A Policing Perspective: R v MacDonald – The Confusion Regarding Officer Safety Searches and the Comm

I started my policing career in 2008. As I noted in a previous blog post, the common law did not form a large part of my policing education. With that said, there were landmark Supreme Court decisions such as R v Feeney 1 and R v Stinchcombe 2 that factored into my training, even though I did not learn by the case method. Obviously, there are some other significant older cases that also provide a framework for how police operate.

While “landmark” decisions seemingly used to be few and far between, since 2008 or 2009, the significant Supreme Court cases that define police ancillary powers or impact police operations have come at a steady rate, whether they are about the exclusion of evidence, the right to counsel, the right to silence, or the right to be free from unreasonable search and seizure.

Personally, I have found that some decisions, such as R v Hart 3 or R v McNeil 4 are incredibly important cases but ultimately they had little impact on me as an officer in my day-to-day operations. Other decisions have the potential to play a role in every arrest that police make.

There is one case however that I found simply created confusion and that is the decision in R v MacDonald.5

For the longest time, there was a general understanding amongst police that R v Mann 6 afforded police the ability to conduct officer safety searches in situations of investigative detention based upon a reasonable suspicion. While the exact wording used by the court in Mann was “reasonable grounds to believe that his or her safety… is at risk”7 the general idea of reasonable suspicion seemed to be endorsed by the Court in such cases as R v Clayton 8 and R v Chehil.9

That seemingly changed however with the decision in MacDonald, oddly enough released only four months after Chehil. In MacDonald, the majority essentially said that they were affirming the decision in Mann but then, at least in my opinion and that of the three dissenting judges, proceeded to create a stricter standard in saying that safety searches were only permitted when police had reasonable grounds to believe that someone was armed and dangerous.10

Where does that leave us today? I do not know. As an officer, I do not think that the decision in MacDonald would cause me to hold back in conducting a pat down for officer safety purposes in a situation where I had a reasonable suspicion that someone had a weapon. Additionally, if I have reasonable grounds to believe someone is possessing a weapon, I am simply going to arrest them. All MacDonald does is create a cloud of confusion and give defence counsel an additional case to argue to counteract the many prior Supreme Court cases that affirmed the reasonable suspicion standard.

This all leads to something more problematic in my opinion and that is the common-law doctrine itself. I have always found that the common law was one of the more frustrating parts of policing. Most lines of work have policies, manual, constitutions, or some other form of written documentation outlining the different rules and regulations. While those exist to an extent in the form of the Criminal Code, provincial statutes and departmental policy, there are a significant number of rules that can only be found by parsing through copious amounts of case law.

As a police officer, if I want to have a thorough understanding of the rules outlining taking a statement from the accused, I probably need to start with Oickle,11 Singh,12 and Sinclair1 13 and go from there. That is a lot of reading but if I know where to look or who to talk to, I can probably find the answer to my inquiry.

Where I find this whole issue of the common law equally problematic is as a Canadian citizen. It is one thing to be able to look up the Charter online and confirm that I have the right “to be secure against unreasonable search or seizure.” But what if I want to know whether police could search my person or my vehicle after arresting me? As law students, we all know where to find these answers but what is the standard we are to expect of the average citizen? Do we expect every Canadian to be able to read and analyze lengthy case law to simply understand their rights? Currently, that appears to be the case.

The law is complex and there is no way that we are ever going to be able to get all the rules down. I believe however that some sort of legislative codification of the common-law doctrine regarding police ancillary powers would be a significant step in the right direction in helping both police understand their powers as well as helping citizens understand their rights.

Endnotes

1 R v Feeney, [1997] 2 S.C.R. 13.

2 R v Stinchcombe, [1991] 3 S.C.R. 326.

3 R v Hart, 2014 SCC 52.

4 R v McNeil, 2009 SCC 3.

5 R v MacDonald, 2014 SCC 3 [MacDonald].

6 R v Mann, 2004 SCC 52.

7 Ibid at para 45.

8 R v Clayton, 2007 SCC 32 at para 46-48.

9 R v Chehil, 2013 SCC 49 at para 23, n.1.

10 MacDonald at para 39.

11 R v Oickle, [2000] 2 SCR 3.

12 R v Singh, [2007] 3 SCR 405.

13 R v Sinclair, [2010] 2 SCR 310.