NEWMARKET, ON - The removal of an underwire bra is the centre of controversy in the appeal case of a Toronto woman accused of drunk driving.

Sang Eun Lee, 40, was in Newmarket court Friday appealing Justice Anne-Marie Hourigan's October 2011 ruling to not dismiss her case because a police officer did not breach Section 8 of the Charter of Rights and Freedoms by asking Lee to remove her bra during a search.

Lee, who has no prior convictions, was arrested Jan. 30, 2010, for alleged impaired driving. During a pat-down at the York Regional Police station, Const. Jennifer Martin asked the accused to remove her bra because it contained underwire.

The reasoning, court previously heard, was to stop the bra from being used as a suicide tool, to prevent damage to the jail cells and to protect police officers' safety.

There is an unwritten protocol officers in that platoon of asking women held in custody with underwire bras to remove them.

"There are certain times when women should have to remove their bras," Lee's lawyer, Leora Shemesh, told Justice Michelle Fuerst Friday.

"For example, those who are violent. In this case, Miss Lee shouldn't have. "There was no consideration of Miss Lee's and other women's exposed breasts."

Crown attorney Jennifer Gleitman argued Hourigan's findings "were well-founded in the evidence."

"What took place was not a strip search," she contends. "She was not told to bend over and touch her knees. That was not what took place with Lee."
Shemesh said outside of court she was satisfied with how the appeal went.

"We focused on the argument and I think it's really about the policy," she said. "There is very little case law on this. There's one other case - a lower-court decision - the facts aren't the same as this because (in that case) her breasts weren't exposed. This really is a test case."

As she exited the courthouse and into a white Nissan, Lee covered her face with a scarf in front of media.

Fuerst said she will review the evidence and make her ruling by fax to both sides. There was no word as to the expected date of her decision.