Securing Safety Search Powers

Mackel Peterkin had a gun. He had 40 rounds of ammunition on him as well. He had two cellphones. He had some cocaine. And he had $275 in cash. The police found all of these items when they searched him incident to an investigative detention.

Peterkin was convicted at trial of offences related to the discovery of those items. He appealed: 2015 ONCA 8. He argued on appeal that the warrantless safety search was unlawful; he did not contest, on appeal, the lawfulness of his detention @25.

Watt JA wrote the decision for the Court of Appeal. He outlined the factors which led the police to have concern for their safety – and thus conduct the search – as follows:

Several features of Peterkin’s behaviour caused the officers to be concerned about their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his right hip twice and held his right wrist there. He “bladed” his body so only his left side was visible to the officers. When an officer proffered Peterkin his driver’s licence on his right side, the appellant reached awkwardly for the document, holding his right elbow tight to his hip, turning his whole body and extending only his right forearm to take the licence. When the officers told Peterkin they were going to pat him down, he backed away and began to run. @28

Watt JA then discussed the test to be applied in determining the lawfulness of a search incident to arrest.

The test for determining whether an investigative detention is justifiable under the second prong of Waterfield is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:
                     i.  the extent to which the interference with individual liberty is necessary to                             perform the officer’s duty;
                     ii.  the liberty that is the subject of the interference; and
                    iii. the nature and extent of the interference.
See Mann, at para. 34.
To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45. @40-41

Of particular note is Watt JA’s reference to MacDonald – the recent Supreme Court decision on “safety searches”:

A second preliminary point concerns the decision in MacDonald. We need not decide whether, as the MacDonald minority argues, the majority, without overruling the prior decision in Mann, has recalibrated the standard to be applied in determining the lawfulness of a safety search. This is because the evidence in this case satisfies the test as articulated in MacDonald: reasonable belief an individual’s safety is at stake.  Further, in my respectful view, we need not determine whether the decision in 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.
To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty: Mann, at para. 24; MacDonald, at paras. 35-36. @59-60.

Watt JA thus applied the law, as outlined above, of search incident to investigative detention and offered the following conclusion:

When Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the officers were investigating a static line 911 call from the unit. In doing so, they were discharging their common law duty to preserve the peace, prevent crime, and protect life and property. Peterkin’s entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act, an arrestable offence under s. 9(1) of that Act.
As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. “Blading” to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search. @61-62.

Peterkin is one of the first appellate court decisions to deal with MacDonald. While it does not resolve the issue raised in MacDonald by Moldaver J – which i have previously discussed (see: Safety Searches Post MacDonald; and MCLBulletin 2014.05) – it does recognize that MacDonald dealt with a non-investigative detention search. The search there was “free-standing”. Here, as in Mann and Clayton, the safety search was incident to an investigative detention.


SCC upholds but carefully circumscribes SITA for cellphones

In a 4:3 split decision, the majority of the Supreme Court of Canada in R v Fearon, 2014 SCC 77, upheld the police power to search a cell phone incidental to arrest [see prior post by Brian Holowka on ONCA ruling].

Justice Cromwell, writing for the majority, summarized the new rule as follows:

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8  where:

(1)     The arrest was lawful;

(2)     The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a)           Protecting the police, the accused, or the public;

(b)           Preserving evidence; or

(c)           Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3)     The nature and the extent of the search are tailored to the purpose of the search; and

(4)     The police take detailed notes of what they have examined on the device and how it was searched. [@ para 83]

Justice Cromwell noted that cell phones attract a high privacy interest. He referred back to the three features identified in R. v. Vu, 2013 SCC 60 (CanLII), that make a computer different from other “places”—immense storage capacity; the ability to generate and store information about the intimate details of the user’s interests, habits, and identity without the user’s knowledge; and the ability to provide access to information in different locations—and found that these features apply to cell phones. [@ para 51]

The new rule dealing with search of a cell phone incidental to arrest applies to all cell phones, whether or not the phone is password protected, and whether the phone is “relatively unsophisticated” or a “smart phone.” [@ paras 52-53]

Justice Cromwell elaborated on the circumstances in which a cell phone search will be found to be incidental to arrest and therefore lawful. He noted:

  • Generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. [@ para 76]
  • Search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest. [@ para 78]
  • Not all crimes justify the search of a cell phone incidental to arrest. The law enforcement objectives of the search will be most compelling in cases of violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences. [@ para 79]
  • When the purpose of the search is discovery of evidence, this will only be justified when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. For example, where there is reason to believe that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest. On the other hand, where all suspects are in custody and any firearms or stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. [@ para 80]
  • Put another way, the police must be able to explain why it was not practical (which, Justice Cromwell emphasized, does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [@ para 80]
  • The police are required to take detailed notes of the applications searched, the extent of the search, the time of the search, its purpose and its duration. [@ para 82]

Applying the new rule to the case at bar, Justice Cromwell found that the police officers gave unsatisfactory evidence about the extent of the cell phone searches. One officer testified that he “had a look through the cell phone” but could not recall specifics. Another officer testified that he did “some quick checks” for about two minutes, but his evidence also lacked specifics. The burden is on the Crown to establish that a search incidental to arrest was lawful, and this burden cannot be met absent detailed evidence about precisely what was searched, how, and why. [@ para 86]

Consequently, Justice Cromwell held that the search of Mr. Fearon’s cell phone was not reasonable and it therefore breached his s. 8 Charter rights.

Finally, Justice Cromwell considered whether the evidence obtained from Mr. Fearon’s cell phone should be admitted or excluded under s. 24(2) of the Charter. In apply the three factors set out in R v Grant, 2009 SCC 32 (CanLII), Justice Cromwell noted:

  • The first factor favours admission of the evidence. The police had good reason to believe, as they did, that what they were doing was perfectly legal. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [@ paras 94-95]
  • The second factor favours exclusion, but weakly. The invasion of privacy was not particularly grave. In particular, it was important that Mr. Fearon did not challenge the subsequent search of his phone pursuant to a search warrant. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. In other words, the evidence was discoverable because the it could have been discovered legally pursuant to a search warrant.[@ para 96]
  • The third factor favours admission of the evidence because it was cogent and reliable, and exclusion would undermine the truth seeking function of the justice system. [@ para 97]
  • In the result, Justice Cromwell held that the cell phone evidence was admissible and dismissed Mr. Fearon’s appeal.


New & Notable: Telus, Duarte and Undercover Police Operations over the Internet

In April 2013, I wrote a blog post about the Telus Communications Co. decision from the Supreme Court of Canada. In it I made the modest observation that we would not have to wait long in order to see whether Cromwell J’s concerns about the mischief that could be caused by the court’s adoption of a broader interpretation of the term “intercept” in the context of electronic surveillance would come true. The results are in: R. v. Mills, 2013 CanLII 74953 (NL PC).


The Facts

A police officer in St. John’s, Newfoundland set up Hotmail and Facebook accounts for a fictitious fourteen-year-old girl named Leann. On the Facebook profile page, the male officer provided information that Leann went to a local high school. The officer included a picture that he had obtained from the Internet. The Facebook account soon started receiving friend requests.

A little less than a month had passed when “Leann” got a message from a 32-year-old male by the name of Sean Mills asking about her Facebook profile photo. The officer posing as Leann responded and a series of email communications ensued between the undercover officer and Mr. Mills. Within a very few days of the first contact, Mills had provided his cell phone number and had asked “Leann” to send him pictures of herself. He also lied by stating that he was 23 years old. It was clear from the communications before the court that Mills knew “Leann’s” age.

All of the communications between the two, with one exception, were by email. On one occasion, the undercover officer posted a message on Mills’ Facebook page, but Mills took it down and sent a message to “Leann” to explain why: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.” [Para. 10]

The officer took screen captures of the emails that constituted the communications between him and Mr. Mills. The information from the emails was then used to gain access to the accused’s cell phone number and subscriber information, his motor vehicle information including his residential address and DOB.

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New & Notable: Dude, where's my car?

Winston Ellis had a handgun. Ellis carried that handgun in a hidden compartment by the gearshift in an Acura.  Ellis had no lawful purpose or permit for that handgun.  Ellis also had a bunch of outstanding warrants. Given those particular circumstances you would think that Ellis would not have been racing that Acura in the downtown core of the City of Toronto, but that is exactly what led to police noticing Ellis and ultimately finding his gun. Ellis was charged with three criminal offences in relation to that hidden gun; at his trial he sought to have the gun excluded from evidence claiming that his section 8, 9 and 10 Charter rights had been violated. Much like Mr Vader and Mr Newell whom I recently blogged about, that argument failed: 2013 ONSC 908.


It was early in the morning, when Ellis decided to race an Acura against another vehicle. Perhaps Ellis thought no one would be around, perhaps he didn’t care. Sgt Martin saw and cared; he called for backup and followed as the vehicles raced through a residential area. The racing vehicles parted ways and Sgt Martin could only follow one; he stayed with the Acura. Ellis sped away from the marked police cruiser and found himself on a dead end street; he abandoned the car in a driveway and fled on foot through the backyard of the property.

Minutes later Sgt Martin located the Acura and spotted Ellis and another man, Gonzalez, walking past the dead-end street and looking back towards the car. The backup arrived on scene and intercepted Ellis and his friend. Officers conducted a pat down search and found the keys to the Acura in Ellis’ pocket; at that point officers returned the keys to Ellis. They testified that the keys were returned because the search was for safety reasons and in the officers’ opinion the keys did not pose a threat. Officers also discovered that Ellis had a number of outstanding warrants, that he was affiliated with a gang and that he may be armed and dangerous.

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New & Notable: SCC at odds over "intercepting" text messages

In the area of electronic search and seizure, the criminal law struggles to keep pace with technological change. Police investigators are frequently called upon to apply, and lawyers and the courts to interpret, sections of the Criminal Code that do not reflect modern technology. In Telus Communications Co. the Supreme Court was called upon to interpret the law in exactly such a context. The concurring majority reasons depart from the conventional interpretation of the relevant wiretap and general warrant provisions in order to bolster the privacy of electronic communications by requiring the police to obtain a wiretap authorization to prospectively seize text messages stored by Telus: 2013 SCC 16.
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Current & Curious: When you are driving around with a gun in your pants you would be well advised to keep within the speed limit!

Courtney Newell was charged with possession of a loaded handgun and marijuana. The only issue at trial was whether the police infringed Newell’s Charter rights: 2012 ONSC 2947.


Two Toronto police officers were patrolling a neighbourhood on bicycle where there had recently been several complaints about young people smoking marijuana in the area. At about 10 am they heard tires squealing. Both saw a Ford Focus travelling at a high rate of speed and with music blaring. There were children and pedestrians in the area; they decided to investigate.

Newell was the driver. No one else was in the car. Police approached and asked Newell for his license and registration, to which Newell responded that the vehicle was a rental in his fiancée’s name. Officers informed Newell of why he was being stopped and noticed that that Newell was sweating heavily, shaking and appeared nervous. Officers were able to confirm that the vehicle was a rental.

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New & Notable: Strip searches and reliance of police on internal policy

Sang Eun Lee was arrested by the police and taken to the local station for breathalyzer tests. When a pat down search was conducted and it was discovered that she was wearing an underwire bra, she was told to remove it. She complied with the request, taking off her shirt and sweater along with the bra exposing her breasts for a brief period of time to the female officer who was present.


At trial, Ms. Lee was unsuccessful in establishing that the police conduct amounted to an unreasonable strip search contrary to section 8 of the Charter. She appealed her conviction and the finding of the trial judge: 2013 ONSC 1000.

Contrary to the trial judge, Fuerst J., sitting as a summary conviction appeal court judge, found that the conduct of the police did amount to a strip search:

Unfortunately, the trial judge failed to consider that the court’s definition of a strip search is not limited to removal of clothing to inspect a person’s private areas. The court’s definition of a strip search is two pronged: “[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments” [emphasis added]. On the trial judge’s own findings, Constable Martin directed the appellant to remove her bra so that the police could visually inspect that undergarment, and then store it. This is not a case like R. v. Backhouse (2004), 194 C.C.C. (3d) 1 (Ont. C.A.) where the accused’s clothing was seized because it might yield forensic evidence of the crime charged. Constable Martin’s direction to the appellant to remove her bra fell squarely within the definition of a strip search [para 37].

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New & Notable: If it ain't broke, don't fix it...

Like many people in this modern age, Kevin Fearon carried a cell phone. Unlike many people, the police discovered this fact when they arrested him for robbery while armed with a firearm. A search of the cell phone was conducted which resulted in the police discovering photographs of a gun and cash. The police also discovered an incriminating text message.


The initial search by the police was followed by further searches of the phone over the next two days and, periodically, over the following months. At trial, the Crown relied only upon the results of the initial search incident to arrest.  On appeal following his conviction, Mr. Fearon argued that the conduct of the police in searching his phone was outside the ambit of a lawful search incident to arrest. Additionally, Fearon asked the Ontario Court of Appeal to carve out a cell phone exception to the doctrine of search incident to arrest: 2013 ONCA 106.

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Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.


Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

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New & Notable: Justice may be blind but you don’t need to wear blinders

Richard Vader had a lot of guns and ammo.  At the time that Vader had these guns and ammo he was bound by two prohibition orders, banning him from possessing any of these items. At his trial Vader conceded that he was in fact in possession of the firearms and ammo when he was prohibited from doing so. The only issues at trial was whether Vader’s statements to police were admissible and whether the arsenal guns and ammo should be excluded from evidence due to alleged breaches of Vader’s Charter rights: 2012 ONSC 5418.


On October 4th, 2011 Vader was driving a pick-up truck. Given that he had seven firearms and ammunition in the truck with him, he probably should’ve replaced his burnt out headlight before going for a drive, but instead Vader was intercepted by Officer Roughley.

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