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Chatham, Ont., police force woman to remove her bra for breathalyzer test in front of male technician

National Post National Post 15/07/2016 Vicki Gough, Chatham Daily News, Postmedia News

CHATHAM, Ontario — When a 34-year-old Chatham, Ont., teacher was instructed to provide two breath samples at Chatham-Kent police headquarters last year, she did so sitting in a room with a male officer, without her bra. 

Defence lawyer Brian Ducharme of Windsor says the act of removing the undergarment was intimidating for his client, and an Ontario court judge has agreed. In fact, Justice Lucy Glenn told a Chatham court Thursday she has never heard of such a policy.

The chain of events unfolded following a traffic stop at 10:19 p.m. on March 7, 2015.

Outside court, Ducharme said that after his client was taken to police headquarters, a female staff sergeant ordered her to remove her bra.

“According to police, this woman was polite and co-operative, and they had no concerns about her giving the police a hard time,” he said.

“They said it was policy to make a woman remove her bra, and so she was turned over to the male breath technician braless, and she was braless for several hours, and my client testified that she felt intimidated by this.”

Chatham-Kent deputy Chief Jeff Littlewood told The Chatham Daily News that the service’s policy on removing a woman’s brassiere is based on a number of factors.

“Some situations warrant the removal prior, but that depends on the accused’s actions and frame of mind.

“Also, she may have been lodged (in a cell) waiting to hear from her lawyer before she gave a sample. The bra is always removed if she is being lodged,” Littlewood said.

They said it was policy to make a woman remove her bra.

Police view a bra as a ligature that can be used to harm oneself in a holding cell.

During earlier testimony, court heard that an officer in a marked cruiser stopped the defendant when he noticed a vehicle weaving between lanes, almost hitting a snowbank.

But Glenn found the arresting officer failed to ensure the woman understood her legal rights to counsel when he “quickly” read her options in a “loud voice” after she failed a roadside breath test.

When asked if she understood, she replied: “I guess so.”

Glenn said the officer “didn’t ask any followup questions” such as “Do you want to call a lawyer now?”

The woman testified that the officer was large and appeared irritated and she didn’t want to cause him more irritation, so she remained co-operative.

No one told her she could call any lawyer she wanted

Glenn said the defendant didn’t understand what was being read to her.  “The arresting officer was reading fast from a notebook,” the judge said.

“I’m arresting you for driving over 80,” the officer told the woman.

“Over 80 what, kilometres per hour?” the judge asked.

Glenn added that the woman’s rights were given in seconds and described the various options provided to the defendant as a “puzzling piece of legal jargon.

“No one told her she could call any lawyer she wanted,” the judge said.

Court heard a staff sergeant believed the arresting officer had properly instructed the woman on her legal rights.

Neither officer had notes to confirm their independent recollection of parts of their conversations with the accused.

Glenn also noted a video of the exchange was not introduced as evidence.

Ducharme said the judge found at least four charter violations in the case.

“Justice Glenn found that these rights are very important and she found the arresting officer had very poor, or inadequate notes and the Supreme Court of Canada has ruled that the police have a duty to make accurate, precise and comprehensive notes when conducting an investigation,” Ducharme said.

Glenn said she would order a copy made of her decision.

“I hope Chatham-Kent police read this judgment carefully, and it seems to me that to force a female to remove her bra before breath testing is truly unnecessary,” Ducharme said.

“She is an experienced judge … and if given similar facts, I think other (Ontario court) judges should be persuaded by this reasoning of Justice Glenn,” he said.

Glenn dismissed the charge of driving with over 80 milligrams of alcohol in 100 millilitres of blood.

For that reason, Postmedia News is not identifying the woman. 

 

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