Strip search not discriminatory, rules Quebec Appeal Court

Strip search not discriminatory.

A Quebec Human Rights Tribunal that found that a prisoner had been discriminated against during a strip search because he had been viewed by a correctional services officer of the opposite sex was overturned by the Quebec Court of Appeal after it concluded that there was no evidence that the prisoner’s sex played any role in the differential treatment to which he was subjected.

The Tribunal found that the plaintiff suffered discriminatory treatment with respect to the rights enshrined in ss. 4 (but not 5), 24.1, 25 and 26 of the Québec Charter of Human Rights and Freedoms. It ordered the appellants solidarily to pay the plaintiff $6,000 for moral damages, and ordered a prison guard to pay $1,000 in punitive damages.

However, the Tribunal refused to issue an order that would compel the Attorney General of Quebec to provide mandatory training to correctional system staff to ensure that they conduct strip searches with dignity and privacy. The Tribunal found that the regulations, directives, instructions and policies in place dealing with strip searches comply with the Quebec Charter, and that training was already being provided to prison guards.

In Procureur général du Québec c. Commission des droits de la personne et de la jeunesse (Duperron), 2024 QCCA 12, the Appeal Court, informed by the Supreme Court of Canada’s decisions in Sharma, Ward and Weatherall, found that the complainant was not treated like his fellow inmates and that he was not treated as all persons incarcerated in Québec detention facilities must be treated.

But the Appeal Couryt held that the distinction in this case “owes nothing to the protected characteristic of sex,” as per s. 10 of the Quebec Charter.

“The complainant was not only treated differently from female prisoners, he was treated differently from all prisoners, male or female,” held the Appeal Court. “On the fateful day, he was not given the benefit of a policy applicable and applied to all prisoners. This undermines the argument of unequal treatment based on gender, i.e. where gender was a factor.”

According to the regulatory framework applicable to all provincial detention facilities, strip searches are supposed to be conducted by two members of staff: the person conducting the search (by visual inspection), who stands at a certain distance from the detainee, and the person assisting him or her for security reasons. Except in an emergency, the prison guard conducting the strip search must be of the same sex as the prisoner being searched.

That’s not what happened in this case. The guard who was assisting the strip search for security reasons was a female prison guard. “But this is not enough to establish a distinction within the meaning of s. 10 of the Quebec Charter,” held the Appeal Court in a per curium and unanimous 17-page decision. “The complainant must also have been treated differently from other people in a comparable situation.”

The Appeal Court heeded guidance from Weatherall, which held that the effect of cross-gender searching is different and more threatening for women than for men and that  different treatment may not be discriminatory.

In the case at bar, the Appeal Court found that the female prison guard who was assisting the strip search saw the complainant naked briefly. But that did not breach ss. 25 or 26 of the Quebec Charter in light of Weatherall. Under s. 25, every person arrested or detained must be treated with humanity and with respect, while 26 states that every person in a correctional facility has the right to separate treatment appropriate to his sex.

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