that time, it was Insp. Speevak's understanding that Command Centre's preferred hour of release was 8 p.m. Insp. Speevak deferred to Command Centre and I believe he had good reason to do so. He did not have any background information as to how the arrests occurred, the justification for the arrests or any other relevant details, whereas that information was all available to the officers in Command Centre. Insp. Speevak acknowledged that, technically, it was his decision but he received instructions from Command Centre which he accepted and agreed with once Insp. Moulton had explained the rationale.

Insp. Moulton explained the reasons for the 9:00 p.m. release hour:

A: I believed that in relation to the grounds of release, that certainly there was no question about the primary ground as we were not intending to deal with charges. In respect to the secondary ground, it was my belief, given the way the day had played out, in fact, the way the previous week--days had played out, that there was very good likelihood that persons who were released from Richmond Detachment would then return either to UBC where, at this point in time, there was still a crowd, or would make their way down to the other--the downtown demonstration become part of that. Based on my understanding and my view of the videos, that the persons that were, in fact, arrested, were, perhaps to generalize, but, were the more committed of the demonstrators, that the likelihood of their taking a further role in further breaches of the peace or obstructions of the Police Officers was entirely likely and that by waiting until 9:00 that that likelihood would expire and that there would be no further concern.

Q: All right. Now, I take it you didn't have any specific information about any one of these forty-odd people in custody, that any particular individual had a plan to go down to Oppenheimer Park?

A: No, that's correct. Although we did have earlier intelligence that the crowd at UBC had discussed about getting on buses to go join that demonstration.

The other demonstration to which Insp. Moulton referred was one in downtown Vancouver beginning at Oppenheimer Park. It was aimed at APEC but separate from the event earlier in the day at UBC. The information Insp. Moulton had when he talked to Insp. Speevak at 5:53 p.m. was that there were approximately 1,000 people at the Oppenheimer Park demonstration, which at that time was arriving at the Art Gallery in downtown Vancouver. Insp. Moulton said he concluded that the likelihood of the prisoners at Richmond again becoming part of a disturbance outweighed any need to release them. He said the information available to him at that time was that the protest would be over by 9 p.m. The Inspector was asked what he feared if the Richmond prisoners were released before then:

A: My belief was that they would join either the--the continuing--or such crowds that were left at UBC or would join the crowd then at the Art Gallery or the Oppenheimer Park where, depending on timing, and participate in those demonstrations and perhaps incite them to assume a problem as--as had earlier existed at UBC at which they had been arrested.

Q: What do you mean, " incite them to a similar problem" . What--what specifically did you fear that the prisoners would do or might do?

A: That they would take action against the police perimeters or coordinates and jeopardize the VIP security that was in place.

Q: And why did you fear that those prisoners would do that?

A: They had demonstrated that earlier in the day that they would take those actions.

He was asked whether he had tried to obtain specific information about specific individuals, in order to make decisions about their time of release. He replied that he did not have such information and very likely would not have been able to obtain such information before 9 p.m.

29.6.3. Breach of the Peace

Because nearly all of the prisoners were taken into custody for breach of the peace, and were not charged with an offence, there was much discussion about the length of time they should remain in custody.

An arrest for breach of the peace is an adjunct to the criminal law. It is a form of " preventive justice" that does not result in a conviction. A person arrested for breach of the peace should be detained for 24 hours at most: Lefebvre (see Chapter 28).

This is not to suggest that the detention should, in normal circumstances, last as long as 24 hours.

The RCMP National Operational Manual provides:

F.5 Persons Arrested for Breach of the Peace

F.5.a. A breach of the peace under Sec. 31, CC [Criminal Code] is conduct contrary to public order.

1. The section does not create an offence, but sets out a specific power to arrest which may be used in a preventive manner.
2. Arrests under this section are to be used as a last resort and only when there is no other alternative to an arrest for the offence being investigated.
3. A person arrested under Sec. 31, CC must be released as soon as the need for detention no longer exists.

Both Insp. Moulton and Insp. Speevak were of the view that, under the circumstances as they existed on November 25, the 9 p.m. release time would accord with that policy. Counsel to the 44 RCMP officers submitted that the RCMP were authorized by both section 31(1) of the Criminal Code and the common law to hold the prisoners in custody until the risk of them renewing a breach of the peace or committing a further breach had subsided.

In contrast, Complainants' counsel submitted that there was no evidence to indicate that the prisoners would become involved in any further breaches of the peace and that keeping the prisoners in custody until after the rally at Oppenheimer Park violated their right under section 9 of the Charter to be free from arbitrary detention.

The BC Civil Liberties Association submitted that, by failing to release the prisoners, the RCMP prevented them from attending the evening rally in breach of their right to freedom of expression under section 2(b) of the Charter.

The position of Commission Counsel was that, on the basis of the Criminal Code provisions as well as RCMP policy, the RCMP were required to release the prisoners at the Richmond cells as soon as practicable, once the need for detention no longer existed. I believe that is an accurate assessment of the requirements of the law.

The officers on duty over the supper hour, including the Watch Commander and those working in the cell block had limited knowledge of the overall picture. They saw it as their responsibility to facilitate the prisoners' telephone calls as soon as possible and to serve supper to the prisoners and they carried out those tasks before beginning the release process. In my judgment, it was reasonable for them to proceed as they did and I do not fault them. Having attended to supper and the telephone calls, they then began the releases " as soon as practicable." Although the release process extended from 7:47 p.m. to 11:31 p.m., it had to be done in accordance with standard RCMP procedure and, like the booking in process, could not be completed quickly. I find that the RCMP conduct in holding the prisoners until the evening of November 25 was neither inconsistent with the Charter nor inappropriate to the circumstances.

29.6.4. Certain Releases were Troublesome

There is one aspect of the release procedure, however, that concerns me although it was not directly referred to as part of this category of complaint as neither of the two women affected were complainants, although they both gave evidence. Ms. Worton was released at 10:05 p.m. Since noon she had been clothed in a paper suit that had been given to her when her own clothes were soaked by pepper spray. When she was booked out she was given the opportunity to change into her clothes, but they were too coated with pepper spray to allow for that. Ms. Worton said that, as she was being released, she told an officer that she was from Victoria, did not know her way around, did not know where she was and needed directions to a bus stop. She testified that she did not receive a positive response to her request for assistance:

I'm stuck in Richmond, and the fact that they're sending me out into the streets late at night wearing a white jumpsuit, of all things, with little to no money, and to the best of my knowledge, no support, because I didn't know there were people out there waiting for us. They might have known that, but I didn't know that, and they certainly didn't tell me.

Ms. Worton said that, luckily, there were some people waiting outside who drove her to where she needed to go and helped her out. She said " [b]ut it certainly wasn't the police."

Ms. Thorburn had also been in a paper suit all day and had the misfortune at some point of having it torn. She said she was unsuccessful in her attempt to obtain a replacement and she was released in the torn suit. Fortunately, she had telephoned her father who was able to come and take her home. It was not until she arrived home about 11 p.m. that she was able to change out of her torn paper suit.

I will address this matter further in my recommendations.

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