An Ontario Superior Court judge has ordered a retrial in an impaired driving case after finding police stripped a woman of her Charter rights by ordering she remove her underwire bra — said to be a 20-year-old unwritten search policy.
If you are going to have a policy that leads to female suspects removing their underwear, one would think it best to write it down somewhere.
The Toronto Star reports that Justice Michelle Fuerst ordered a retrial for Sang Eun Lee after finding York Regional Police had been subject to an unreasonable search when she was ordered to remove her bra during a post-arrest search.
For the record, the bra was removed in a private room.
A lower court had previously ruled the move was acceptable because the intent was to obtain the bra to be searched. The Star reports that the search was in accordance to a 20-year-old unwritten policy.
According to the Star, Fuerst ruled:
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.
According to a Sun News report from last year, a court previously heard that the unwritten policy was in place to stop the bra from being used as a suicide tool, prevent the destruction of property while in custody and protect police officers.
It seems like sound reasoning in some cases, but perhaps not necessary in every case. Say, for example, in the case of a middle-aged first offender who was co-operating with police.
Isn’t that the benefit of an unwritten rule, you can choose to follow it only when it makes sense? And the next time, maybe err on the side of letting women keep their underwear.