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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.
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[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…. . R. v. Singer [common law implied license to approach residence/s.8 search on entering car]
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court summarizes this search and seizure case [Charter s.8], which focusses on whether there is an 'implied license' to enter onto property for the purpose of communicating with the occupants:[1] Thirty years ago, in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, this Court affirmed that “the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock” (para. 13, per Sopinka J.). Under the implied licence doctrine, a police officer who has lawful business with the occupant of a dwelling may proceed from the street to the door of a house to communicate with the occupant (para. 15). The issue on this appeal is whether the police likewise possess an implied licence to step onto a private driveway to investigate a complaint of impaired driving when they observe, in plain view, a running vehicle matching the description in the complaint.
[2] Two RCMP officers were investigating a recent complaint of impaired driving made against the respondent, Wayne Singer, in a small Saskatchewan First Nations community. After investigating for about an hour, at around midnight, the officers saw a truck matching the description in the complaint in a residential driveway on the community territory. The truck was running with its lights on. The officers stepped onto the driveway to approach the truck and saw a man sleeping or passed out in the driver’s seat. The officers spent a few minutes knocking on the truck window, but the occupant, Mr. Singer, did not respond. When the officers opened the truck door to rouse Mr. Singer, they smelled a strong odour of alcohol coming from his breath. He seemed tired and had bloodshot eyes. At the officers’ request, Mr. Singer provided a roadside breath sample, which registered as a “fail”. He was then arrested and taken into custody, where he refused to provide a further breath sample. He was charged with impaired driving and refusing to comply with a demand to provide a breath sample.
[3] At trial before the Provincial Court of Saskatchewan, the only issue was whether the implied licence authorized the police to enter onto Mr. Singer’s driveway. Mr. Singer argued that the police breached his right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms by entering his driveway without permission or a search warrant. In response, the Crown relied on this Court’s decision in Evans to claim that the police had an implied licence to step onto the driveway to investigate the impaired driving complaint. The trial judge agreed with the Crown, found no s. 8 breach, and entered a conviction for refusing to comply with a demand to provide a breath sample.
[4] The Court of Appeal for Saskatchewan set aside the conviction. The court ruled that there is no implied licence to enter a driveway “for the purpose of conversing with and observing the occupant to gather evidence that they are impaired” (2023 SKCA 123, 431 C.C.C. (3d) 364, at paras. 43 and 64-66). In the court’s view, the police infringed Mr. Singer’s s. 8 Charter rights and were trespassers from the moment they set foot on the driveway. The court excluded the evidence under s. 24(2) of the Charter and entered an acquittal.
[5] Before this Court, the Crown argued that the police were authorized to enter the driveway and to open Mr. Singer’s truck door under the implied licence doctrine or, alternatively, under a new ancillary police power to protect public safety in the context of an impaired driving investigation.
[6] I would allow the appeal, set aside the judgment of the Court of Appeal, and remit the case to the Court of Appeal to determine the outstanding ground of appeal that it did not address. In my view, the police had an implied licence at common law to step onto Mr. Singer’s driveway, approach his truck, and knock on the truck window. The police were entitled to do so on legitimate business: to investigate a recent impaired driving complaint. This police conduct did not, on its own, constitute a “search” under s. 8 of the Charter. The Court of Appeal’s decision on this point was wrongly decided, and, as noted by the learned authors of Drug Offences in Canada, “the weight of authority [is] to the contrary” (B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), at § 25:21).
[7] At the same time, the implied licence to enter the driveway and knock ended at the door of the truck. The police intruded onto Mr. Singer’s reasonable expectation of privacy and conducted a search when they opened the truck door.
[8] In this case, there is no need to recognize a new ancillary police power to provide potential authority to open the truck door. This Court’s decision in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, already recognizes the common law power of the police to conduct a “safety search” when they have reasonable grounds to believe that the search “is reasonably necessary to eliminate an imminent threat to the safety of the public or the police” (para. 40). A safety search “will generally be conducted by the police as a reactionary measure” and “will generally be unplanned”, since it is “carried out in response to dangerous situations created by individuals, to which the police must react ‘on the sudden’” (para. 32).
[9] Here, there arguably were objective grounds to believe that the search was reasonably necessary to protect public safety. During the impaired driving investigation, the police found Mr. Singer asleep and unresponsive late at night in a running truck matching the description in the complaint. A running vehicle associated with an impaired driving complaint is effectively a weapon that can — and all too often does — kill both the impaired driver and innocent members of the public.
[10] However, there was no direct evidence that the officers were subjectively concerned for public safety when they encountered Mr. Singer asleep or passed out in the truck, as this issue was not raised at trial. Because the Crown bears the burden of justifying a warrantless search, and no such evidence was led, in the particular circumstances of this case I would conclude that the police breached s. 8 of the Charter by opening the truck door.
[11] Even so, I would not exclude the evidence under s. 24(2) of the Charter. The Charter-infringing state conduct was not so serious that the Court must dissociate itself from it. Nor did it have more than a moderate impact on Mr. Singer’s Charter-protected interests. In the circumstances, these factors are outweighed by society’s strong interest in prosecuting the serious offence of failing or refusing to comply with a demand to provide a breath sample.
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