Ipsofactoj.com: International Cases  Part 10 Case 10 [SCC]
SUPREME COURT OF CANADA
- vs -
23 JULY 2004
(delivering the judgment of the court in which Major, Binnie, Lebel and Fish J join)
This appeal presents fundamental issues on the right of individuals to walk the streets free from state interference, but in recognition of the necessary role of the police in criminal investigation. As such, this case offers another opportunity to consider the delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions.
In particular, the following issues are squarely before the Court:
whether there exists, at common law, a police power to detain individuals for investigative purposes; and
if so, whether there exists a concomitant common law power of search incident to such investigative detentions.
Additionally, I consider
whether any existing detention and/or search power was properly exercised; and
if the appellant's rights were violated, whether the evidence ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.
As explained in the reasons that follow, I conclude that the police in this case were empowered at common law to detain the appellant and to search him for protective purposes. Like the trial judge, however, I believe that their search fell outside the ambit of what is permissible, and that the unconstitutionally obtained evidence was properly excluded. Accordingly, I would allow the appeal and restore the acquittal entered at trial.
On December 23, 2000, shortly before midnight, two police officers received a radio dispatch message detailing a break and enter in progress in a neighbouring district of downtown Winnipeg. The suspect was described as a 21-year- old aboriginal male, approximately five feet eight inches tall, weighing about 165 pounds, clad in a black jacket with white sleeves, and thought to be one "Zachary Parisienne".
As the officers approached the scene of the reported crime, they observed an individual walking casually along the sidewalk. They testified that this individual matched the description of the suspect "to the tee". The officers stopped the appellant, Philip Mann, and asked him to identify himself. The appellant stated his name and provided his date of birth to the officers. He also complied with a pat-down search of his person for concealed weapons. The appellant was wearing a pullover sweater with a kangaroo pouch pocket in the front. During the pat-down search, one officer felt a soft object in this pocket. The officer reached into the appellant's pocket and found a small plastic bag containing 27.55 grams of marijuana. In another pocket, the officer found a number of small plastic baggies, two Valium pills and a treaty status card confirming the appellant's identity.
The appellant was subsequently arrested and cautioned for the offence of possession for the purpose of trafficking marijuana contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
III. RELEVANT CONSTITUTIONAL PROVISIONS
Canadian Charter of Rights and Freedoms
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention
IV. JUDICIAL HISTORY
A. Manitoba Provincial Court
At trial, defence counsel conceded that the police had the power to stop the appellant for investigative purposes because he matched the description of the perpetrator "to the tee". Conner Prov. Ct. J. did not consider whether informed consent had been given in relation to the search of the appellant's person.
Conner Prov. Ct. J. held that the police officer was justified in his search of the appellant for security reasons, but that the particular circumstances did not justify reaching into the appellant's front pocket after feeling a soft item therein. Conner Prov. Ct. J. held that the officer was required to have "some reason to go beyond the pat down search", and found that there was no basis upon which an inference could be made that it was reasonable to look inside the pocket for security reasons. Consequently, the search of the appellant's pocket was found to contravene s. 8 of the Charter. Accordingly, the evidence was excluded under s. 24(2) of the Charter, as its admission would interfere with the fairness of the trial.
B. Manitoba Court of Appeal (2002), 169 C.C.C. (3d) 272, 2002 MBCA 121
The Court of Appeal ultimately concluded that the detention and pat-down search were authorized by law and exercised reasonably on the facts. Twaddle J.A. set aside the acquittal and ordered a new trial.
Twaddle J.A. began with the proposition that a warrantless search is prima facie unreasonable, and that the burden falls on the Crown to show that the search was nevertheless reasonable on a balance of probabilities. He then turned to consider whether there existed common law authority for the initial detention. Applying the test set out in R. v Waterfield,  3 All E.R. 659 (C.C.A.), he held that the detention was authorized at law based on the facts. He noted that the circumstances fell within the general scope of the duties of a police officer, and that the detention was further justified given the similarity of the appellant's description to that of the suspect.
With respect to a search power incident to detention, Twaddle J.A. held that the pat-down search, while prima facie an unlawful interference with the appellant's liberty, was regardless a justifiable use of power associated with the duties of the police in preserving the peace and protecting life. Twaddle J.A. declined to consider whether the officers' actions could be justified on the basis that they had articulable cause for detaining and searching the appellant.
Having found the detention and search power to be authorized by law, Twaddle J.A. considered whether the search had been conducted reasonably. He held that it was not unreasonable for the police officer, having found something soft in the front pocket of the appellant's pullover, to continue searching inside the pocket. Twaddle J.A. distinguished between search after arrest and search incident to detention, the latter being limited only to searches for weapons.
Twaddle J.A.'s conclusion on the reasonableness of the search was premised upon the good faith conduct of the officers in carrying out the protective search. He stated that it was not reasonable for the interior of the pocket to be searched absent a finding on the pat-down search of something that either was or could conceal a weapon. However, given the safety rationale underlying the pat-down search, he was wary of placing too rigid a constraint on officers' abilities to ensure a safe environment. Twaddle J.A. held that officers should be allowed some latitude in this regard so long as the search for weapons was conducted in good faith. As the good faith conduct of the officers was unquestioned, Twaddle J.A. concluded that the scope of the search had been reasonable in this case and that there had been no breach of the appellant's right to be secure against unreasonable search or seizure under s. 8 of the Charter.
As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.
Nowhere do these interests collide more frequently than in the area of criminal investigation. Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing. Despite there being no formal consensus about the existence of a police power to detain for investigative purposes, several commentators note its long-standing use in Canadian policing practice: see A. Young, "All Along the Watchtower: Arbitrary Detention and the Police Function" (1991), 29 Osgoode Hall L.J. 329, at p. 330; and J. Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003), 41 Alta. L. Rev. 335, at p. 339.
At the same time, this Court must tread softly where complex legal developments are best left to the experience and expertise of legislators. As McLachlin J. (as she then was) noted in Watkins v Olafson,  2 S.C.R. 750, at p. 760, major changes requiring the development of subsidiary rules and procedures relevant to their implementation are better accomplished through legislative deliberation than by judicial decree. It is for that very reason that I do not believe it appropriate for this Court to recognize a general power of detention for investigative purposes. The Court cannot, however, shy away from the task where common law rules are required to be incrementally adapted to reflect societal change. Courts, as its custodians, share responsibility for ensuring that the common law reflects current and emerging societal needs and values: R. v Salituro,  3 S.C.R. 654, at p. 670. Here, our duty is to lay down the common law governing police powers of investigative detention in the particular context of this case.
Where, as in this case, the relevant common law rule has evolved gradually through jurisprudential treatment, the judiciary is the proper forum for the recognition and ordering of further legal developments, absent legislative intervention. Over time, the common law has moved cautiously to carve out a limited sphere for state intrusions on individual liberties in the context of policing. The recognition of a limited police power of investigative detention marks another step in that measured development. It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. As well, Parliament may seek to legislate appropriate practice and procedural techniques to ensure that respect for individual liberty is adequately balanced against the interest of officer safety. In the meantime, however, the unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role.
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.
A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter, for example, provides that everyone has the right "not to be arbitrarily detained". It is well recognized that a lawful detention is not "arbitrary" within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee's rights under s. 9 of the Charter.
Section 10(a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor". At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.
Section 10(b) of the Charter raises more difficult issues. It enshrines the right of detainees "to retain and instruct counsel without delay and to be informed of that right". Like every other provision of the Charter, s. 10(b) must be purposively interpreted. Mandatory compliance with its requirements cannot be transformed into an excuse for prolonging, unduly and artificially, a detention that, as I later mention, must be of brief duration. Other aspects of s. 10(b), as they arise in the context of investigative detentions, will in my view be left to another day. They should not be considered and settled without the benefit of full consideration in the lower courts, which we do not have in this case.
B. The Common Law Development of Investigative Detention
A number of cases occurring over the years have culminated in the recognition of a limited power of officers to detain for investigative purposes.
The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeals in Waterfield, supra, at pp. 660-661. From the decision emerged a two-pronged analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
This Court has adopted, refined and incrementally applied the Waterfield test in several contexts, including the pre-Charter lawfulness of random automobile stops under the Reduced Impaired Driving Everywhere (R.I.D.E.) Program (Dedman v The Queen,  2 S.C.R. 2); the scope of police power to search incident to lawful arrest (Cloutier v Langlois,  1 S.C.R. 158); and the scope of police authority to investigate 911 calls (R. v Godoy,  1 S.C.R. 311).
At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, "the preservation of the peace, the prevention of crime, and the protection of life and property" (Dedman, supra, at p. 32). The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of:
.... whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.
(Cloutier, supra, at pp. 181-82)
The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage. Specifically, in Dedman, supra, at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served.
The Court of Appeal for Ontario helpfully added a further gloss to this second stage of the Waterfield test in R. v Simpson (1993), 12 O.R. (3d) 182, at p. 200, by holding that investigative detentions are only justified at common law "if the detaining officer has some `articulable cause' for the detention", a concept borrowed from U.S. jurisprudence. Articulable cause was defined by Doherty J.A., at p. 202, as:
.... a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.
Articulable cause, while clearly a threshold somewhat lower than the reasonable and probable grounds required for lawful arrest (Simpson, supra, at p. 203), is likewise both an objective and subjective standard (R. v Storrey  1 S.C.R. 241, at p. 250, R. v Feeney,  2 S.C.R. 13, at para. 29).
Doherty J.A. limited the scope of common law investigative detention by explaining that the articulable cause requirement was only an initial step in the ultimate determination of "whether the detention was justified in the totality of the circumstances", and was thus a lawful exercise of the officer's common law powers under Waterfield (Simpson, supra, at p. 203). The court did not, however, set concrete guidelines concerning investigative detentions, leaving the matter to be resolved on a case by case approach to the power.
The Court of Appeal of Quebec did not find it necessary to apply the articulable cause doctrine in R. v Murray (1999), 136 C.C.C. (3d) 197. Relying upon the Waterfield test, Fish J.A. (as he then was) recognized a narrow police power at common law to set up immediate road blocks along an obvious avenue of escape from the scene of a serious crime. Fish J.A.'s comments on the exercise of this power focus specifically on its reasonable necessity in the totality of the circumstances (p. 205). The road block in Murray was set up immediately after the commission of a crime and was limited to an obvious escape route for the sole purpose of apprehending the fleeing perpetrators.
In Simpson, supra, at p. 202, the Court of Appeal for Ontario held that articulable cause was not sustained merely by the officer's hunch based on intuition gained by experience. Indeed, in R. v Jacques,  3 S.C.R. 312, the majority endorsed the Simpson approach to the assessment of evidence, at para. 24, and Major J. in dissent, albeit on another point, acknowledged, at para. 52, that "reasonable grounds to suspect" was equivalent to the articulable cause standard. More recently, this Court endorsed the Simpson formulation of the second prong of the Waterfield test as providing a broad range of factors to assess justification in the context of criminal law without reference to an investigative detention power: see Godoy, supra, at para. 18; R. v Asante-Mensah,  2 S.C.R. 3, 2003 SCC 38, at para. 75.
As mentioned above, the articulable cause standard discussed in Simpson has been adopted from American Fourth Amendment jurisprudence, namely the "stop and frisk" doctrine with its genesis in Terry v Ohio, 392 U.S. 1 (1968). The doctrine developed as an exception to the Fourth Amendment right to be free from unreasonable search and seizure, where detention is viewed as a "seizure" of the person. The United States Supreme Court held in Terry that a police officer may seize an individual reasonably suspected of imminent or on-going criminal activity, ask questions of him or her, and perform a limited frisk search for weapons. Subsequent jurisprudence requires the totality of the circumstances to be taken into account when determining that sufficient reasonable articulable suspicion of criminal activity exists to justify the seizure (see United States v Cortez, 449 U.S. 411 (1981)).
The U.S. case law has evolved significantly since Terry. Police authority was expanded in Adams v Williams, 407 U.S. 143 (1972) beyond imminent violent offences to possessory offences reported by reliable informants. In 1980, United States v Mendenhall, 446 U.S. 544 (1980), the U.S. Supreme Court developed a no-seizure rule permitting brief detentions of individuals where reasonable suspicion is lacking. Five years later, in United States v Hensley, 469 U.S. 221 (1985), the U.S. Supreme Court extended Terry and Adams to permit detention and questioning of persons suspected of involvement in completed felonies, where the suspicion was grounded in specific and articulable facts, on the basis of a public interest in investigating crime and safeguarding the public.
With respect to terminology, I prefer to use the term "reasonable grounds to detain" rather than the U.S. phrase "articulable cause" since Canadian jurisprudence has employed reasonable grounds in analogous circumstances and has provided useful guidance to decide the issues in question. As I discuss below, the reasonable grounds are related to the police action involved, namely, detention, search or arrest.
The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
C. Search Powers Incident to Investigative Detention
Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v Collins,  1 S.C.R. 265. Under Collins (p. 278), warrantless searches are deemed reasonable if
they are authorized by law,
the law itself is reasonable, and
the manner in which the search was carried out was also reasonable.
The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v Buhay,  1 S.C.R. 631, 2003 SCC 30, at para. 32.
This appeal marks the first opportunity for the Court to discuss whether a search incident to an investigative detention is authorized by law. Underlying this discussion is the need to balance the competing interests of an individual's reasonable expectation of privacy with the interests of police officer safety. In the context of an arrest, this Court has held that, in the absence of a warrant, police officers are empowered to search for weapons or to preserve evidence: R. v Golden,  3 S.C.R. 679, 2001 SCC 83, at para. 95. In the reasons following, I consider whether and to what extent a power to search incidental to investigative detention exists at common law. I note at the outset the importance of maintaining a distinction between search incidental to arrest and search incidental to an investigative detention. The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.
I rely upon the Waterfield test discussed above to recognize that a power of search incidental to investigative detention does exist at common law. Under the first prong of the Waterfield test, the interference clearly falls within the general scope of a duty imposed by statute or recognized at common law. The duty at issue here is the protection of life and property, which was also at issue in Dedman, supra, at p. 32.
To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Dedman, supra, at pp. 35-36.
The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, "Search Based on Articulable Cause: Proceed with Caution or Full Stop?" (2003), 2 C.R. (6th) 49, at p. 63. The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It 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.
The determination as to when a protective search may be merited has been addressed in the United States through several decades of jurisprudence. In Terry, supra, the United States Supreme Court carefully circumscribed the search power, by holding that:
.... there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
In exercising this authority, the officer must not be acting solely on a hunch, but rather is required to act on reasonable and specific inferences drawn from the known facts of the situation. The search must also be confined in scope to an intrusion reasonably designed to locate weapons.
[at p. 29]
A similar situation to the one at bar was considered by the United States Supreme Court in Minnesota v Dickerson, 508 U.S. 366 (1993). In that case, the officer pursued and frisked an individual who had recently exited a notorious crack house, having changed direction upon noticing the officer. A small lump was felt in the individual's jacket pocket, which the officer surmised was likely crack cocaine. The officer reached into the pocket and his suspicions were confirmed. The U.S. Supreme Court refused to allow the crack cocaine to be used as evidence, stating that the scope of the search exceeded its protective justification. The protective nature of the search was affirmed more recently by the U.S. Second Circuit Court of Appeals in U.S. v Casado, 303 F.3d 440 (2002), where contraband evidence was deemed inadmissible because the officer did not undertake a less-intrusive pat-down search prior to reaching into the detainee's pocket (p. 449).
The importance of ensuring officer safety has been recognized in obiter by this Court in R. v Mellenthin,  3 S.C.R. 615. Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J., in Cloutier, supra, at p. 185, a frisk search is a "relatively non-intrusive procedure", the duration of which is "only a few seconds". Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent "fishing expeditions" on the basis of irrelevant or discriminatory factors.
A finding that a limited power of protective search exists at common law does not obviate the need to apply the Collins test for determining whether a warrantless search passes constitutional muster under s. 8 of the Charter. To recall, the search must be authorized by a reasonable law, and be carried out in a reasonable manner. The reasonableness of the search necessarily overlaps the second-prong of the Waterfield test, with the third factor under Collins. The officer must have reasonable grounds to search before the overall reasonableness of the search is considered on the totality of the circumstances.
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
VI. APPLICATION TO THE FACTS
Having set out the relevant considerations above, I turn to whether the detention and search of the appellant in this case has met the applicable standards.
The officers had reasonable grounds to detain the appellant. He closely matched the description of the suspect given by radio dispatch, and was only two or three blocks from the scene of the reported crime. These factors led the officers to reasonably suspect that the appellant was involved in recent criminal activity, and at the very least ought to be investigated further. The presence of an individual in a so-called high crime area is relevant only so far as it reflects his or her proximity to a particular crime. The high crime nature of a neighbourhood is not by itself a basis for detaining individuals.
Furthermore, there were reasonable grounds for a protective search of the appellant. There was a logical possibility that the appellant, 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. The encounter also occurred just after midnight and there were no other people in the area. On balance, the officer was justified in conducting a pat-down search for protective purposes.
The officer's decision to go beyond this initial pat-down and reach into the appellant's pocket after feeling an admittedly soft object therein is problematic. The trial judge found that the officer had no reasonable basis for reaching into the pocket. This more intrusive part of the search was an unreasonable violation of the appellant's reasonable expectation of privacy in the contents of his pockets. The trial judge found as a fact that "there was nothing from which [he could] infer that it was reasonable to proceed beyond a pat down search for security reasons". The Court of Appeal did not give due deference to this important finding, which was largely based on the credibility of witnesses, an area strictly in the domain of the trial judge absent palpable and overriding error: Housen v Nikolaisen,  2 S.C.R. 235, 2002 SCC 33. Moreover, the Crown has not discharged its burden to show on the balance of probabilities that the third aspect of the Collins test has been satisfied, namely that the search was carried out in a reasonable manner.
The seizure of the marijuana from the appellant was unlawful in this case. The admissibility of the evidence must accordingly be considered under s. 24(2) of the Charter.
VII. THE ADMISSIBILITY OF THE EVIDENCE
This Court has recently reviewed the three-step inquiry to determine whether the admission of evidence will bring the administration of justice into disrepute under s. 24(2) in Buhay, supra.
This inquiry begins with a consideration of the fairness of the trial. As explained by this Court in R. v Law,  1 S.C.R. 227, 2002 SCC 10, at para. 34, the key consideration under this head of analysis is the "nature of the evidence obtained and the nature of the right violated". The trial judge erred in law in his consideration of the effect of the inclusion on trial fairness. The marijuana was non-conscriptive. The appellant was not "forced or conscripted to provide evidence in the form of statements or bodily samples for the benefit of the state": R. v Stillman,  1 S.C.R. 607, at para. 73; Buhay, supra, at para. 49.
At the second stage of the inquiry, the seriousness of the breach is considered. A number of factors are engaged under this head of analysis, including whether the breach was committed in good or bad faith, the obtrusiveness of the search, the individual's expectation of privacy in the area searched and the existence of reasonable grounds. In my opinion, these facts sustain an unacceptably serious disregard for the appellant's s. 8 rights.
The trial judge found that the officer went beyond a protective search when he reached into the appellant's pocket. At that point, the purpose of the search shifted from safety to the detection and collection of evidence, and thus became a search for evidence absent reasonable and probable grounds. The trial judge's reasons for the exclusion of evidence are brief, but instructive:
In my view, the peace officer had to have some reason to go beyond the pat down search, something where he could indicate a reason for going into the pocket of Mr. Mann, whether it was curiosity when he said I wondered what it was, he described it as soft. There is nothing from which I can infer that it was reasonable to proceed beyond a pat down search for security reasons.
The Court of Appeal admitted the evidence based on its conclusions that the officer found the evidence in good faith. However, this Court has stated that "good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority" (Buhay, supra, at para. 59, citing J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, (2nd ed. 1999), at p. 450). I conclude that the Court of Appeal erred in admitting the evidence based on the good faith of the officer. Good faith is but one factor in the analysis and must be considered alongside other factors which speak to the seriousness of the breach.
While a frisk search is a minimally intrusive search, as noted by this Court in Cloutier, supra, at p. 185, the search of the appellant's inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant's protection against unreasonable search and seizure.
The final consideration is whether the exclusion of the evidence would adversely affect the administration of justice. In this case, there is little doubt that the seized marijuana is the crux of the Crown's case against the appellant. Exclusion of the evidence would substantially diminish, if not eliminate altogether, the Crown's case against the appellant. Possession of marijuana for the purpose of trafficking remains a serious offence despite continuing debate about the extent of the harm associated with marijuana use: R. v Malmo-Levine,  3 S.C.R. 571, 2003 SCC 74, at paras. 60, 153. Regardless, evidence which is non-conscriptive and essential to the Crown's case needs not necessarily be admitted: Buhay, supra, at para. 71. Just as there is no automatic exclusionary rule, there can be no automatic inclusion of the evidence either. The focus of the inquiry under this head of analysis is to balance the interests of truth with the integrity of the justice system. The nature of the fundamental rights at issue, and the lack of a reasonable foundation for the search suggest that the inclusion of the evidence would adversely affect the administration of justice.
The exercise under s. 24(2) has been summarized by this Court in Buhay, supra, at para. 72:
An appellate court must determine if, all factors considered, the trial judge's conclusion to exclude the evidence, based on her or his finding that its admission would bring the administration of justice into disrepute, was reasonable.
The standard of review applicable to a trial judge's decision about whether or not evidence ought to be excluded under s. 24(2) was also discussed in Buhay, supra, at paras. 42-47. The trial judge's appreciation of whether the admission of evidence would bring the administration of justice into disrepute is entitled to deference, as it is made on the basis of factors established through testimony. This Court has affirmed the importance of deferring to the findings of lower courts in the context of s. 24(2) on numerous occasions: see, R. v Duguay,  1 S.C.R. 93, at p. 98; R. v Greffe,  1 S.C.R. 755, at p. 783; R. v Belnavis,  3 S.C.R. 341, at para. 35; Buhay, supra, at para. 44. The decision to exclude evidence must be reasonable. Reviewing courts will not interfere with the trial judge's conclusions on s. 24(2) "absent an `apparent error as to the applicable principles or rules of law' or an `unreasonable finding'" (Law, supra, at para. 32).
The trial judge ruled the evidence inadmissible on the basis of trial unfairness. In this respect, he erred. However, his conclusion to exclude the evidence was correct.
For the foregoing reasons, I would allow the appeal, set aside the judgment of the Manitoba Court of Appeal, and restore the acquittal.
(with whom Bastarache J joins, dissenting)
I have had the advantage of reading the reasons of my colleague Iacobucci J. I concur in principle with his analysis on the issue of the existence of a power to detain at common law. However, I express certain reservations as regards the terminology which he adopts in setting out the conditions necessary to give rise to that power and the precise scope of the search which is incidental to it. In addition, while I conclude, as he does, that the search of the appellant violated s. 8 of the Canadian Charter of Rights and Freedoms, I cannot accept that the violation is such that the admission of the evidence which was obtained by the police in the present case would "bring the administration of justice into disrepute". As such, I cannot agree with his disposition in the present appeal.
II. ARTICULABLE CAUSE AND REASONABLE GROUNDS TO DETAIN
Iacobucci J. is of the view that in formulating the standard which must be met in order to give rise to the common law power to detain, the term "reasonable grounds to detain" is preferable to the term "articulable cause" (para. 33). I disagree. "Articulable cause" is a criterion which Canadian courts are familiar with and which they have had little difficulty applying. In the years since R. v Simpson (1993), 12 O.R. (3d) 182, was decided by the Ontario Court of Appeal, it has been adopted by many lower courts across the country, including the courts of appeal of three provinces besides Ontario (see R. v Davis,  A.J. No. 64 (QL), 2004 ABCA 33, R. v Campbell (2003), 175 C.C.C. (3d) 452, 2003 MBCA 76, R. v Bernard,  Q.J. No. 5394 (QL)). Furthermore, as my colleague points out, it has been in use in the United States for nearly 40 years (see Terry v Ohio, 392 U.S. 1 (1968)), a fact which lends further support to the view that it is a useful and workable standard.
More important, however, than the merits of the phrase "articulable cause" are the problems associated with the alternative which the majority has adopted. "Reasonable grounds" has traditionally been employed to describe the standard which must be met in order to give rise to the power to arrest a suspect (see, e.g., ss. 494, 495 and 504 of the Criminal Code, R.S.C. 1985, c. C-46). Using this term in the present context could lead to the erroneous conclusion that the same degree of justification is required for a detention as is required in order to carry out an arrest. This cannot be the case. It would undermine the very purpose of the common law power to detain, which is to provide police with a less extensive and intrusive means of carrying out their duties where they do not have sufficient grounds for arrest, i.e. where there are no "reasonable grounds".
III. THE SCOPE OF THE POWER OF SEARCH INCIDENTAL TO DETENTION
I agree with the majority that there is a power to search incidental to detention at common law, stemming from the test set out in R. v Waterfield,  3 All E.R. 659 (C.C.A.). I wish to add, however, that I do not believe that such a search must always be restricted to concerns for the safety of a police officer. In the case at bar, security was the only ground raised by the respondent. However, other circumstances may justify resorting to a search incidental to detention.
A good example of a lawful search incidental to detention which was not motivated by safety concerns is provided by the decision of the Quebec Court of Appeal in R. v Murray (1999), 136 C.C.C. (3d) 197. In that case, a robbery had been committed by three individuals. The police had set up a road block on a bridge which would have been a likely avenue of flight from the scene of the crime, and were stopping all vehicles which could hide three people. One of the individuals stopped and questioned was the respondent, who was driving a pickup truck. A taut piece of canvass blocked the view of the vehicle's cargo area. Thinking that the suspects in the robbery could be hiding beneath the canvass, a police officer removed it and discovered smuggled cigarettes. Fish J.A. (as he then was), applied the Waterfield test, and concluded that the search was a valid exercise of the common law power of search incidental to detention. He wrote (at p. 212):
A search incident to detention is a valid exercise of police powers at common law only if the detention is itself lawful ....
The search must be for a valid purpose that is rationally connected to the purposes of the initial detention. It must also be reasonably necessary: (1) to secure non-conscriptive evidence of a crime; (2) to protect the police or any member of the public from imminent danger; or (3) to discover and secure anything that could endanger the police, the person detained or any member of the public, or facilitate escape.
I agree with these statements. In my view, any search incidental to detention would have to be both rationally connected to the purpose of the initial detention and reasonably necessary to ensure the security of police officers or the public, to preserve evidence or to prevent the escape of an offender. I do not rule out the possibility that other goals might be permissible, under appropriate circumstances.
That being said, I wish to reiterate the view I have espoused above, that given the lower threshold for justifying a detention as opposed to an arrest, the power of search in the former case is less extensive than in the latter. Thus, for example, the objective of discovering (as opposed to preserving) evidence of a crime could not be used to justify a search incidental to investigative detention. Such searches may only be conducted with a warrant, or pursuant to the common law power of search incidental to arrest (see Cloutier v Langlois,  1 S.C.R. 158, at p. 182, R. v Stillman,  1 S.C.R. 607, at para. 27, and R. v Caslake,  1 S.C.R. 51, at para. 15). In addition, as I mentioned above, searches incidental to detention must be reasonably necessary to the investigation, and not just rationally connected to it (as is the norm for searches incidental to arrest: Caslake, supra, at para. 19). Finally, it bears mentioning that a degree of intrusiveness which may be permitted in the context of an arrest may be disproportionate in the context of detention.
The respondent has not demonstrated that the search conducted in the present case was motivated by a need to ensure the safety of the police or the public, to preserve evidence or to prevent the appellant from escaping. Rather, Conner Prov. Ct. J. seems to have been of the view that the search of the appellant's pocket was the result of mere "curiosity". As such, I have no problem concluding, as the majority does, that the search of the appellant in the present case was illegal.
IV. SECTION 24(2) OF THE CHARTER
As this Court recently affirmed in R. v Buhay,  1 S.C.R. 631, 2003 SCC 30, at para. 41, and R. v Law,  1 S.C.R. 227, 2002 SCC 10, at para. 33, the following three factors are taken into consideration in determining whether or not evidence should be excluded under s. 24(2) of the Charter: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police conduct, and (3) the effects of excluding the evidence on the administration of justice. Like the majority, I am of the view that the evidence in the present case was not conscriptive. As such, its admission would not compromise the fairness of the trial. I disagree, however, with the majority's conclusion that the second and third considerations justify excluding the evidence nonetheless, in addition to its overall approach to the issue of deference to a trial judge's conclusions regarding the application of s. 24(2).
In Buhay, supra, at para. 52, Arbour J. wrote, for the Court, that among the factors which must be taken into consideration under the second branch of a s. 24(2) inquiry (the seriousness of the violation), are the good faith of the officers, whether the violation was motivated by a situation of urgency or necessity, whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant, the intrusiveness of the search, the individual's expectation of privacy in the area searched, and the existence of reasonable and probable grounds.
This list was not intended to be exhaustive. Nevertheless, I find that many of the factors set out above support the conclusion that the violation which is in issue here was not serious. I also have some comments about how some of them should be approached by courts conducting a s. 24(2) analysis.
The officer who conducted the search in the present case did not act in bad faith. There is no evidence that he knew he was acting outside the scope of his powers. Nor is it fair to characterise his error, as the majority does (at para. 55), as unreasonable. Mere "curiosity", as Conner Prov. Ct. J. termed it, does not necessarily amount to bad faith.
Moreover, it is difficult to see how the existence of "alternative means of obtaining the evidence", can be an applicable criterion in a case such as this one, where the police, in the course of a search, came upon evidence which they never sought or expected to obtain. In any event, even if it could be applied here, I cannot think of any lawful alternative which was available to the police officer in the present case which would have rendered his conduct gratuitous or blatant.
With respect to obtrusiveness, I would like to clarify that it is not the intrusiveness of the search in the abstract which must be taken into consideration. Instead, what is to be measured is the degree of intrusion relative to or over and above what would have been permissible under the circumstances. This flows from the fact that what is being determined at this stage of the analysis is the seriousness of the Charter violation, not the seriousness of the search per se. If it was lawful in the present case for the officers to conduct a pat-down search, I find it difficult to see how taking the small additional step of unthinkingly giving in to curiosity, and slipping a hand into the appellant's kangaroo pouch can be regarded as sufficient to put the violation which occurred in the present case on the "serious" end of the spectrum. The legal part of the search which involved the touching of the body was much more intrusive than the illegal part, which saw the search extended into the appellant's open pocket.
Turning to the amount of privacy the appellant was reasonably entitled to expect at the time the incident in question occurred, I find it necessary to have regard to the fact that the search occurred late at night (approximately midnight) and in a "high-crime area", approximately two blocks from the scene of a break-in. Individuals should expect a lesser amount of privacy in public areas frequently patrolled by police than they do in their homes or offices, for example.
Finally, while the situation may not have been "urgent", and while the officers might not have had "reasonable and probable grounds", the application of all of the other criteria set out above does not, in my view, point to the conclusion that the violation which occurred in the present case was very serious.
With respect to the third step of the s. 24(2) inquiry, I disagree with the majority's conclusion that the inclusion of the evidence in the present case would adversely affect the administration of justice. With respect, I believe it is exclusion which would lead to this result. As this Court affirmed in Law and Buhay, supra, the third stage of s. 24(2) analysis turns essentially on the importance for the evidence to the case for the Crown and the gravity of the offence. As Iacobucci J. points out, at para. 57, "there is little doubt that the seized marijuana is the crux of the Crown's case against the appellant". The marijuana and "baggies" seized by the officers in the present case constitute the Crown's only evidence to the effect that the accused possessed the drug and intended to sell it at some point in the near future. In addition, the jurisprudence of this Court strongly supports the view that possession of marijuana for the purposes of trafficking (as opposed to mere possession) is a "serious" offence for the purposes of s. 24(2) of the Charter (see R. v Kokesch,  3 S.C.R. 3, at p. 34, R. v Plant,  3 S.C.R. 281, at p. 295, R. v Grant,  3 S.C.R. 223, at pp. 241 and 261, and R. v Evans,  1 S.C.R. 8, at para. 31). As recently as in Buhay, supra, a case involving a charge of possessing a bag of marijuana (as in the present case) for the purposes of trafficking, Arbour J. wrote, for the Court (at para. 68):
In this case, the conviction turned on the admissibility of the evidence. It was thus essential to the Crown's case. As for the seriousness of the offence, in Kokesch, supra, at p. 34, Sopinka J. said:
The offences with which the appellant is charged are serious offences, though narcotics offences involving marijuana are generally regarded as less serious than those involving "hard" drugs such as cocaine and heroin.
These factors favour admitting the evidence.
On a final note, I disagree with the majority's view that deference to the findings of a trial judge concerning the application of s. 24(2) favours the result which they have reached in the present case. Conner Prov. Ct. J.'s conclusion on the s. 24(2) issue was based entirely upon the fact that he believed that the evidence in the present case was "conscriptive", with the result that its admission would have interfered "with the fairness of the trial" under the first branch of the test set out above. Given that the majority explicitly, and correctly, in my view, rejects this conclusion as an error of law, and conducts an analysis centred on the application of the second and third branches of the s. 24(2) test (not dealt with at all by Conner Prov. Ct. J., incidentally), I find it difficult to see how it amounts to an exercise of deference to the findings of a trial judge.
The present case raises important questions which have not been directly considered by this Court. Subject to the reservations I have expressed above, I agree with the majority's conclusions regarding the existence of a common law power to detain and search those whom the police have an articulable cause to believe have been or will be involved in the commission of a criminal offense. With respect to the application of s. 24(2) to the evidence obtained by the police, not only was the evidence not conscriptive, but it was also found during a search which, even if illegal, was so closely related to a legal search that it amounted to a minuscule departure from what would have been permissible. Given these findings, together with the importance of the evidence to the Crown's case on a serious charge, I am not convinced that the admission of the evidence would bring the administration of justice into disrepute. As such, I would dismiss the present appeal.
R. v Waterfield,  3 All E.R. 659; Watkins v Olafson,  2 S.C.R. 750; R. v Salituro,  3 S.C.R. 654; Dedman v The Queen,  2 S.C.R. 2; Cloutier v Langlois,  1 S.C.R. 182; R. v Godoy,  1 S.C.R. 311; R. v Simpson (1993), 12 O.R. (3d) 152; R. v Storrey,  1 S.C.R. 241; R. v Feeney,  2 S.C.R. 13; R. v Murray (1999), 136 C.C.C. (3d) 197; R. v Jacques,  3 S.C.R. 312; R. v Asante-Mensah,  2 S.C.R. 3, 2003 SCC 38; Terry v Ohio, 392 U.S. 1 (1968); United States v Cortez, 449 U.S. 411 (1981); Adams v Williams, 407 U.S. 143 (1972); United States v Mendenhall, 446 U.S. 544 (1980); United States v Hensley, 469 U.S. 221 (1985); R. v Collins,  1 S.C.R. 265; R. v Buhay,  1 S.C.R. 631, 2003 SCC 30; R. v Golden,  3 S.C.R. 679, 2001 SCC 83; Minnesota v Dickerson, 508 U.S. 366 (1993); U.S. v Casado, 303 F.3d 440 (2002); R. v Mellenthin,  3 S.C.R. 615; Housen v Nikolaisen,  2 S.C.R. 235, 2002 SCC 33; R. v Law,  1 S.C.R. 227, 2002 SCC 10; R. v Stillman,  1 S.C.R. 607; R. v Malmo-Levine,  3 S.C.R. 571, 2003 SCC 74; R. v Duguay,  1 S.C.R. 93; R. v Greffe,  1 S.C.R. 755; R. v Belnavis,  3 S.C.R. 341; R. v Davis,  A.J. No. 64 (QL), 2004 ABCA 33; R. v Campbell (2003), 175 C.C.C. (3d) 452, 2003 MBCA 76; R. v Bernard,  Q.J. No. 5394 (QL); R. v Caslake,  1 S.C.R. 51; R. v Kokesch,  3 S.C.R. 3; R. v Plant,  3 S.C.R. 281; R. v Grant,  3 S.C.R. 223; R. v Evans,  1 S.C.R. 8.
Canadian Charter of Rights and Freedoms: s.8, s.9, s.10(a)(b), s.24.
Criminal Code, R.S.C. 1985, c. C-46: s.494, s.495, s.504.
Controlled Drugs and Substances Act, S.C. 1996, c. 19: s.5(2).
Authors and other references
Coughlan, Steve. "Search Based on Articulable Cause:Proceed with Caution or Full Stop?" (2002), 2 C.R. (6th) 49.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto:Butterworths, 1999.
Stribopoulos, James. "A Failed Experiment? Investigative Detention: Ten Years Later" (2003), 41 Alta. L. Rev. 335.
Young, Alan. "All Along the Watchtower: Arbitrary Detention and the Police Function" (1991), 29 Osgoode Hall L.J. 329.
Amanda Sansregret and Bruce F. Bonney, for the appellant (instructed by Legal Aid Manitoba, Winnipeg; Phillips Aiello, Winnipeg).
S. David Frankel, Q.C., and François Lacasse, for the respondent (instructed by Attorney General of Canada, Vancouver).
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