Yet again, another case at the Provincial Court level in Alberta has ruled that the officer’s pat-down of the accused prior to administering the ASD test violated the accused’s Charter section 8 right to be secure against unreasonable search or seizure and breath test evidence was excluded (R. v. Osoba  A.J. No. 1122).
It seems most of my posts as of late have been related to this topic, but since the principles discussed here have been around since R. v. Mann,  3 S.C.R. 59, eleven years later courts seem increasingly frustrated and are indicating that officer’s ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness can not be equated with good faith. In Mann, the SCC said:
“The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to investigative detention. Such search power does not exist as a matter of course. The officer must believe, on reasonable grounds that his or her safety or the safety of others is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances. The officer’s decision to search must also be reasonable and necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.”
The facts in this latest case (Osoba) are all too familiar, so I will give the condensed version: the officer made an ASD demand from memory and directed the accused to the police cruiser. Based on his training, the officer conducted a pat-down of the accused to determine if the accused possessed any weapons or knives, as he stated, for everyone’s safety. After finding no weapons, the accused was placed into the back of the cruiser, where the ASD demand was read to the accused, resulting in a “fail”. The officer testified that such result meant that the accused’s blood alcohol content exceeded 80 milligrams percent, and as such, his ability to operate a motor vehicle was impaired by alcohol; the accused was subsequently arrested and later provided samples of breath.
The evidence as to such a pat-down search was as follows: (a) the officer’s academy training in 2005 was to conduct a quick pat-down of a suspect before allowing him into the police car, whether detained or arrested, to determine that there are no weapons or knives and for safety purposes. This was his standard practice, on arrest or detention; however, it varies in other situations; (b) the accused was polite and friendly throughout the investigation; (c) the pat-down consisted of patting the front and back of the accused from below his shoulders to his beltline, and the pat-down search revealed nothing of concern; (d) the officer has witnessed other officers conduct pat-down searches in similar circumstances; (e) the officer’s understanding is that, legally, he can conduct a quick pat-down search before putting an accused in his car, to ensure that the accused has no weapons and for safety purposes.
Not since Mann in 2004 have we had that authority unless we have reasonable grounds that our safety or the safety of others is at risk; we cannot do it as a matter of practice. This was further addressed in R. v. Aucoin,  3 S.C.R. 408 and again in 2014 with R. v. MacDonald 2014 SCC 3,  S.C.J. No. 3. Lately, we’ve had the cases of Wondu and Schwab (earlier posts on the blog), and R. v. Malcolm  A.J. No. 640 that have been directly on point in this regard. We have clear direction from the Supreme Court of Canada many years ago in Mann to the effect that such searches violate the rights of individuals who are subjected to them, except in certain limited situations. As officers, we must keep up-to-date on our lawful authorities in this regard and others or these decisions will continue to be won by competent defence counsel. That’s not an insult on our profession; it’s a requirement according to the courts.