Whether the power to conduct a search incident to an investigative detention is restricted to a physical pat-down of the detainee?

R. v. Patrick 2017 BCCA 57 – someone had attempted to register a SUV in the name of a person whose identity had been stolen. During a patrol, a female officer recognized the SUV’s licence plate number from the complaint and stopped the vehicle. Patrick was driving the vehicle and it contained three passengers, all of whom were large men. The officer asked the driver who owned the vehicle, to which he replied a friend, but provided no other details. She asked for the vehicle registration documents, and the driver passed her a blue plastic sleeve with nothing in it. She noticed that the passenger seated in the front appeared to be sleeping, passed out, or unconscious, was difficult to rouse and no one else in the SUV seemed to know his full name or what was wrong with him. The occupant of the rear seat on the passenger side had two black eyes and a gash on his forehead, and although the officer could not say when the injuries had been inflicted, she thought that this person had been assaulted. She returned to her vehicle to conduct further background checks and request backup.

The officer ascertained the identity of the three passengers. All of them were involved in criminal activity and were known to be violent. The officer was concerned for her safety, considering Patrick could not say who owned the vehicle, one of the passengers looked like he had been assaulted, the front seat passenger appeared to be unconscious and no one was able to say what was wrong with him. The officer noted a bulge under the upper right shoulder area of Patrick’s jacket. The bulge was of concern to her because it seemed unnatural and was oddly shaped. She asked him whether he had something on him (“Do you have something on you?”). Patrick acknowledged that he did and patted the bulge. When the officer asked what he had on him, Patrick said a shotgun. Another officer reached inside Patrick’s jacket and pulled out a loaded shotgun. The barrel and butt stock had been sawed off. Patrick and the vehicle he was driving were searched incidental to his arrest.  This appeal focused on other issues, but I’ll restrict it to the investigative detention at roadside and the subsequent pat-down search.

The trial judge held that the questions asked of Patrick and the responses to those questions elicited violated his s. 8 Charter rights. Patrick conceded at trial the female officer was, on the authority of R. v. Mann, 2004 SCC 52, entitled to detain him at the roadside for investigative purposes. To highlight Mann at para. 40, the SCC also recognized that the general duty of officers to protect life may, in certain situations, give rise to the power to conduct a pat-down search incident to an investigative detention. To lawfully exercise this authority, the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified upon mere intuition or on the basis of vague or non-existent concerns for safety (see also R. v. MacDonald, 2014 SCC 3). In addition, the search must be conducted in a reasonable manner and the Crown bears the burden of demonstrating this on a balance of probabilities: Mann at paras. 36, 40.

The BCCA appeal said the central questions that arose on this appeal were: (1) whether the female officer had the power at common law to ask the respondent questions tailored to her safety-based concerns before conducting a pat-down search; and (2) if she did, whether the manner in which the search was carried out in this case — asking the respondent whether he “had anything on him” before patting him down — was a reasonable and justifiable use of that power. The first question was one of general application. The second question engaged considerations specific to this case.

The BCCA, at para. 102:

In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible. To use the language of Waterfield, asking a detainee whether they are in possession of anything that might cause injury to an officer about to execute a pat-down search constitutes a justifiable exercise of the powers associated with the duty of police officers to preserve the peace, prevent crime and protect life. That the search takes the form of minimally intrusive questioning as opposed to physical contact does not, standing alone, make the manner of the search unreasonable.

Of course, nothing compels a detainee to answer such a question. It stands to reason, however, that the police will be afforded additional latitude in determining the manner in which the search needs to be conducted if the detainee declines to respond, said the BCCA.

As to whether the questions asked by the female officer constituted a justifiable exercise of her common-law powers, the BCCA said the female officer testified that her questions were motivated by concerns about what Patrick was concealing under his jacket. In her mind, the question was the equivalent of asking Patrick what was being concealed under his jacket. The question appeared to have been so understood by Patrick because he responded by touching his right shoulder and advising her that he was in possession of a concealed shotgun. The officer was not permitted by the trial judge to give evidence on what the question “Do you have anything on you?” is understood to convey in the enforcement community. It was never put to the officer on the voir dire that she was motivated by anything other than safety concerns when she asked this question and it was not argued by Patrick that the officer was improperly using her limited common law authority as an evidence-gathering tool (which, as we appreciate – or should by now – would not be acceptable).

As a result, in the view of the BCCA, whether the officer’s inquiries exceeded the scope of her common law power is largely a fact-driven question that must also be resolved in the context of a new trial, and it so directed. Is an appeal to the SCC evident?  Time will tell.

 

Leave a comment

Filed under Investigative Detention

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s