By Betsy Powell and Marco Chown Oved
A judge has criticized an unwritten York Regional Police safety policy requiring women suspects to remove their underwire bras while they’re detained in police cells.
On Wednesday, Ontario Superior Court Justice Michelle Fuerst ordered a new impaired driving trial for Sang Eun Lee finding her rights to a reasonable search were violated when a female officer told her to remove her bra in a private room at a police station on Jan. 30, 2010.
Her decision overturns a ruling by a lower court judge who convicted Lee of impaired driving and concluded the officer was acting in accordance with a 20-year-old policy that was reasonable because of safety concerns associated with the pieces of wire in the garment.
Fuerst disagreed, finding Ontario Court Justice Anne-Marie Hourigan was wrong in concluding the search did not amount to a strip search as defined by the Supreme Court of Canada.
“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,” Fuerst wrote in her 10-page ruling.
The decision takes issue with a blanket police policy that all women must remove their bras before entering a police cell, said defence lawyer Leora Shemesh, who argued the issue at a trial and subsequent appeal.
“Having all women take off their bras, just because they are women and charged, is simply unlawful and unconstitutional,” Shemesh said Wednesday. “Clearly there will be cases where a woman’s bra should be removed, but this was not one of those cases.”
Lee, 40, who was living in Richmond Hill at the time of her arrest, was given the mandatory one-year licence suspension and fined $1,000. Now that the conviction is quashed she will get her licence back.
Contacted for comment Wednesday, Lee said the three-year legal ordeal had been “really stressful.”
At a one-day appeal hearing last October in Newmarket, the Crown argued there was no strip search and that Hourigan was correct when she found that the officer’s purpose in asking Lee to remove her bra was to obtain it and search it, not visually inspect her breasts.
Shemesh argued her client was subjected to an unconstitutional strip search in violation of the Charter when she was required to remove her bra.
While Fuerst declined Shemesh’s request for a stay in the proceedings, she ordered a new trial in front of a different Ontario Court judge.
The Crown has 30 days to appeal. A York Regional Police media spokesman could not be reached for comment.