Court File and Parties
Date: January 8, 2016
Court File No.: Brampton 14-15375-00
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Krystina D'Andrade
Before: Justice J.W. Bovard
Heard on: October 14 and 15, 2015
Reasons for Judgment released on: January 8, 2016
Counsel:
- Ms. S. Stackhouse, counsel for the Crown
- Mr. P. Dotsikas, counsel for the defendant Krystina D'Andrade
BOVARD J.:
Introduction
[1] These are the court's reasons for judgment after the trial of Ms. Krystina D'Andrade on a charge of 'Over 80'.
[2] Officers Qadree and Amaro stopped Ms. D'Andrade at 4:45 a.m. on December 7, 2014 to investigate her sobriety after they saw her swerving in her lane. After speaking to Ms. D'Andrade, Officer Qadree made a demand on her to provide a breath sample into an approved roadside screening device (ASD). He did not have an ASD so he called for one to be brought to the scene. Officer McClinchey, a female officer, arrived shortly with an ASD. Ms. D'Andrade gave a breath sample and failed the test. Officer Qadree arrested her for 'over 80'.
[3] Officer McClinchey conducted a pat down search incident to the arrest. She and Ms. D'Andrade were standing on the road during the search. During the search Officer McClinchey unzipped Ms. D'Andrade's sweater. Ms. D'Andrade was wearing a see through bra and her breasts were exposed.
[4] Ms. D'Andrade says that Officers Qadree and Amaro were standing close by and saw everything. The officers deny that they saw anything.
[5] The defence argues that this constitutes a strip search.
[6] The Crown argues that the search does not qualify as a strip search.
Issues
[7] I found the defence's submissions on what sections of the Charter he was proceeding under to be confusing.
[8] The defence's Charter application states in paragraph 5 that "This is an application to stay these proceedings, pursuant to section 24 (1) of the [Charter], due to a breach of…s. 8 of the Charter".
[9] The application also states that the police's search of Ms. D'Andrade "constituted and unauthorized and, therefore, illegal strip search in violation of section 8 of the Charter".
[10] On page 2 of the transcript of the defence's submissions on October 15, 2015, the defence stated, "Essentially it's Section 7…Ultimately it's going to be a Section 7 argument…" The court confirmed with counsel saying "I'm not going to bother with Section 8". Defence counsel responded "Right".
[11] But on page 8 of the transcript, counsel stated "it's somewhere between Section 8 and Section 7, in the sense that, yes, it is a search, but I'm not applying under 24 (2) really to exclude the readings on that basis. It would – my submission would be a 24 (1) application would be more applicable…Your Honour has that residual remedy under 24 (1)…even in a Section 8 set of circumstances".
[12] The court asked the defence "So you're not seeking relief under 24 (2), just 24 (1)?" The defence said that he would get back to that in a moment, but I am not sure that he ever did.
[13] I will resolve this confusion by treating it as an application under s. 8 of the Charter. The cases that I read regarding strip searches dealt with the issue under s. 8, so I will also.
[14] The defence stated that there are no other issues.
The Evidence
[15] On December 7, 2014, Officer Qadree had been a police officer for two and one half months. He was working under the supervision of Officer Amaro. At 4:45 a.m. they saw Ms. D'Andrade swerving within her lane as she drove down Dixie Road. She stopped at a red light, but stopped well beyond the crosswalk.
[16] When the light turned green, she kept driving and swerving in her lane. The officers put on their emergency lights to pull her over. They wanted to check her sobriety. Ms. D'Andrade switched lanes, went up on the curb with both tires, came down off of the curb and stopped.
[17] Officer Qadree approached the driver's side of Ms. D'Andrade's car and spoke to her. He smelled a strong odour of alcohol coming from her breath. He asked her if she had drunk anything that night. She told him that she drank one Smirnoff Ice at her cousin's home.
[18] Officer Qadree formed the opinion that she had alcohol in her body and had been driving a motor vehicle. He asked her to step out of her car. At 4:48 p.m., he made a demand that she provide a breath sample into an Approved Screening Device (ASD). He called for another unit to come to the scene with the ASD. Ms. D'Andrade waited in the back of Officer Qadree's cruiser.
[19] At 4:54 a.m., Officer McClinchey, a female officer, arrived with the device. At 5:00 a.m., Ms. D'Andrade took the breath test. At 5:02 a.m., she failed the ASD test and Officer Qadree arrested her for 'Over 80'. She repeatedly asked him for a break and to let her go. She told him that she had just broken up with her boyfriend and she was "having a lot of issues". She was a dental hygienist and she helped people. She was very upset and crying.
[20] Officer Qadree asked Ms. D'Andrade to step out of his cruiser. He handcuffed her to the rear and handed her over to Officer McClinchey so that she could search her. Officer Qadree testified that he stood close to Officer McClinchey and watched her search Ms. D'Andrade. It was minus 5 degrees.
[21] He described the search as follows:
She patted the accused down, made sure there's no weapons or anything in her pockets. She didn't have much on her. At this time I don't recall exactly if the accused was facing the vehicle or was facing Constable McClinchey. The accused was wearing a sweater. The sweater had a, a large neck, I do recall it. And I don't recall her taking the sweater off at all or she didn't have any jeans. I do recall her wearing tights. It was a black tight.
[22] Officer Qadree contradicted himself in cross-examination regarding whether he watched Officer McClinchey search Ms. D'Andrade. Defence counsel suggested to him that during the search he and Officer Amaro were watching the search take place. Officer Qadree responded that he did not:
recall that and that's why I don't remember a lot of what happened during the search. And being I mean, because of being new there's a lot going through my mind. The last thing I want to do is stand there while the female officer was searching her...So I did not watch the search go down and I don't recall how it went down…I don't recall me standing there watching…I don't have a good recollection of what happened, was it a quick pat down or not.
[23] When defence counsel reminded him that in examination-in-chief he said that he watched Officer McClinchey search Ms. D'Andrade he said "'Cause I handed her over to her…What I'm trying to explain to you is that I don't know exactly how she was searched." Then he said that he did not "know exactly where I was at the time [of the search]", which contradicts what he said in chief that he stood close to Officer McClinchey while she searched Ms. D'Andrade.
[24] Then he said that he may have been moving around while Officer McClinchey conducted the search. Defence counsel asked him if he "saw her do the pat down?" Officer Qadree replied "Possibly. I don't, I don't remember it exactly, but yes...I couldn't have not watched it...I mean, I just handed her over to her, and yes, she was being patted down. I'm not sure if I was watching it from further, closer. I don't – I can't recall that".
[25] He remembered that Ms. D'Andrade's sweater was thick and that it fit her tightly. It looked "like it was fine fitted on her body". He said that it was not "clinging to the body", but agreed that "it was fairly clinging to her body". He did not recall whether it had a zipper. He did not remember if the sweater was taken off.
[26] With regard to it having been unzipped, he was not "too sure". He would not have remembered because Ms. D'Andrade would have been facing the cruiser or Officer McClinchey. He did not remember that Ms. D'Andrade's sweater was unzipped exposing her in nothing but her bra. All he could say was that her "shirt" was not taken off.
[27] He did not remember whether Ms. D'Andrade was facing Officer McClinchey when she searched her. They were at the rear of his cruiser. He did not recall standing on the sidewalk with Officer Amaro watching Officer McClinchey search Ms. D'Andrade.
[28] Officer Qadree did not recall where Officer Amaro was during the search. He "would have been in the area…" There was no one else at the scene.
[29] Had Officer McClinchey not been there, Officer Qadree would have "patted [Ms. D'Andrade] down really quick and would be on my own back to the station where she would have been thoroughly searched by a female officer…"
[30] After Officer McClinchey searched Ms. D'Andrade, Officer Qadree put Ms. D'Andrade into the back of his cruiser and took her to the police station for breath tests into an Intoxilyzer. He noted her height as 4 feet, 11 inches. She weighed 117 pounds.
[31] Ms. D'Andrade's breath results were 161 and 166 mgs of alcohol in 100 Ml of blood. Officer Qadree served her with the certificate of qualified breath technician and the notice that the Crown would seek to introduce it at trial. The certificate and the notice are exhibits on consent.
[32] Officer McClinchey testified that when she searched Ms. D'Andrade she did not have any information that Ms. D'Andrade had a criminal record, outstanding charges or any prior contact with the police.
[33] Ms. D'Andrade was standing on the street curb when she searched her. They were facing each other. Officer McClinchey did not know where officers Qadree and Amaro were. She did not remember what Ms. D'Andrade was wearing other than that she had on a "light zip up sweater".
[34] Officer McClinchey described her search of Ms. D'Andrade as follows:
I recall the defendant was outside of the police cruiser on the curb. I don't know exactly what colour she was wearing, but she was wearing a zip up. I unzipped her shirt for a normal search, incident to arrest. I noticed she had a bra on, so I quickly zipped the shirt back up and continued the search as usual.
[35] Officer McClinchey did not ask if she could unzip Ms. D'Andrade's sweater or warn her in any way that she was going to do that. She unzipped the sweater right to the bottom until the zipper disconnected.
[36] Officer McClinchey agreed with defence counsel that it would have been enough to do "a pat down around her sweater and her legs if you needed to check see (sic) if there was anything hidden in the tights…" She admitted that she did not see any bulky areas in the sweater where something may have been hidden.
[37] The officer said that it was possible that there was nothing about the sweater that suggested that there was anything underneath it that posed a danger to anyone. She agreed with defence counsel that "if there was any doubt about areas beneath that tight sweater that could hide something, all you had to do was a pat down…"
[38] She assumed that she would have had a light shirt under the sweater. She was just checking to see the pockets for weapons "or anything". This is what she normally does. She had zipped down other persons' sweaters before. It is part of the search. Officer McClinchey said that in her experience when persons have on a zip up shirt they generally have something on underneath as well. In order to be thorough she conducts a search of the garment underneath when she does a pat down search.
[39] Although Officer McClinchey agreed that unzipping Ms. D'Andrade's sweater was not a minor incident and that it was "significant and embarrassing" to Ms. D'Andrade, she did not include the incident in her notes. She described the search as simply a "pat down search". The reason was that she did not recall the unzipping being that big of an incident. This seems to contradict her testimony that it was not a minor incident.
[40] Officer Amaro testified that he was Officer Qadree's coach officer on the morning in question. He said that had Officer McClinchey not been a female he would have called for a female officer to search Ms. D'Andrade. If this would have caused too much delay, he would have done a "very quick back of the hand pat down on pockets just to make sure there aren't any bulges, possible weapons and such, and then transport to Division where then a female officer conducts a search there".
[41] Officer Amaro did not see Officer McClinchey search Ms. D'Andrade. He could not remember where Officer Qadree was during the search. The search took place "near our vehicle…on the passenger side where the curb and sidewalk would've been".
[42] He only had a vague recollection that "there was a, a zip up sweater or a zip up jacket that the defendant was wearing at the time, and my – I don't recall exactly where I was standing but I overheard the defendant saying something about to zip up my shirt or something like that. At which point, I looked over and Constable McClinchey was zipping up her shirt again". He did not see any part of Ms. D'Andrade's body or her bra.
[43] He said that if he were searching a man who had on a "zip up" he would unzip it because there could be another shirt with pockets underneath. The pockets could contain weapons, or a means of escape. He said handcuff keys are really small. One has to be thorough. He agreed, however, that the extent of the pat down search depends on the nature of the offence and on the situation.
[44] Defence counsel brought Officer Amaro back to the situation in the case at bar. He pointed out that:
looking at this particular sweater and the way it fits…We're talking about an over 80 with a female who's 4 11 weighing 117 pounds at the side of the road where she's going to be taken to a police station for samples of her breath, right? This isn't to see if somewhere tucked in there somewhere hidden is a, a little key that might be used or a, a paperclip that may be used to open a handcuffs, is that what we're looking for at the side of the road little keys and paperclips?
[45] Officer Amaro added, "Among other things razor blades and knives and whatever else may be used".
[46] Officer Scarchilli, the breath technician, testified that Ms. D'Andrade's breath readings were 166 and 161 mgs of alcohol in 100 ml of blood. There is no issue with regard to the taking of the breath tests.
[47] Dr. Corbett is an expert toxicologist. His report was made an exhibit on consent.
[48] Ms. D'Andrade testified only on the Charter application. She said that she was on her way to a Tim Horton's when the police stopped her. After the police arrested her they put her in handcuffs. She was between the front of Officer Qadree's cruiser and the back of her car.
[49] She was wearing a sweater with only a bra underneath, tight, black leggings and knee high boots.
[50] Officer McClinchey did a pat down search. They were standing on the road facing each other. Officers Qadree and Amaro were three to four feet away standing on the curb facing Ms. D'Andrade. She locked eyes with them several times.
[51] In doing the search, Officer McClinchey touched her "Everywhere". She touched around her breasts and she went down her arms and her torso. She touched the front of her stomach and her sides and around her waist. She told her to spread her legs and then went down one leg, up the inseam and down the other leg.
[52] She "pretty much started at the top and she worked her way down". And then she came back up to the top and unzipped her sweater without warning and without saying anything to her. The sweater fell open and exposed her "completely see through" bra. She said that "You can see everything". Officers Qadree and Amaro "watched the whole thing".
[53] Ms. D'Andrade was embarrassed and mortified. She asked Officer McClinchey what she was doing. The officer told her that she thought that she had something on underneath the sweater.
[54] She said that Officer McClinchey took her time zipping up the sweater. But she conceded that since the she unzipped it completely and the zipper separated at the bottom, "it kinda took a little while for her to get it going, 'cause, I guess, the material that it is, the knitted part, it did get snagged a little. So it took a little while to actually cover where it needed to cover before I was comfortable".
[55] Afterwards, Ms. D'Andrade tried to talk to Officers Qadree and Amaro about the incident, but they "didn't even acknowledge that I said anything".
[56] Ms. D'Andrade said that she did not go out that night with just the sweater on. She had a jacket that was left in her car.
[57] That was all of the evidence.
Findings of Fact
[58] I make the following findings of fact. Officers Qadree and Amaro pulled over Ms. D'Andrade for a routine investigation into her sobriety after they saw her weaving in her lane. After speaking to her, Officer Qadree made a demand that she provide a breath sample into an ASD. He called for another officer to bring an ASD to the scene.
[59] Officer McClinchey, a female officer, arrived shortly afterwards with the ASD. Ms. D'Andrade gave a breath sample and registered a fail. Officer Qadree arrested her for 'over 80'. He handcuffed her to the back.
[60] None of the officers had any information that Ms. D'Andrade had a criminal record, outstanding charges or that she had ever been involved with the police. She was 4 feet 11 inches tall and weighed 117 pounds.
[61] Officer McClinchey performed the search incident to arrest. She performed the search on the street at the scene. Both officers Qadree and Amaro were within three to four feet watching the search.
[62] I preferred Ms. D'Andrade's evidence on this point for the following reasons. I find that Officer Qadree's evidence regarding where he was during the search was contradictory, rambling, evasive and not credible. I do not accept it. I find that it is curious that Officer Amaro being the senior officer and Officer Qadree's coach officer would have no recollection of where he was during the search. I find that this amnesia is too convenient in the circumstances of this case. I am suspicious of the veracity of his testimony in this regard and I do not accept it.
[63] Further, I find that given that Ms. D'Andrade's breasts were exposed while wearing a see through bra as she was being searched on the street that she would have been acutely aware of who was watching the scene unfold. Therefore, I accept her testimony that Officers Qadree and Amaro were facing her as they stood on the curb three to four feet away from her and that they saw the whole search take place.
[64] Ms. D'Andrade had on a very tightly fitting sweater. Officer McClinchey did not see any bulky areas in the sweater where something may have been hidden.
[65] Without warning, Officer McClinchey unzipped completely Ms. D'Andrade's sweater and it fell open exposing her breasts in a completely see through bra. Although Officer McClinchey attempted to zip up the sweater right away, the zipper got caught on the material and it took several moments to zip it up.
[66] Officer McClinchey assumed that Ms. D'Andrade was wearing a light shirt under the sweater. She wanted to check the pockets for weapons or other objectionable items. This is Officer McClinchey's normal practice. She does it with men and women. Her experience has been that persons usually wear something underneath zip up shirts.
[67] In the circumstances, it would have been sufficient to do a pat down search around her sweater.
The Law
Definition of Strip Search
[68] In R. v. Golden, the Supreme Court of Canada said that a strip search is "the 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, namely genitals, buttocks, breasts (in the case of a female), or undergarments". (emphasis added)
[69] The court stated that "This definition distinguishes strip searches from less intrusive "frisk" or "pat-down" searches, which do not involve the removal of clothing…"
[70] In Golden, the court dealt with a situation where the police pulled down the accused's pants and his long underwear. They wanted to inspect his underwear and buttocks to look for drugs.
[71] In the case at bar, Officer McClinchey clearly intended to conduct a visual and tactile inspection of the garment that she assumed Ms. D'Andrade was wearing underneath her sweater. She speculated that it was a light shirt. Does this qualify as an "undergarment" as the word is used in the Supreme Court of Canada's definition of strip search?
[72] The Macmillan online dictionary defines undergarment as "a piece of clothing that you wear next to your skin under your other clothes. A more usual word is a piece of underwear".
[73] The Cambridge English Dictionary (online) defines undergarment as "a piece of underwear". It defines underwear as "clothes worn next to the skin under other clothes".
[74] In Golden, the police wanted to examine the accused's long johns. No one would disagree that this is an article of clothing that is private and not meant for public view. This is the context in which the Supreme Court made "undergarments" part of its definition of "strip search".
[75] I find that in order for an article of clothing to be considered to be an undergarment it must be an article of clothing that is not intended for public viewing. Obvious examples are bras, panties, boxer shorts, bikini briefs, and long underwear.
[76] I doubt that an exhaustive list of what constitutes an undergarment can be formulated. For less obvious examples it will depend on the context of the situation.
[77] I will now turn to the case at bar. It was minus five degrees. Ms. D'Andrade was wearing a stylish, tight, form fitting sweater, black tights and knee high boots. She was dressed up. It was a weekend night (albeit Sunday). In these circumstances, I find that whatever articles of clothing she might have been wearing under the sweater were not for public eyes. I find that such articles would possess a sufficient degree of privacy that would allow them to be classified as "undergarments" as intended by the Supreme Court in their definition of strip search.
[78] Consequently, I find that Officer McClinchey performed a strip search on Ms. D'Andrade when she unzipped her sweater and exposed her breasts. Once Officer McClinchey unzipped Ms. D'Andrade's sweater it did not matter that she assumed that she was wearing a shirt underneath the sweater because she stated that she unzipped the sweater to look at the shirt that she assumed she was wearing underneath. I find that in doing this she rearranged Ms. D'Andrade's clothing "so as to permit a visual inspection" of her undergarments, which is the definition of a strip search.
[79] In Golden the court stated that:
In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter (para. 99).
[80] In the case at bar, the search was incident to a lawful arrest. But was it reasonable to have conducted a strip search on Ms. D'Andrade? I find that it was not. In the circumstances of this case, the police did not establish reasonable and probable grounds to justify the strip search.
[81] In the case before me, the police fell short of proving that a strip search was necessary to ensure that Ms. D'Andrade was not concealing any weapons or other things that may pose a danger. Officer McClinchey admitted that a simple pat down search would have sufficed, but she went farther. The circumstances as outlined above did not reveal even a scintilla of information or evidence that Ms. D'Andrade posed a danger to anyone. Officer McClinchey testified that she was just doing what she routinely does. Officer Amaro's evidence supported this practice. I also find that there was no reasonable prospect of discovering evidence of 'over 80' by performing the search.
[82] With regard to strip searches in the field, the court in Golden stated that:
Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.
[83] The Crown did not prove that any of these circumstances exist in the case at bar.
[84] R. v. Lee was a case in which the police arrested a person for impaired driving and later at the police station ordered her to take off her bra because they considered that the under wiring posed a danger. The court found that this constituted a strip search.
[85] Madam Justice Fuerst stated that:
To fall within the power of search incident to a lawful arrest, a strip search of the appellant could be conducted only for the purpose of discovering evidence related to her arrest for impaired driving, and/or a possible weapon that the pat-down search revealed was secreted on her person, as there was nothing in the circumstances of the case that raised the risk she carried a concealed weapon.
[86] Officer McClinchey's search was certainly not going to reveal evidence of an excessive blood alcohol concentration in Ms. D'Andrade's body, which is the offence for which the police arrested her.
[87] In addition, there is nothing in the circumstances that raised the risk that Ms. D'Andrade was carrying a concealed weapon. Fuerst J. pointed out that in order to justify a strip search the pat down search had to have revealed a possible weapon that was secreted on the accused's person. There is no evidence of that in the case at bar. Officer Qadree testified that Officer McClinchey patted down Ms. D'Andrade and "made sure there's no weapons or anything in her pockets. She didn't have much on her".
[88] In the circumstances of this case, the officers' evidence of the dangers of possible secreted objects under Ms. D'Andrade's sweater that might cause harm has no air of reality. Ms. D'Andrade did not have a criminal record or outstanding charges. There was no evidence that she had ever had contact with the police or that she was dangerous in any way. She was 4 feet 11 inches tall. She weighed 117 pounds. She was upset, but she was not acting dangerously. There were three police officers on scene with her. There was no one else there.
[89] Officer McClinchey agreed that it would have been enough to just do a pat down search around her sweater. She admitted that she did not see any bulky areas in the sweater where something may have been hidden. She agreed with defence counsel that "if there was any doubt about areas beneath that tight sweater that could hide something, all you had to do was a pat down…"
[90] Officer McClinchey testified that she normally unzips garments to look underneath them. One can say then, that it is her policy. The court in Golden recognized that "police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees". (emphasis added)
[91] Therefore, having found that Officer McClinchey performed an unreasonable strip search of Ms. D'Andrade, I find that she breached her rights under s. 8 of the Charter. Should the evidence of the breath tests be excluded?
Exclusion of Evidence
[92] In R. v. Grant, the Supreme Court of Canada gave the following directions to decide if evidence obtained as a result of a charter breach should be excluded:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. (Paragraph 71)
[93] I classify "the Charter-infringing state conduct" as very serious. It was an unnecessary strip search on the roadside of a female that exposed her breasts while two other officers looked on. It is unquestionable that these types of searches "represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them". I do not find that Officer McClinchey's assumption that Ms. D'Andrade was wearing a shirt under her sweater mitigates the seriousness of the breach significantly. She should have checked her assumption with Ms. D'Andrade before unzipping her sweater. That would not have been hard to do. She was careless in this regard.
[94] In Grant, the court stated that "The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law".
[95] With regard to the second factor, in Grant the court explained the proper analysis as follows:
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests...The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.
[96] Ms. D'Andrade testified that she was embarrassed and mortified. Considering the circumstances of this case, what the court said in Golden about the impact of strip searches, and Ms. D'Andrade's evidence about the effect of the search on her, I find that the impact of the breach on Ms. D'Andrade's Charter-protected interests was significant.
[97] Turning to the last factor, society has an interest in the adjudication of cases on their merits. The evidence of the breath tests is highly reliable evidence. Without this evidence the Crown's case fails. However, I find that in the case at bar the Charter breach was so serious and the effect on Ms. D'Andrade was so significant that to admit the evidence would bring the administration of justice into disrepute.
[98] Therefore, the evidence of the results of the breath tests is excluded pursuant to s. 24(2) of the Charter. There being no other evidence against Ms. D'Andrade, the charge is dismissed.
Released: January 8, 2016
Justice J.W. Bovard