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Civil and Administrative
Litigation Opinions
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Criminal - Safety Searches

. R. v. Cameron

In R. v. Cameron (Ont CA, 2024) the Ontario Court of Appeal considered a 'safety' seizure:
Issue 1: The taking of the Jeep keys

[26] The appellant argues that the trial judge erred in finding that the police did not breach his Charter rights when Officer Cotnam took his keys immediately after he was stopped. I disagree.

[27] In his reasons, the trial judge explained that it was “proper” for Officer Cotnam “to consider the safety risks associated with an attempt to flee” by the appellant when Officer Cotnam took his keys. The trial judge further found that the “seizure of the key was within the scope of A/Sgt. Cotman’s duties; it was reasonable and necessary”.

[28] I see no s. 8 Charter breach in this respect. The power to conduct a safety search incident to an investigative detention arises in cases where officers believe on reasonable grounds that there is an immediate risk to their own safety, or the safety of others: R. v. Buakasa, 2023 ONCA 383, at paras. 31-32, 55-56. Here, Officer Cotnam’s evidence was that, based on his knowledge of the appellant, he was concerned that the appellant would try to flee and injure him. These safety concerns were supported by the circumstances under which the appellant was detained and Officer Cotnam’s knowledge of the appellant.

[29] Ultimately, Officer Cotnam had a reasonable basis for concern over his safety and the taking of the appellant’s keys was minimally invasive and justified in the circumstances.
. R. v. Buakasa

In R. v. Buakasa (Ont CA, 2023) the Court of Appeal canvasses common law 'safety search' powers:
b) Safety Searches

[31] In Mann, the Supreme Court of Canada recognized a common law police power to conduct a pat-down safety search incident to an investigative detention. The court found that the general duty of police officers to protect life gives rise to the power to conduct a safety search incident to an investigative detention only where the officer “believes on reasonable grounds that his or her own safety, or the safety of others, is at risk”: Mann, at para. 40. The search “must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ on the basis of irrelevant or discriminatory factors”: Mann, at para. 43.

[32] As the trial judge properly noted, a safety search may in some circumstances extend beyond a pat-down search of the appellant’s person to include a vehicle or a bag: R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 73-79; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 29-65.

[33] In MacDonald, the Supreme Court of Canada considered whether the police were authorized by law to conduct a safety search where they interacted with Mr. MacDonald at the doorstep of his home while he was not under arrest or investigative detention. The facts of MacDonald are instructive. Mr. MacDonald was in his Halifax condo with his co-workers. The concierge asked him to turn down the music, which he ignored. The police were called. A police officer attended and spoke with Mr. MacDonald. He swore at the officer and slammed the door. Another officer, Sgt. Boyd attended. When Mr. MacDonald opened the door “about 16 inches”, Sgt. Boyd saw something “black and shiny” that was in his right hand, in shadow, and partially hidden by his right leg. Sgt. Boyd believed the item might be a knife. Sgt. Boyd pushed the door open a few inches and saw a handgun. The police subsequently forced their way into the unit.

[34] The majority in MacDonald then went on to describe the standard required to conduct a safety search, at para. 41: “the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search”. The majority found that the common law power to conduct a safety search was engaged “because Sgt. Boyd 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, at para. 44.

[35] In concurring reasons, Moldaver J. and Wagner J. (as he was then) queried the majority’s conclusion, at paras. 39 and 44, that officers are “only empowered to conduct ‘safety searches’ where they have reasonable grounds to believe an individual is armed and dangerous”: at para. 66. The concurring reasons read the majority as departing from the reasonable suspicion standard established in Mann; officers may conduct safety searches “when they have reasonable grounds to suspect an individual is armed and dangerous”: at para. 66.


[39] This court has similarly noted that the language used in MacDonald has given rise to confusion about what the appropriate standard is, and debate about whether there are two standards – for searches incident to detention and arrest, and free-standing safety searches: see R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191; and R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643. One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts. Another view is that the majority in MacDonald did not recalibrate the test for any police safety searches from the the traditional reasonable suspicion standard: see R. v. McKenzie, 2022 MBCA 3, at paras. 38-40. Yet another is that the concurring opinion in MacDonald was correct that the standard for safety searches may indeed have been raised for all safety searches: see R. v. Del Corro, 2019 ABCA 156, at para. 49.

[40] The law continues to develop with the addition of two recent cases from the Supreme Court of Canada. In R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, the Supreme Court of Canada considered the appropriate standard for search incident to arrest in a person’s home. The police had lawfully entered Mr. Stairs’ home pursuant to exigent circumstances and placed him under arrest. The police then conducted a visual search of the basement and saw a bag containing drugs.

[41] In determining the relevant standard for search incident to arrest in a person’s home, the Supreme Court in Stairs noted that Mr. Stairs, on his appeal, had proposed a standard of “reasonable belief in imminent harm”, relying on MacDonald. The same standard had been endorsed by the dissenting judge of this court. In rejecting this argument, the Supreme Court used language that could be interpreted to suggest that MacDonald did change the standard for safety searches. It described the MacDonald standard as one of “reasonable belief in imminent harm”, noted that “because a search incident to arrest typically occurs at the early stages of an investigation, the police will often be unable to show reasonable and probable grounds”, and rejected an “imminence requirement”: Stairs, at para. 77. However, the majority in Stairs could be read to distinguish MacDonald not solely by reference to the fact that it involved a stand-alone search, but rather by a more holistic view of the respective appellants’ relative expectations of privacy. The Supreme Court of Canada held:
Importantly, Mr. MacDonald was not under arrest. He therefore retained a strong expectation of privacy in his home and the police required heightened grounds to justify entry – reasonable belief in imminent harm. In the present case, by contrast, the police had already entered the home under exigent circumstances and lawfully effected the arrest. Mr. Stairs’ expectation of privacy was thus significantly diminished.
The court went on to conclude that an imminence-based threshold, such as in MacDonald, is not required because setting the bar too high will prevent officers from taking immediate steps to address the risk to officer and public safety: at paras. 75-77.

[42] Another recent case from the Supreme Court of Canada suggests that the Court did create a different standard in MacDonald, but that this standard did not supplant the standard set out in R. v. Mann. The Mann standard remains applicable in some contexts. In R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at paras. 51-53; 60-64, the court relied solely on the standard set out in R. v. Mann to find that a safety search was a lawful search incident to investigate detention. It did not mention MacDonald or apply an imminence requirement where the appellant was lawfully detained as part of a traffic collision investigation.

[43] The addition of these two recent cases raises new questions with respect to whether different standards apply to different safety searches – and what circumstances distinguish their application. One theory has been advanced in Bruce A. MacFarlane, Croft Michaelson, Robert J. Frater, Drug Offences in Canada, 4th ed. (Toronto: Carswell, 2015):
Where does this leave us then when it comes to safety searches? First, it seems clear that the Supreme Court has not “recalibrated” the standard for safety searches articulated in Mann and Clayton. That standard, which is one of reasonable suspicion, simply applies to a different context than the one in MacDonald. Second, the appropriate standard will depend on the privacy interests at stake. If the police wish to enter a home without warrant to conduct a safety search, a place where there is a strong privacy interest, they must meet the standard articulated in MacDonald — a reasonable belief in imminent harm. However, safety searches in other contexts where the individual has a reduced expectation of privacy will be governed by a lower standard of reasonable suspicion of a risk to safety….


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Last modified: 29-03-24
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