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| Patrick Ducharme |
In Mann the Supreme Court of Canada was dealing with a case where 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 Charter. 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 subsection 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.
Although the Supreme Court of Canada held that the police were entitled to detain M for investigative purposes and to conduct a pat-down search to ensure their safety, the search of his pockets was unjustified and the evidence discovered there had to be excluded. They also held that, 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.
Continued in part 3
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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