Category Archives: Safety Search

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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An arrest based upon a mistake of law is unlawful and contrary to Section 9 of the Charter

Firstly, it took me a while to wrap my brain around this one to make sure I had the decision clear before posting. In the same interaction, police conducted both an unlawful search, but later a lawful search of the same individual. Let’s start with the facts in brevity (R. v. Tim 2022 SCC 12):

A member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The driver’s car had veered off the road, hit a roadside sign, and continued for about a kilometer before it became disabled. Fire, medical, and police services rushed to the scene. The driver (and lone occupant) was standing at the side of the road talking to a firefighter when a police officer arrived. The officer, suspecting that the driver had fled the scene of the collision, approached him and asked if he had been involved in an accident. The driver acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the driver for his driver’s licence, vehicle registration, and proof of insurance. The driver said he would get the documents from his car. The officer followed him as he did so. When the driver opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The driver’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the driver for possession of a controlled substance. After the driver was arrested, the police conducted four searches:

  • In the first search, the officer conducted a pat-down search of the driver incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
  • In the second search, another police officer, who arrived moments before the arresting officer placed the driver under arrest, searched the driver’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
  • In the third search, the arresting officer searched the driver again because he became concerned that the first search might have missed some items. His suspicions were aroused because the driver was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the driver’s pants. While searching his person, the officer touched the outside of the driver’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
  • In the fourth search, the driver was strip searched at the police station. He was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband or weapons , etc. were found.

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. By way of reminder for this post, Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”. Unfortunately, the officer arrested the driver for possession of gabapentin specifically. The officer knew the facts — he correctly identified the pill as gabapentin at the time he saw it — but mistakenly concluded that possession of gabapentin was an offence, when, in law, it was not, because that drug is not a controlled substance under the CDSA. Justice Mahmud Jamal, writing for the majority, said the court is not suggesting that the police must see and correctly identify a specific drug from the hundreds of controlled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drug offenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legality of such arrests, if they conclude that there were reasonable grounds to arrest, but in this specific case, “If the offence that the police officer believes has been committed simply does not exist, the officer does not have the power to … arrest the person…”.

Turning now to the four searches, this is where things were muddied, but I believe I have it figured out (here’s hoping):

  • The first two searches — the initial pat-down search of the driver and the search of the driver’s car on discovering the gabapentin — were purportedly conducted incident to arrest, which must meet three conditions: (1) the person searched is lawfully arrested; (2) the search is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably. Here, the initial pat-down search of the driver and the search of his car incident to arrest falter on the first condition: he was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.
  • The third search was purportedly undertaken incident to an investigative detention. How you ask? Well, the police’s interaction with the driver was at first a traffic collision investigation. The arresting officer testified that he came to where the driver’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. In doing so, the officer was properly exercising investigatory powers under Ontario provincial traffic law (I won’t expand on this authority in this post) and the Criminal Code (under s. 320.16(1) of the Criminal Code, it is an offence, in certain circumstances, to fail to stop after a traffic accident). R. v. Mann 2004 SCC 52 recognized that the police have a common law power to search incident to investigative detention under certain circumstances. Speaking for the majority in Mann, Iacobucci J. stated that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary” (para. 45). He added that a police officer “may engage in a protective pat-down search of the detained individual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition, both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). Speaking for the majority in Tim, Justice Jamal read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun, said the court. When there are concealed bullets, there may be a concealed gun. The further pat-down search of the driver, in which the officer dislodged a loaded handgun by merely touching the outside of the his pants, was also conducted reasonably. This search did not breach s. 8 of the Charter.
  • The fourth search, the strip search (although nothing further was found), was also ruled to be lawful: reasonable grounds exist to justify a strip search “where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (R. v. Ali 2022 SCC 1, at para. 2; see also R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 94 and 111). The strip search must also be conducted reasonably, in a manner that “interferes with the privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). Here, the driver was lawfully arrested for the weapons offences after the ammunition and the handgun fell from his pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the driver’s] pant leg … and then [he] placed the [driver] in [his] vehicle, where he was chartered and cautioned”. The strip search at the police station was incident to this weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the driver was lawfully arrested, it was minimally intrusive as it was conducted reasonably, in a manner consistent with the SCC’s guidelines for strip searches (see Golden, at paras. 101-2). It was performed at the police station, it was limited to the driver’s underwear waistband, and the driver wore his underwear throughout the search. It therefore did not infringe s. 8 of the Charter.

So, to sum up, the majority of the SCC found that the initial pat-down search of the driver and the search of his car infringed s. 8 of the Charter (because he was arrested, and his car search, incident to an unlawful arrest for a drug not controlled under the CDSA), but the further pat-down search and the strip search did not as it was incident to an investigative detention (e.g., 320.16(1) CC) for a traffic collision investigation, the officer had concerns for his safety given that he had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. This lead to an arrest for weapons offences and a subsequent strip search.

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Search incident to arrest considered in detail and modified in relation to residential arrests.

It appears this is the first time that the Supreme Court of Canada has pointedly considered the search incident to arrest power applied inside a home. In R. v. Stairs 2022 SCC 11, a call was placed to 9-1-1 to report a man repeatedly hitting a woman in a car. Police officers located the car parked in the driveway of a house. They knocked on the front door and loudly announced their presence, but no one answered. Fearing for the woman’s safety, they entered the house. A woman with fresh injuries to her face came up a flight of stairs leading from the basement. The accused then ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later. After the arrest, the police conducted a visual clearing search of the basement living room area, from which the accused and the woman had just emerged. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine (over 90 grams). The accused was charged with possession of a controlled substance for the purpose of trafficking, assault, and breach of probation.

The accused brought a pre-trial application alleging, among other things, violations of his right against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for the officers to do a quick scan of the basement living room after the accused was arrested, that the search had a valid objective, and that the search and resulting seizure were lawful. The accused was convicted of all charges. He appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the conviction, holding that the search and subsequent seizure of the methamphetamine did not breach the accused’s s. 8 Charter rights. The majority was of the view that the search was a search incident to a lawful arrest, that the common law standard for search incident to arrest applied, and that the search of the basement living room met this standard. The accused’s appeal was dismissed by a 5-4 SCC majority on the reasonable suspicion standard for searches incident to arrest inside a home.

The SCC discussed that the baseline common law standard for search incident to arrest requires that the individual searched has been lawfully arrested, that the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and that the search is conducted reasonably (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27). In the past, the SCC has tailored this standard in several contexts to comply with s. 8 of the Charter. The search incident to arrest power has been eliminated for the seizure of bodily samples (R. v. Stillman, [1997] 1 S.C.R. 607), and the standard has been modified in other situations presenting a heightened privacy interest in the subject matter of the search, such as strip searches, penile swabs, and cell phone searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Fearon).

In the present case, the appeal to the SCC raised two issues: (1) whether the search of the basement living room incident to arrest was unreasonable, contrary to s. 8 of the Charter; and (2) if so, whether the methamphetamine seized by the police should be excluded under s. 24(2) of the Charter. This post will focus on the 1st issue.

In short, the SCC has enunciated a two-part analytical approach for determining whether the common law standard for search incident to arrest should be modified to comply with s. 8 of the Charter …:

(1) Stage One: Determine whether the search satisfies the common law standard for search incident to arrest.
(2) Stage Two: If so, determine whether the standard must be modified to comply with s. 8 of the Charter, given the particular privacy interests and law enforcement objectives at stake.

The SCC said that the common law standard of search incident to arrest should be modified — and made stricter — to reflect an accused’s heightened privacy interest in their home, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  • the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and
  • the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home (as a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion. Further, it would be good practice for the police to take detailed notes after searching a home incident to arrest. They should keep track of the places searched, the extent of the search, the time of the search, its purpose, and its duration).

In Stairs, the dynamic before and during the arrest and the nature of the offence for which the accused was arrested were factors that figured prominently in the reason-to-suspect analysis. The situation was volatile and rapidly changing, and the arrest was for domestic assault. In domestic violence cases, the police are not only concerned with the privacy and autonomy of the person arrested; they must also be alert to the safety of all members of the household, including both known and potential victims, said the majority. In addition, the search was conducted reasonably. It took place right after the arrest and the police merely conducted a visual scan of the living room area to ensure that no one else was present and that there were no weapons or hazards. The spatial scope of the search was appropriate: the living room was part of the surrounding area of the arrest, it appeared to be a common living room space, and the police engaged in the most cursory of searches, which was the least invasive possible. The search of the living room incident to arrest did not violate the accused’s s. 8 Charter right, and the evidence from the living room search was therefore properly admitted at trial because.

Given the factual matrix of this case, the SCC mentioned that it was not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. They left that issue for another day.

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Investigative detention and searching a vehicle

R. v. Lee 2017 ONCA 654 – officers on general patrol in their scout car. At 8:23:10 p.m. they received a call from dispatch that there was a male of Asian descent possibly armed with a gun in the parking lot near the liquor store. This was the dispatch information (computer):

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR STORE IN A WHITE VEH -BKND714 [the licence plate number]

COMP SAYS HE SAW A LARGE BAG

IT WAS IN THE TRUNK OPEN

COMP BELIEVES HE SAW A GUN – 1M/A.SIAN-30-40’S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN

THINKS THIS MALE IS DEALING DRUGS

COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND BELIEVES HE SAW IT IN THE MALE’S POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER’S SEAT

VEH COMES BACK AS RENTAL CAR

TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES HIS MIND

BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON

COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

The officers then received oral information from dispatch that the vehicle was a white four-door 2009 Toyota. They drove to the liquor store, arriving at 8:24:53, but did not see the vehicle. They exited the parking lot and drove along a nearby road where, a few minutes later, they saw a vehicle pulled over with the engine running matching dispatch’s description of the car and the licence plate. The car had a single male occupant — the appellant — who was Asian and wearing a brown hat. The officers stopped behind the vehicle.

The officers approached the appellant, ordered him to show his hands, opened the car door, and removed him from the driver’s seat. One officer told the appellant he was under investigative detention following the 911 gun call. The appellant looked shocked and said, “No! No!”, in response to mention of the word “gun”. The officer did not immediately inform the appellant of his right to counsel. He did a pat-down search for weapons and found none. The appellant was detained but not handcuffed. The second officer performed a search of the passenger cabin of the appellant’s vehicle and did not find a gun.

A sergeant, who had also heard the 911 gun call, arrived shortly after the responding officers, with two other officers. An officer pushed the button releasing the latch to open the trunk of the appellant’s vehicle. A duffle bag came into view once the trunk was open. The sergeant lifted the bag and found it heavy. Thinking there could be guns inside, he unzipped it. The bag contained 23 kilograms of cocaine. No gun was located.

The investigative detention lasted three minutes. By 8:39 p.m., the appellant was arrested for possession of a controlled substance for the purpose of trafficking. At that time, he was informed of his right to counsel. The next day, the police obtained a search warrant to search the appellant’s vehicle and to seize the duffle bag and cocaine.

The trial judge concluded that the search was reasonable and that, in any event, the evidence seized was admissible under s. 24(2).  Two judges of the Ontario Court of Appeal agreed that the police searched the trunk lawfully, while one judge in the Court of Appeal agreed with Lee’s lawyers that this search went too far.

The appellant raised three issues:

  1. Was the search of his trunk authorized by s. 117.02(1) of the Criminal Code?
  2. Was the search of his trunk authorized by the common law?
  3. Should the cocaine be excluded from evidence under s. 24(2) of the Charter?

The ONCA ruled that the police officers all testified that they did not believe they had grounds to obtain a warrant to arrest the appellant at the time of the search, so s. 117.02(1) of the Criminal Code does not apply. Accordingly, s. 117.02(1) did not authorize the search in this case.

Was the search of the trunk authorized at common law? First, a police officer must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. Second, the police officer is entitled to search the individual detained for a weapon where the officer has a reasonable belief that his safety “or the safety of others…is at risk”. The decision to search cannot be premised on hunches, mere intuition, or a vague or non-existent concern for safety, rather, the officer, “is required to act on reasonable and specific inferences drawn from the known facts of the situation”. The search must also be confined in scope to an intrusion reasonably designed to locate weapons. Third, the search must be conducted in a reasonable manner. Fourth, the investigative detention should be brief and the individual detained is not obliged to answer questions.

How did the ONCA decide? First, the investigative detention was necessary. Based on the 911 call, “[the officers] were discharging their common law duty to preserve the peace, prevent crime, and protect life and property”. As a result of confirmation of the specific information in the call, description of the car, licence plate, and description of the individual driving it, the police had reasonable grounds to suspect that the appellant was connected to a particular crime, possession of an illegal weapon, a gun, and his investigative detention was necessary.

Second, the police had reasonable grounds to believe that their safety and the safety of the public was engaged and they were entitled to conduct a protective pat-down search of the appellant and in the particular circumstances, they were also entitled to search the cabin of the car.

Third, the appellant did not submit that the manner in which the search was conducted was unreasonable.

Fourth, there was also no issue that the investigative detention was brief. Here, after receiving the 911 call from dispatch at 8:23:10 p.m., the police were at the liquor store parking lot by 8:24:53 p.m., and they located the appellant only a few minutes later. The appellant was under arrest within sixteen minutes from the time of the 911 call.

The trial judge found the officers reasonably believed the person driving the car was probably the person who had closed the trunk. At para. 28 of her reasons she held:

I find that the officers reasonably believed that the person driving the car was probably the person who closed the trunk as there was no other individual involved. I find that they reasonably inferred that there could have been one or more guns in the car and that the gun that the caller believed he saw could have been moved to the pocket of the Asian male from the trunk or from the pocket to the trunk.

Although two of the ONCA judges agreed, at para. 65 of the decision:

Importantly, this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention. The jurisprudence makes it clear that it is the totality of the circumstances that must be considered in every case. It is a very factually-driven analysis.

The third judge ruled that the search in this case was not authorized by law and therefore infringed the appellant’s right to be free from unreasonable search and seizure. However, the judge agreed with the majority that the evidence obtained from the search should be admitted under s. 24(2) of the Charter. The third judge went further to say that once no weapon was found on the appellant’s person or inside the cabin of his vehicle within his accessible reach, no further immediate safety hazard existed; the appellant had no immediate access to his trunk and had no means to immediately retrieve anything from the trunk or from the luggage in the trunk that could pose such as hazard. …

The take home? Don’t go into the trunk UNLESS you have specific reasons pointing at a live risk to police or the public (and you are able to articulate that). In the specific facts of this case, the importance of preventing serious injury or death to members of the public in not allowing the appellant to drive away until that threat was dispelled clearly outweighed the additional interference with the appellant’s liberty and privacy interests.  The same may not be in the result in our situation; we must tread carefully.

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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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Pat-downs of the driver prior to administering the ASD test…

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 [2015] 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, [2004] 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, [2012] 3 S.C.R. 408 and again in 2014 with R. v. MacDonald 2014 SCC 3, [2014] S.C.J. No. 3.  Lately, we’ve had the cases of Wondu and Schwab (earlier posts on the blog), and R. v. Malcolm [2015] 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. 

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The police power to conduct a ‘safety search’ before administering an approved screening device test during a traffic stop.

An earlier post of mine (May 6th, 2015) discussed a case out of the Alberta Court of Queen’s Bench, R. v. Wondu [2015] A.J. No. 430, involving the standard practice of some officers of conducting a pat-down search to make sure individuals do not have a weapon on their person before being seated in a police vehicle.  Another lower court decision out of the same province has again considered the police power to conduct a ‘safety search’ before administering an approved screening device test during a traffic stop.

In R. v. Schwab 2015 ABPC 180, the officer observed a motor vehicle being operated in an industrial area of the City of Camrose. Businesses were closed at that time of day and the officer was aware that there had been several ‘B & E’s’ in the area. When he saw the vehicle commit a traffic infraction, he signaled it to stop. Schwab was driving the vehicle; the officer approached and advised Schwab of the reason his vehicle had been stopped. He was directed to produce his driver’s licence, registration and insurance documentation. The officer noted that Schwab had flushed cheeks, bloodshot eyes, and had a smell of liquor on his breath. Schwab denied having consumed alcohol. The officer returned to his police vehicle, checked the documentation provided and found it to be in order. No concerns for safety were raised by any information received or observations made by the officer during the course of these checks. Indeed, he conceded that Schwab was cooperative and responsive to all requests made and directions given. The officer’s earlier observations nevertheless left him with a suspicion that Schwab had been consuming alcohol and, as a result, he elected to seek a sample of Schwab’s breath for analysis by an approved screening device (‘ASD’). Schwab was directed to exit his vehicle and accompany him to his police vehicle. Before having him sit in that, however, Schwab was required to undergo a cursory, ‘pat down’ search (‘safety search’).

Schwab was instructed to face the police vehicle and put his hands on it. The officer then patted down Schwab’s body “from top to bottom” and “front to back” over his clothing. In addition, the officer inserted a finger into each of Schwab’s front pants pockets and checked the pockets of his jacket. The search lasted less than a minute. The officer testified that he had been trained to undertake safety searches of detainees before placing them in the rear of a police vehicle. He followed that training as a standard practice. When questioned about the need for a safety search in this particular case, he testified that every detainee at a traffic stop is an ‘unknown’. It was not until the conclusion of his dealings with Schwab that he could satisfy himself that there were no safety concerns. For his part, Schwab submitted to the search, “Because that’s what you do; you cooperate.” The officer did not follow a practice of administering ASD tests through the window of a motorist’s vehicle. He was of the opinion that this practice would raise “safety concerns”. The safety concerns raised by that practice were not particularized in evidence, nor was there any evidence relating to the officer’s ability or inclination to administer an ASD test in another fashion.

The Trial Judge examined whether the safety search prior to administering the ASD test violated Schwab’s Charter, s. 8 right to be secure against unreasonable search or seizure. Defence submitted that the safety search was not authorized by law in that routine searches of detainees who are to undergo ASD testing constitutes a serious violation of a detainee’s Charter, s. 8 right. The search occurs in public and involves physical contact with his or her body. The prosecution submitted that the officer was entitled to consider the fact that this vehicle was in an industrial district in the early morning hours for no apparent reason and that there had been reports of B & E’s in that area. It would be logical to assume that someone in that area may have house-breaking tools in his or her possession, and those tools might pose a danger if (s)he was not secured prior to taking a seat in the rear seat of a police cruiser. While Schwab’s Charterprotected interests were adversely affected by the search, it was merely a ‘pat-down’ search as opposed to a strip search or search of a dwelling-house. It took less than a minute and nothing was found as a result of the search.

To reiterate some general principles, the safety search was undertaken without prior judicial authorization, so it constituted a “warrantless search”. Warrantless searches are presumptively unreasonable (see: R. v. Nolet, [2010] 1 S.C.R. 851, at para. 21; R. v. Golden, [2001] 3 S.C.R. 679, at para. 84, and many others. The prosecution may nevertheless prove that a warrantless search was authorized by law. Its burden in doing so is on a balance of probabilities. See: R. v. Buhay, 2003 SCC 30, for example).

The Trial Judge commented that traffic stops occur throughout Canada and on a daily basis. Some traffic stops may be targeted, meaning the police may know who is operating or inside a motor vehicle and take steps to ensure officer safety, having regard to the identity or nature of those specific individuals. But Canadian criminal law also authorizes random traffic stops for the purpose of ensuring a driver’s status (eg. driver’s licence, vehicle registration and insurance) and his or her safe operation of his or her vehicle (egs. mechanical roadworthiness of a motor vehicle, driver sobriety and attention). See: R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, [1988] 1 S.C.R. 621. The randomness of these stops contributes to their efficacy as the drinking driver lawfully operating a motor vehicle might be stopped just as frequently as the non-drinking driver. It is the very ‘randomness’ of these traffic stops, said the Judge, that brings about situations where police are dealing with strangers or individuals previously unknown to them. Further, said the Judge, most of these ‘unknown individuals’ will not pose safety concerns for the police, but there are those who will, and a police officer approaching a vehicle at roadside will frequently be unable to distinguish the former from the latter.

Our courts have recognized the difficult circumstances faced by police and the need for the law to develop in such a way that they can carry out their duties in safety (R. v. MacDonald, 2014 SCC 3). The frequency of traffic stops and the inherent dangers associated with them create significant safety concerns for the police. What steps may police lawfully take in order to ensure their safety when undertaking a traffic stop? Can those steps be prophylactic and unsupported by a safety inquiry? Or must they be grounded in a reasonable suspicion or belief that their safety is in danger in the facts of a specific case?  All good questions examined by the Trial Judge.

Before police can lawfully search a motorist detained at a traffic stop, (s)he must first believe on reasonable grounds that there was a threat to his or her safety, or the safety of the public. There must be both a subjective belief by the officer in that threat as well as an objective basis for that belief. In other words, did the officer subjectively believe that his safety or the safety of the public was threatened in this case before the search was undertaken. And second, was there an objective basis for that belief here. Since MacDonald, given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search.

The officer gave evidence that concern about B & E’s in the area was an additional reason for stopping Schwab’s vehicle; not as a reason for making him feel unsafe. And even if he had initial reservations in that regard, it was clear that the safety search was undertaken at a time when those reservations had been dispelled, said the Judge. At the time of the safety search, the officer was pursuing what had every appearance of being a routine ‘impaired driving’ investigation. Indeed, in his testimony, he acknowledged having no safety concerns at the time of his safety search. While a policy or practice may guide a police officer in the exercise of a power, it cannot supplant rules of law (statutory or common law) regulating that exercise, as recently expressed by the court in R. v. Muller, 2014 ONCA 780.

In R. v. Aucoin, 2012 SCC 66, the court considered circumstances involving a traffic stop by a police officer (I’ve already made prior posts on this case, so I won’t state the facts again here).  Applying the principles discussed in Aucoin to this case, was it ‘reasonably necessary’ for the officer to administer the ASD test in the rear of his police vehicle, given the fact that he was not prepared to do so without an attendant safety search? Were there other reasonable means to ensure officer safety by administering the ASD test in another manner? The officer testified that he undertook ASD testing in the police vehicle for safety reasons. Unfortunately, there was no evidence relating to other methods of administering the test, nor the reason why any of those methods would be ‘unsafe’.

The Trial Judge pondered why could the test not be administered through the open window of Schwab’s vehicle? Or outside both vehicles on the shoulder of the road? Was the police vehicle equipped with a safety shield and, if so, why would this not sufficiently secure officer safety? Were there other, less intrusive means of ensuring officer safety?

The Trial Judge said that the Crown had not proven that there were no other reasonable means of administering the ASD test except by having Schwab sit in the rear of his police vehicle. In addition, the Judge could not conclude that there was no other means of securing the officer’s safety except by having Schwab undergo a safety search before seating him in the rear seat of the police vehicle. In short, it had not been demonstrated that undertaking a safety search and having Schwab sit in the rear of the police vehicle were the only means of undertaking ASD testing in a safe manner. Since safety searches may be undertaken as an exercise of police power only where the investigator has reasonable grounds to believe that his safety (or the safety of the public) is in danger, in the Judge’s view, the Applicant had proven on a balance of probabilities that the officer’s safety search of Schwab in this case constituted an unreasonable search as that term is used in the Charter, s. 8.

Of course, the Judge conceded that there are many examples of traffic stop situations where safety searches are authorized, but this case was not one of them. As was the case in Wondu, the Trial Judge here excluded the evidence following the Grant analysis.

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Standard Practice of Conducting a Pat-down Search to Make Sure Individuals Do Not Have a Weapon on Their Person When Being Seated in a Police Vehicle.

Allow me first of all to premise this latest post with a caution that as a police officer, I may not always appreciate or agree with the higher reasoning behind a decision(s) of a court from an officer’s standpoint, like many of you. At the same time, as the instructor of all the law programs of the Atlantic Police Academy, I feel it is my duty to advise all officers of that decision when it effects the way we do our jobs and attempt to leave my personal view out of the mix.

As I begin, the events being discussed are not in the context of someone who is under a lawful arrest because that is a totally different situation. Many of us have been in a position where we are offering a person a ride home to prevent the commission of a future offence, to safeguard a citizen from potential harm, or to fulfill a civic-minded duty and offer a citizen a drive home, whatever the circumstance may be at the time. Then , there are times when we chose to place a driver suspected of driving while his or her ability to do so is impaired by alcohol in the back seat of our police cruiser to conduct the ASD test. In those events, and I’m sure you can think of others, most officers’ standard practice is to conduct a pat-down search to make sure individuals do not have a weapon on their person when seated in a police vehicle. This is a grave officer safety concern, is it not? Anyone being placed in the back of a police vehicle would likely get a pat-down search and may even be handcuffed in some cases. What do we do in a case where evidence of a criminal offence (e.g. possession of a controlled substance) is found during that pat-down search? Do we charge, or not charge?

These questions have been the topic of some debate over the past couple of years. The case R. v. Aucoin 2012 SCC 66 rekindled this debate. As a quick background, Aucoin was a case out of Kentville, Nova Scotia, in which the male driver was pulled over because the licence plate on his vehicle was registered to a different vehicle. As a newly licensed driver, Aucoin was prohibited from having any alcohol in his system while driving. The officer administered a roadside screening test which revealed alcohol in Aucoin’s system and he decided to impound Aucoin’s vehicle and issue him a ticket for contravening the Motor Vehicle Act. There were a lot of people milling around (the annual Apple Blossom Festival) and the officer was concerned that Aucoin might walk away and disappear if he were allowed to remain outside of the police vehicle. Accordingly, he decided to secure Aucoin in the rear of his cruiser while completing the paper work. He then sought and received permission from Aucoin to do a pat-down search for safety reasons. The officer felt something soft in his pocket. He asked what it was and Aucoin replied that it was ecstasy. That response prompted his arrest and a further search of his pocket revealed eight bags containing cocaine. Aucoin submitted that the officer in that case had no right in the circumstances to perform a pat-down search on him. That search, he claimed, was unlawful and in violation of his right to be free from unreasonable search and seizure. He further argued that the breach was serious and that the cocaine found in consequence should have been excluded.

The SCC in Aucoin said that the case did not turn on whether the officer had the authority to detain Aucoin in the rear of his police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question was whether he was justified in exercising it as he did in the circumstances of that case. In order to justify securing the driver in the back seat – knowing that this would also entail a pat-down search – detaining the driver in that manner had to be reasonably necessary. Backup was close at hand, something the officer could readily have ascertained. Had he done so, he could have waited an extra minute or two to do the paper work, without impinging on Aucoin’s right to be released from detention as soon as reasonably practicable. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because detaining Aucoin in the back of the cruiser would have been an unlawful detention – given there were other reasonable means by which the officer could have addressed his concern that Aucoin might flee – it could not constitute the requisite basis in law to support a warrantless search. Therefore, the pat-down search was unreasonable and constituted a breach of his Charter right against unreasonable search and seizure. In cases where the police acted in good faith and without deliberate disregard for or ignorance of Charter rights – as was the case here – the seriousness of a breach could be attenuated. The SCC in that case found that the breach was not sufficiently egregious to warrant the exclusion of the cocaine from evidence in that specific case because of the “very unusual circumstances at play” on the night in question. Had the trial judge found otherwise, the breach would have been much more serious and may well have warranted exclusion under s. 24(2) Charter according to the SCC.

So, what the SCC found was that the actions of the officer in those “very unusual circumstances at play” that night did not warrant the exclusion of evidence. But think about it? The bottom line was that the SCC found the pat-down search was unlawful and if not for the “very unusual circumstances at play” that night, the evidence likely would of have been excluded.  As officers, the lesson here is the court’s finding of the unlawful pat-down search, not that the evidence was admitted, because the admission or exclusion of the evidence is left to the Grant test and the judge’s analysis of that in each case. We seem to forget about the decision on the pat-down search itself, a point that the minority in the Aucoin case ensured was addressed (i.e. 5 justices ruled to admit the evidence found; 2 ruled to exclude it, but all 7 ruled the pat-down search itself was unlawful) because before this case, the SCC said the law surrounding police policies in the detention context was still evolving – that is no longer the case once the judgment was given in the Aucoin decision, moving forward. As highlighted by the minority in the Aucoin case in para. 93:

In direct examination, [the officer] testified that it was his standard practice to conduct a pat-down search whenever someone was going to be placed in the back seat of the police car (A.R., vol. II, at p. 19). In his view:

… it’s an officer-safety issue because I have no idea what an individual could have in his possession that could harm himself or harm me while my back is turned to him and he’s in the rear of the patrol car. [A.R., vol. II, at p. 18]

This is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention. Nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” (Mann, at paras. 40-41). In cross-examination, [the officer] conceded that he had no reason to suspect that Mr. Aucoin had any weapons in his possession (A.R., vol. II, at p. 39). This belies any suggestion that there were reasonable grounds for the search.

Now, we even have a majority decision out of the SCC in R. v. MacDonald 2014 SCC 3, 303 C.C.C. (3d) 113 in which the majority of the court concluded safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it is necessary to conduct a search.  Some courts have been ruling that MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.  Nevertheless, the standard at this point is a reasonable belief an individual’s safety is at stake.

A recent case out of the Alberta Court of Queen’s Bench (R. v. Wondu [2015] A.J. No. 430) involved an officer conducting an ASD test. Given the location of the traffic stop, the officer felt it was safest to conduct the test into the approved screening device in the rear seat of his police vehicle rather than on the street adjacent to his police vehicle. Before placing Mr. Wondu in the police vehicle, he conducted a pat-down search of Mr. Wondu’s pockets to determine that there was nothing intrusive in his pockets and to ensure that Mr. Wondu did not have any weapons on him. The officer confirmed that it was his standard practice to quickly pat someone down, even if they were not under arrest, before such an individual was placed in his police vehicle. No evidence was found as a result of the pat-down search. The trial judge stated that:

In balancing these factors, however, the concern of the Court goes well beyond the charges against the accused. The evidence before this Court is that there is a standard practice by some members of the Edmonton Police Service, including one individual in training other officers, to conduct unlawful pat-down searches in certain circumstances. This is a practice that has undoubtedly violated the rights of accused persons in the past and, if it continues, will violate the right of accused persons in the future…

While the trial Judge in Wondu found that the pat-down search was not functionally related to obtaining the evidence, she held that requiring the accused to submit to the pat-down search was “sufficiently related” to the authority requiring Mr. Wondu to compel breath samples that it permitted a consideration of the exclusion of the compelled evidence. The trial Judge at a minimum found that there was a contextual connection between the Charter breach and the impugned evidence.  The Alberta Court of Queen’s Bench ruled that the trial Judge committed no errors in coming to the conclusion which she did and accordingly excluded the certificate of analysis.

So, what is the answer to all of these standard practices to quickly pat someone down, even if they were not under arrest, before such an individual is placed in your police vehicle?  As an officer, I can’t answer that for you, but as the law instructor of the Atlantic Police Academy, I can only offer up that the courts do not view things as we do on the streets in most cases.  For the most part, a standard practice to conduct a pat-down search whenever someone is going to be placed in the back seat of the police car is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention, nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” as was the case in Aucoin.

Have we come to a point in time where in cases of no authority to conduct a pat-down search incident to a lawful arrest or investigative detention that we must seek informed consent to search them before offering to give someone a drive home in the event evidence of a criminal offence is found on their person in order to meet our officer safety concerns for it to still be lawful?  Informed consent has also been the debate of such cases as R. v. Wills (1992), 70 C.C.C. (3d) 529, [1992] O.J. No. 294 (Ont. C.A.), R. v. Borden, [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147, [1994] S.C.J. No. 82 (S.C.C.), and so on, in which briefly, we have to:

  • inform the person of the reason for the request (e.g. officer safety before placing them in back of the police car, even though they are not under arrest or investigative detention) and the possible consequences he or she faces for granting permission;
  • ensure that the person understands that the consent is voluntary and that there are no consequences for refusing consent; and
  • make it clear to the person that he or she may revoke consent at any time.

This would fly in the face of informed consent because there is a consequence to refusing consent – the person will be refused a drive if they refuse to allow a pat-down search.  It would seem the duty to serve the community and it’s citizens we are sworn to protect and the duty to protect ourselves and go home to our loved ones after each shift is at great conflict today more than ever.  So much for leaving my personal view out of the mix…..

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No factual foundation to 20 minute delay of breath tests occasioned by “officer safety” concerns in this case

R. v. Moiz 2015 ONCJ 40 – the officer stopped the defendant for speeding. The defendant was alone in his car. As the officer spoke to him, explaining the reason for the stop, he formulated the requisite grounds for an ASD demand, to which the defendant complied. The officer conducted a “cursory” search of the defendant for weapons before placing him in the rear of his police cruiser; the sample registered a “F” and the defendant was arrested. Arrangements were then made for a qualified technician to conduct further testing once the defendant was taken back to the police division. In addition, the officer also requested a back-up unit and a tow truck. The officer testified that because of concerns for his own safety and that of the defendant, he decided to leave him secured in the rear of the police cruiser until back-up arrived. In terms of his own safety concerns, the officer explained that the defendant was not handcuffed and that protocol required that he be so while being transported. Given that the officer was not acquainted with the defendant and had just advised him he was under arrest, he worried that if he removed him to handcuff him he might respond aggressively. Similarly, the officer noted that a street was close by and should the defendant try to flee, he worried that a passing vehicle could hit him.

The officer also gave evidence that as the defendant was seated in the rear of the police cruiser and was being apprised of his right to counsel, a friend of the defendant just happened to come by and approached them. The friend asked if he could speak to the defendant and the officer told him that would not be possible. With the defendant’s approval, the officer told his friend where the defendant would be taken (that individual ultimately arranged for the defendant’s parents to pick him up from the police division after his eventual release from custody later that morning). Although the officer testified that he was initially startled when the defendant’s friend approached the police cruiser, as he did not notice him until he was standing at his window, he did not suggest that the friend’s presence or behaviour gave rise to any safety concerns.  Backup arrived, 20 minutes after the arrest, and the officer left the scene with the defendant. Once back at the station, the defendant was processed, given access to counsel, and turned over to a qualified breath technician.  The first sample was provided some 69 minutes after the arrest; each of the samples registered a reading of 160 milligrams of alcohol in 100 millilitres of blood.

The officer explained that Peel Regional Police protocol necessitated that he not transport the defendant without first securing his hands with handcuffs. The Honourable Justice James Stribopoulos said, “Quite obviously, it is not my place to second-guess police operational decisions of this nature.” In any event said the Justice, it was not the protocol about transporting prisoners with handcuffs that led to the delay. Rather, it was the decision to await the arrival of another police officer before removing the defendant from the back of the police cruiser and handcuffing him that led directly to this significant period of delay. In terms of an explanation for it, the officer cited concerns for his own safety and that of the defendant. At para. 35, Justice Stribopoulos said:

I am of course extremely sympathetic to the dangers faced by police officers, they are invariably called upon to deal with quickly unfolding, fluid and inherently unpredictable situations that can quickly and rather unexpectedly turn violent. Recent events in Alberta provide a stark reminder of the constant dangers faced by police officers. Such concerns have led the Supreme Court of Canada to develop protective search powers aimed at helping police officers ensure their safety and the safety of the public.

And a para. 38:

…In circumstances where a police officer has well-founded safety concerns about a person just arrested for a drinking and driving related offence, it would no doubt be entirely reasonable to wait at the roadside until back-up arrives to assist with handcuffing and searching before the person arrested is transported to the police division. So, for example, in a situation where the person arrested has a prior record for violence, or is being uncooperative or combative, or is simply behaving erratically, a delay to await the arrival of back-up would undoubtedly be entirely reasonable and not serve to call into question the “as soon as practicable” requirement. That was not, however, the situation here.

And at para. 39:

…the evidence clearly established that the defendant was polite and cooperative throughout his dealings with the officer. In addition, there was also evidence that even before placing the defendant in the rear of the police cruiser [the officer] had conducted a protective pat-down search, eliminating any concern that the defendant might be carrying a weapon. In other words, at least from an objective standpoint, there was nothing about the circumstances faced by [the officer] that served to justify the safety concerns he cited as the reason for delaying the defendant’s departure from the roadside for nearly twenty minutes to await the arrival of a back-up officer. To be clear, I am not questioning the veracity of [the officer’s] claim that he was motivated by concerns for safety. (In that regard, I note that he has only been a police officer for 3 1/2 years, which I think explains his extraordinarily cautious approach.) My point is that where safety concerns have no objective foundation and are premised on little more than creative speculation, they should not serve to excuse a police officer from the statutory directive that breath samples be collected “as soon as practicable after the time when the offence was alleged to have been committed”.

For all of these reasons, the Justice was simply not satisfied that the Crown had established beyond a reasonable doubt an essential precondition for engaging the presumption found in section 258(1)(c) of the Criminal Code. The Justice was most concerned with the nearly twenty-minutes of delay at the roadside between the defendant’s arrest and when he was finally transported back to the police division. As a result, the Crown was not entitled to seek the benefit of that presumption. Without the presumption found in section 258(1)(c), there was no evidence before the court capable of establishing the defendant’s blood alcohol concentration at the time of driving. The charge against the defendant was therefore dismissed.

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Does the act of a police officer opening a vehicle door amount to a search within section 8 of the Charter?

R. v. Thomas 2014 ABPC 172 – although this is a Provincial Court decision, I found it important to post as it again addresses the confusion of the “safety search” and the threshold to conduct one.  On the early morning of October 4th, 2013, a female R.C.M.P. officer was on patrol in the Village of Forestburg, Alberta. Police had received 911 calls before midnight complaining of trucks and motorcycles speeding there. The early morning hours also tended to be a busy time as there is a bar in Forestburg. At 12:55 a.m., the officer heard the sound of a truck accelerating and saw it pass her police vehicle “quite quickly”. She formed the opinion that it was travelling at a high rate of speed and elected to undertake a traffic stop. The truck had two occupants, neither of whom was known to the officer. Thomas was in the driver’s seat and a female occupied the passenger seat. The officer directed Thomas to produce his operator’s licence. He did not do so, advising the officer that he had left it at a gas station. Both Thomas and his passenger were questioned about the consumption of alcohol and both denied having consumed any liquor. However, the officer could detect an odour of alcohol from within the vehicle. Given the officer’s height (just under 5’3″) and the height of the truck, she could not see the occupants’ hands unless they were on the dash or steering wheel.

The officer testified that Thomas was looking through his papers and what not, kind of leaning farther away and low down, and with it being dark, not very well lit, with no street lights, she could not see very well into the truck, so she opened the door of the truck. At this time, the officer saw a beer can and smelled alcohol on the driver’s breath. Thereafter, she demanded that Thomas provide a breath sample suitable for analysis by an approved screening device and Thomas refused.

“I needed the door open to see hands, to see if there was any – – if they were doing something different, you know, than what I asked them to be doing. If they [sic] was any knives, if there was any – – anything that could hurt myself or, you know, bystanders, guns, anything like that.”

And further, in cross-examination:

Q.  … Tell us why you could not have focused your flashlight on those three areas [the glove compartment, console and wallet] without opening up the door?

A.  When looking into the vehicle, it’s hard to see in and over and to what’s going on. It’s much easier to be able to see what’s happening in people’s hands to open the door.

Q.  So it was easier for you just to do it that way?

A.  To see what — what’s in somebody’s hands, you know, maybe it’s my height, maybe I’m, you know, too small, but you just can’t see in properly being my height in a big vehicle.

It was the officer’s policy to always maintain visibility of a detained motorist’s hands. On some occasions, this necessitated opening of the vehicle’s door. When asked what were the grounds for making the demand, the officer testified that she could smell alcohol coming from his breath when he was in this vehicle, so she suspected that he had alcohol in his body and he was operating a motor vehicle.

The issue was whether the act of opening the driver’s door of Thomas’ truck constituted an unreasonable search or seizure? The court said that officer safety during a roadside traffic stop involves different considerations than officer safety in other circumstances, including those described by the SCC in R. v. MacDonald, 2014 SCC 3 . Officer safety needs may also differ from one traffic stop to the next. In this case, the officer was a shorter individual, acting alone, who had stopped a truck on a rural highway late at night. She was dealing with a complete stranger. Moreover, she could not see into the truck and had lost sight of Thomas’ hands. These circumstances required the opening of the truck door for officer safety reasons. The extent of any safety search needed to ensure the safety of an investigating officer will also vary, depending on the circumstances of each case, said the court. Here, the safety search involved only the opening of a truck door and the truck itself was parked on a public highway.

The Respondent took no issue with the submission that the officer’s opening of the truck door was a search, but argued it was authorized by law on the pretext that safety searches are authorized on a threshold of ‘reasonable suspicion’ (R. v. Mann, 2004 SCC 52); a reasonable possibility of an imminent threat to the public or the investigating officer, and there is support for that view (see my earlier post on this issue: R. v. Le, 2014 ONSC 2033). Thomas argued that was not the interpretation adopted by the Supreme Court itself. In the minority, concurring judgment authored by Moldaver J., the court expressed the view that Lebel J.’s use of the phrase “reasonable grounds to believe” imported the standard required for a lawful arrest or making of the demand authorized by s.254(3) C.C. (MacDonald, at para.91). At least one provincial superior court has recognized its obligation to follow the express words of the majority decision (see my earlier post on this issue: R. v. Green, 2014 ONSC 1470).

The court in Thomas said that the judgment of the court in MacDonald is not ambiguous or unclear. Its wording has been considered by three members of the Supreme Court and interpreted to mean what it clearly states. If that meaning works a profound change in the law, it is for trial courts to embrace and apply that change; not ignore it, said the judge. The judge was satisfied that a safety search can only be justified where a police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. A ‘reasonable suspicion’ will not suffice.

Provincial Court Judge B.D. Rosborough had no hesitation in concluding that the officer honestly believed that it was necessary to open the driver’s door of Thomas’ truck in order to see his hands and thereby ensure both her safety and the safety of the public.  However, there was no evidence whatsoever available to the officer to enable her to fear the presence of weapons, and there was nothing else, other than the speeding, about the manner in which Thomas operated his vehicle that would have raised safety concerns.

Judge B.D. Rosborough:

Was it ‘reasonably necessary’ for [the officer] to open the driver’s door of Thomas’ truck? Were there other reasonable means to ensure officer safety without (or before) opening the truck door?

I am loathe to second-guess the actions of the police and I recognize that they are often required to make split-second decisions in fluid and potentially dangerous situations.

Nevertheless…

the Respondent has not proven that [the officer] had reasonable grounds to believe that there was an imminent risk to her safety or the safety of the public when she opened the driver’s door of Thomas’ truck.

Accordingly, Judge Rosborough found that the officer’s search of Thomas’ truck by opening the driver’s door constituted an unreasonable search in violation of the Charter, s.8. However, given the particular facts of this case, it was Judge Rosborough’s view, after the three-prong Grant analysis, that the breach in this case was not serious, the judge was not satisfied that Thomas had proven on a balance of probabilities that admission of the officer’s ‘post-search’ evidence would bring the administration of justice into disrepute, so Thomas’ application was dismissed.

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