The point at which strip-searches stop being a vital police tactic and become a gross violation of individual freedom and integrity will be judged this week by the Supreme Court of Canada.
The case at the heart of the appeal involves a suspected cocaine-trafficker, Ian Golden, who was forcibly stripped in an empty restaurant in downtown Toronto after a scuffle with police in 1997.
Two years later, the Ontario Court of Appeal ruled that police had been within their rights to strip-search Mr. Golden.
"Strip-searching is an exceptional area which has mostly been unregulated by the courts," said Frank Addario, a lawyer who will represent the Canadian Civil Liberties Association at the appeal.
"Practices vary across the country," Mr. Addario said in an interview. "Some police forces require everyone arrested to be strip-searched, and record-keeping is abysmal. We have only learned in the past year that in the largest centre in the country, Toronto, one in four persons brought into a police station is strip-searched."
After seeing the court lean in the direction of law and order in recent decisions, the defence bar will be nervously watching the Golden case for indications of whether the trend will continue.
In addition, recently published comments from Mr. Justice Michel Bastarache have added a further touch of drama to the Golden appeal. It will be the first case he has heard since expressing his opinion that the court has often swung too far in favour of the accused.
Mr. Golden was arrested when a surveillance team observed him hand a white substance to another man. A fracas broke out, during which one officer nearly fell down a stairwell and Mr. Golden emerged with significant facial bruising.
Moments later, police had Mr. Golden bent naked over a table. They conducted a forcible anal search, during which he involuntarily defecated. Investigators recovered a baggie containing cocaine. Mr. Golden was convicted and spent 14 months in prison.
Lawyers for Mr. Golden argue that since the police had him handcuffed and under control, there was no need for the intrusive search. The Crown maintains the search was made in good faith and out of sight of members of the public.
The Canadian Association of Chiefs of Police agrees. In a legal brief to the court, it says hundreds of thousands of arrests are made annually by police officers in circumstances that could be extremely dangerous. "While a strip search is undoubtedly a distasteful procedure for the police as well as the individual who is arrested, the state has a compelling interest in law enforcement that must be considered," says the brief.
Errol Mendes, director of the University of Ottawa's Human Rights Centre, said the case opens up the complex question of how much discretion police forces should be permitted.
"I think they may very well hold that this search was unconstitutional in its context," Professor Mendes said in an interview. "But in terms of the constitutionality of strip-searching, my sense is they will not say it's all or nothing."
Mr. Addario said the CCLA is not asking the court to eliminate all strip-searches, but that they be conducted only with the approval of a judge or a senior officer.
"We are saying that, at a minimum, there have to be reasonable grounds to believe that a person being searched is concealing evidence of the crime to which the search relates," he said.