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Accumulation of factors justified safety search


February 11, 2015
By Mike Novakowski

The Ontario Court of Appeal has upheld the safety search of a man found in the backyard of a dwelling where police had responded to a static 911 call.

In <R. v. Peterkin, 2015 ONCA 8,> two police officers were dispatched at about 2:30 am to investigate a 911 call connected to a townhouse unit. No one spoke during the call and the line was busy on call back. Police arrived to find the front and back doors of the townhouse locked and the unit dark. No one answered the door, no sounds could be heard from within and there were no signs typical of an actual or attempted forced entry.

As officers waited nearby for a security guard to let them so they could investigate further, Peterkin arrived on foot. They saw him walk into the fenced back yard of the townhouse unit through an open gate while talking on a cell phone. When approached, Peterkin denied any connection to the townhouse, and explained that he was just waiting for a ride. He appeared nervous and avoided eye contact.

Not satisfied with the explanation, officers advised Peterkin he was being detained under Ontario’s . They asked him whether he wanted to speak to a lawyer but did not mention the toll-free number for duty counsel or the availability of immediate free legal advice. Peterkin produced a driver’s licence to confirm his identity but declined to speak to a lawyer.

While officers were running a computer check of his license, Peterkin began to act suspiciously. He was seen tapping his right hip with his right wrist and “blading” himself so that his right side was furthest away from the officers. When his driver’s licence was returned, Peterkin received it awkwardly by holding his right elbow tightly to his right hip.

Suspecting he was carrying a weapon, police decided, in the interests of their own safety, to do a pat down search for weapons before releasing him. When officers told him they were going to pat him down, he backed away, refused to permit the search and tried to flee. Police struggled with him and but he was quickly taken to the ground and subdued.

One of the officers felt the butt of a gun on the right side of his waist and removed it. The struggle stopped and Peterkin was arrested for unlawful possession of a firearm. The gun was loaded with a bullet in the chamber. When the officers searched Peterkin incident to his arrest, they recovered 40 rounds of ammunition, some cocaine and marijuana, two cellphones and $275 cash.

An Ontario Superior Court of Justice judge found the officers had a sufficient legal basis to detain Peterkin for investigation in the backyard and to conduct a safety search (pat-down) incidental to this detention.

“While completing their investigation, the accused conducted himself in a way that caused the police to reasonably suspect that he was armed with a weapon,” said the judge.

There was no <s. 8> Charter breach against unreasonable search or seizure. The judge did, however, find two other Charter breaches under <s. 10>.

First, police failed to advise Peterkin as to both reasons for his investigative detention; they did not tell him he was also being detained in connection with the 911 call. Second, they failed to tell him about the availability of duty counsel and provide the toll-free number. Nevertheless, the evidence was admitted under <s. 24(2)> and Peterkin was convicted of unlawfully possessing a loaded restricted firearm and possessing cocaine for the purpose of trafficking.

Peterkin challenged his convictions to the Ontario Court of Appeal, arguing that the search which followed his investigative detention was unlawful. He submitted that a warrantless safety search is presumptively unreasonable and the Crown failed to rebut this presumption by establishing, on a balance of probabilities, that police had reasonable and probable grounds to believe, at the time of the search, that their own or public safety was at risk.

In his view, a reasonable suspicion of the presence of a weapon, which reflects a standard of possibility, is not sufficient to discharge this obligation. Rather, he said, the evidence must give rise to a reasonable belief, reflective of a standard of probability.

The Crown contended that the relevant standard by which the lawfulness of a safety search incidental to an investigative detention is to be determined is only a reasonable suspicion, not reasonable belief. This standard requires a demonstration of reasonable grounds for a belief that police or public safety is at risk and relates to reasonable possibility of harm, not a reasonable probability.

In the Crown’s opinion, it doesn’t make sense that the power to conduct a limited safety search incidental to a lawful investigative detention should require a higher standard than for the detention itself. Furthermore, even if the higher reasonable and probable grounds standard applied, the Crown’s position was that the evidence in this case satisfied that standard.

{Safety search}

Under the common law, police officers have a limited power to detain a person for investigative purposes. They must have a reasonable suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence. As well, the detention must 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,” said Justice Watt, speaking for the unanimous court.

As for searches incidental to investigative detention, they too are permissible under the common law. However, such searches do not exist as a matter of course and are not to be equated with the power to conduct a search incidental to a lawful arrest. Instead, “safety searches incidental to investigative detentions are justified where the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk,” said Watt, citing the Supreme Court of Canada.

“The search must be grounded in objectively discernible facts to prevent fishing expeditions on the basis of irrelevant or discriminatory factors.” Furthermore, a safety search incidental to an investigative detention requires additional criteria.

<First, the officer’s decision to search must 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. Second, the safety search must be exercised in a reasonable manner> [para. 45].

The court upheld the safety search:

<When [the accused] entered the backyard… 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. [The accused’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 [the accused] continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the [accused’s] pants. “Blading” to obstruct their view of the [accused’s] right side. Awkward receipt of the driver’s licence when the officers returned it to the [accused]. 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> [paras. 61-62].

{Reasonable suspicion v. reasonable grounds}

In a recent Supreme Court of Canada decision (<R. v. MacDonald, 2014 SCC 3>) the majority concluded that safety searches require an officer to believe on reasonable grounds that their safety is at stake (or reasonable grounds to believe a person is armed or dangerous or a reasonable belief in an imminent threat to safety). The minority in that decision took this to mean that a new, higher standard was created to replace the lower reasonable grounds to suspect standard articulated in <R. v. Mann, 2004 SCC 52>.

Watt observed that MacDonald did not involve a safety search incident to an investigative detention but was a free-standing search power. In the end, he found it unnecessary to determine whether the standard for determining the lawfulness of a safety search has been re-calibrated in light of MacDonald, because, in this case, the test of a reasonable belief that the officer’s safety was at stake was satisfied.

The safety search was lawful, the evidence admissible under <s. 24(2)>, Peterkin’s appeal was dismissed and his convictions upheld.


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