S.8 - STRIP SEARCHES RESULTS IN STAYS AND EXCLUSION

Where police conduct an 'unjustified' strip search before taking the breath sample, the court can exclude the breath samples from the evidence. One of the factors the court will take into account in assessing whether the strip search was reasonable, is whether or not the police kept a proper record of the reasons for and the manner in which the strip search was conducted. This was not done in McPhail. The court pointed out that the almost complete failure to make a note of the strip searched weighed heavily in favour of exclusion.R. v. McPhail, 2011 ONCJ 315

Courts have also stayed charges where the unjustified search occurs after the taking of the breath samples and before lodging the accused in cells. R. v. Chowdhury, 2009 ONCJ 478, aff'd [2011] O.J. No. 2171 (SC)