What is the relationship between the right to counsel and the police power to strip search incidental to arrest? That question was recently answered by the Ontario Court of Appeal in the case of an Etobicoke man convicted of importing heroin. A second opportunity to call a lawyer must be given prior to a strip search in order to fulfill the purposes of s. 10(b) of the Charter of Rights and Freedoms.

1. Introduction

On January 8, 2019, Brian Thompson was arrested in an apartment located in a residential building in Etobicoke, Ontario. He was transported to the RCMP detachment at the Toronto Pearson International Airport where he was given the opportunity to speak with counsel under s. 10(b) of the Charter. He was then transferred to a Toronto Police Service station where the sergeant in charge decided it was necessary to strip search him for contraband he could consume or give to someone else in custody. The question whether the police are constitutionally required to give a detainee the opportunity to consult counsel before a strip search thus came before a Canadian appellate court for the first time.

2. Background

On December 31, 2018, Canada Border Services officers intercepted a package containing 331 grams of heroin at the airport. The RCMP implemented a controlled delivery to the apartment. An intrusion alarm was put in the package and the heroin was removed except for a control sample. On January 8, 2019, the package was delivered to the apartment by an undercover officer. The alarm went off when the package was opened and the police forcibly entered. Mr. Thompson was caught trying to escape through a bedroom window. A pat down search was conducted incidental to his arrest. He was read the right to counsel in the police vehicle at the scene and transported to the airport detachment by two RCMP officers where he made the call to a lawyer for advice.

The strip search was conducted at the TPS station by the RCMP officers. They asked Mr. Thompson to remove his clothes one item at a time and did not touch him. He was asked to bend over, spread his buttocks and lift his genitals. The search took five minutes and was audio recorded. A video recording was not made. Nothing was located. A pretrial evidence exclusion motion asserting violations of ss. 8 and 10(b) of the Charter was dismissed by the trial judge. Mr. Thompson was convicted by a jury of importing, possession for the purpose of trafficking and conspiracy. He was sentenced to five years and four months imprisonment. He appealed.

The appeal raised three issues. First, whether the trial judge erred in finding that a delay of twenty minutes in advising Mr. Thompson of the right to counsel was Charter compliant. Second, whether the inherently invasive nature of a strip search should carry with it a right to have a second opportunity to talk to a lawyer. Three, whether the trial judge erred in concluding that the evidence should not be excluded under s. 24(2) of the Charter. I will focus my following comments to the second issue.

3. The Intersection of Sinclair and Golden

On July 11, 2025, the Ontario Court of Appeal released the ruling indexed as R. v. Thompson holding that an arrested person who has been given the right to counsel by the police must be given another opportunity to consult counsel before the police may conduct a strip search in order that the purposes of s. 10(b) of the Charter may be achieved. (here) Writing for the unanimous panel, Justice R.M. Pomerance reviewed the ruling in R. v. Sinclair where the Supreme Court of Canada held that, as a general rule, s. 10(b) entitles a detainee to one opportunity to consult counsel. However, new procedures involving a detainee, a change in jeopardy or a reason to question whether a detainee understood the right to counsel were identified as exceptions that will normally trigger a right to a second consultation with counsel. (here) Justice Pomerance concluded that strip searches should be added to the exceptions in light of their “humiliating, embarrassing and degrading” nature as found by the Supreme Court of Canada in R. v. Golden. (here)

Justice Pomerance began the analysis by posing two questions to determine whether a new category of circumstance should be added to the non-exhaustive list in Sinclair. First, is providing an opportunity for a second consultation with a lawyer necessary to fulfill the purposes of s. 10(b)? Second, does providing a second opportunity strike a proper balance between individual rights and societal interests?

Canadian courts have recognized the psychological benefits of speaking to counsel. Informational rights are not provided solely as a means of enjoying implementational rights. They provide detained persons with the assurance they are not entirely at the mercy of the police and are entitled to a “lifeline to the outside world” through which they can learn whether they are lawfully detained and what their rights are regarding both their liberty and the investigation. (here and here) As the Ontario Court of Appeal said in R. v. McGuffie, “[a]ccess to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.” (here)

As the Supreme Court of Canada recognized in Golden, a strip search is one of the most intrusive types of searches and one of the “most extreme exercises of police power.” Some commentators have described them as “visual rape”. The psychological effects of strip searches may also be particularly traumatic for individuals who have been previously subjected to abuse. As the Ontario Court of Appeal said in R. v. Black, “even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience.” (here) And, as Justice Pomerance concluded, bodily searches are among the most intrusive in the hierarchy of interests protected by s. 8 of the Charter.

The Supreme Court of Canada recognized over fifteen years ago in R. v. Suberu that the purpose of s. 10(b) is to ensure that detained individuals “know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.” (here) The courts of Canada have therefore recognized the psychological benefits that flow from consultation with counsel which can help to “mitigate the power imbalance” inherent in interactions between the citizen and police by reducing the uncertainty inherent in detention.

4. Conclusion

The Supreme Court of Canada emphasized in R. v. Fearon that strip searches are “invariably and inherently” a significant invasion of privacy and “an affront to human dignity.” (here) The removal of clothing and inspection of the body puts strip searches at the most serious end of the spectrum. Justice Pomerance therefore concluded that the same considerations underpinning the special grounds required by s. 8 of the Charter to justify a strip search also require that a person about to be strip searched be given a second opportunity to consult counsel. Although Justice Pomerance found two Charter violations – an unauthorized strip search and delay in advising Mr. Thompson of his right to counsel –  he concluded that the nexus between the Charter violations and the drug seizure was sufficiently attenuated such that the admission of the evidence would not bring the administration of justice into disrepute under s. 24(2) of the Charter.