New & Notable: Safety Searches Post MacDonald

Tom Le was visiting a friend. He was in the backyard of the friend's residence hanging out. Le had some plans for that night; he hoped to sell some illegal drugs - he had them on his person for that reason. He also had a fully-loaded restricted firearm, namely a .45 calibre semi-automatic Ruger pistol. The gun was secured in a satchel that Le was wearing over his shoulder.

Le would later be arrested and charged with possession of that gun. At trial he sought to exclude the gun on the basis of alleged violations of his rights under sections 8 and 9. Campbell J dismissed his motion: 2014 ONSC 2033.

While Le was visiting his friend, the police happened to be in that same neighbourhood; they were looking for another man who was wanted for some violent offences. The police were directed to the house where Le was visiting. The police were also told that this residence was the source of some problems including suspected drug activity.

The police entered the backyard. Campbell J described what happened next as follows:

As the police officers were speaking to some of the young men, the accused, who had told the police he did not live in the residence, began behaving nervously, and was “blading” his body to the officer speaking to him so as to keep the satchel away from the officer.  The accused denied having any identification on his person and, when asked about his satchel, quickly fled from the area.  Two of the police officers quickly gave chase and were, eventually, able to tackle the running accused to the ground on a nearby street.  As they wrestled on the ground, with the two officers trying to subdue the accused, the police discovered the firearm in the satchel.  Subsequently, they discovered his illicit drugs [para 5].

At trial Le sought, inter alia, to exclude the evidence on the basis that his detention and the subsequent search violated sections 8 and 9 of the Charter. Campbell J rejected both arguments. 

First, Campbell J addressed whether the police were lawfully positioned when they first encountered Le. Relying on the implied invitation to knock and rejecting the assertion that the police had to attend at the front door - rather than walk straight into the backyard - Campbell J held that they were.

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier.  They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there.  Further, the police had been told that the 84 Vanauley Walk address was a “problem” in relation to suspected drug trafficking.  In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking.  There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area.  In short, the police officers were never trespassers in the backyard area of this address.  They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling [para 70].

Second, Campbell J addressed the detention issue. In doing so he held that Le was not initially detained but, just prior to his flight, based on his conduct and the intervention of the police which then was directed at him, the police had the basis to detain him for investigative purposes and he was detained in law.

While the arrival of the police into the backyard area of 84 Vanauley Walk temporarily interrupted the conversations of the five young men, none of the police physically restrained the accused or made any demand or direction to him that interfered with his liberty.  The accused was not on his way anywhere, so the accused was not even “stopped” by the police or momentarily delayed on any journey. The accused was not subjected to any physical or psychological restraint by the police.  No police officer told him to do anything.  He was asked only for some identification.  A reasonable person in the position of the accused, at that point, would not have concluded that he had been deprived of the freedom to choose whether or not to co-operate with the police.  Indeed, the accused himself testified that he thought that he was free to leave the backyard area.  More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him.  According to the accused, it was only when Cst. O’Toole physically prevented him from going into the townhouse that “things changed” and he did not think he could leave.

In my view, the accused was only detained by the police when Cst. O’Toole asked him about the contents of his bag.  Cst. O’Toole may only have been inquiring about the bag as a way of asking whether the accused had any identification documents in his bag, but a reasonable person in the position of the accused, in those circumstances, might well interpret that inquiry as a tactical demand or direction in relation to the bag, which meant that the accused was no longer free to leave and had lost the freedom to choose whether or not to continue to cooperate with the police [paras 87-88].

Third, Campbell J addressed the search issue. In doing so, he concluded that in the circumstances the police had the basis to perform a pat-down - "safety search" - of Le during the investigative detention as there was a basis to believe he had a gun on his person [paras 94-97].

Notably, in undertaking this analysis Campbell J addressed the recent Supreme Court ruling in R v MacDonald, 2014 SCC 3 and whether it changed the standard for safety searches. Noting that whether the standard was reasonable grounds or reasonable suspicion, the officers had the requisite basis to search, Campbell J nonetheless offered the following interpretation of MacDonald.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.”  I do not read the R. v. MacDonald decision as having such an effect.  It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches.  The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless.  If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest.  There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest.  Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations.  Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties.  See: R. v. Chehil2013 SCC 49 (CanLII), 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson 1993 CanLII 3379 (ON CA), (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker,2009 BCCA 388 (CanLII), 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations.  In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy.  See: R. v. Zargar2014 ONSC 1415 (CanLII), 2014 ONSC 1415, at paras. 29-32.  Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it).  The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.”  See: R. v. Mann, at paras. 33-35, 40-45, 63-64.  Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability [paras 99-100].

In a recent issue of  Mack's Criminal Law Bulletin on Westlaw's CriminalSource, I discussed MacDonald. Therein I noted that MacDonald was not a case about investigative detention safety searches but rather non-detention searches - while it appeared that MacDonald imposed a standard of reasonable grounds for safety searches (not reasonable suspicion) that standard would only apply in the context of non-detention searches. For investigative detention safety searches the standard remained one of reasonable suspicion - MacDonald did not affect that.

Campbell J has interpreted MacDonald as not changing the standard at all. His reasons for so concluding are compelling. 

Going forward there will no doubt be other interpretations of MacDonald - likely until the Supreme Court again addresses this issue and explains what precisely they meant.