Canada's highest court has recognized a police power to conduct a safety search provided it is reasonably necessary in the circumstances.
In R. v. MacDonald, 2014 SCC 3 a concierge received a complaint about loud music coming from the accused's unit. After hearing it he knocked on the door. There was no response but as he was about to leave guests exited. He asked MacDonald to turn the music down but he refused and swore at the concierge.
Police were called and a constable went to the door, knocked and asked MacDonald to turn his music down or off. MacDonald swore at the officer and slammed the door shut.
The constable called her sergeant, who went to the unit about 30 minutes later, knocked and kicked at the door and identified himself as police. Five minutes later MacDonald opened the door about 16 inches, just enough for officers to see the right side of his body and face. The sergeant noticed something "black and shiny" in MacDonald's right hand, in a shadow and partially hidden by his right leg.
Believing the object may be a knife, he asked twice what was behind the leg, gesturing toward his right hand. There was no response so, to get a better look, he pushed the door open a few inches further, saw it was a handgun, yelled "gun!" and forced his way into the condo. After a struggle, MacDonald was disarmed and found to have a loaded 9mm Beretta which was registered to him at his home in Alberta. He was charged with several offences, including careless handling, possessing a weapon for a purpose dangerous to the public peace and unauthorized possession of a loaded restricted firearm.
A Nova Scotia Provincial Court judge found the police pushing the door open a little to determine what MacDonald was holding was justified in the interests of officer safety. In his view, there is an exception that permits an officer to enter a home to ensure safety, particularly when the intrusion is minor. There was no Charter breach and MacDonald was convicted of ss. 86(1), 88(1) and 95(1) and sentenced to three years in prison. His gun was forfeited and a weapons prohibition imposed.
MacDonald appealed to the Nova Scotia Court of Appeal arguing, among other grounds, that the trial judge erred by failing to find police breached the Charter by entering his home. A majority disagreed, finding police have a common law power to search without a warrant where their or public safety is at stake, provided they have no other feasible less intrusive alternative and the search is carried out in a reasonable manner.
Police acted lawfully in approaching MacDonald's door to deal with a noise complaint. The sergeant acted reasonably in pushing the door open to see what was being hidden; it was too late to retreat or issue a noise violation ticket.
Justice Beveridge, writing a dissenting opinion, concluded that the sergeant breached s. 8 of the Charter by pushing the door open and extending his hand into the unit. In his view, he did not have "reasonable grounds to believe that his safety, or the safety of others, was at risk and his search in pushing open the door was reasonably necessary in the circumstances." He would have excluded the firearm as evidence, set aside the convictions and directed acquittals on all weapons charges.
MacDonald appealed to Canada's highest court, again arguing that pushing the door open was an unreasonable search and therefore the firearm should be excluded as evidence. The high court unanimously agreed that police did not breach s. 8 but split (4:3) on the route to get there.
Justice Lebel, writing a four judge majority opinion, found the sergeant's actions did amount to a search. People have a strong expectation of privacy in their homes and approaches. Although police have an implied licence to approach the door of a residence and knock, their actions constitute a search if they exceed the conditions of that licence.
Police were within the conditions of implied licence when they went to the door, knocked (and even kicked at it) to tell the occupant to turn down the music. However, they exceeded the waiver when they pushed the door further open. This action constituted an intrusion upon his reasonable privacy interest in the dwelling. Even though the officer only pushed the door slightly further open, police could now see more of the interior of the unit and potentially reveal any number of things about the accused.
Lebel termed this type of action a "safety search," a reactionary measure reasonably necessary to eliminate threats to public or police safety. He described it as a "physical search that could uncover a broad array of information about an individual."
Although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react 'on the sudden', said Lebel. Thus, safety searches will typically be warrantless, as the police will generally not have sufficient time to obtain prior judicial authorization for them. In a sense, such searches are driven by exigent circumstances.
A warrantless search will be reasonable if it is authorized by reasonable law and carried out in a reasonable manner. In this case, the majority found that "the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search."
The power to search is not unbridled. To exercise it, a police officer requires reasonable grounds to believe that there is an imminent threat to police or public safety before a safety search will be deemed reasonable. Officers must have more than a hunch or a vague concern for safety and must act on objectively verifiable circumstances.
In this case, the officer had "reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat." MacDonald had his hand behind his leg, was clearly holding a "black and shiny" object which could have been a weapon and refused to answer or provide any explanation when twice asked about it.
A safety search must be conducted reasonably, not exceed what is required to search for weapons and must be reasonably necessary to eliminate any threat in light of the totality of the circumstances. The officer did no more than was necessary to see what MacDonald had behind his leg.
"In these circumstances, it is hard to imagine a less invasive way of determining whether Mr. MacDonald was concealing a weapon (and thereby eliminating any threat in that regard)," said Lebel.
The search was reasonable, there was no s. 8 breach and no need to consider s. 24(2).
A three member minority agreed that there was no s. 8 violation but found the test was reasonable grounds to "suspect," rather than reasonable grounds to "believe," an individual was armed and dangerous. It was quite critical of this distinction, going so far as to state:
We should be clear about the consequences of the majority's decision: officers are deprived of the ability to conduct protective searches except in circumstances where they already have grounds to arrest.
As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat-down searches to ensure their safety or the safety of the public as they conduct these investigations.
In our view, a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk (at para. 91).
MacDonald's appeal on the s. 8 issue was dismissed.