Is There a General Power to Search Incident to Valid Arrest Pursuant to the Mental Health Act?

Before I discuss this case, I will caution you that it is out of the British Columbia Provincial Court, so it is not binding in our area, nor does it relate to our Mental Health Act or Involuntary Psychiatric Treatment Act.  I found the case interesting due to the “principles” discussed throughout the case, which may have some implications overall in matters such as these.

R. v. Hickey 2013 BCPC 328 – early on the morning of March 25, 2012, the accused was observed by a commercial transport safety inspector to be parked at a weigh scale station near Hope, British Columbia. The accused, upon observing the inspector, proceeded to back up his vehicle and, without any provocation, stated to the inspector “Fuck you anyways”.  The specifics of this incident, including the description of the accused and his vehicle, were passed on to the local RCMP. The RCMP conducted patrols throughout the day in search of the accused and his vehicle without success. Later in the afternoon, the RCMP received information from both the accused’s mental health nurse and his girlfriend that the accused had been experiencing mental health problems and was not coping well. The information indicated that the accused’s girlfriend had been in contact with the accused earlier that day and the accused had indicated that he was experiencing suicidal ideations. The information further indicated that the accused had recently been a patient in a mental health hospital and had been apprehended under the Mental Health Act on March 18, 2012, only a week earlier. The information also indicated that the accused may be a danger to himself, the public, or police officers.

Sometime after four o’clock in the afternoon, the RCMP located the accused in his parked vehicle at a rest area not far from the weigh scale where he had been
seen earlier in the day. Due to the concerns raised by the information provided
to the police, it was determined that prior to approaching the accused, the
police would ensure the area was properly secured and there was appropriate
backup support for officers approaching the accused. One of the first officers
on the scene had set up a position whereby he was able to observe the accused
and the accused’s vehicle while awaiting the tactical arrangements to be
completed. Some minutes later, the accused’s vehicle lights were illuminated and
the vehicle started to move toward the exit. At this time, the officer activated
his emergency equipment and pulled up in front of the accused’s vehicle. The
accused stopped his vehicle and turned the vehicle lights off.  The officer exited his vehicle and approached the accused, who remained in the driver seat of his vehicle. The officer asked the accused to produce his driver’s license and the keys to the vehicle. The accused complied with the officer’s request. The officer observed that the accused had some growth on his face, looked “rough”, and appeared sweaty. The officer was of the opinion that the accused was overly quiet given the circumstances of what was occuring.  The officer was aware of all the information that had been provided to the police from the various sources. Although the accused was cooperative with the officer and appeared to be coherent, the officer was of the view that the accused ought to be apprehended under the Mental Health Act based on his observations and the information he had been provided. The officer advised the accused that he was “under arrest” pursuant to the Mental Health Act and placed the accused in handcuffs.

The officer then placed the accused in the police vehicle of one of his fellow
officers. The accused was not searched at this time. The intention was to
transport the accused to a mental health facility, which was approximately a 10 to 15 minute drive. According to the evidence, the standard police practice was for medical professionals to assess the accused at the facility to determine whether he should be detained or released (a familiar practice to us as well). The officer indicated in his evidence that he had often dealt with troubled persons under the Mental Health Act and these individuals could be unpredictable, explosive, and escape risks. Other officers had arrived approximately five minutes after the initial interaction with the accused.

As the accused was to be transported to a mental health facility, the officer
asked the accused if the accused needed anything from the vehicle. The accused
replied that he did not need anything from his vehicle. The inside of the vehicle was cluttered with various items. The officer indicated that he could see items in the accused’s vehicle including a wallet, a cell phone, and a jacket. He thought these items ought to be collected for the accused. Despite the accused’s wishes, the officer decided that he would collect the wallet, cell phone, and jacket and place them in a backpack which the officer observed in the backseat of the accused’s vehicle.  When the officer picked up the backpack, he had a quick look inside the backpack to ensure there were no items that could be used as a weapon. Inside the backpack, he observed a shiny small container that read “wax” on the outside. The officer stated in his evidence that he then became suspicious that there may be drugs in the container so he unscrewed the cap and inside he found crack cocaine. Once the officer had discovered the drugs in the backpack, he returned to the accused and arrested the accused under the Mental Health Act and the Controlled Drugs and Substances Act. It was at this time that the accused was provided information with respect to his Charter rights. The accused declined the right to contact counsel and was then taken away to the mental health facility by another officer. Officers then searched the accused’s vehicle and more cocaine was found in a console between the seats. The evidence indicated that the officers did not obtain a warrant to search the accused’s vehicle as none of the officers thought it was necessary. The cocaine found in the canister located in the accused’s backpack weighed approximately 25.9 grams. The cocaine found in the console of the accused’s vehicle weighed .5 grams. When the accused was assessed at the mental health facility later that day, it was determined by medical professionals that he ought not to be released due to his mental state.

The accused raised two Charter violations on the voir dire: whether the officer acted improperly in exercising his authority to apprehend the accused under the Mental Health Act and violated the accused’s right not to be arbitrarily detained under section 9 of the Charter; and if the apprehension was lawful and complied with the powers afforded an officer under to the Mental Health Act, whether the officer’s search of the accused’s vehicle and the items found therein was reasonable and consistent with the rights of the accused guaranteed by section 8 of the Charter.

I won’t go into the relevant mental health legislation because it relates specifically to British Columbia in this case and other legislation will vary somewhat.  In the case at hand, based on the information the officer had been provided and his observations, the court found that the officer acted properly pursuant to his authority to apprehend the accused, and indeed would have been derelict in his duties had he allowed the accused to depart.  The court said that the legislation is precisely for the purpose of allowing an officer to apprehend an individual in the accused’s situation. Accordingly, the judge concluded that the accused’s apprehension was lawful and proper.

The court said there was no issue taken with the proposition that the accused had a reasonable expectation of privacy in his personal backpack. The Supreme Court of Canada has found that “backpacks are the repository of much that is personal” (R. v. A.M., 2008 SCC 19). While it was acknowledged that the expectation of privacy in a vehicle is diminished, it does not follow that there is
necessarily a reduced expectation of privacy with respect to items found in the
vehicle (R. v. Caron, 2011 BCCA 56). In the circumstances of this case, the accused had a reasonable expectation of privacy in his backpack and the canister located therein. The central issue with respect to the lawfulness of the search was whether the search by the officer of the backpack and the canister found therein was reasonable in the circumstances.

The judge said that the law recognizes a number of circumstances where a search absent a warrant may be justified. Some of these include a search incidental to arrest, a search upon detention for officer safety, and a search in exigent circumstances. Ultimately, the court’s decision must find a balance between privacy interests and the state’s interest in law enforcement.  The authority to apprehend the accused was provided by the Mental Health Act. The legislation does not explicitly provide any powers authorizing a police officer to search the belongings of an individual who has been apprehended pursuant to that enactment (much like other provincial mental health legislation).

The Crown argued that similar to the powers of a police officer to search incidental to arrest or a detention, as accepted by the Supreme Court of Canada
in the decisions of R. v. Caslake, [1998] 1 S.C.R. 51 and R. v. Mann, 2004 SCC 52, this court should accept the proposition that the officer had certain incidental powers to search consistent with the officer’s ability to properly perform his duties and the authority provided him under the Mental Health Act. The Crown argued that the officer’s authority and rationale to search in this case was for the purpose to ensure officer safety. The Crown went on to say that it is analogous to the well-accepted police authority to search an individual who has been detained or arrested when there are concerns for officer safety. The judge said it is reasonable that upon apprehension of an individual pursuant to the Mental Health Act, the officer ought to be afforded greater search powers than those afforded an officer who has merely detained a suspect pursuant to a criminal investigation. The latter allows the officer to perform a quick and relatively nonintrusive ‘pat down’ search to ensure there are no items in the possession of the detainee which may be employed to injure the officer during their brief interaction. In such cases, there needs to be reasonable grounds, both subjective and objective, to support the officer’s decision to conduct a protection safety search.

The judge said that as it is likely that the individual apprehended pursuant to the Mental Health Act will be in the custody of the officer for a considerable period while being transported to a medical facility, and perhaps throughout the admissions procedure, the situation is similar to an arrest situation where there is expanded search authority permitted for officer safety. Accordingly, in order to ensure the officer and others who may come in contact with the apprehended person are not placed at risk, it would seem appropriate and prudent that the officer be afforded the authority upon apprehension to conduct a search of the apprehended person and any items in his immediate possession which he may have access to during the period of the apprehension. Such an approach would seem to be reasonable and necessary given the context of the lawful apprehension, which is the belief that the apprehended person poses a risk of harm to himself or others due to a mental illness.

However, the judge said that when one reviews the principles discussed in permitting an officer the authority to search for officer safety an individual who is detained or arrested, there is little if any support for the proposition that an officer, upon apprehending a person pursuant to the Mental Health Act, should also have authority to search the immediate vicinity; in this case the accused’s vehicle and the backpack found therein.  The judge said further, it must be underlined that the authority to apprehend a person under the Mental Health Act exists for the sole purpose of authorizing a peace officer to ensure that a person with an apparent mental disorder, who may be a danger to themselves or others, be immediately taken to a physician for examination. The authority is separate and distinct from the traditional and more common authority exercised by the police when engaged in a criminal investigation. The purpose of the power to apprehend a person with a mental disorder is not, and should not be permitted to be, authority or a license for the police to engage in investigative activities including searches where there exists a reasonable expectation of privacy on the part of the person being apprehended.

The judge ruled that he is not aware of any reason that would support a search of the person’s immediate vicinity for evidence similar to the scope afforded an officer who has arrested an individual on reasonable grounds of committing a criminal offence. In this case, there were insufficient grounds to search for evidence of an offence. There were no grounds to believe an offence had been committed and there was no reasonable prospect of discovering evidence relating to an offence. Despite the accused indicating that he did not want his cell phone or wallet, the officer thought it prudent to retrieve same from the accused’s vehicle in order to have these items at the hospital with the accused. Simply removing these items from the accused’s vehicle may have been a prudent and helpful approach on the part of the officer. The securing of the accused’s cell phone and wallet by the officer, if characterized as a search and or seizure, was a minor interference with the accused’s privacy interests. Both items were in plain view and the officer was securing the items for the benefit of the accused as the accused may have had need of these items at the hospital where he was being taken. Obviously, had the officer gone further and searched the contents of the cell phone or the wallet, the accused’s privacy interests would have been significantly compromised. There was no evidence that the officer searched through these items.

The judge said the search of the accused backpack, however, was a significantly bolder intrusion by the officer. The officer provided no reason for securing the backpack except for providing a convenient means to transport the items of the accused. The officer had no lawful authority to open or search the backpack and in so doing breached the accused’s privacy rights as guaranteed under section 8 of the Charter. The judge was troubled by the officer’s decision to look inside the accused backpack, and he was particularly concerned with the removal and opening of the canister found therein. According to the judge, it was not for the officer to compromise the accused’s privacy interest in the contents of his backpack in an attempt to employ the backpack as a means to carry personal items of the accused, particularly after the accused had said he did not want the items. While the officer may have believed he was looking after the accused’s best interests in securing these items, the officer had to be mindful of the accused’s privacy interests in his backpack and the canister found therein.  Moreover, even if it was permissible for the officer to search the backpack to ensure no weapons were contained therein and confirm it could be safely used to transport the accused’s belongings, the judge was unable to determine any possible reason pertaining to safety issues that would permit the officer to open the canister in which the cocaine was found.  If upon observing the canister in the backpack, the officer had any safety concerns with respect to its contents, he should have either placed the backpack back in the car, or alternatively, he could have removed the canister from the backpack and placed it in the car and continued to use the backpack for the purpose initially intended.

The judge was of the opinion that the law relating to protective searches pursuant to investigative detention provides a power to search limited to what is necessary to ensure the safety of the police and the public in the immediate area. The officer must have an honest belief, on reasonable grounds, that his or her safety or the safety of others is at risk. Applying the same principles, the judge said there was no need to open the canister for safety concerns. The accused was handcuffed in the police vehicle and had no access to the canister had it simply been left in the car. He was unable to conclude that the search of the canister was necessary in this case to ensure the safety of the officer or others. In his view, admission of the evidence obtained pursuant to the unlawful police search in this case would bring the administration of justice into disrepute. Accordingly the cocaine located by the officers subsequent to the lawful apprehension of the accused was not admitted at the trial.

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