In R. v. McKenzie, 2022 MBCA 3, January 13, 2022, the accused was convicted of drug and firearm offences. The primary evidence was obtained after an investigative detention and search occurred.
The accused appealed from conviction. The Manitoba Court of Appeal indicated that “[t]his case is about whether common law police powers were exercised lawfully and reasonably in a dynamic situation” (at paragraph 1).
The appeal was dismissed.
The Circumstances of the Detention and Search:
The Court of Appeal described the circumstances involved in the following manner (at paragraphs 6 to 9):
On a winter evening, Constables Beattie and Kraychuk were dealing with a motorist in a back lane of a residential neighbourhood in Winnipeg. The accused was observed to be jogging through nearby back yards. Beattie described it as “really weird”; Kraychuk said it was “a little bit unusual.” The accused was clenching the left side of his body with his elbow. Beattie thought he might be injured and called out to him asking if he was okay. When the accused made eye contact, Beattie recognized him. From police intelligence reports, Beattie knew that the accused was a long-time member of a street gang and was known to carry a weapon.
The accused “appeared startled or frightened” at seeing the police and “immediately increased his pace to a full out sprint” (at para 7). Both officers formed the belief that the manner in which the accused was holding his left side was an effort to conceal something.
Beattie had extensive training and experience with weapons offences including the manner in which people carry weapons. He believed the accused’s mannerism was an attempt to conceal a weapon between his left arm and his body. At this point, he decided to detain the accused for an investigative purpose related to a weapons offence and yelled at the accused to stop. The accused did not comply and a short foot pursuit ensued. During the chase, the accused’s jacket was open and Beattie observed the fanny pack. It occurred to him that the accused “was probably running a load of drugs and the fanny pack likely contained drugs” (at para 9). He testified that he thought the fanny pack would contain “one of the two” (drugs or a weapon).
Beattie caught the accused and pinned him against the wall of a house. He observed that the zipper to the fanny pack was about 75% open. He lifted the flap on the fanny pack to fully open it, shined his flashlight and immediately observed the handgun. The accused was arrested and the drug evidence in his jacket was subsequently discovered.
The Court of Appeal indicated that “[a] police officer may detain an individual for investigative purposes “where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances” (at paragraph 13)
The Court of Appeal concluded that there was “no basis to interfere with the trial judge’s finding that the accused’s section 9 Charter right was not violated” (at paragraph 30). The Court indicated that “if the sum of the objectively discernable facts support the conclusion of possible recent or ongoing criminal behaviour by the individual to be detained, then the standard of reasonable suspicion is met” (at paragraph 19):
Because the reasonable suspicion standard is invariably fact-driven, there is little in the way of guidance as to when the threshold will be met. However, what is not disputed is that, if the sum of the objectively discernable facts support the conclusion of possible recent or ongoing criminal behaviour by the individual to be detained, then the standard of reasonable suspicion is met even if there is a reasonable innocent alternative in the circumstances. There is no duty on police to undertake further investigation to seek out exculpatory factors or to rule out possible innocent explanations (see Chehil at para 34). The nature of the judicial inquiry does not require a court to choose between competing inferences or assess which was the most likely possibility at the time. While the courts have an important duty to protect the rights and freedoms of everyone, they must be mindful in an after-the-fact assessment of the reality that police often have to make quick decisions in dynamic, unpredictable and dangerous situations based on imperfect, evolving or even wrong information. The Supreme Court has accepted that “more innocent persons will be caught” under the reasonable suspicion standard than the reasonable grounds standard (MacKenzie at para 85; and see Chehil at para 28).
The Manitoba Court of Appeal held that the trial judge “was correct that there was a constellation of objective facts that gave rise to a reasonable suspicion to detain the accused for a weapons offence investigation, namely, the accused was holding his body in a manner consistent with his carrying a weapon, while running, in the absence of any reasonable explanation; upon seeing the police, he attempted to flee; and he had a criminal reputation and a propensity to carry weapons. In assessing the possibilities from the sum of these factors, the trial judge correctly considered the circumstances through the lens of Beattie’s extensive training and experience, but did not do so uncritically” (at paragraph 27).
The Search of the Fanny Pack:
The Manitoba Court of Appeal noted that “[i]n Mann, the Supreme Court recognized that, based on the Waterfield framework, police have a warrantless search power at common law incident to a lawful investigative detention (see paras 36-44). A police officer may conduct a protective pat-down search for weapons incident to an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk (see Mann at para 40; and Clayton at paras 29-30). This search power is more circumscribed than the common law search power that police have incident to a lawful arrest” (at paragraph 32). However, the Court of Appeal also suggested that “[t]he language in Mann as to the threshold for this warrantless search power was, with respect, imprecise” (at paragraph 35).
As regards the scope of such searches, the Court of Appeal indicated that the “starting point” is that the police are not required “to put their lives or safety on the line if there is even a low risk of weapons being present” (at paragraph 47):
The starting point is the observation of Cameron JA in R v Okemow, 2019 MBCA 37 that “[t]he Supreme Court of Canada has reinforced that section 8 [of the Charter] does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present” (at para 66; see also Mann at para 43). Here, the trial judge made no error in concluding that Beattie had reasonable grounds to believe there was an imminent threat to his safety that made it reasonably necessary to conduct a protective search of the accused’s fanny pack. Protecting life and property is an important police duty that necessitates some interference with individual liberty. The situation presented to Beattie was volatile and uncertain. Beattie had cause to have concern for his personal safety given the accused’s unusual mannerisms suggested he may be carrying a weapon. Beattie was by himself in a dark area as Kraychuk had not yet arrived. Although the accused was cooperating, he had just recently attempted to evade the police. Beattie knew that the accused was a gang member with a propensity to carry weapons. Finally, the extent of the infringement (opening the remaining 25% of the fanny pack to shine a flashlight in) was focused entirely on a protective function.
The Manitoba Court of Appeal concluded that “the trial judge was correct that the search of the fanny pack was reasonably necessary to eliminate an imminent threat to Beattie’s safety” (at paragraph 48).