DUI Evidence was excluded because the Arresting Officer performed an Unreasonable Frisk Search

While arresting a woman on alcohol-related charges in December 2014, the arresting officer performed a frisk search that exposed the woman’s undergarment and breasts in front of male officers.  In January 2016, a Brampton court ruled to exclude evidence presented by the Crown in the ’over 80’ charge against the accused woman because the roadside search violated her right to protection from an unreasonable search.

In the 2016 trial, R. v. D’Andrade, the judge acknowledged that without the evidence from the breath best (which recorded twice the acceptable level of blood alcohol), the prosecution’s case would fail; however, the Judge determined the officers’ breach of the accused’s Charter rights were so serious that the admission of this evidence would amount to a miscarriage of justice. 

Ms. D’Andrade’s car was pulled over when officers suspected impaired driving after they observed her driving erratically on Dixie Road on December 7, 2014. Ms. D’Andrade provided a breath sample into an Approved Screening Device (ASD) which registered a ‘fail’, and consequently Ms. D’Andrade was placed under arrest for driving while ‘over 80’.  The accused was then handcuffed and handed over to a female officer for a search.

While two male officers were present, the female officer proceeded to do a very thorough ‘pat down’ of Ms. D’Andrade’s arms, legs and torso, and then without warning and without asking the accused, the officer unzipped the woman’s sweater and exposed a transparent bra, the only item worn under the sweater. The sweater was unzipped all the way to the bottom until the zipper disengaged and the officer had some difficultly in zipping it back up.  The defense argued that this exposure constitutes an “unauthorized and, therefore, illegal strip search in violation of section 8 of the Charter”.

On the evening of the arrest, it was minus five degrees.  Ms. D’Andrade had a coat in her car but was wearing a form fitting sweater and tights.  During the trial, the female officer admitted that the accused’s clothing fit snugly enough to allow her to see that there were no bulky areas in which something could be hidden and therefore, a pat down around her sweater and her legs would have been sufficient. However, the female officer defended her actions saying that unzipping sweaters is part of her routine search procedure to check for weapons “or anything’, and in the past individuals she has searched always had something on underneath.

In determining what constitutes a ‘strip search’, the court cited the Supreme Court of Canada finding in R. v. Golden.  A strip search involves “the 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”. This distinguishes strip searches from the less intrusive ‘pat-down’ or frisk searches in which there is no removal of clothing.  Given this definition, the court concluded that the search of Ms. D’Andrade constituted a strip search, as both her undergarments and breasts were exposed in the course of removing her clothing.

In R. v. Golden, the court deemed that a strip search is a ‘serious infringement of privacy and personal dignity” and such searches are only constitutionally valid when they are conducted both, in the context of making a lawful arrest and when officers need to determine whether the accused is carrying weapons or evidence related to the arrest.  A strip search in the field is a particular invasion of privacy and can only be justified if there is a demonstrated urgency to find weapons and prevent people from being hurt.  In any case, the police must have established probable and reasonable grounds to justify a strip search.  If these conditions have been met, a strip search must be carried out in a manner that does not infringe on an individual’s rights under section 8 of the Charter.

In the court’s analysis of the officers’ justification for their invasive search of the accused, the court stated that the search of Ms. D’Andrade would certainly not expect to find evidence of excessive blood alcohol concentration, which is the charge for which she was being arrested.  Also, there was no reason to believe that Ms. D’Andrade was a threat to the officers’ safety, as the ‘pat down’ search of her snug fitting clothing revealed an absence of weapons; the accused had no criminal record or outstanding charges; she was not acting dangerously; and was a petite woman of 117 pounds.

Upon concluding that the search constituted an unreasonable strip search of Ms. D’Andrade, the judge was faced with the decision of whether this was sufficient reason to exclude the evidence against the accused.  In this regard, the judge declared that the unnecessary roadside strip search of a woman while two male officers watched was a significant invasion of privacy as well as a humiliating and traumatic experience. Although the female officer’s assumption that the accused was wearing a shirt under her sweater somewhat mitigates the seriousness of the breach, the officer was careless in her failure to first check.  The court concluded that the seriousness of the Charter violation in this case requires that the court must dissociate itself from that conduct by excluding the evidence associated with the inappropriate actions.

If someone’s rights under the Charter are violated by law enforcement personnel in the process of making an arrest, a defense lawyer has grounds to declare that the arrest is unlawful and any evidence gathered during the (unlawful) arrest should be excluded.  The court has discretion when deciding whether a breach of someone’s Charter rights is substantial enough to warrant the exclusion of evidence.