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CASE LAW: Rectal exam not a Charter search


July 1, 2015
By Corrie Sloot

1121 words – MR

Rectal exam not a Charter search

An internal cavity search was not a “search” for Charter purposes because the doctor doing it was not acting on behalf of police.

In <R. v. Johal, 2015 BCCA 246>, the accused sold a small amount of crack cocaine to an undercover police officer for $100 after the officer dialled a number suspected to be associated with a dial-a-dope operation. He was immediately apprehended, arrested for trafficking and informed of his Charter rights.

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Police searched the car he had been driving but found no drugs. He was strip searched by two different officers at the police station in a private room with no windows. An officer observed what appeared to be white powder around Johal’s anus and blood in his underpants and suspected he had hidden a bag of drugs in his rectum, even though he could not see anything in it.

Fearing the bag may have burst, posing a risk to Johal’s safety, a second officer continued the strip search. He too observed the white power and blood and was also concerned that a bag of drugs may have burst, despite Johal’s denials that he had hidden drugs. Both officers took Johal to the hospital and explained their suspicions and concern for his health and safety to a doctor.

The doctor told Johal that he had to submit to an internal search. The officers left the room and the doctor digitally searched Johal’s rectum while he was still handcuffed but found nothing. Johal was x-rayed about 30 minutes later but it didn’t show hidden drugs. He was taken back to the police station to be photographed, fingerprinted and released on a promise to appear and was subsequently charged with trafficking cocaine.

In British Columbia Provincial Court Johal sought a stay of proceedings based, in part, on the grounds that the strip and internal searches were unreasonable under <s. 8> of Charter. The judge disagreed, finding no Charter breaches.

The arresting officer “had valid concerns” that Johal may have hidden drugs in his rectum and was concerned for his safety. Although two officers were involved with the strip search, the judge considered this a single search which did not breach <s. 8>.

The judge found the doctor was not a state agent whose conduct required scrutiny under the Charter since the doctor performed the internal search solely for medical purposes. Johal was convicted of cocaine trafficking.

Johal appealed before BC’s highest court submitting, in part, that the trial judge erred in assessing both the strip and internal searches. In Johal’s view, the trial judge did not consider that there were two strip searches and erroneously found the officer’s suspicions sufficient to justify the searches. He contended that the officers’ suspicions were insufficient to justify the internal search at the hospital and that the doctor was a state agent acting at the request of police rather than solely for medical purposes.

The Crown argued that the officer had reasonable grounds to believe Johal might have been concealing drugs and properly considered the actions of both officers to constitute one search. The doctor, the Crown argued, was not acting as a state agent and the medical treatment provided was not a search for Charter purposes.

{The strip search}

A strip search may be conducted incidental to a lawful arrest provided it is undertaken to discover evidence related to the reason for the arrest, is justified by reasonable and probable grounds and is carried out in a reasonable manner.

Johal had been lawfully arrested and police were searching for drugs, which was related to trafficking. Chief Justice Bauman, writing the unanimous court opinion, concluded the trial judge did not err in finding there were reasonable and probable grounds for the strip search.

“Johal was operating a dial-a-dope operation and he sold crack cocaine to an undercover officer, yet there were no other drugs found in his vehicle,” said Bauman. “In the experience of the arresting officers, traffickers sometimes conceal drugs in their underpants or rectum.”

The strip search was also carried out in a reasonable manner.

<In my opinion, the judge did not err in finding that the first search was conducted reasonably. It was conducted in a private room at the police station by a male officer, who acted quickly and ensured Mr. Johal was not completely undressed at any one time. [The officer] did not touch Mr. Johal…

The second look by [another officer] is best analysed for the purposes of s. 8 as a continuation of the same “search”. [This officer] was involved only because [the arresting officer] wanted a second opinion about the white powder and blood he had observed. The evidence was that the two officers had the same motivation and their conduct was identical in all material respects> [paras. 31-32].

{The internal search}

The court upheld the trial judge’s ruling that the doctor was not a state agent whose conduct had to be assessed for Charter compliance.

“A doctor who acts at the request of police is a state agent unless his or her action is performed ‘solely for medical purposes’,” said Bauman.

In this case, “the officers anticipated that the doctor would conduct an internal search and were prepared to seize any evidence the doctor discovered, but the officers did not direct the doctor to conduct the search. Rather, it was the doctor himself who deemed an internal search to be necessary for Mr. Johal’s health and safety.”

The fact the police anticipated a doctor would deem an internal search necessary did not mean they directed it. Police believed that a bag of drugs may have burst in Johal’s body, which would have placed him in imminent danger.

“It is clearly uncontroversial and beyond reasonable dispute that it is dangerous to have a burst package of drugs in one’s body,” said Bauman. “I am prepared to take judicial notice of the grave health and safety risk of having significant quantities of heroin, cocaine or other similar drugs rapidly absorbed into one’s blood stream.”

The court found it was “appropriate to conclude, even absent medical evidence, that the internal search was necessary for Mr. Johal’s health and safety. The doctor was not investigating or attempting to collect evidence on behalf of the officers; the search was conducted solely for medical purposes.”

Even if Johal felt he had no choice but to submit to the internal search and did not give his consent to perform it (including the x-ray), this would be a medical ethics and possibly civil case rather than a Charter compliance issue affecting the constitutional analysis. The doctor acted solely for medical reasons and was not a state agent.

Johal’s appeal was dismissed and his conviction upheld.