Sang Eun Lee was arrested by the police and taken to the local station for breathalyzer tests. When a pat down search was conducted and it was discovered that she was wearing an underwire bra, she was told to remove it. She complied with the request, taking off her shirt and sweater along with the bra exposing her breasts for a brief period of time to the female officer who was present.

At trial, Ms. Lee was unsuccessful in establishing that the police conduct amounted to an unreasonable strip search contrary to section 8 of the Charter. She appealed her conviction and the finding of the trial judge: 2013 ONSC 1000.

Contrary to the trial judge, Fuerst J., sitting as a summary conviction appeal court judge, found that the conduct of the police did amount to a strip search:

Unfortunately, the trial judge failed to consider that the court’s definition of a strip search is not limited to removal of clothing to inspect a person’s private areas. The court’s definition of a strip search is two pronged: “[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments” [emphasis added]. On the trial judge’s own findings, Constable Martin directed the appellant to remove her bra so that the police could visually inspect that undergarment, and then store it. This is not a case like R. v. Backhouse (2004), 194 C.C.C. (3d) 1 (Ont. C.A.) where the accused’s clothing was seized because it might yield forensic evidence of the crime charged. Constable Martin’s direction to the appellant to remove her bra fell squarely within the definition of a strip search [para 37].

The summary conviction appeal court decision also questioned the trial court’s analysis leading to the conclusion that the removal of Lee’s bra was lawful and justified in the circumstances. Fuerst J. observed that “[t]he only ‘circumstances’ to which [the trial judge] referred were that the appellant was wearing an underwire bra, and the police had a policy ‘invoked routinely and without exception’ to direct the removal of and confiscate underwire bras from female prisoners because of concern that the prisoner ‘could remove the two pieces of wire and potentially damage the cell area, or cause injury to themselves, other prisoners or the police, while in custody at the station’” [para 41].

Madam Justice Fuerst was also critical of the trial court judge’s application of the Golden decision to the evidence before the court at trial:

The trial judge failed to consider the court’s caution in Golden, that concerns that short-term detainees may conceal weapons must be addressed on a case-by-case basis and cannot justify routine strip searches. A “policy” applied “without exception” to any female detainee wearing an underwire bra is not a case-specific circumstance. Rather, it is a basis for routine strip searches of female detainees, in contravention of section 8 of the Charter [para 42]; [emphasis added]

Madam Justice Fuerst took pains to detail the circumstances that were not considered in the trial court’s analysis:

The appellant was arrested for impaired driving;
She would be spending only a few hours in the police station cells and was not being held for a bail hearing;
She would be monitored by video camera while she was in the cells, and even before that when she was in an interview room and then with the breathalyzer technician;
She would be placed in a cell by herself and would not be in contact with any other prisoner;
She was impaired to such an extent that her physical coordination was affected;
The pat-down search at the station did not reveal that her bra was coming apart or damaged such that the underwiring was exposed or easily removable from its casing;
Although she was crying and upset, she made no threats to harm herself or others;
She was not violent or physically aggressive with the officers; and
The officers had no information that she had a history of mental health problems [para 43].

The summary conviction appeal court rejected, as unsupported by the evidence, the analogy advanced by the Crown that the underwire bra was the equivalent of two pieces of rigid metal in an arrestee’s pocket:

The trial judge agreed with the analogy advanced by Crown counsel, that there is no difference between two rigid pieces of metal wire whether in an arrestee’s pocket or in her bra. That analogy was not supported by the evidence in this case. Sergeant Robertson acknowledged that the wiring in an underwire bra is sewn into the bra itself, and that in order to remove it, a woman would have to unstitch the bra. Wearing an underwire bra is not tantamount to carrying two wires loose in a pocket, where they are immediately accessible to the wearer. Further, Sergeant Robertson and Constable Martin were asked, but could not identify any occasion when a female prisoner used or attempted to use the wiring from her bra to injure herself, police officers or other prisoners, or for that matter to damage a cell. Nor was there evidence that the unwritten police policy, which according to Sergeant Robertson had been in effect in his district for over 20 years, was re-evaluated after release of the decision in Golden. To the contrary, it seems that it was not [para 45].

Ultimately, in light of the multiple errors identified by her in the analysis of the trial court’s decision, a new trial was ordered. Fuerst J. commented that depending on the findings at the new trial, systemic conduct by the police violative of the Charter may be a relevant consideration in a section 24(1) application.

While this decision largely focuses on the shortcomings of the analysis of the trial judge, it highlights the difficulties the police encounter when they rely, as a matter of routine, on standard police practices or police policy to justify their conduct without turning their minds to the circumstances of the particular case. It also highlights the importance for officers who testify in Charter applications to be prepared to articulate the thought processes behind their actions in order to explain or justify them when reviewed by the courts. An incantation by the police that they were following policy, without more, is rarely compelling.

BCH