The confusion of a search incident to an investigative detention (“safety search”) following R. v. MacDonald , 2014 SCC 3

MacDonald was a somewhat puzzling decision.  To make matters worst, the minority in the decision spoke in strong and clear terms about an issue, but the majority didn’t advert to the issue in the slightest. I’ve posted the MacDonald decision earlier in the blog, so I won’t go into the facts or the actual decision this time around. I’ve gotten alot of questions about the raised threshold in MacDonald from “reasonable grounds to suspect” as decided in R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, to the new standard of “reasonable grounds to believe” as the majority decision in MacDonald seemed to identify in order to do a pat down search for weapons of a person detained.

I spent the last week in Halifax on a criminal law conference with 750 judges and lawyers from across Canada, so I took the opportunity to ask some of these legal professionals about the MacDonald decision. What I learned was that crown prosecutors, defence counsel, and judges alike as just as puzzled as we (police) are about the decision, so in essence I’m no clearer than I was before last week.

Perhaps the most confusing process is that having a “believe” standard for safety searches for investigative detentions (as the majority in MacDonald decided) is inconsistent with the ability to detain someone on the basis of suspicion, which is still good law. Arguably, the majority’s holding prevents us from searching to keep ourselves safe in detentions we are entitled to conduct. On the other hand, where there are reasonable grounds to believe that someone is “armed and dangerous”, we can simply arrest them anyway and search them incident to arrest, rendering the investigative detention and the safety search unnecessary.

I was directed to two new cases on the issue. With the minority having identified the issue so harshly, it can no longer be ignored, and judges are already split on the interpretation of MacDonald. I won’t go into the facts of each case because they didn’t essentially decide new case law or powers for us, but both courts interpreted the threshold in MacDonald differently, so I will give you the judge’s interpretation of what MacDonald means to us in their view.

The first one is R. v. Le 2014 ONSC 2033, a decision by the Honourable Justice Kenneth L. Campbell. Justice Campbell was at the conference and his decision was discussed. This is what Justice Campbell said in Le at paras. 98-100 regarding the MacDonald decision:

The Supreme Court of Canada recently addressed the constitutional propriety of police “safety searches” in R. v. MacDonald, holding that, after the accused in that case refused to respond to police inquiries about the nature of the partially obscured “black and shiny” object in his hand, the police were justified in pushing open the accused’s apartment door in order to see whether the object was, as suspected, a weapon. Importantly, expressly applying R. v. Mann, at para. 40, the court in R. v. MacDonald, at paras. 31, 39-41, re-affirmed the common law police power to conduct a “safety search” when an officer believes “on reasonable grounds that his or her safety, or the safety of others, is at risk.” Such unplanned, reactionary, warrantless searches may properly be conducted, as the court observed in R. v. MacDonald, at paras. 32, 36-38, 41, where they are reasonably necessary to eliminate imminent threats to the safety of the public or the police in response to dangerous situations.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.” I do not read the R. v. MacDonald decision as having such an effect. It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches. The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless. If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest. There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest. Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations. Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties. See: R. v. Chehil, 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie, 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker, 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2009] S.C.C.A. No. 466, [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at s. 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations. In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy. See: R. v. Zargar, 2014 ONSC 1415, at paras. 29-32. Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it). The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.” See: R. v. Mann, at paras. 33-35, 40-45, 63-64. Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability.

The second case is R. v. Green 2014 ONSC 1470, a decision of the Honourable Justice Nancy J. Spies, who took a different approach than that of Justice Campbell.  This is what Justice Spies said of MacDonald in Green:

The minority came to the same conclusion as the majority (four) judgment of Lebel J. but for very different reasons. They argued that the case ought to have been resolved by extending the logic of Mann (at para. 87) and that instead the majority had effectively overturned the “safety search” power recognized in Mann and a decade of subsequent jurisprudence (at para. 90). As the minority pointed out (at para. 84), the majority’s decision assumed that the officer in question had reasonable grounds to believe that Mr. MacDonald was armed and dangerous although the officer had only testified that he was concerned that Mr. MacDonald “might” have a weapon. They concluded that the consequence of the majority decision was to deprive officers of the ability to conduct protective searches except in circumstances where they already have ground to arrest” (at para. 90).

Arguably the minority in MacDonald are in the best position to interpret what the effect of the majority’s decision is.

“When the performance of a police duty requires an officer to interact with an individual who they have reasonable grounds to believe is armed and dangerous, an infringement on individual liberty may be necessary.” (at para. 39, subpara. 2, emphasis added). This is repeated at para. 41 where the majority states that “the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search”. [Emphasis added]. Although this statement is less clear, there could be no doubt what the majority meant given the statement of their factual conclusion at para. 44 that the officer had reasonable grounds to believe that there was an imminent threat to the safety of the police”….

However, the minority decision is very persuasive and clearly they are of the view that the majority has raised the standard required before an officer can lawfully conduct a pat down search as they stated (at para. 90).

So, we have two decisions out of the same level of court in Ontario by two justices who have interpreted MacDonald differently.  While Justice Spies found a s. 8 violation where police conducted a safety search without “reasonable grounds to believe,” Justice Campbell did not. All we can hope for is an appeal to the SCC of a case with similar facts soon so that we can clear up this confusion once and for all.

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