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,  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.