by S. Pieters, B.A., LL.B.
Law Student, Osgoode Hall Law School

Selwyn Pieters is a Barrister & Solicitor. He has a special interest in Charter litigation, International and domestic human rights law and policy, administrative law and issues surrounding anti-Black racism including racial profiling. He can be reached at selwyn.pieters@utoronto.ca.

On February 15, 2001, the Supreme Court of Canada heard oral arguments as to whether the Ontario Court of Appeal erred in concluding that the strip search of an African Canadian Male did not violate section 8 of the Charter and if the strip search of the African Canadian Male, Ian Vincent Golden, violated section 8 of the Charter, would the admission of the evidence bring the administration of justice into disrepute under section 24(2) of the Charter?

The Toronto police Service had an operation underway involving a number of officers in an area where drug trafficking was known to take place. A police officer using a telescope was located in an unoccupied building approximately 70 feet across the street from a sandwich shop (the "shop"). He had a clear view into the shop and could see what went on there. He witnessed two transactions in which people went into the shop, receiving from Mr. Golden a white substance. The officer saw the Appellant take the substance out of his hand with the thumb and forefinger and give it to the others. He believed that it was cocaine. After the second transaction, he transmitted to other members of the team a description of Mr. Golden. Constable Ryan ("Ryan"), with his partner, Constable Powell ("Powell"), entered the shop and arrested the Appellant.

Ryan patted down Mr. Golden looked in his pockets and found nothing. Ryan and his partner then opened a door leading to the basement and brought the Appellant there and continued the search. Ryan pulled back the Appellant's pants and underwear. Looking down, he saw some clear plastic wrap between the Appellant's buttocks as well as a white substance within the wrap (the "package"). The Appellant, Ian Vincent Golden, was flexing the muscles of his buttocks in order to prevent the officers from retrieving the package. On the landing at the top of a flight of stairs there was some physical interaction between Mr. Golden and the officers, particularly officer Ryan, who testified that the Appellant (whose hands were handcuffed behind his back)pushed him at one point and that he almost went down the stairs. Ryan thereupon pushed the Appellant against the wall face-first. There being concern that the landing was not a safe place in which to continue to search, and not wishing to go down a flight of steps, the officers brought the Appellant into the store. They excluded the patrons from the shop and secured the premises. The sole employee present remained in the shop. In a back area of the shop they had the Appellant bend over a table. From the street, it would have been possible to see only one of the Mr. Golden's legs. The officers once again tried to retrieve the package. Mr. Golden was still using his muscles in such a way as to hold onto it. The Appellant, Ian Vincent Golden,then accidentally defecated. Powell found some yellow dish gloves in the shop which he put on. He then succeeded in retrieving the package.

Mr. Golden was convicted of possession of a narcotic for the purpose of trafficking. His application to have evidence excluded pursuant to ss. 8 and 24 of the Charter was denied. The Court of Appeal for Ontario dismissed the Appellant's appeal of his conviction and sentence.

African Canadian Legal Clinic reminded the Supreme Court of the legacy of histoic disadvantage to which African Canadians. It also directed the Court's attention to the present day realities of unequal treatment of African Canadians in their interaction with the Toronto Police Service: See, Final Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, 1995.

The ACLC then rightly characterized the conduct of the police officers as visual rape and the search of Golden in a public facility with a contaminated glove that was used to clean the bathroom as public lynching.

The Toronto Police Service and other law enforcement agancies in Canada are overzealous in their use of strip searches and other forms of searches and surveillance of African Canadian persons. Police Officers and other law enforcement agents come up with convenient criminal profiles so that African Canadian targetted are treated as suspected "drug dealers", "smugglers" and/or "drug mules" regardless of status, income, social position, occupation, age, or gender because of racial profiling which they employ to deal with "Guns and drugs, and criminality issues."

This sort of humiliating and degrading treatment of African Canadian Citizens is common practice because of the entrenched anti-black racism in the Criminal Justice System most particularly in policing and Law Enforcement. [See Scott Wortley, Under Suspicion: Race and Criminal Justice Surveillance in Canada, Centre of Criminology, University of Toronto, 1998; Royston James, "Black Passengers targeted in Pearson Searches?" Toronto Star, November 29, 1998; Gittens, Cole et al., Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995) Queen's Printer for Ontario; Stephen Lewis, Report on Race Relations in Ontario, June 9, 1992]

The proper place to conduct a strip search is at the police station or division or precinct. NOT in a publicly accessible facility. In addition, there must be reasonsable and probable grounds for the strip search. Futher, it must be done under the supervision of a Command Officer.

I recall not too long ago, in New York City, Abner Louima, a Black immigrant was taken to a police bathroom in the 70th Precinct, after an arrest and was sexually assaulted with a broomstick by a white police officer, Justin Volpe, payed by taxpayers to serve and protect. It is quite possible the same event can be repeated in Toronto if the Supreme Court of Canada do not step in right now to protect African Canadians from police abuse and violence including illegal strip searches.

From the questions asked by the Panel from the Bench and from their comments to counsel for the Crown the court was concerned about the manner in which the search took place. Hopefully it will rule in future cases such strip searches, which is clearly a violation of a person's bodily integrity, require a judicially obtained search warrant.

A decision in this matter is expected from the Supreme Court of Canada in Fall 2001.

Counsel: David M. Tanovich for the Appellant, Ian Vincent Golden
Morris Pistyner for the Respondent, Her Majesty the Queen
Professor Kent Roach for the Intervenor, Aboriginal Legal Services of Toronto Inc.,
Donald McLeod for the Intervenor, African Canadian Legal Clinic,
Michael Bernstein for the Intervenor, Attorney General of Ontario

R. v. Golden [1998] O.J. No. 5963 Ontario Court of Justice (General Division) |
R. v. Golden [1999] O.J. No. 5585 Ontario Court of Appeal |
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