New & Notable: What's that bulge in your pocket...the final word from the SCC

The bottom line

Aucoin was stopped by Cst. Burke for motor vehicle legislation infractions.  The officer felt it necessary to have Aucoin sit in the rear of the cruiser while the ticket was issued.  Before securing Aucoin in the rear of the cruiser, Cst. Burke did a pat down search and detected a package, which Aucoin said was ecstasy, in Aucoin’s pocket.  Aucoin was arrested and found to be in possession of a large quantity of cocaine and pills. 

In a previous post, Dallas discussed the Nova Scotia Court of Appeal ruling in Aucoin: 2011 NSCA 64. The Supreme Court of Canada heard the appeal from that ruling. The majority, authored by Moldaver J, held that is was not reasonably necessary for the officer to place him in the police cruiser and accordingly, that searching for security reasons before placing him there could not be justified and was a violation of s. 8 of the Charter.  However, the majority went on to hold that the evidence was admissible pursuant to s. 24(2) of the Charter: 2012 SCC 66


The details

It was around midnight when Cst. Burke stopped Aucoin in Kentville, Nova Scotia for driving a vehicle with a plate that wasn’t registered to that vehicle.  While speaking to Aucoin, Cst. Burke noticed a smell of alcohol on Aucoin’s breath.  Cst. Burke conducted a roadside screening test with Aucoin seated in the rear seat of the cruiser with the door open and his legs outside of the door and his feet on the ground.   The good news was that Aucoin’s blood alcohol concentration was only 0.02.  The bad news was that, as a novice driver, he was required to maintain a BAC of 0.   Cst. Burke decided to impound Aucoin’s vehicle and issue him a ticket for contravening the novice driver provisions.

It was dark outside and the lighting was poor so Cst. Burke sat in the front seat of his cruiser to write out the ticket.  The annual Kentville Apple Blossom Festival was on that night so there were a lot of people milling about.  Cst. Burke was concerned that if Aucoin was allowed to remain standing outside the cruiser, he could simply blend in with the crowd and walk away so he secured Aucoin in the back of the cruiser while he wrote out the ticket.


Is that an apple in your pocket?

Things went from bad to worse for Aucoin before he got into the back of the cruiser because Cst. Burke sought and received permission from Aucoin to conduct a pat down search for safety reasons.  During that search, Cst. Burke felt something hard and square in Aucoin’s front pocket.  Aucoin explained that it was his wallet.  Cst. Burke accepted that explanation and didn’t search that pocket any further.  Cst. Burke then felt something soft in Aucoin’s other front pocket.  Cst. Burke asked what it was and Aucoin advised that it was ecstasy.  Aucoin was immediately arrested and that pocket was searched.  Cst. Burke located eight bags containing cocaine and two bags containing 100 green pills.  Interestingly, the pills turned out not to be ecstasy, nor did they contain any other illicit substance.  As Cst. Burke seized the drugs, two other officers arrived on scene in another police vehicle.


The s. 8 analysis

Justice Moldaver, writing for the majority, clearly stated the s. 8 issue as follows:

In R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, a majority of the Court held that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”  In this case, the Crown seeks to justify the pat-down search of the appellant as incidental to Constable Burke’s decision to place the appellant in the back of the police cruiser.  The question that arises, as I will explain, is whether securing the appellant in the cruiser – which would have fundamentally altered the nature of his ongoing detention – was reasonably necessary in the totality of the circumstances [para 30].


Moldaver J. also made it clear that this was not a case about investigative detention.  Aucoin was initially detained because of the license plate infraction and subsequently detained when it became clear that he had alcohol in his system.  The reasons for his detention were therefore not investigatory.

The Court held that the trial judge erred in not considering whether there were “other reasonable means by which Cst. Burke could have addressed his concern about [Aucoin] disappearing into the crowd, short of doing what he did.”  If there were other reasonable means to meet Cst. Burke’s objective, detaining him in the cruiser could not be said to be reasonably necessary and would therefore constitute an unlawful detention within the meaning of s. 9 pursuant to the S.C.C. decision in Clayton, 2007 SCC 32. [paras. 37-39]

It is important to note that Moldaver J. recognized the practical realities of police work in arriving at his conclusion:

Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary [para 40].


The fact that two other officers arrived on scene during the search lent support to the Court’s finding that Cst. Burke could have preceded differently.  Had he asked for and waited for back up, he could have left Aucoin outside of the cruiser while he wrote the ticket, thereby alleviating the need to interfere, to such an extent, with Aucoin’s liberty and privacy interests by searching him.  Given that the Crown failed to establish that Cst. Burke’s course of action was reasonably necessary, the detention in the cruiser was held to be unlawful and the warrantless search was not justifiable.


The s. 24(2) analysis

In conducting the s. 24(2) Charter analysis, Moldaver J held that although Cst. Burke was mistaken about his authority to put Aucoin in his cruiser, he was not acting in flagrant disregard of Aucoin’s rights.  Moldaver J found evidence that Cst. Burke had, in fact, made many efforts to respect Aucoin’s Charter rights throughout their dealings. The fact that he did not confine Aucoin to the cruiser during the roadside screening test; the fact that he asked for and received permission before searching Aucoin; and the fact that he accepted Aucoin’s explanation about the presence of his wallet were all cited as support for this finding.  It was held that Cst. Burke was not searching Aucoin in order to find evidence but rather for officer safety reasons.  This was also significant and contributed to an overall conclusion that Cst. Burke had acted in good faith.

Justice Moldaver also noted that “the law surrounding police powers in the detention context is still evolving.  For that reason, in cases where the police act in good faith and without deliberate disregard for or ignorance of Charter rights – as was the case here – the seriousness of a breach may be attenuated.” [para. 50]

Lastly, Justice Moldaver commented that while the impact of the search on Aucoin’s privacy rights was significant, so was society’s interest in having the case tried on its merits.  On balance, Moldaver J held that “the scales tip in favour of admission of the cocaine.” [para. 52].

While the Supreme Court’s conclusions with respect to the s. 8 issue have a relatively limited application to the specific fact scenario of an officer detaining a motorist in a cruiser for relatively minor offences, the Court’s findings and conclusions on the s. 24(2) analysis will likely find much broader application as courts are increasingly asked to undertake exactly this type of analysis upon the finding of a Charter breach.