Monthly Archives: May 2016

Search incident to an investigative detention – do police just get one kick at the can?

In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone call at about 2:00 a.m. from security personnel at a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. Several officers responded to the call. An officer arrived at the bar at about 2:07 a.m. Security staff were ushering the patrons out of the bar. Other officers were already present. The doorman identified two individuals as part of the group that had been passing the handgun around in the bar. McGuffie, one of those two men, walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. He asked McGuffie why he was “running away from his friends?” McGuffie gave conflicting responses. The officer decided to detain him as he suspected McGuffie had the weapon seen earlier in the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun.

The officer handcuffed McGuffie and conducted a “quick search to the vulnerable parts of his body“- a pat down of his waistband and waistline, which the officer described as a “cursory search“. Nothing turned up in the search. McGuffie was standing on the street when he was handcuffed and searched. The detaining officer placed McGuffie in the back of another officer’s police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He said he was concerned about officer safety and was of the belief that the gun was in the bar. After what he said was a quick search of the bar, the detaining officer returned to the other officer’s car and said he told McGuffie that he was going to search him for a firearm since he said he found out it was a small gun easily hidden; 31 minutes had passed. He removed him from the cruiser and did a “quadrant search” – to be thorough. During the search, he found “a package of white powder in a rectangular shape” identified as cocaine (118.5 grams), which he said felt like the barrel of a gun; and approximately $600 cash in his pockets. He also found a small bag of marihuana in his pants pocket. He also found and seized a cell phone. The officer arrested McGuffie at 2.55 am for possession for the purpose of trafficking; this was some 30-35 minutes from the initial detention. McGuffie was also strip searched back at the station, which turned up 30.2 grams of crack cocaine. The courts also found issue with the strip search, but I will not be discussing that part of the appeal here. Part of the reason was that the handgun had been located previously by a K9 Unit.

The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser and should have been advised that he had a right to speak to his lawyer. If McGuffie wanted to speak to a lawyer, police should have afforded him that opportunity without delay. McGuffie’s rights under s. 10(b) were breached. The initial pat down search of McGuffie on the street was reasonable and justified as an incident of his investigative detention. The second more thorough search of McGuffie was unlawful and unconstitutional. If there was any danger to the officer when he conducted the second search, it flowed directly from the unlawful detention of McGuffie and not from anything the officer was doing in the lawful exercise of his duty. If the arrest was unlawful, the search incidental to the arrest was unlawful and contrary to s. 8.  The ONCA excluded the evidence and acquitted McGuffie. According to the ONCA, the detaining officer seemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He was equally oblivious to his obligations under s. 10(b).

D.H. Doherty, for an unanimous court, said, in part:

“I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful and contrary to s. 8 …. Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to s. 8. …”

The court also recognized the interplay between investigative detention and the right to counsel. D.H. Doherty at para. 47:

“…It does …highlight the tension between the relatively brief duration of investigative detentions and the exercise of the right to counsel by persons being held under investigative detention. The submission assumes that the police can significantly prolong the detention if necessary to afford the detained person an opportunity to speak with counsel. I do not necessarily accept that submission. It may be that, if a police officer can afford a detained person an opportunity to exercise his s. 10(b) rights only by significantly prolonging an investigative detention, the police officer must release the detained person rather than breach s. 9 of the Charter. I leave that question for another case.”

Although not mentioned in the ONCA decision here, it seems to me at least that this issue was discussed in some length in Her Majesty the Queen v. Suberu [Indexed as: R. v. Suberu], 85 O.R. (3d) 127 some time ago. In that decision, it was discussed that a person who is under investigative detention and who after being advised of his or her right to counsel chooses to exercise that right, that person will almost inevitably end up suffering a longer detention and more intrusive state conduct than he or she would otherwise have endured. The court said that there can be a brief time span between an initial detention for investigative purposes and the administration of the s. 10(b) rights to reflect the nature of the vast majority of investigative detentions, in that they must be of a brief duration. The ONCA said that the police activity during the brief interlude contemplated by the words “without delay” must be truly exploratory in that the officer must be trying to decide whether anything beyond a brief detention of the person will be necessary and justified. If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately. On appeal to the SCC (2009 SCC 33), the SCC rejected that approach, but the focus of the appeal seemed to be whether or not “advising” the person of his or her rights would cause a prolonged detention. Well, the SCC put that to rest when it ruled that the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. From the moment an individual is detained, s. 10(b) is engaged and the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

So, alas, it seems that the question of whether or not it is a s. 9 Charter violation with regards to “implementing” the duties upon detention if the detainee chooses to exercise it and prolonging the detention to make that happen will have to be answered another day. The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The content of the police duties under s. 10(b) was not at issue in the Suberu appeal, and it was not settled in McGuffie. However, it would be difficult to see it being anything but a s. 9 violation since in R. v. Mann 2004 SCC 52, the SCC said:

“…investigative concerns will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual.”

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Filed under Arbitrary Arrest or Detention, Investigative Detention, Recent Case Law, Section 10 Charter

Penile Swab Incident to Arrest?

The jurisprudence concerning the taking of penile swabs is developing. Reported decisions are limited and are not consistent. For example, several have expressly found a breach of s. 8 of the Charter (R. v. Saeed (AH), 2014 ABCA 238, 577 AR 143; R. v. Pun, 2012 ONSC 5305; and R. v. BAP, 2013 SKQB 14, 456 SaskR 23), while three others found no breach of s. 8 (R. v. Hodgson, [2008] OJ No 4748 (QL); R. v. Amey, 2013 ONSC 5108; and R. v. Harasemow, 2014 BCSC 2287. In three of the cases, the evidence was ruled admissible (Saeed; Hodgson; and Harasemow). In three of the cases, the evidence was excluded (Pun; Amey; and R. v. Ali, 2014 ONSC 6609).

The Supreme Court of Canada recently heard an appeal from the decision in Saeed, in which the majority of the Alberta Court of Appeal, applying Stillman, held that a penile swab is not a search that is incident to arrest, and that a warrant must be obtained unless the evidence sought could significantly deteriorate or disappear, or in circumstances of “extreme exigency” (at para 62). The evidence was admitted under s 24(2). The Supreme Court of Canada’s decision in Saeed is on reserve. Until we have the benefit of that decision, two recent decisions have held that a penile swab can be lawfully taken incident to arrest for a sex offence (R. v. Laporte 2016 MBCA 36), and  a warrantless search and seizure of a penile swab incident to arrest does not constitute a breach of section 7 or 8 of the Charter (R. v. M.T. 2016 NUCJ 9).

What is interesting from the Laporte decision is that the MBCA took the analytical approach for addressing the question of whether the taking of the penile swabs breached the accused’s s. 8 rights. While R. v. Fearon 2014 SCC 77 concerned searches incident to arrest in the context of cell phones found on accused persons, the MBCA said it provides a contextual analytical approach to address “the permissible scope of search incident to arrest”. The court also applied R. v. Golden 2001 SCC 83, which concluded that, as a result of the serious infringement of privacy and personal dignity occasioned by a strip search, such searches are only authorized at common law when four requirements are met: 1) the search must be “incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest”; 2) the police must have “reasonable and probable grounds justifying the arrest”; 3) the police must have “reasonable and probable grounds justifying the strip search”; and 4) “the strip search [must] be conducted in a manner that does not infringe s. 8 of the Charter” (at para 99).

Therefore, applying the analysis in Golden, and modified as required by Fearon, the MBCA in Laporte concluded that the following are required for a penile swab to be a lawful search incident to arrest:

1) The police have reasonable and probable grounds justifying the arrest;

2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and

3) The police have conducted the penile swab in a manner that complies with s 8 of the Charter. In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search:

1. Was the penile swab conducted at the police station and if not, why not?

2. Was the penile swab conducted in a manner that ensured the health and safety of all involved?

3. Was the penile swab authorized by a police officer acting in a supervisory capacity?

4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?

5. Was the number of police officers involved no more than necessary in the circumstances?

6. Was the minimum force that was necessary used to conduct the search?

7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8. Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab?

9. Was the accused person given the opportunity to swab himself and if not, why not?

10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person’s back to avoid genital exposure?

11. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?

A search warrant for penile swabs does not appear to be available under the current provisions of the Code (i.e. General Warrant s. 487.01(2)). I will report on the SCC decision in Saeed once it is reported.

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Filed under Search and Seizure