In the early morning hours of Dec. 7, 2014, the two male Toronto police officers noticed a woman, later identified as Krystina D’Andrade, driving in an erratic manner and pulled her over. One of the officers noticed she exhibited signs of impairment and asked her if she had been drinking. She replied she had one Smirnoff Ice at a the home of a relative.
The officer then demanded she provide a sample of her breath into an approved roadside screening device but they did not have one. The officers called for a device and it was brought to the scene by a female police officer.
D’Andrade blew into the machine and the sample registered “fail.” The officer who made the demand then placed her under arrest for driving with more than 80 milligrams of alcohol in 100 millilitres of blood (over 80). She was taken out of the car and handcuffed. The arresting officer then turned her over to the female officer to conduct a search.
D’Andrade was wearing a tight sweater with a zipper. While standing on the road, the female officer, without asking or warning her what she was going to do, pulled the zipper all the way down after conducting a pat down search. The accused was wearing nothing underneath except a see-through bra, making her breasts clearly visible.
D’Andrade was then taken to a police station where she provided two samples of her breath into a breathalyzer. On both occasions, she blew slightly more than twice the legal limit.
Her trial was held in the Ontario Court of Justice on Oct. 14 and 15, 2015 before Judge Joseph W. Bovard and Charter issues were raised. Although there was some confusion on exactly what sections of the Charter were raised by defense counsel, the case proceeded on a violation of Section 8; the right to be free from unreasonable search and seizure.
Judge Bovard released his decision on Jan. 8, 2016. He found the accused’s rights had been violated and dismissed the criminal charge.
There was contradictory evidence between the two male officers and D’Andrade. Both officers denied they were looking at her when the woman officer pulled down the zipper of her sweater. D’Andrade testified on the Charter application the officers were watching the search. The judge described the evidence of the officers as contradictory and vague and accepted the accused’s version they were standing a short distance away, watching the search.
The female officer testified she performed a pat down search prior to undoing the zipper. She believed D’Andrade was wearing a shirt underneath her sweater and did not realize she was exposing the woman’s breasts when she pulled the zipper down.
From the evidence, Judge Bovard found the outer garment D’Andrade was wearing was tight-fitting and no weapon or other contraband could be seen concealed in it. If there was something in the sweater, it would have been revealed by a pat down search. There was no necessity to pull down the zipper.
As a matter of law, the judge determined the search was a strip search and unjustified in the circumstances. The Supreme Court of Canada held strip searches can only be conducted on the street when it is absolutely necessary or urgent to search for weapons that could cause serious injury to the accused, police officers or others. The onus is on the police to show why they could not wait until they arrived at a police station where such an intrusive search can be conducted in private. No evidence was provided by the prosecutor as to why that type of search could not have waited.
The judge determined that a strip search under these circumstances could only be justified if a pat down revealed she had something concealed under her sweater that might have been a weapon. Her rights had been infringed.
Judge Bovard next had to decide if the breach of D’Andrade’s Charter rights was serious enough to warrant exclusion of the breath tests from the evidence. He found the breach was.
The judge found the act of unzipping her sweater on the street that allowed the two male officers to see her breasts was significant and was not made less by the female officer’s assumption she was wearing a shirt underneath. Bovard described D’Andrade as being “embarrassed and mortified.” The judge held the breach of the accused’s rights was so significant that to allow the breath readings into evidence would bring the administration of justice into disrepute.
As there was no evidence other than the breath tests on the charge of over 80, the charge was dismissed.
