Allow me first of all to premise this latest post with a caution that as a police officer, I may not always appreciate or agree with the higher reasoning behind a decision(s) of a court from an officer’s standpoint, like many of you. At the same time, as the instructor of all the law programs of the Atlantic Police Academy, I feel it is my duty to advise all officers of that decision when it effects the way we do our jobs and attempt to leave my personal view out of the mix.
As I begin, the events being discussed are not in the context of someone who is under a lawful arrest because that is a totally different situation. Many of us have been in a position where we are offering a person a ride home to prevent the commission of a future offence, to safeguard a citizen from potential harm, or to fulfill a civic-minded duty and offer a citizen a drive home, whatever the circumstance may be at the time. Then , there are times when we chose to place a driver suspected of driving while his or her ability to do so is impaired by alcohol in the back seat of our police cruiser to conduct the ASD test. In those events, and I’m sure you can think of others, most officers’ standard practice is to conduct a pat-down search to make sure individuals do not have a weapon on their person when seated in a police vehicle. This is a grave officer safety concern, is it not? Anyone being placed in the back of a police vehicle would likely get a pat-down search and may even be handcuffed in some cases. What do we do in a case where evidence of a criminal offence (e.g. possession of a controlled substance) is found during that pat-down search? Do we charge, or not charge?
These questions have been the topic of some debate over the past couple of years. The case R. v. Aucoin 2012 SCC 66 rekindled this debate. As a quick background, Aucoin was a case out of Kentville, Nova Scotia, in which the male driver was pulled over because the licence plate on his vehicle was registered to a different vehicle. As a newly licensed driver, Aucoin was prohibited from having any alcohol in his system while driving. The officer administered a roadside screening test which revealed alcohol in Aucoin’s system and he decided to impound Aucoin’s vehicle and issue him a ticket for contravening the Motor Vehicle Act. There were a lot of people milling around (the annual Apple Blossom Festival) and the officer was concerned that Aucoin might walk away and disappear if he were allowed to remain outside of the police vehicle. Accordingly, he decided to secure Aucoin in the rear of his cruiser while completing the paper work. He then sought and received permission from Aucoin to do a pat-down search for safety reasons. The officer felt something soft in his pocket. He asked what it was and Aucoin replied that it was ecstasy. That response prompted his arrest and a further search of his pocket revealed eight bags containing cocaine. Aucoin submitted that the officer in that case had no right in the circumstances to perform a pat-down search on him. That search, he claimed, was unlawful and in violation of his right to be free from unreasonable search and seizure. He further argued that the breach was serious and that the cocaine found in consequence should have been excluded.
The SCC in Aucoin said that the case did not turn on whether the officer had the authority to detain Aucoin in the rear of his police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question was whether he was justified in exercising it as he did in the circumstances of that case. In order to justify securing the driver in the back seat – knowing that this would also entail a pat-down search – detaining the driver in that manner had to be reasonably necessary. Backup was close at hand, something the officer could readily have ascertained. Had he done so, he could have waited an extra minute or two to do the paper work, without impinging on Aucoin’s right to be released from detention as soon as reasonably practicable. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because detaining Aucoin in the back of the cruiser would have been an unlawful detention – given there were other reasonable means by which the officer could have addressed his concern that Aucoin might flee – it could not constitute the requisite basis in law to support a warrantless search. Therefore, the pat-down search was unreasonable and constituted a breach of his Charter right against unreasonable search and seizure. In cases where the police acted in good faith and without deliberate disregard for or ignorance of Charter rights – as was the case here – the seriousness of a breach could be attenuated. The SCC in that case found that the breach was not sufficiently egregious to warrant the exclusion of the cocaine from evidence in that specific case because of the “very unusual circumstances at play” on the night in question. Had the trial judge found otherwise, the breach would have been much more serious and may well have warranted exclusion under s. 24(2) Charter according to the SCC.
So, what the SCC found was that the actions of the officer in those “very unusual circumstances at play” that night did not warrant the exclusion of evidence. But think about it? The bottom line was that the SCC found the pat-down search was unlawful and if not for the “very unusual circumstances at play” that night, the evidence likely would of have been excluded. As officers, the lesson here is the court’s finding of the unlawful pat-down search, not that the evidence was admitted, because the admission or exclusion of the evidence is left to the Grant test and the judge’s analysis of that in each case. We seem to forget about the decision on the pat-down search itself, a point that the minority in the Aucoin case ensured was addressed (i.e. 5 justices ruled to admit the evidence found; 2 ruled to exclude it, but all 7 ruled the pat-down search itself was unlawful) because before this case, the SCC said the law surrounding police policies in the detention context was still evolving – that is no longer the case once the judgment was given in the Aucoin decision, moving forward. As highlighted by the minority in the Aucoin case in para. 93:
In direct examination, [the officer] testified that it was his standard practice to conduct a pat-down search whenever someone was going to be placed in the back seat of the police car (A.R., vol. II, at p. 19). In his view:
… it’s an officer-safety issue because I have no idea what an individual could have in his possession that could harm himself or harm me while my back is turned to him and he’s in the rear of the patrol car. [A.R., vol. II, at p. 18]
This is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention. Nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” (Mann, at paras. 40-41). In cross-examination, [the officer] conceded that he had no reason to suspect that Mr. Aucoin had any weapons in his possession (A.R., vol. II, at p. 39). This belies any suggestion that there were reasonable grounds for the search.
Now, we even have a majority decision out of the SCC in R. v. MacDonald 2014 SCC 3, 303 C.C.C. (3d) 113 in which the majority of the court concluded safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it is necessary to conduct a search. Some courts have been ruling that MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing. Nevertheless, the standard at this point is a reasonable belief an individual’s safety is at stake.
A recent case out of the Alberta Court of Queen’s Bench (R. v. Wondu  A.J. No. 430) involved an officer conducting an ASD test. Given the location of the traffic stop, the officer felt it was safest to conduct the test into the approved screening device in the rear seat of his police vehicle rather than on the street adjacent to his police vehicle. Before placing Mr. Wondu in the police vehicle, he conducted a pat-down search of Mr. Wondu’s pockets to determine that there was nothing intrusive in his pockets and to ensure that Mr. Wondu did not have any weapons on him. The officer confirmed that it was his standard practice to quickly pat someone down, even if they were not under arrest, before such an individual was placed in his police vehicle. No evidence was found as a result of the pat-down search. The trial judge stated that:
In balancing these factors, however, the concern of the Court goes well beyond the charges against the accused. The evidence before this Court is that there is a standard practice by some members of the Edmonton Police Service, including one individual in training other officers, to conduct unlawful pat-down searches in certain circumstances. This is a practice that has undoubtedly violated the rights of accused persons in the past and, if it continues, will violate the right of accused persons in the future…
While the trial Judge in Wondu found that the pat-down search was not functionally related to obtaining the evidence, she held that requiring the accused to submit to the pat-down search was “sufficiently related” to the authority requiring Mr. Wondu to compel breath samples that it permitted a consideration of the exclusion of the compelled evidence. The trial Judge at a minimum found that there was a contextual connection between the Charter breach and the impugned evidence. The Alberta Court of Queen’s Bench ruled that the trial Judge committed no errors in coming to the conclusion which she did and accordingly excluded the certificate of analysis.
So, what is the answer to all of these standard practices to quickly pat someone down, even if they were not under arrest, before such an individual is placed in your police vehicle? As an officer, I can’t answer that for you, but as the law instructor of the Atlantic Police Academy, I can only offer up that the courts do not view things as we do on the streets in most cases. For the most part, a standard practice to conduct a pat-down search whenever someone is going to be placed in the back seat of the police car is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention, nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” as was the case in Aucoin.
Have we come to a point in time where in cases of no authority to conduct a pat-down search incident to a lawful arrest or investigative detention that we must seek informed consent to search them before offering to give someone a drive home in the event evidence of a criminal offence is found on their person in order to meet our officer safety concerns for it to still be lawful? Informed consent has also been the debate of such cases as R. v. Wills (1992), 70 C.C.C. (3d) 529,  O.J. No. 294 (Ont. C.A.), R. v. Borden,  3 S.C.R. 145, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147,  S.C.J. No. 82 (S.C.C.), and so on, in which briefly, we have to:
- inform the person of the reason for the request (e.g. officer safety before placing them in back of the police car, even though they are not under arrest or investigative detention) and the possible consequences he or she faces for granting permission;
- ensure that the person understands that the consent is voluntary and that there are no consequences for refusing consent; and
- make it clear to the person that he or she may revoke consent at any time.
This would fly in the face of informed consent because there is a consequence to refusing consent – the person will be refused a drive if they refuse to allow a pat-down search. It would seem the duty to serve the community and it’s citizens we are sworn to protect and the duty to protect ourselves and go home to our loved ones after each shift is at great conflict today more than ever. So much for leaving my personal view out of the mix…..