Safety search reasonable despite unlawful detention

Mike Novakowski
July 01, 2015
By Mike Novakowski
Exigent circumstances may justify a safety search and render it reasonable despite the person being arbitrarily detained when it was conducted. In R. v. Fountain, 2015 ONCA 354, the accused and another young black man were walking past a police car when he was singled out and called over for questioning. The police officer was part of the Toronto Anti-Violence Intervention Strategy (TAVIS), a community policing program. TAVIS officers engage in pro-active policing, sometimes randomly approaching people and talking to them. Information revealed during these encounters may be of a general or investigative interest and can be documented through a Field Investigative Report ("208 card") with identification and association information. This information is used to build and maintain a database of individuals and their associates, primarily in high-crime or so-called "priority" areas.

Exigent circumstances may justify a safety search and render it reasonable despite the person being arbitrarily detained when it was conducted.

In R. v. Fountain, 2015 ONCA 354, the accused and another young black man were walking past a police car when he was singled out and called over for questioning. The police officer was part of the Toronto Anti-Violence Intervention Strategy (TAVIS), a community policing program.

TAVIS officers engage in pro-active policing, sometimes randomly approaching people and talking to them. Information revealed during these encounters may be of a general or investigative interest and can be documented through a Field Investigative Report ("208 card") with identification and association information. This information is used to build and maintain a database of individuals and their associates, primarily in high-crime or so-called "priority" areas.

After identifying Fountain and confirming he had no outstanding arrest warrants, the officer began filling out a 208 card. A third man, unknown to either Fountain or the officer, walked up behind them and began interrogating police about harassing the men. Fountain abruptly turned sideways, bladed his body, placed his left arm on his left hip and took two paces backwards.

The officer commanded Fountain to show his hands but he failed to do so. The officer reached out, patted Fountain's side, felt a hard object and yelled "gun". Fountain bolted and a gun fell out of his jacket as he jumped a fence. He was quickly apprehended. The entire encounter, from the officer's initial approach to the pat-down, lasted only about three minutes. Fountain was charged with several offences related to possessing an illegal handgun.

A Ontario Court of Justice judge recognized that each street-level encounter must be assessed on its own merits even though pro-active policing programs have generally passed Charter scrutiny. He noted that the police practice known as carding treads "a very fine line depending on the particular circumstance of any given situation."

The judge found that Fountain had been arbitrarily detained (psychologically) when the uniformed officer ordered him, a young, black man, to come over and talk. The officer asked if he had any open warrants and planned to arrest him if he did. He told Fountain to keep his hands down and did not tell him that he was free to leave.

In the judge's view, a reasonable person in these circumstances would have felt compelled to obey and not free to walk away. However, the judge found the pat-down search reasonable because it flowed from exigent circumstances, even though it took place during an unlawful detention.

"In all the circumstances it was absolutely necessary for the officer to conduct this safety pat-down to protect himself," said the judge. "The conduct of the officer was entirely reasonable, lawful and understandable, and justified on officer-safety grounds."

The judge concluded that the discovery of the gun did not flow from the unlawful detention, but from a lawful pat-down search. Therefore, s. 24(2) of the Charter was not triggered. However, even if the gun's discovery resulted from the arbitrary detention, such that the gun was "obtained in a manner" that violated the Charter, the trial judge found it admissible as evidence under s. 24(2).

Fountain was convicted of possessing the firearm and sentenced to four years in prison.

Fountain challenged his conviction before the Ontario Court of Appeal arguing, in part, that the trial judge erred in applying the exigent circumstances doctrine to justify the pat-down search. In his view, exigent circumstances could not justify the search because police were not lawfully executing their duties at the time.

He asserted that he had been arbitrarily detained from the moment the officer began speaking to him until the search. As well, he contended that police created the exigent circumstances and could not rely on them to justify the search. Since the search was unlawful, the gun should have been excluded as evidence after a fresh s. 24(2) analysis was conducted.

Detention

Justice LaForme, writing the court's decision, concluded that Fountain was unlawfully detained from the moment police called out to him and began a conversation. The stop was a "focused, investigative engagement" to determine if Fountain was wanted and the officer admitted he had no basis to detain when he began speaking to him. He did not suspect that Fountain was involved in any particular criminal activity.

Since the detention was unlawful it breached s. 9 of the Charter.

Pat-down search

Although a warrantless search is presumptively unreasonable, a warrantless safety search, even one conducted outside of an investigative detention, may be reasonable in appropriate circumstances.

"A safety search is generally ‘a reactionary measure', often ‘driven by exigent circumstances'," said LaForme. "For a safety search to be lawful, an officer must ‘have reasonable grounds to believe that there is an imminent threat' to police or public safety."

A safety search must be conducted reasonably and "even if a safety search takes place in the context of an unlawful detention, exigent circumstances can still justify the search."

The court rejected Fountain's argument that police could not justify the warrantless search on the basis that the exigent circumstances were created by their own unlawful conduct. There was no evidence that the third party intervened because of an unlawful detention.

"A third party bystander could not easily tell, in all the circumstances of this case, whether [the officer] had detained the [accused] or, if he had detained the [accused], whether the detention was lawful," said LaForme. "The third party would likely still have intervened even if [the officer] had not detained the [accused] or if he had lawfully detained the [accused]."

The court found the doctrine of exigent circumstances justified the search. Police did not create their own exigent circumstances. Not only did a third party interject in the encounter, Fountain became nervous, "bladed" his body, placed his left arm on his left hip and took two paces backwards.

"A person blades his body when he turns sideways to his counterpart," noted LaForme. "A person may blade his body to protect a firearm held on one side."

The circumstances provided the officer with reasonable grounds to believe the accused presented an imminent threat to his safety and conduct the pat-down search.

s. 24(2) - evidence admissibility

The court disagreed with the trial judge that the unlawful detention and the gun's discovery were not sufficiently connected to warrant a s. 24(2) analysis. Rather, the lawful search was sufficiently linked to the unlawful detention to trigger s. 24(2). However, the gun was nonetheless admissible and Fountain's appeal was dismissed.

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