Protective pat down not reasonably necessary

Mike Novakowski
December 03, 2012
By Mike Novakowski
A motorist can be secured in the back of a police car and patted down, but only if reasonably necessary, Canada's top court has concluded. In R. v. Aucoin, 2012 SCC 66 the 19-year-old accused was stopped around midnight in a downtown area during a busy Apple Blossom weekend because his car's licence plate was registered to another vehicle. While speaking to Aucoin, a newly licensed driver, the officer smelled alcohol and demanded a roadside screening test. Aucoin was asked to go back to the police car for a roadside screening test and sat with the door open and his legs and feet outside. Although the test indicated a result below the legal limit (20mg%), Aucoin was still in breach of the zero alcohol tolerance for a newly licenced driver.

A motorist can be secured in the back of a police car and patted down, but only if reasonably necessary, Canada's top court has concluded.

In R. v. Aucoin, 2012 SCC 66 the 19-year-old accused was stopped around midnight in a downtown area during a busy Apple Blossom weekend because his car's licence plate was registered to another vehicle. While speaking to Aucoin, a newly licensed driver, the officer smelled alcohol and demanded a roadside screening test.

Aucoin was asked to go back to the police car for a roadside screening test and sat with the door open and his legs and feet outside. Although the test indicated a result below the legal limit (20mg%), Aucoin was still in breach of the zero alcohol tolerance for a newly licenced driver.

Aucoin's vehicle was going to be impounded. The officer was concerned he could disappear into a crowd while he was writing the ticket and so decided to put him in his police car's back seat. Since the officer would be in the front seat, he did a safety pat-down and felt something hard and square in Aucoin's left front pocket. Aucoin said it was his wallet. The officer continued the pat-down, feeling something soft in Aucoin's right front pocket, which he said was ecstasy.

Aucoin was arrested and two small baggies containing 100 green pills (which later turned out not to be a controlled substance) and eight bags of cocaine were removed from his pocket. As this took place, two other officers arrived in separate vehicles. Aucoin was subsequently charged with possessing cocaine for the purpose of trafficking and possessing a substance for the purpose of trafficking.

In New Brunswick Provincial Court the trial judge found the officer's actions were reasonable and did not breach s. 8 of the Charter given the very unusual circumstances that night. First, it was late and there was no natural lighting in the area. The officer needed the police car light to write the ticket so could see what he was doing. Second, Aucoin had alcohol in his body and the officer could not allow him to return to the car where he would continue with the offence. Third, there were many people around because of the annual festival and the officer was concerned Aucoin could simply walk away if left alone.

In light of these factors, the judge ruled it was reasonable for the officer to ask Aucoin to be seated in the police car while the ticket was written and to conduct a pat-down search. There were no Charter breaches, the evidence was admitted, Aucoin was convicted of possessing cocaine for the purpose of trafficking and sentenced to two years in prison.

Aucoin challenged the ruling to the Nova Scotia Court of Appeal but it was upheld. A majority found the pat-down search was lawful and it was reasonable for the officer to detain Aucoin in the rear of the police car and pat him down for weapons. Justice Beveridge dissented, finding Aucoin's s. 8 Charter rights had been breached because the officer's subjective belief that Aucoin might walk away wasn't objectively justified. Nor was he justified in placing Aucoin in the police car or patting him down – there was no reason to believe he posed a safety risk. Beveridge would have allowed Aucoin's appeal, excluded the evidence, set aside the conviction and entered an acquittal.

Aucoin appealed to the Supreme Court of Canada, arguing that the pat down search had breached his s. 8 rights. The court agreed. All seven judges concluded police were not justified in searching Aucoin in this case but were divided on whether the evidence should have been admitted.

The search

Justice Moldaver, writing for five members, first noted that this wasn't an investigative detention case for a criminal matter but a detention for two relatively minor traffic infractions under Nova Scotia's Motor Vehicle Act. Aucoin was initially detained because his licence plate was registered to a different vehicle, then because he was a newly licensed driver who had been drinking. The nature and extent of his detention, however, was then altered in a "dramatic way" when he was patted down and secured in the police car. This action increased the restrictions on his liberty interests and intruded into his privacy interest.

In Moldaver's view, the case wasn't about whether the officer had the authority to detain Aucoin in the police car but whether he was justified in exercising it as he did. In other words, was it reasonably necessary, in the particular circumstances, to place Aucoin in the backseat knowing he would be patted-down?

Securing Aucoin in the car – which fundamentally changed the nature of his ongoing detention – wasn't reasonably necessary in the totality of the circumstances, Moldaver held. The officer had other options, or reasonable means, to address his concern that Aucoin would disappear into the crowd. Backup was close at hand, as evidenced by the arrival of other officers while Aucoin was being searched and the officer could have "waited an extra minute or two to do the paper work, without impinging on the (accused's) right to be release as soon as practicable...

Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that (the officer's) actions, though carried out in good faith, were not reasonably necessary (para. 40).

If Aucoin had not been detained in the car, there would have been no pat-down search. Since the search was warrantless it was presumptively unreasonable, which the Crown had not rebutted and breached Aucoin's s. 8 Charter rights.

s. 24(2) Charter}

Despite the violation, the majority ruled the evidence admissible. The officer acted in good faith and, although the impact on Aucoin's privacy interest was significant, society's interest in having the case tried on its merits tipped the scales in favour of admission. Aucoin's appeal was dismissed.

Not an outright ban

The majority was clear, however, that there may be cases (although rare) where it might be reasonably necessary to secure a motorist detained for a straightforward motor vehicle infraction in a police car. In such cases, where the facts support a finding of reasonable necessity, there is no further balancing needed between an individual's right to be free from state interference and the public's interest in effective law enforcement, a position posited by the minority.

A different view by two

Justices Lebel and Fish agreed with the majority that the search was unreasonable because the detention wasn't reasonably necessary and was therefore unlawful and arbitrary. Aucoin could have stood on the sidewalk to await his ticket, they noted.

Generally speaking, detaining an individual in the locked rear seat of a police car in order to write out a ticket for a motor vehicle infraction will rarely strike an appropriate balance between the public's interest in effective law enforcement and its interest in upholding the right of individuals to be free from state interference.

Had there been reasonable grounds to believe that (the accused) might flee, with the result that the detention could be said to be necessary, the overall reasonableness of the decision to detain would then need to be assessed in light of the totality of the circumstances, including the nature and extent of the interference with liberty and the importance of the public purpose served by that interference. The seriousness of the offence is therefore a relevant consideration.

In my view, where the public purpose served by the interference is the enforcement of a regulatory offence and the interference involves the police assuming complete control over an individual's movements, the balance will generally not favour recognizing a police power (references omitted, para. 86).

Since the detention was unlawful, the protective pat-down search was unreasonable – but even if the detention was lawful, the search would nonetheless be unreasonable. There were no reasonable grounds for the officer to believe his or others' safety was as risk. The search also exceeded the scope of one that was reasonably designed to locate weapons. The item the officer felt was soft and could not justify a concern for officer safety and the questioning that followed it.

In the minority's opinion, the evidence should be excluded under s. 24(2). The Charter-infringing conduct was serious and the impact on Aucoin's Charter protected interest was significant.

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