Human Rights Commission supports plan to modernize regulatory framework for strip searches in jails

The Ontario Human Rights Commission (OHRC) has expressed its support for Ontario’s plan to modernize the regulatory framework for strip searches in jails.

On September 29, the Ministry of the Solicitor General began seeking public feedback regarding its proposal to create an updated regulatory framework under the Ministry of Correctional Services Act for strip searches of people in custody in adult correctional institutions across the province. All interested individuals and organizations were invited to submit their input until October 31.

In its written submission, the OHRC stressed the need to support the province’s plan. The organization noted that while courts and researchers have consistently recognized the “harmful effects” of strip searches on all people, those harms are experienced disproportionately by protected groups under the Human Rights Code – 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,” the OHRC wrote.

The OHRC cited R v Golden, which it said recognizes the “inherently humiliating and degrading nature” of strip searches. In this case, the Supreme Court of Canada identified the increased risk and scope of harm that strip searches have on women and other Code-protected groups “who may experience such a search as equivalent to a sexual assault” and acknowledged that the psychological effects of strip searches might be particularly “traumatic” for individuals who have previously been subject to abuse.

“Similarly, the 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,” the OHRC wrote.

The OHRC also cited Forrester v. Peel (Regional Municipality) Police Services Board et al, where the Ontario Human Rights Tribunal found that transgender people can also experience “different and disproportionate harms” from strip searches.

In addition, the OHRC referred to a 2017 report of Ontario’s Independent Advisor on Corrections. The report revealed that people incarcerated in provincial correctional facilities were routinely strip-searched in several circumstances, and 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.”

Accordingly, the OHRC recommended the following measures to ensure the proper conduct of strip searches in jails:

• Placing strict limits on when a strip search can be conducted;
• Providing detailed definitions, policies, and procedures for conducting strip searches;
• Prescribing protections in the way a strip search can be conducted;
• Requiring training to ensure that corrections staff understand the need to minimize the use of strip searches and the way those searches must be completed;
• Increasing access to rehabilitative programs and trauma-informed counselling;
• Implementing accountability measures.