ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1481

DATE: 20130213

BETWEEN:

Her Majesty The Queen

Respondent

– and –

Sang Eun Lee

Appellant

Ms. J. Gleitman, for the Respondent

Ms. L. Shemesh, for the Appellant

HEARD: October 26, 2012

REASONS FOR JUDGMENT ON APPEAL

FUERST J.:

Introduction

[1] After York Regional Police officers arrested Sang Eun Lee for impaired operation of a motor vehicle, they took her to the local police station for breathalyzer tests. When a pat-down search conducted at the station revealed that she was wearing an underwire bra, she was told to remove it. In the presence of a female police officer, Ms. Lee took off her shirt and sweater along with her bra. As a result, her breasts were exposed for a brief period of time.

[2] At trial, defence counsel contended that the police subjected Ms. Lee to a strip search, that such a search was unreasonable and violated section 8 of the Canadian Charter of Rights and Freedoms, and that the proceedings should be stayed under section 24(1).

[3] The trial judge held that there was no strip search, that the police conduct was warranted and did not breach section 8, and that even if there was a section 8 breach, a stay of proceedings was not an appropriate remedy. She convicted Ms. Lee of impaired operation of a motor vehicle.

[4] Ms. Lee appeals her conviction, contending that the trial judge erred in finding that there was no breach of section 8, and in failing to grant a stay of proceedings.

Summary of The Evidence

[5] Ms. Lee was arrested for impaired operation of a motor vehicle around 3:40 a.m. on January 30, 2010. There were indicia she had consumed alcohol, including an odour of alcohol on her breath. A female officer, Constable Jennifer Martin, did a pat-down search of her at the scene, for safety reasons. Ms. Lee then was taken to the police district headquarters. The officer noticed when they arrived at the station that Ms. Lee was crying and had problems with her balance.

[6] As part of the booking process, Constable Martin wanted to do a better search of Ms. Lee than she had at the scene, to ensure that Ms. Lee had no evidence or weapons on her person. The officer described this as a “regular search” that is typically done of an arrestee brought into the station.

[7] The officer took Ms. Lee into a room off the booking area so that they had privacy. In examination in-chief, she said that she intended to do a pat-down search of Ms. Lee there, for drugs, alcohol and weapons. In cross-examination, she said that she was searching Ms. Lee for anything that she should not have on her person, because a person cannot have anything on them in the cells.

[8] Constable Martin patted down Ms. Lee just underneath the breast area to confirm the type of bra she was wearing. The officer testified she could tell that Ms. Lee was wearing an underwire bra.

[9] Constable Martin asked Ms. Lee to remove the bra. Constable Martin testified that she did so because she wanted to search the bra. Due to the structure of an underwire bra, things can easily be hidden in it. Additionally, the underwiring can be removed from the bra by the wearer and used as a weapon to harm police officers, to inflict self-harm, or to damage the police cells. Constable Martin testified that it was the practice of supervisors on her shift to seize underwire bras from arrestees for safety reasons, and return them at the time of release from police custody. Because Ms. Lee was impaired and crying, Constable Martin did not want her to keep the underwire bra.

[10] Constable Martin said that Ms. Lee pulled off her shirt, sweater and bra over her head, all at the same time. The officer was taken aback by this. She had expected that Ms. Lee would pull her bra out from under her shirt without taking off her shirt and sweater. She immediately told Ms. Lee to put her shirt and sweater back on and assisted her to do so. She admitted, however, that Ms. Lee was naked from the waist up for about 20 seconds.

[11] Constable Martin searched the bra, then gave it to the booking sergeant to put in a property bag.

[12] Ms. Lee was taken to an interview room while contact with a lawyer was arranged, then dealt with by the breathalyzer technician, and put in a cell, by herself, for four or five hours. She was monitored by video camera in all of these areas of the station, including the cells.

[13] Sergeant James Robertson, who was the booking sergeant that morning, testified that all prisoners who come into the station are searched before they are put in a cell, and their property is taken from them. After Ms. Lee arrived at the station, he had Constable Martin take her into a private room to search her. He testified that it is an unwritten policy at 2 District that all women wearing underwire bras who are going into the cells are asked to remove their bras, regardless of the offence with which they are charged, so that the bra can be searched and then taken from them. The concern is that the wire in the bra can be used as a weapon to cause self-harm, to harm an officer, or to scratch the cells. The bra is put in a property bag and later returned to the wearer.

[14] Sergeant Robertson said that the practice is for a female officer to observe the arrestee remove her bra, in a private room. He conceded that the arrestee’s breasts are potentially exposed during this process.

[15] He said that he had been a police officer for 28 years and as long as he could remember, the removal and taking of underwire bras had been the policy of every supervisor in 2 District. In response to a question by the trial judge, he said that as far as he knew, all police stations in York Region did the same thing.

[16] Sergeant Robertson conceded that he did not know of any occasion when an underwire bra was in fact used as a weapon. He agreed that underwiring is stitched into the bra, and in order to pull out the underwire, the stitching would have to be undone.

[17] Ms. Lee testified that when Constable Martin told her to remove her bra, no explanation was given as to how it should be done. Once Ms. Lee removed her bra her breasts were exposed, which made her feel ashamed. She covered them with her shirt.

The Findings of the Trial Judge

[18] After deciding that the Crown had proved beyond a reasonable doubt the appellant’s ability to operate a motor vehicle was impaired by alcohol, the trial judge went on to conclude that no strip search was conducted and there was no Charter violation.[^1]

[19] The trial judge accepted the testimony of Constable Martin that:

• After a pat-down search she asked the appellant to remove her underwire bra;

• She did not verbally instruct the appellant on how to remove her bra without removing her clothing, but she expected the appellant would unhook and remove her bra from underneath her shirt and sweater and hand it over while keeping her breasts concealed;

• The officer did not ask or direct the appellant to remove all her clothing above the waist;

• The officer was surprised when the appellant removed her shirt and sweater and then removed her bra, exposing her breasts to the officer;

• The officer immediately told the appellant to put her shirt back on and attempted to assist the appellant in covering her breasts with her shirt;

• The officer had no intention of inspecting the appellant’s breasts, and she did not touch or visually inspect them; and

• In the officer’s mind she was not conducting a strip search, but was merely requesting that an item of clothing be removed so it could be inspected and then secured in a property bag to ensure the safety of the appellant, other prisoners at the station, and the officers.

[20] The trial judge found that the appellant’s breasts were exposed for ten to twenty seconds.

[21] The trial judge referred to the definition of “strip search” in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, then concluded that the appellant was not strip searched:

[I]t was not contemplated that she remove her shirts and bra and expose her breasts. The Defendant’s upper body was not examined physically or visually by Constable Martin. Further, no items were removed, or requested to be removed, by police to allow a visual or physical examination of her body. The Defendant’s breasts were exposed due to the manner in which she chose to remove her bra; however, that type of exposure was neither contemplated nor intended by Constable Martin.

[22] The trial judge further found that it was police policy to “routinely and without exception” request the removal of, and confiscate, underwire bras from prisoners, because of concern that while in custody at the station, the prisoner could remove the wire and potentially damage the cell area, or cause injury to herself, other prisoners, or police officers. She concluded that the police direction to the appellant to remove her bra was lawful and warranted in the circumstances, and that the manner of the search was reasonable.

[23] The trial judge decided that even if the removal of the bra was a strip search violative of the Charter, a stay of proceedings was not warranted. She found that Constable Martin acted in good faith, and merely requested that the appellant remove an item of clothing for inspection and retention. She did not intend to strip search the appellant or humiliate her. Constable Martin was merely carrying out a routine policy put in place in her division to ensure the safety of prisoners and police officers. The reason for requesting the appellant’s bra was appropriate.

The Positions of the Parties

[24] On behalf of the appellant, Ms. Shemesh submits that Ms. Lee was subjected to an unconstitutional strip search in violation of section 8 of the Charter when she was required by the police to remove her bra. The trial judge erred in failing to correctly apply the definition of a strip search set out in Golden, above. It applies not just to the removal of clothing so as to permit a visual inspection of a person’s private areas, but also to the removal of clothing so as to permit a visual inspection of a person’s undergarments, as occurred in this case. The trial judge further erred in finding that the strip search was reasonable because the officer was carrying out a routine policy put in place in her division to ensure the safety of prisoners and police officers. The only appropriate remedy was a stay of proceedings under section 24(1) of the Charter.

[25] On behalf of the respondent, Ms. Gleitman submits that there was no strip search. The trial judge found that the officer’s purpose in asking Ms. Lee to remove her bra was to obtain it and search it, not to visually inspect her breasts. It was Ms. Lee who removed her clothing so that her breasts were exposed. The police are authorized at common law to search persons incident to arrest for weapons, and pursuant to their ancillary powers to search persons coming into custody at police stations to ensure the safety of the individual and the safety of officers. The trial judge found that Constable Martin acted in accordance with a police policy that was reasonable because of the safety concerns raised by the presence of pieces of wire in underwire bras. Even if the removal of the appellant’s bra constituted a strip search, a stay of proceedings was not appropriate in the circumstances.

The Governing Legal Principles

[26] In Golden, above, the Supreme Court of Canada addressed whether the parameters of the common law power of search incident to arrest were broad enough to encompass the authority to strip search. In that case, the accused was arrested for drug trafficking in a sandwich shop and twice strip searched there. The first strip search occurred on a landing at the top of an interior stairwell, with no-one other than the accused and the police officer present. The officer undid the accused’s pants, pulled back the pants and long underwear, and looked inside the underwear. He saw plastic wrap containing a white substance protruding from the accused’s buttocks. When he was unable to retrieve the plastic wrap, he took the accused into the shop. There, in the presence of other arrestees, several police officers, and the owner of the shop, police officers lowered the accused’s pants and underwear to his knees as they bent him over a table, such that his buttocks and genitalia were completely exposed. They attempted to seize a package of drugs from his buttocks and eventually succeeded in doing so.

[27] At trial and on appeal the accused contended that the police violated section 8 of the Charter. He sought the exclusion of the drugs under section 24(2).

[28] The Supreme Court of Canada held that the power of search incident to arrest includes the power to strip search, but that power is subject to limitations.

[29] The court adopted the following definition of the term “strip search”, set out at paragraph 47 of the majority judgment: “[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, namely genitals, buttocks, breasts (in the case of a female), or undergarments.”

[30] The court expressed at paragraph 90 that all strip searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out”. For that reason, strip searches cannot be carried out simply as a matter of routine police department policy applicable to all arrestees.

[31] The court held that a strip search is only constitutionally valid as part of the common law power of search incident to arrest where it is conducted as an incident to a lawful arrest. A strip search will be incident to a lawful arrest in two situations: where it is conducted to discover evidence related to the reason for the arrest itself; and/or for the purpose of discovering weapons in the arrestee’s possession if a frisk or pat-down search reveals a possible weapon secreted on the arrestee’s person or the circumstances of the case raise the risk that a weapon is concealed on the arrestee’s person. The police must establish reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.

[32] Finally, the strip search must be conducted in a manner that does not infringe section 8 of the Charter. The court set out a framework to guide police officers in the conduct of strip searches incident to arrest, to ensure that they interfere with the privacy and dignity of arrestees as little as possible. Generally, strip searches should only be conducted at the police station.

[33] The court drew a distinction between strip searches “immediately incidental to arrest”, and searches of persons entering the prison environment. The court said at paragraph 96 of the majority judgment,

The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells”. [Emphasis added.]

[34] The court appeared to endorse the decision in R. v. Coulter, [2000] O.J. No. 3452 (C.J.). There Duncan J. observed that while strip searching can be justified when an individual is being introduced into the prison population to prevent him or her from bringing in contraband or weapons, different considerations arise where an accused is being held for only a short time in police cells and will not be mingling with the general prison population. The court in Golden said at paragraph 97 of the majority judgment, “While we recognize 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.”

Analysis

[35] The trial judge erred in concluding that the search conducted by Constable Martin did not amount to a strip search.

[36] While the trial judge recited the Supreme Court of Canada’s definition of a strip search set out at paragraph 47 in Golden, she emphasized the words “so as to permit a visual inspection of a person’s private areas”. She concluded that because the officer’s intention in having the bra removed was not to inspect the appellant’s breasts, but rather to inspect and store the bra, there was no strip search.

[37] 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), 2005 4937 (ON CA), 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.

[38] Given that the police conducted a strip search of the appellant, the trial judge was required to decide whether that search was reasonable. I appreciate that unlike Golden, where the accused was strip searched “in the field”, the appellant was not strip searched immediately upon her arrest. However, the trial judge found that the direction to remove the bra was a search incidental to arrest. Further, the court in Golden appeared to draw a distinction between, on the one hand, individuals strip searched immediately after arrest as well as those strip searched because they were to be held briefly in police cells, and on the other, individuals entering the prison population.

[39] For those reasons, the test to be applied by the trial judge was that articulated in Golden: whether the police had reasonable and probable grounds for concluding that a strip search was necessary in the particular circumstances of the appellant’s arrest. The trial judge erred in failing to correctly apply that test.

[40] 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.

[41] The trial judge referred in her reasons to the two purposes of search incident to arrest, in generic terms. She concluded that the removal and confiscation of the appellant’s bra was “lawful and justified in the circumstances.” The only “circumstances” to which she 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.”

[42] 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.

[43] There were particular circumstances in this case that the trial judge should have, but failed to consider in deciding whether the strip search of the appellant violated section 8. They included:

• 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.

[44] Even if the trial judge’s reasons are understood to mean that she considered that the police had reasonable and probable grounds to justify the strip search once the pat-down search yielded discovery of the underwire bra, she erred by failing to consider the reasonableness of a police policy that characterizes every underwire bra as a potential weapon.

[45] 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.

[46] The trial judge also did not consider the appropriateness of an unwritten police policy that leads to potentially differential treatment of female and male arrestees, with female arrestees wearing underwire bras being automatically and without exception subjected to a form of strip search.

Remedy

[47] In light of my conclusions, a new trial is required. It is not necessary for me to address the issue of remedy under section 24(1). I observe, however, that depending on the findings of the judge presiding at any new trial, conduct by the police violative of Charter rights that is systemic in nature may be a relevant consideration on a section 24(1) application.

Conclusion

[48] The appeal is allowed, the conviction quashed and a new trial ordered before a different judge of the Ontario Court of Justice.

Justice M.K. Fuerst

Released: February 13, 2013

[^1]: The trial judge referred to the application as one alleging a breach of section 7 of the Charter. The appellant’s written submissions at trial, however, argued that the violation was one of section 8. The trial judge applied a section 8 analysis to the application, and neither counsel for the appellant nor the respondent suggested on appeal that anything turned on the reference to section 7 rather than section 8.