New & Notable: Substance over Form, Safety Searches need that Respect

Geran Williams was walking down the street with a loaded handgun in his waist band. Not only loaded, the gun had a round in the chamber ready to fire. Williams happened to match the description of a person the police had received an anonymous tip about. The police approached him and ultimately found the gun. Williams sought, unsuccessfully, to exclude the gun at trial arguing there had been violations of his rights under sections 8 and 9 of the Charter. He appealed. The Court of Appeal dismissed his appeal: 2013 ONCA 772.

The call cam in shortly after 7 pm on July 10, 2008. The caller indicated that there was a black man wearing a black t-shirt and jeans, about 5'8" tall, with a baby face and hair in dreadlocks walking south at 1800 Martingrove. The caller then hung up. The police knew this area well - there was a history of gun and drug issues at this location.

Officers responded to the area within a few minutes. Some officers, first on scene, identified a male matching the description - although they could not see his face to confirm he had a baby face. Two officers approached that male - he was the appellant, Williams; he was in the group of other males. Officers asked Williams if he was armed, he did not respond. Instead, Williams bladed his body - others in the group did not react in this way. One of the officers then noted Williams make a movement toward his waist. The officers told him to put his hands up and turn around. He did neither. 

The officers then took control of Williams, grabbing his arm and lifting his shirt - the butt end of a handgun was seen and officers arrested Williams. Williams was convicted at trial and appealed.

On appeal two issues were raised. First, the detention. Williams argued that the officers did not have a reasonable suspicion justifying an investigative detention. The Court of Appeal rejected this argument. The standard for investigative detention was "reasonable suspicion" - a standard which the court noted should not be conflated with the more "exacting standard of reasonable belief" [para 22]. To determine this issue the court should look at the totality of the circumstances [para 24]; the mere fact an innocent explanation may be another reasonable interpretation is not fatal [para 24]. In this case the Court of Appeal held the detention was lawful:

The parties agreed at trial and in this court that, on its own, the anonymous tip was not sufficient to satisfy the reasonable suspicion standard.  That said, the tip remained a part, and an important part, of the circumstances that were relevant to a determination of the reasonable suspicion issue.  The tip was current, described the nature of the offence being committed, and contained sufficient particulars of the suspect to enable police to immediately focus on the appellant when they arrived minutes later. 

In our view, the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller.  Nothing more was required [paras 26-27].

Second, Williams argued that the search was unreasonable. This argument was based on the position that lifting his shirt was more than was permissible for an investigative detention safety search. The Court of Appeal rejected that argument as well.  

The police were investigating a possible gun offence.  They apprised the appellant of their purpose.  They asked whether he was armed.  He did not answer their question, but “bladed”, turned away from them.  An officer told the appellant to put his hands up and turn around.  He refused.  The officers approached and took hold of both arms.  The appellant resisted.

One officer lifted the appellant’s baggy t-shirt.  A gun butt protruded from the waistband of the appellant’s pants.  The officer saw it and yelled “gun, gun, gun”.  The appellant was subdued, handcuffed, and placed under arrest. 

Strictly speaking, what occurred was not a pat-down search.  But what occurred was no more, and arguably less, intrusive than a pat-down search.  To characterize what occurred here as unreasonable is to sacrifice substance for form.  In no sense could this search be characterized as the functional equivalent of a strip search [paras 31-33].


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.


New & Notable: Seriously though, why would you have an AK-47 knock off in your trunk?

Rajinder Dhillon owned a BMW. On August 15, 2006 he was at a parking lot where there was alleged to be a fight. He arrived there in his BMW. In the trunk of his BMW was a Norico assault rifle (an AK-47 knock-off). The police responded to the alleged fight. Cst Doucette was one of the officers. He investigated the matter and concluded that there had been no fight. He noticed, however, the location of the BMW as unusual. Dhillon stepped forward as the owner of that vehicle. After a brief exchange Cst Doucette asked to look in the trunk. Dhillon opened the trunk. Cst Doucette found the rifle. Read more...

What's that bulge in your pocket?

Investigative detention is undoubtedly one of the most complex and troubling area of the law for police officers.  The ever changing face of the law in this area and the infinite number of scenarios that exist make it difficult for officer's to understand and properly apply the law.  Likely this is one of the reasons by these detentions are usually one of the top generators of complaints by the public.

Fortunately - or perhaps not - the Supreme Court is set to reconsider investigative detention in R v Aucoin, 2011 NSCA 64

Brendan Aucoin was stopped by the police because the plate on his car was registered to a different kind of car.  After speaking with Aucoin during the stop the officer noted an odour of alcohol.  As a result he made a roadside demand.  Aucoin sat in the backseat of the officer's cruiser with his feet outside the car to provide the demand.  He passed, but did have alcohol in his system.  Given he as a newly licenced driver he was in violation of the Motor Vehicle Act which required newly licenced drivers to have zero BAC.  As a result the officer decided to give him a ticket.  The officer decided it would be safest to put Aucoin in the backseat of the cruiser to issue the ticket as the vehicle was being towed and there was a lot of traffic. 

Before placing him in the cruiser the officer did a pat down for safety reasons.  During the pat down search the officer felt something in Aucoin's pocket.  Aucoin said it was Ecstasy.  He was arrested.  A subsequent search revealed cocaine.

At trial Aucoin sought to exclude that evidence arguing that the officer was not entitled to do the search.  The trial judge dismissed the motion citing the seminal decision of R v Mann, 2004 SCC 52.

Aucoin appealed.  The appeal was dismissed.  The Court of Appeal held:

The issuance of the motor vehicle ticket to Mr. Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’s breach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the car he had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’s blood, and he was concerned the appellant may take off if left on his own outside the police car. In such circumstances, the brief detention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and is reasonable.

Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-down search to ensure that the appellant had no weapons that he could use to harm the officer or himself [paras 26-27]; [emphasis added].

Importantly the court noted that this practice would not necessary be permitted in every circumstance.  But, in the present case, where the officer articulated the basis for the search - that he had safety concerns and was effectively on his own late at night, the search was justified.

This case seems to be largely a reply of Mann and if so, Aucoin's appeal should be dismissed. 




Quotable Quotes: Investigative Detention

Investigative detention seems to be one of the hottest topics of litigation lately.  In the recent case Ontario Court of Appeal decision, R v Amofa, 2011 ONCA 368, 2011 CarswellOnt 3037, [2011] OJ No 2095, the court offers some helpful insight into this policing power and in doing so provides a Quotable Quote.  


In Amofa the police were involved in an initiative called the "Robbery Reduction Program" which was aimed at providing police presence in high crime areas including subway stops in Scarborough.  While working in this capacity the police identified two individuals who were behaving suspiciously and who the police ultimately believed were about to become involved in a robbery or mugging.  After approaching one of the suspects the police advised him that there was going to be a search of his person during an investigative detention.  The suspect resisted this notion indicating that he would "search himself".  This notion did not go over well and a "violent struggle ensued".  Ultimately a firearm was located on the suspect.


In rejecting the ground of appeal relating to the failed section 8 motion, Blair JA notes that the consideration and analysis of section 8 issues is not a static point-in-time one and offers the following helpful comment:

The flow of the investigative detention, the arrest and the search was a dynamic process.  Section 8 analyses ought not be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture [para 19].

DG Mack

New & Notable: Mourning a Death on the Way to Rome...

A recent decision from the British Columbia Supreme Court, R v Desmond, 2010 BCSC 1955, 2010 CarswellBC 3825, [2010] BCJ No 2823 demonstrates the problem that was created by the Supreme Court in R v Suberu, 2009 SCC 33 - a problem which I discuss at length in a paper I co-authored with Tim Wightman: A Death on the Way to Rome: Has Suberu Marked the End of Investigative Detention [see My Articles].
In Desmond the police were called to respond to a robbery in the area of 5th Avenue and 12th Street in New Westminster [para 7].  Acting Sergeant Lau was one of the responding officers and the first to reach the vicinity of the original call.  The call indicated that a male had been seen attempting to stuff a female into a Jeep Cherokee.  The male was described as wearing a white shirt and white bandana [para 8]. 
En route to the area Lau spotted a male and female walking side-by-side on the street.  The male, Lau would later testify, had a white bandana and white jacket; Lau also noted that there were not any other people in the area.  Based on the temporal connection, location and matching description Lau pulled in front of the man and woman and after exiting his cruiser ordered the man onto the ground and handcuffed him [para 13].  Lau then asked the male if he had anything that might injure the officers; Desmond helpfully responded "Yes, I have something in my front pocket that you might be interested in" [para 14].  Indeed he did, a loaded firearm.  
At trial Desmond sought the exclusion of the firearm alleging violations of his rights under sections 8, 9 and 10 of the Charter.  
In a very thorough and well reasoned ruling Schultes J considered first whether the detention was a valid investigative detention [paras 40-50] and second whether there were reasonable grounds to do a pat down search for safety [paras 51-61].  Not surprisingly - although worth the read - Schultes J concluded that there was a valid investigative detention and justification for a pat down search.
Turning to the most interesting and contentious issue - at least in my view - Schultes J queried "whether Sergeant Lau's failure to comply with the Suberu, requirement that the s. 10(b) right be provided immediately upon detention was justified by officer or public safety concerns" [para 62].  While it is interesting to consider whether officer or public safety concerns could justify a delay in the provision of rights to counsel, it seems clear that the answer must be no.  Surely the Supreme Court's decision in Suberu contemplated this - indeed, it was the subject of discussion in the others rulings in Suberu.  Schultes J does in fact come to this very conclusion: "It is apparent from the analysis of the Supreme Court in that decision that practicalities of law enforcement were carefully considered and that maintaining the bright line of immediate advice was found to be essential, even in light of those concerns" [para 65].  Ultimately Schultes J concludes that there was a violation of section 10(b).  Appropriately, Schultes J, nonetheless admits the evidence under section 24(2) of the Charter
As discussed in A Death on the Way to Rome, this is the very issue that has been created by Suberu.  Officer Lau acted appropriately; it was found that he had a justifiable basis to detain and to conduct a pat down search for safety.  However, since he did not advise Desmond of his right to counsel, before conducting the pat down search there was a violation of section 10(b).
While I think this is the correct outcome, based on an application of Suberu, I find it to be an outcome which is problematic for officers and one which will, over time, negatively impact on the administration of justice.  I expect that in very few situations where an officer feels it is necessary (as in Desmond) to do a pat down search for safety, will an officer feel comfortable or able to advise and provide a detainee with right to counsel before doing so.  If I am correct in my expectation, then I anticipate that there will be many section 10(b) breaches - like the one in Desmond.  However, in most cases, as in Desmond, the evidence will nonetheless be admitted.  The consequence? Over time, I think it will undermine respect for section 10(b) and possibly create dangerous situations for officers and the public were 10(b) rights are being provided in situations such as Desmond.  Not convinced, imagine what the officers in R v Clayton and Farmer, 2007 SCC 32 would do now, in light of Suberu...

DG Mack