Credits: Ernest Doroszuk/Toronto Sun / QMI Agency
Justice Michelle Fuerst quashed the impaired driving conviction against Sang Eun Lee, now 40, and ordered a new trial, ruling that the York Regional Police's unwritten policy treating the undergarments as potential weapons is unreasonable.
Fuerst also said the trial judge, Justice Anne-Marie Hourigan, "erred by failing to consider the reasonableness of a York Regional Police policy that characterizes every underwire bra as a potential weapon."
"She also didn't consider the appropriateness of an unwritten police policy that leads to female arrestees wearing underwire bras being automatically and without exception subjected to a form of strip search," wrote Fuerst.
A York sergeant admitted 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," Fuerst wrote in a decision released Wednesday. "Wearing an underwire bra is not tantamount to carrying two wires loose in a pocket, where they are immediately accessible to the wearer."
A strip search wasn't necessary under the circumstances when police arrested Lee on Jan. 30, 2010, Fuerst said.
Hourigan convicted Lee, who had no previous convictions, in October 2011 and imposed the minimum fine of $1,000 and a one-year licence suspension.
"Strip searches are definitely necessary and there are cases where women will have to take off their bras," said Lee's defence lawyer, Leora Shemesh. "But this blanket policy is wrong and must be changed. It's unconstitutional."
Hourigan ruled that Const. Jennifer Martin had searched, but not strip-searched, Lee when they were in a private room.
The officer asked Lee to remove her underwire bra -- not to bare her breasts -- to inspect and store the bra.
Martin thought Lee would remove the bra through her sleeve, court heard.
But Fuerst said Hourigan "failed to consider that the court's definition of a strip search isn't limited to removal of clothing to inspect a person's private areas."
The Supreme Court's definition of a strip search is two-pronged: The removal or rearrangement of all a person's clothing to permit inspection of the private areas or the undergarments, Fuerst said.
Although Lee was crying and upset, she made no threats to harm herself or others, Fuerst said. Lee wasn't physically violent or physically aggressive to officers and there was no indication that she had any mental health problems.