It was just a matter of time – do you recall the Patrick (2017) decision?

“Do you have anything on you?”An all too often posited question by us to an arrestee.

To save readers the time in recalling R. v. Patrick (2017) BCCA 57 (application for leave to appeal dismissed by SCC), the BCCA ruled that an officer’s narrowly tailored questions motivated solely by safety concerns are permissible to a detainee about to be frisk searched (the question must be specific to address safety-based concerns and not an attempt on our part to use the search power conferred by Mann as a subterfuge for evidence gathering). The court went on to say that nothing compels a detainee to answer such a question (see my previous post on this case for more details).

Fast forward, in R. v. Fead [2018] A.J. No. 1573, before the officer proceeded with the search subsequent to the arrest of Fead for officer safety, he made an inquiry of her as to what she might have in her possession. The officer had no memory of what he asked her (he made very few notes and had little memory). He provided various possibilities including, “Do you have anything that would hurt me, poke me, stab me?” “Do you have anything on you?” Do you have anything that I need to be aware of, “Do you have anything on you that you should be concerned about?”

Whatever the officer said to her, she responded by acknowledging she had cocaine and syringes in her shoe. The trial judge answered the question of whether it was a narrowly tailored question as to anything in the possession of the detainee that might cause injury to the officer solely motivated by safety concerns in the officer’s favour.  The ABQB disagreed.

The trial judge found as a fact the officer asked “Do you have anything on you?”, but the ABQB ruled that the court record does not support such a finding; therefore, it was an error on the face of the record. It was impossible to conclude the officer asked a narrowly tailored question with respect to officer safety. The officer did ask something, but in his evidence in chief said he had no specific recollection of the question. He testified as to his normal practice as to “anything that would hurt me, poke me, stab me.” He fairly acknowledged it could have been “Do you have anything on you I should be concerned about?” or as broad as “Do you have anything on you?” Interestingly, the syringes could be a response to a safety inquiry, but the cocaine to an evidence collection inquiry. As the ABQB did not know what the officer said, the reasonableness test in Patrick could not be applied.  

The reasonableness test you ask? Well, would a reasonable person consider the question narrowly tailored as to whether a detainee has possession of anything that might injure the searching officer rather than an inquiry to collect evidence? The ABQB found that the warrantless search was unreasonable and a breach of section 8 of the Charter. The evidence should have been excluded.

Lesson for us?  Keep the question specific to address safety concerns in these types of situations; notes, notes, notes…..and if an officer relies on his or her “common practice” as opposed to notes or memory, be prepared to be asked for more evidence respecting your standard practice to further support the reliability of your evidence in this regard, such as how long and how often you have used this standard practice, and how long you have been a police officer, etc.  If defence can show the unreliability of your evidence of common practice (sometimes you do this, but there are times you do that), it won’t fare well for your testimony.

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Filed under Officer Notes, Search and Seizure

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