R. v. Mann

R. v. Mann
Collection
Supreme Court Judgments
Date
2004-07-23
Neutral citation
2004 SCC 52
Report
[2004] 3 SCR 59
Case number
29477
Judges
Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Professional law
Notes
SCC Case Information: 29477
Decision Content
R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52
Philip Henry Mann Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Canadian Association of Chiefs of Police,
Criminal Lawyers’ Association (Ontario) and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Mann
Neutral citation: 2004 SCC 52.
File No.: 29477.
2004: March 26; 2004: July 23.*
Present: Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for manitoba
Constitutional law — Charter of Rights — Search and seizure — Police officers approaching scene of reported crime and stopping and detaining individual matching suspect’s description — Officer feeling soft object in individual’s pocket during pat-down search — Officer reaching into pocket and finding marijuana — Individual charged with possession of marijuana for purposes of trafficking — Whether search of individual’s pocket unreasonable — If so, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal law — Investigative detention — Search power incidental to investigative detention — Whether police have a common law power to detain individuals for investigative purposes — If so, whether there is a power to search incidental to detention at common law.
Police — Police powers — Investigative detention — Search incidental to investigative detention — Scope of search.
As two police officers approached the scene of a reported break and enter, they observed M, who matched the description of the suspect, walking casually along the sidewalk. They stopped him. M identified himself and complied with a pat-down search of his person for concealed weapons. During the search, one officer felt a soft object in M’s pocket. He reached into the pocket and found a small plastic bag containing marijuana. He also found a number of small plastic baggies in another pocket. M was arrested and charged with possession of marijuana for the purpose of trafficking. The trial judge found that the search of M’s pocket contravened s. 8 of the Canadian Charter of Rights and Freedoms . He held that the police officer was justified in his search of M for security reasons, but that there was no basis to infer that it was reasonable to look inside M’s pocket for security reasons. The evidence was excluded under s. 24(2) of the Charter , as its admission would interfere with the fairness of the trial, and the accused was acquitted. The Court of Appeal set aside the acquittal and ordered a new trial, finding that the detention and the pat-down search were authorized by law and were reasonable in the circumstances.
Held (Bastarache and Deschamps JJ. dissenting): The appeal should be allowed and the acquittal restored.
Per Iacobucci, Major, Binnie, LeBel and Fish JJ.: The police were entitled to detain M for investigative purposes and to conduct a pat-down search to ensure their safety, but the search of M’s pockets was unjustified and the evidence discovered therein must be excluded.
Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions 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 . They should be brief in duration, so compliance with s. 10 (b) will not excuse prolonging, unduly and artificially, any such detention. Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police. Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest.
In this case, the seizure of the marijuana contravened s. 8 of the Charter . The officers had reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for reaching into M’s pocket. This more intrusive part of the search was an unreasonable violation of M’s reasonable expectation of privacy in respect of the contents of his pockets. Moreover, the Crown has not shown on the balance of probabilities that the search was carried out in a reasonable manner.
The evidence should be excluded under s. 24(2) of the Charter . The trial judge erred in ruling the evidence inadmissible on the basis of trial unfairness because the marijuana was non-conscriptive, but his decision to exclude it was correct. The search went beyond what was required to mitigate concerns about the officer’s safety and reflects a serious breach of M’s protection against unreasonable search and seizure. When the officer reached into M’s pocket, the purpose of the search shifted from safety to the detection and collection of evidence, and the search became one for evidence absent reasonable grounds. While a frisk search is a minimally intrusive search, the search of M’s inner pocket must be weighed against the absence of any reasonable basis for justification. The good faith of the officer is but one factor to be considered alongside other factors which speak to the seriousness of the breach, and 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 authority. Lastly, although exclusion of the evidence would substantially diminish, if not eliminate altogether, the Crown’s case against M and possession of marijuana for the purpose of trafficking is a serious offence, the nature of the fundamental rights at issue and the lack of a reasonable foundation for the search suggest that inclusion of the evidence would adversely affect the administration of justice.
Per Bastarache and Deschamps JJ. (dissenting): There is a common law power to detain and search those who the police have an articulable cause to believe have been or will be involved in the commission of a criminal offence. In formulating the standard which must be met in order to give rise to the common law power to detain, the term “articulable cause” is preferable to the term “reasonable grounds to detain”. It is a criterion which Canadian courts are familiar with and which they have had little difficulty applying. More importantly, using the term “reasonable grounds” could lead to the erroneous conclusion that the same degree of justification is required to detain as to arrest, which would undermine the very purpose of the common law power to detain. A search incidental to detention has to be rationally connected to the purpose of the initial detention and reasonably necessary to either to ensure the security of police officers or the public, to preserve evidence or to prevent the escape of an offender. Under appropriate circumstances, other goals might be permissible. However, since the power of search incidental to detention is less extensive than the power of search incidental to arrest, the objective of discovering evidence of a crime could not justify a search incidental to investigative detention.
While the search of M’s pocket violated s. 8 of the Charter , the evidence should not be excluded pursuant to s. 24(2) . First, the evidence obtained by the police was not conscriptive and would not affect the fairness of the trial. Second, the Charter violation was not serious. The search was conducted in good faith, and the evidence was found during a search which was so closely related to a legal search that it amounted to a minuscule departure from what would have been permissible. Third, M is charged with a serious offence and the evidence is essential to the Crown’s case. Here, it is the exclusion of the evidence, not its inclusion, which would bring the administration of justice into disrepute.
Cases Cited
By Iacobucci J.
Referred to: R. v. Waterfield, [1963] 3 All E.R. 659; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Dedman v. The Queen, [1985] 2 S.C.R. 2; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Murray (1999), 136 C.C.C. (3d) 197; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Asante-Mensah, [2003] 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, [1987] 1 S.C.R. 265; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Golden, [2001] 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, [1992] 3 S.C.R. 615; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Belnavis, [1997] 3 S.C.R. 341.
By Deschamps J. (dissenting)
R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Davis (2004), 346 A.R. 141, 2004 ABCA 33; R. v. Campbell (2003), 175 C.C.C. (3d) 452, 2003 MBCA 76; R. v. Bernard, [2003] Q.J. No. 5394 (QL); Terry v. Ohio, 392 U.S. 1 (1968); R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Murray (1999), 136 C.C.C. (3d) 197; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Evans, [1996] 1 S.C.R. 8.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 10 (a), (b), 24 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 494 , 495 , 504 .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) .
Authors Cited
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.
APPEAL from a judgment of the Manitoba Court of Appeal, [2002] 11 W.W.R. 435, 166 Man. R. (2d) 260, 169 C.C.C. (3d) 272, 5 C.R. (6th) 305, 101 C.R.R. (2d) 25, [2002] M.J. No. 380 (QL), 2002 MBCA 121, setting aside the accused’s acquittal and ordering a new trial. Appeal allowed, Bastarache and Deschamps JJ. dissenting.
Amanda Sansregret and Bruce F. Bonney, for the appellant.
S. David Frankel, Q.C., and François Lacasse, for the respondent.
Michal Fairburn, for the intervener the Attorney General of Ontario.
Greg Preston and Brad Mandrusiak, for the intervener the Canadian Association of Chiefs of Police.
Maureen D. Forestell, for the intervener the Criminal Lawyers’ Association (Ontario).
Christopher D. Bredt and Elissa M. Goodman, for the intervener the Canadian Civil Liberties Association.
The judgment of Iacobucci, Major, Binnie, LeBel and Fish JJ. was delivered by
Iacobucci J. —
I. Introduction
1 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.
2 In particular, the following issues are squarely before the Court: (i) whether there exists, at common law, a police power to detain individuals for investigative purposes; and (ii) if so, whether there exists a concomitant common law power of search incident to such investigative detentions. Additionally, I consider (iii) whether any existing detention and/or search power was properly exercised; and (iv) 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 .
3 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.
II. Facts
4 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”.
5 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.
6 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
7 Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
. . .
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
IV. Judicial History
A. Manitoba Provincial Court
8 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.
9 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
10 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.
11 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, [1963] 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.
12 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.
13 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.
14 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 .
V. Analysis
A. Introduction
15 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.
16 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.
17 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, [1989] 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, [1991] 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.
18 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.
19 “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.
20 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 .
21 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.
22 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
23 A number of cases occurring over the years have culminated in the recognition of a limited power of officers to detain for investigative purposes.
24 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 Appeal in Waterfield, supra, at pp. 660-61. 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.
25 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, [1985] 2 S.C.R. 2); the scope of police power to search incident to lawful arrest (Cloutier v. Langlois, [1990] 1 S.C.R. 158); and the scope of police authority to investigate 911 calls (R. v. Godoy, [1999] 1 S.C.R. 311).
26 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.
27 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, [1990] 1 S.C.R. 241, at p. 250; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 29).
28 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.
29 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.
30 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, [1996] 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, [2003] 2 S.C.R. 3, 2003 SCC 38, at para. 75.
31 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)).
32 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.
33 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.
34 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.
35 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
36 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, [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). 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, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.
37 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, [2001] 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.
38 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.
39 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.
40 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?” (2002), 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.
41 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, at p. 27, 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