In a curious case that hinged on the legal definition of “undergarments,” and whether the woman’s see-through bra qualified, a judge found this roadside strip search violated Krystina D’Andrade’s constitutional right to be free from unreasonable searches.
The dismissal of her charge came despite convoluted arguments from D’Andrade’s lawyer, who could not seem to decide whether he objected under Section 7 of the Charter, which guarantees security of the person, or Section 8, which prohibits unreasonable searches. Judge Joseph W. Bovard decided to “resolve this confusion” by treating it as just a Section 8 argument, which was enough.
Given that a pat down would have sufficed to clear her for weapons, this strip search was so unreasonable, and the effect on D’Andrade so humiliating, that on Friday Bovard excluded the results of her failed breathalyzer tests, leaving the Crown with no evidence.
D’Andrade was arrested a little over a year ago, at 4:45 a.m., by police officers who noticed her swerving in her lane on Dixie Road, near Toronto’s main airport. They suspected impairment when they saw her stop at a red light “well beyond the crosswalk.”
“When the light turned green, she kept driving and swerving in her lane. The officers put on their emergency lights to pull her over,” the judge wrote. “Ms. D’Andrade switched lanes, went up on the curb with both tires, came down off of the curb and stopped.”
The first officer to speak to her noticed the smell of alcohol. She told him she had had one Smirnoff Ice. A female officer, identified as McClinchey, arrived within minutes with a breathalyzer, which D’Andrade failed. Later, at the police station, further tests would measure her blood-alcohol level at 161 and 166 mg of alcohol in 100 ml of blood, roughly double the legal limit of 80.
Whatever articles of clothing she might have been wearing under the sweater were not for public eyes
As she was being arrested, she “repeatedly” asked the police for a “break and to let her go,” saying she just broke up with a boyfriend and was “having a lot of issues.” She said she was a dental hygienist and helped people, the judge wrote.
It did not work. The male officer handcuffed her behind her back and presented her to McClinchey for a pat-down search, in preparation for taking her to the station where a more thorough search would be done.
D’Andrade was wearing black tights under knee-high boots, and a tight-fitting sweater, which McClinchey unzipped all the way down, disconnecting it at the bottom. She had assumed, wrongly, that there was a shirt underneath, and it took “several moments” to zip it back up, because it snagged. She had not asked D’Andrade if she could unzip her sweater, nor warned her she would. She said the two male officers “watched the whole thing,” and the judge found as fact they were about a metre away.
As the judge put it, D’Andrade “was dressed up … 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.”
Source: National Post