The provincial government policy to require youth be routinely strip searched in custody is unconstitutional and should be stopped, a Superior Court judge has ruled.
The decision comes after lawyers for four of the girls charged in the swarming death of Kenneth Lee challenged their treatment in custody. It also follows rulings from two lower court judges, one who found the girls treatment in custody was “inhumane.”
The eight girls, while in youth detention facilities run by government contractors, were made to strip completely naked on several occasions, against the government’s own policy. Those searches were routine, meaning there was no suspicion of weapons or drugs being concealed but instead carried out every time the girls returned from court and after family visits.
Justice Philip Campbell found in his written reasons dated May 15 that not only was making the girls strip completely naked a violation of their charter rights but that the law authorizing routine strip searches is also unreasonable.Â
“A front line youth justice worker, faced with an issue involving a youth in detention, should be able to determine from these reasons the requirements for a constitutionally compliant strip search going forward,” Campbell wrote.
“Articulating to a manager information that gives rise to a reasonable suspicion that a detained youth possesses contraband, or that a strip search is otherwise necessary, and securing the manager’s approval, is likely to be sufficient.”
The judge also wrote how other institutions — adult detention facilities and the police — were held to a higher standard and levelled criticism at the provincial government for how the searches had been conducted on young people.
“It is striking how little thought has apparently been given to the routine, reflexive nature of these searches and the triggers for them.”
Youth detention in Ontario is the responsibility of the Ministry of Children, Community and Social Services (MCCSS). Neither the ministry nor the minister responsible, MPP Michael Parsa, responded to emailed requests to respond to the judge’s findings on Friday.
The strip searches of the girls took place at three separate youth detention facilities: Woodview in London, operated by Craigwood Children Youth and Family Services; Sundance in Kingston, operated by the St. Lawrence Youth Association; and the Creighton Youth Centre in Kenora.
A majority of youth in provincial detention are held in facilities operated by third parties — organizations the government contracts to carry out the detention in locations across the province. Almost all of the girls held in custody in Ontario are sent to these facilities, which handle both pre-trial detention for youth who have not been proven guilty and custodial sentences after a trial.
The girls were being held under the former circumstance, awaiting bail hearings and before any trial to determine wrongdoing.Â
The four girls who faced trial in Superior Court were collectively strip searched more than a dozen times, each girl being subjected to stripping completely naked at least four times and some as many as six times.
The judge heard about each of their individual experiences and how the searches were conducted, which he detailed in his decision.
Typically, the girls were brought to a private area, where they were told to undress. They were sometimes provided a towel ahead of time or after a youth worker re-entered the area where they had stripped. The girls were frequently made to squat and cough and then told to drop the towel and spin 360 degrees before being asked to show behind their ears, inside their mouths and to shake their hair.
All four girls described the searches as humiliating, one saying she felt “completely disgusted and embarrassed” after the first search at Sundance, the decision said. Another described the searches as “highly traumatic.”
In an affidavit, that girl wrote that the experience exacerbated ongoing body image issues.
“These body images have led to a complicated relationship with my body and how I view myself,” she wrote. “My experiences at Sundance and Craigwood, where I was made to undress at the demand of adult strangers, have worked to complicate further how I view myself. I am constantly thinking about how people view my body and wondering if I am being judged as a result of these experiences.”
Some of the girls resisted the searches, including after some were flown overnight to the facility in Kenora — a more than 15-hour drive away — and were told they would be strip searched upon arrival.Â
That was a surprise to the girls, Campbell wrote, who knew youth court judge Justice Maria Sirivar had earlier ordered one of their co-accused not be strip searched. But Creighton’s practice, as was the case with the other facilities, was to segregate the girls from other detainees and programming until they consented to a search. Each time, the girls relented.
A provincial regulation under the Child, Youth and Family Services Act permits strip searches in youth detention facilities but does not spell out how they should be conducted. Ministry policy allows for the routine searches and sets out a process for conducting them that forbids youth from being completely undressed at any time. Each facility is then required to create their own internal policies that align with the ministry standards. The court was shown those policies and found that they were not equal — some prohibiting total nudity and others requiring it.
Sundance’s policy in 2023 “expressly contemplated full nudity, exposed to the searcher,” Campbell’s decision said. The policy was amended in 2024 to explicitly prohibit full nudity but still required youth to expose their entire backside before covering themselves, turning around, and then showing their entire front body. Campbell found the amended policy continued to defy the law, ministry standards and “common sense.”
The judge also found that regular inspections of the facility by MCCSS — an annual licensing inspection and a “comprehensive review” every four years — failed to result in any corrective actions before the girl swarm case brought the issues to light.
The Supreme Court of Canada found in a landmark 2001 decision that routine strip searches of adults by police violated detainees charter rights. The case did not extend to people in custody, but Campbell noted much advocacy and reporting has been critical of routine searches in custody. He cited a 2022 report from the Ontario Human Rights Commission that recommended to the province’s solicitor general that strip searches be limited and routine strip searches prohibited in all correctional facilities.
In February 2024 — after the treatment of the girls charged in Lee’s swarming death was revealed in court — the ministry posted that they were considering regulatory amendments to the laws governing strip searches in youth detention facilities and invited feedback.
Ontario’s ombudsman, a provincial watchdog, submitted recommendations that included strip searches be a “last resort” and to prohibit routine strip searches, noting possible charter implications.
No final decision about reforms has yet been made public, but in documentation about the proposed reforms, the ministry said it is looking to formalize procedures in the regulation to “create consistency and transparency” for how strip searches are conducted and to “support the health and safety of all staff, visitors and young persons”.
Among the possible changes spelled out is making clear in the law that young people are not to be completely undressed for any period of time. Routine searches are not mentioned.
MCCSS and Parsa’s office did not respond to questions Friday about whether routine strip searches would continue to be permitted, what alternatives have been considered and what data exists about how often the searches result in contraband being found.
The Star has previously filed a freedom of information request to learn how often youth are strip searched in the province, which the ministry denied. The Star appealed that decision and is waiting for a ruling from the Information and Privacy Commissioner of Ontario.Â
But as part of that process, the ministry said they do not know how often young people are searched in their own facilities or the ones they contract, saying that while they require a record of each search they do not collect or compile that data.
Lawyer Mohsen Seddigh, whose firm Sotos, earlier brought a class action on behalf of another girl who was strip searched at Sundance, said Campbell’s decision found that routine strip searches harms children and breaches their constitutional rights.
“That should be the definitive end of this practice,” he said.
“Routine strip searches must stop immediately across Ontario youth facilities.”
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