R v McKenzie, 2022 MBCA 3
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[31] Issues as to detention and search are analytically distinct (see MacKenzie at para 36).
[32] In Mann, the Supreme Court recognized that, based on the Waterfield framework, police have a warrantless search power at common law incident to a lawful investigative detention (see paras 36-44). A police officer may conduct a protective pat-down search for weapons incident to an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk (see Mann at para 40; and Clayton at paras 29-30). This search power is more circumscribed than the common law search power that police have incident to a lawful arrest (see Mann at paras 37, 45).
[33] A protective search incident to an investigative detention does not arise as a matter of course. The court must be satisfied that the officer’s decision to search was “reasonably necessary in light of the totality of the circumstances” (Mann at para 40). Such searches “must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ on the basis of irrelevant or discriminatory factors” (at para 43). A protective search “cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition” (at para 40).
[34] The conduct of the protective search “must also be confined in scope to an intrusion reasonably designed to locate weapons” (at para 41) and must be otherwise reasonably conducted (see para 45).
[35] The language in Mann as to the threshold for this warrantless search power was, with respect, imprecise. In several places in the decision, the standard for a protective search was described as “reasonable grounds” that the safety of the officer or others is at risk (at paras 40, 43, 45). Yet, in the result, the Court said the initial pat-down search of the detainee in Mann was justified because there was “a logical possibility that the [detainee], suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons” (at para 48) (emphasis added). Of some significance is the fact that the American case law relied on in Mann to justify the constitutionality of a search incident to an investigative detention is premised on the basis of the reasonable suspicion standard, not the higher standard of reasonable grounds (see R v Le, 2014 ONSC 2033 at para 99, aff’d 2018 ONCA 56, rev’d on other grounds 2019 SCC 34).
[36] Post-Mann, the language of the Supreme Court as to the legal threshold to conduct a protective search for a weapon incident to a lawful investigative detention was interpreted to be one of reasonable suspicion of a safety risk posed by the detainee (see R v Crocker, 2009 BCCA 388 at para 72; R v Atkins, 2013 ONCA 586 at para 15; Clayton at paras 46, 48; and Chehil at para 23). As noted in Le, it would be illogical to have a higher standard (see paras 99-100).
[37] In MacDonald, the Supreme Court dealt with the question of a warrantless safety search pursuant to common law police powers outside the context of an investigative detention or an arrest. The Court was divided as to what was the legal threshold required to conduct a safety search. In R v Peterkin, 2015 ONCA 8, Watt JA sketched out the judicial disagreement in the Supreme Court this way (at paras 53-54):
Citing Mann at paragraphs 40 and 45, a majority of the court concluded safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it was necessary to conduct a search: MacDonald, at para. 41.
A minority of the court concurred in the result (that the safety search was justified), but held the majority had been unfaithful to the teachings of Mann and the subsequent case law by positing a new standard of reasonable grounds to believe a person was armed and dangerous rather than reasonable grounds to suspect such was the case: MacDonald, at paras. 66, 77. The minority maintained that although Mann employed the language of “reasonable grounds to believe”, pairing this language with the concept of safety being “at risk” inherently built in the standard of a possibility: MacDonald, at para. 69. By using the language of reasonable grounds to believe a person is armed or dangerous (at paras. 39, 42), and reasonable belief in an imminent threat to safety (at paras. 40, 43-44), the majority replaced what was in essence a reasonable suspicion standard with one of reasonable belief: MacDonald, at paras. 66-71.
[footnote omitted]
[38] There are differing schools of thought that have arisen post-MacDonald regarding the impact of the majority decision on warrantless common law police powers to search.
[39] One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts (see Peterkin at para 59; R v Smith, 2019 SKCA 126 at paras 13-15; and R v Stairs, 2020 ONCA 678 at paras 54-55).
[40] 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.
[41] The trial judge, referring to Mann, stated that, in order to conduct a valid search incident to an investigative detention, there must be “reasonable grounds for the police to believe their safety is at risk” (at para 38; see also para 40). Although the trial judge also cited MacDonald, she did not address its broad meaning as to the relevant standard for warrantless common law police powers to search, and that legal issue was not argued before her. Nor was that issue raised before this Court. As will be explained, it is not necessary for this Court to address the legal debate raised by MacDonald to decide this appeal. It can be left for another day.
[42] 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).