Category Archives: Investigative Detention

Investigative Detention and Safety Searches

R. v. McKenzie 2022 MBCA 3 – the facts are not complicated. On a winter evening, two officers were dealing with a motorist in a back lane of a residential neighbourhood in Winnipeg. The accused was observed to be jogging through nearby back yards. One officer described it as “really weird”; the other officer said it was “a little bit unusual.” The accused was clenching the left side of his body with his elbow. One officer thought he might be injured and called out to him asking if he was okay. When the accused made eye contact, the officer recognized him. From police intelligence reports, the officer knew that the accused was a long-time member of a street gang and was known to carry a weapon. The accused “appeared startled or frightened” at seeing the police and “immediately increased his pace to a full out sprint”. Both officers formed the belief that the manner in which the accused was holding his left side was an effort to conceal something. One officer had extensive training and experience with weapons offences including the manner in which people carry weapons. He believed the accused’s mannerism was an attempt to conceal a weapon between his left arm and his body. At this point, he decided to detain the accused for an investigative purpose related to a weapons offence and yelled at the accused to stop. The accused did not comply and a short foot pursuit ensued. During the chase, the accused’s jacket was open and the officer observed the fanny pack. It occurred to him that the accused “was probably running a load of drugs and the fanny pack likely contained drugs”. He testified that he thought the fanny pack would contain “one of the two” (drugs or a weapon). The officer caught the accused and pinned him against the wall of a house. He observed that the zipper to the fanny pack was about 75% open. He lifted the flap on the fanny pack to fully open it, shined his flashlight and immediately observed the handgun. The accused was arrested and the drug evidence in his jacket was subsequently discovered. Police later located 37 grams of fentanyl, 46 grams of methamphetamine and items indicative of drug trafficking in the jacket, and determined that the handgun was loaded and stolen. At his trial, the accused applied to have the drug and firearms evidence excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter) on the basis of alleged violations of his rights under sections 8 and 9 of the Charter (person and his fanny pack).

The Supreme Court of Canada has recognized several common law police powers that permit interference with an individual’s liberty or property on the basis of the ancillary powers doctrine using the two-stage framework set out in R. v. Waterfield, [1963] 3 All ER 659: the lawfulness of police action turns on whether (a) the action falls within the general scope of a statutory or common law duty, and (b) the action involves a justifiable exercise of police powers associated with the duty. On the second stage of the Waterfield framework, a court assesses whether the interference was “reasonably necessary for the carrying out of the particular duty”: (1) the importance of the performance of the duty to the public good, (2) the necessity of the interference with individual liberty for the performance of the duty, and (3) the extent of the interference with individual liberty.

For precedent purposes, R. v. Mann, 2004 SCC 52) ruled that a police officer may detain an individual for investigative purposes “where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances” (R. v. MacKenzie, 2013 SCC 50 at para 35; see also Mann at para 45). An investigative detention affords police the ability to take reasonable measures to investigate an offence (see R. v. Clayton, 2007 SCC 32 at para 33). As was said in Mann, “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing” (at para 16). The common law power of investigative detention is not limited to “a specific known criminal act” but extends to recent or ongoing criminal activity that is reasonably suspected (R. v. Chehil, 2013 SCC 49 at para 35). An investigative detention is not a “de facto arrest” (Mann at para 35). Police powers governing investigative detentions and arrests are different (see Mann at para 45; and R. v. Suberu, 2007 ONCA 60 at para 40, aff’d 2009 SCC 33). An investigative detention is intended to generally be “a brief and limited suspension of a citizen’s right to go about his or her business freely” (James A Fontana & David Keeshan, The Law of Search and Seizure in Canada, 11th ed (Toronto: LexisNexis, 2019) at 1096).

There are differing schools of thought that have arisen post-MacDonald (R. v. MacDonald, 2014 SCC 3) regarding the impact of the majority decision on warrantless common law police powers to search. One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts (see R. v. Peterkin 2015 ONCA 8 at para 59; R. v. Smith, 2019 SKCA 126 at paras 13-15; and R. v. Stairs, 2020 ONCA 678 at paras 54-55). Another view is the minority in MacDonald was incorrect; the majority in MacDonald did not “recalibrate the test for lawful police safety searches from the traditional ‘reasonable suspicion’ standard” (R. v. Webber, 2019 BCCA 208 at para 65; and see R. v. McGuffie, 2016 ONCA 365 at para 52); all that happened was the majority in MacDonald used the same unclear language that was used in Mann. However, a different perspective, that the minority in MacDonald was correct as to the test for lawful common law police searches being recalibrated by the majority, was reached in R. v. Del Corro, 2019 ABCA 156 at para 49. What is not controversial is that a protective search incident to a lawful investigative detention that is carried out in conformity with common law police powers and otherwise in a reasonable manner is not an unreasonable search or seizure for the purposes of section 8 of the Charter (see Mann at para 44; and Clayton at para 20).

In the present case, the MBCA found that the the act of detaining the accused for a weapons offence investigation fell within the officer’s common law duties (see Mann at para 26). The detention was otherwise reasonably necessary for the purposes of the second stage of the Waterfield framework and was “conducted in a reasonable manner” (Mann at para 45). Weapons offences are a serious threat to the peace, therefore there was significant importance in the officer taking immediate action in terms of the public good as well as a necessity for him to interfere with the accused’s liberty. With regards to the safety search of the accused and his fanny pack, the MBCA found that the act of conducting a search to protect life and property incidental to a lawful investigative detention fell within the officer’s common law duties (see Mann at paras 38-39). Agreeing with the trial judge’s reasoning, the MBCA found that “if a search meets the requirements of a lawful search the fact that the investigator had another unlawful reason in mind is irrelevant” (at para 50). Here, the officer made clear that, although he thought the fanny pack may contain drugs or weapons, the reason he decided to look inside it was “to ensure [his] safety.” He said he only opened the top of the fanny pack and “did not delve into” it. In the court’s view, the trial judge was correct that the search of the fanny pack was reasonably necessary to eliminate an imminent threat to officer safety (see MacDonald at paras 39-45). MacDonald makes clear that searches to eliminate any imminent threat to the officer or third parties can take many forms depending on the circumstances and are not limited to pat-down searches (see para 39). The accused’s appeal was dismissed.

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Investigative Detention and Handcuffing…

Another case examining handcuffing the detainee incident to an investigative detention has prompted my latest post.  R. v. Latzkowski 2018 SKPC 56 involved an all-too-familiar situation whereby the driver was detained for an impaired driving investigation and the officer read the ASD demand, had the driver step out of the vehicle, “placed the handcuffs to the rear for officer safety, for my safety”, and escorted him to the passenger side rear door of the police vehicle. The officer was with another officer, no other individuals were present in the vehicle with the accused and there was no suggestion whatsoever in the behaviour of the accused to suggest that he was a risk to flee, or that he was a risk to officer safety.

In his testimony, the officer stated that he handcuffed the driver because he had concerns, not knowing the accused, that the latter may have weapons, and he also had concerns about the potential for unpredictable behaviour by an individual. However, in cross-examination, the officer agreed that the accused did not pose any trouble, referring to him as a “polite, cooperative gentleman”. When asked whether a pat-down search was conducted on Latzkowski, the officer testified that:

“I believe it’s entirely possible that I gave him a brief pat-down. I don’t remember specifically a pat-down, but if I would have detained him, and placed him in handcuffs, I would say — it — it’s a common practice for me to give a very brief pat-down just along the sides and the waistband for any potential weapons, knives, guns, anything sharp. So it’s entirely possible that I did. I don’t remember specifically doing it.”

The judge canvassed other decisions of the court that were similar to the case at hand, which I will briefly summarize: R. v. Vulic, 2012 SKQB 221, 397 Sask R 235 – an investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interest of officer or public safety; R. v. Wong, 2009 BCPC 89 – handcuffing constituted a de facto arrest noting that “even if the detention had been lawful as an investigative detention, then police do not have carte blanche to use handcuffs on an investigative detention”; R. v. Strilec, 2010 BCCA 198, 256 CCC (3d) 403 – an individual was handcuffed who had been stopped for some traffic violations. Again, the Court found that a de facto arrest had occurred with the handcuffing, although the detention exceeded what was necessary and reasonable on the facts of that case; R. v. DiMaria, 2012 ONCJ 358 – the individual was handcuffed prior to the administration of a roadside screening test. The Court concluded that the detention was arbitrary and contrary to s. 9 of the Charter, noting that the individual was in handcuffs “for no good reason”; R. v. Romaniuk, 2017 ONCJ 235, the accused was handcuffed and put in the back of the police cruiser after being informed that he was under investigation for drinking and driving offences. The arresting officer cited officer safety as a reason for handcuffing, as a general practice. The Court noted that handcuffing an individual prior to arrest should not be done as a policy reason, or as a matter of regular practice; the test is whether or not the officer’s subjective belief about safety concerns is objectively reasonable.

In the case at hand, the judge found that…”there was no particular assessment by this officer as to whether this individual was a safety threat. He simply handcuffed Mr. Latzkowski as part of his standard practice and I find his proffered reasons for doing so were standard answers that failed to assess this situation. Objectively, he cuffed the defendant in the absence of ascertaining any facts that would justify such action and this is objectively unreasonable. … [A]llowing this type of conduct to go without remedy would, in my view, have a negative impact on the administration of justice. … “

The take home? As a general rule, the cases would indicate that someone who is under investigative detention is not ordinarily handcuffed, and it is a significant deprivation of his or her liberty. An investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officer or public safety.

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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.

 

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Investigative detention and use of force…

There are limits to the degree of interference with a citizen’s liberty that the police can employ when interacting with a citizen short of arrest. Nevertheless, the law recognizes that, especially in situations potentially dangerous to the public or to the police, a degree of intrusion may be justified. A recent case out of the NLCA, R. v. Squires 2016 NLCA 54, examined balancing the importance of protecting citizens from the illegitimate use of force by police, while at the same time trying to ensure that the police are not unduly hampered in the way they carry out their important public duties and responsibilities, especially when safety issues relating to firearms are potentially involved.

Moldaver and Wagner JJ. explained the balance that must be struck in terms of a “fundamental bargain” in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 as follows:

[64] Every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face. That is the fundamental bargain we, as a society, have struck with the police — and it is a fundamental commitment upon which the police are entitled to rely.

In Squires, police received an anonymous phone tip, in the early hours of the morning, that a male in a “black jeep” near a community centre in St. John’s had a firearm, possibly a shotgun or rifle. The first officer on the scene saw a lone black sport utility vehicle with a male occupant in the parking lot. A second officer arrived in another car a few minutes later. The first officer activated his vehicle’s emergency lights, exited the vehicle, drew his firearm and told the male, whom he recognized as Squires from a previous occasion, to put his hands out the window. Squires fully cooperated. Upon the second officer’s arrival, she also drew her gun. Squires was told to exit his vehicle and lie face down on the ground, whereupon the second officer handcuffed him and brought him to her police vehicle. He was read his rights and caution and was told the police were investigating a weapons complaint. Squires admitted there was a shotgun in his vehicle. Not knowing of Squires’ statement that there was a gun in the vehicle, the first officer, using a flashlight, looked through the tinted glass in Squires’ vehicle to determine if there was anyone else there and to ensure the officers’ safety. Not seeing any other occupant, he looked again and saw the partially covered barrel of a shotgun on the back seat. He opened the door, seized the gun and shotgun shells and told the other officer to arrest Squires for unsafe handling of a firearm. Squires was re-advised of his rights and cautioned and then arrested for careless use of a firearm and breach of a weapons prohibition. The second officer claimed reasonable grounds for the arrest based on the original complaint that had been phoned in, Squires’ admission that there was a shotgun in the vehicle, and the fact that the first officer had seen the firearm in the vehicle. The first officer confirmed in evidence that he did not have grounds to arrest Squires prior to observing the firearm, but he asserted that he searched the vehicle incident to the arrest. It was clear, however, that the formal arrest performed by the second officer back in the vehicle had not occurred before the gun and shells were actually seized.

On these facts, the trial judge concluded that Squires’ rights under sections 9 and 8 of the Charter were infringed, and excluded the evidence of the shotgun and shells. As a result, Squires was acquitted for lack of admissible evidence.

The NLCA noted that a minimally intrusive safety search must still generally be based upon lawful actions of the police such as a lawful arrest or a lawful investigative detention. Thus, if a safety search is conducted incident to a detention that is arbitrary under section 9, the search will be regarded as an unreasonable search in violation of section 8. While MacDonald recognized that, in exigent circumstances or circumstances of an imminent threat, a search for weapons based on safety concerns does not necessarily have to be incident to either a lawful arrest or lawful detention, it presupposes that the actions of the police prior to the search are otherwise lawful. On its facts, MacDonald does not extend to permitting a safety search as incident to an arbitrary (i.e. otherwise unlawful) detention. Exigent circumstances do not in themselves provide a justification for a search; rather, they provide a justification for proceeding to search without a warrant which would have been available had there been time to apply for it, i.e. the circumstances provide an otherwise lawful basis for the search. The police must be doing some lawful thing when the need for a “shortcut” in doing it arises through exigent circumstances (R. v. Fountain 2015 ONCA 354).

That said, it must be recognized that there may be good practical reasons to allow police, where safety issues are at play, to carry out investigative detentions (tailored in their nature to the factual circumstances) and searches incidental to such detentions. The police officers had testified that they did not have grounds to arrest, and did not arrest, Squires until the firearm was observed in the backseat of the vehicle. The question upon appeal therefore became whether the actions of the police in interfering with Squires’ liberty could be characterized as a legitimate investigative detention short of arrest.

As noted in Squires, the standard to be applied to justify investigative detention is considerably lower than that required to arrest. Here, the officers acted on a tip that a man was in a black utility vehicle at the community centre with a shotgun or rifle. That was sufficient to justify investigating. In the absence of anything indicating worthlessness or substantial unreliability of the information received, the police are entitled to rely on such information for the purpose of investigating further (R. v. Clayton 2007 SCC 32).

It is the duty of a police officer to investigate potential crimes and to ask questions of citizens in relation to that investigation. It is not necessary that the police must have a subjective belief in the accuracy of the information at the time of commencing an investigation or that, at these early stages, there need be any objective corroboration of the information suggesting the need for investigation. That said, the right and duty to investigate does not automatically imply a right to detain or use force short of arrest. The degree of detention that is justifiable in pursuance of the investigation will depend, on a view of the totality of circumstances, on what is reasonably necessary to facilitate that investigation. At that point, the officer must have reasonable grounds to suspect that in all the circumstances the targeted person “is connected to a particular crime and that such detention is necessary” (R. v. Mann 2004 SCC 52).

Upon arrival at the scene, the first officer observed a man in a vehicle that roughly fit the description given in the tip. No one else fitting the description was present. Given the possible presence of a firearm, it was perfectly reasonable for the officer to suspect that Squires was connected with the alleged crime and to seek to detain him to investigate further, said the court. The safety of the public and the investigating officers was potentially engaged. The more difficult question, however, was whether the police acted appropriately in the manner in which they purported to effect the detention.

The trial judge concluded that “ordering the accused out onto the ground and searching him … exceeded what would be warranted in encompassing an investigative detention.” The use of force is usually associated with arrest rather than investigative detention. Here, said the court, it can not be said that the police had more than a reasonable suspicion, upon entering the parking lot and seeing a vehicle that generally matched the description in the tip, that the suspect in the vehicle had any weapon in his possession or under his control. There was no evidence led at trial of any reputation of Squires, who was known to the officer, for violence (although he was subject to a firearms prohibition). Further, the suspect was not behaving in a manner that in itself would have invoked suspicion. He was cooperative throughout and complied with all directions from the officer.

The degree of force used and the intrusion into Squires’ liberty was not, at that time, necessary to protect officer or public safety or to further the investigation which had been activated by the tip that had been received or the initial observations in the parking lot. Once the police went beyond a scenario requiring Squires to keep his hands visible, exit the vehicle and put his hands on the roof of the vehicle preparatory to, perhaps, a pat down search, and instead used physical restraint, and threats of physical force, they exceeded the bounds of permissible detention and, given the conceded absence of grounds for an actual arrest, caused the resulting detention to become arbitrary.

The NLCA said that an investigative detention should not be allowed to become a de facto arrest and stated that the duration and nature of the detention must be tailored to the investigative purpose of the detention. Generally, subduing and immobilizing by threatening force, handcuffing and placement in a police vehicle will not be necessary to carry out an offence investigation. In most cases, a direction to cease movement, exit a vehicle, keep one’s hands visible and respond to questioning will be sufficient. Obviously, handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, but generally that should be the exception rather than the rule (see, for example, Clayton, R. v. Gnanachandran, 2005 CarswellOnt 3065 (S.C.) at para. 30; R. v. Cunanan (2008), 170 C.R.R. (2d) 69 (Ont. S.C.) at paras. 42, 44; R. v. Agengo, 2011 ABQB 171, 506 A.R. 344, at paras. 14-17)). The use of force, such as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as a de facto arrest (see, e.g., R. v. Strilec 2010 BCCA 198, 256 C.C.C. (3d) 403; R. v. Orr, 2010 BCCA 513 at paras. 10-11).

The appeal court concluded, as did the trial judge, that it was reasonably necessary in the totality of the circumstances of the case, (given the report of a firearm and the general description given by the tipster, suggesting that the person could be regarded as a suspect), to detain and question Squires when he was observed in his vehicle on the community centre parking lot. However, in the absence of any indication of attempted flight, uncooperativeness or threatening behavior, that could have been accomplished by requiring Squires to exit the vehicle and to place his hands in plain sight on the top of the vehicle, preparatory to a pat down search. It did not in the circumstances require ordering him to the ground at gunpoint, handcuffing him and placing him in the police cruiser before continuing to look for any weapons. What began as a lawful detention became unlawful when excessive force and unnecessary detention methods were employed. The detention became arbitrary and was therefore a breach of section 9 of the Charter.

As for the search of the jeep, the police officer was lawfully in the place outside the vehicle from which the interior could be viewed. As well, once the firearm was observed, it would have been apparent to the officer that it may be evidence of a crime. It was the very type of item which was reported to them as being in the possession of someone in a black vehicle in the parking lot and which prompted the investigation in the first place. On the evidence, the arrest of Squires back in the second officer’s police car took place after the first officer saw the gun in the backseat of the vehicle, opened the door and seized it and the accompanying shells. How then can it be said that the search and seizure was incidental to arrest? The NLCA said that although the search preceded the actual words of arrest, it can still be characterized as being incidental to the arrest because the officer in fact had reasonable and probable grounds to arrest Squires as soon as he observed the firearm on the seat of the vehicle even though the actual words of arrest were not uttered until after the seizure. That brought it within the scope of a search incident to an arrest (see, for example, R. v. Debot [1989] 2 S.C.R. 1140). Accordingly, the appeal court concluded that the seizure of the gun was lawful and that the items and evidence in relation to it were admissible at Squires’ trial. The trial judge erred in concluding otherwise, ruled the appeal court.

In the end, the appeal court by a 4:1 ruling said that the evidence obtained in the course of the lawful search should not have been excluded at Squires’ trial. The arbitrary detention and excessive use of force did not justify the exclusion of the evidence, as the shotgun would have been observed had a reasonable level of force been used. The crown’s appeal was allowed and a new trial ordered. As the newly appointed justice to the SCC (M. Rowe, concurring) stated in Squires:

Regarding the seriousness of the conduct that infringed Mr. Squires’ rights under section 9, while the police used excessive force in their detention of Mr. Squires, their conduct was grounded in a sense of caution related to officer safety. The officers were not cavalier or egregious in their conduct; they simply went too far in the circumstances.

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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