R. v. McKenzie – Case Comment by K Chanas

The common law police powers are widely discussed at all levels of Court. A police officer’s actions will vary depending on a reasonable assessment of the circumstance and they must be allowed by law to make decisions in a swift manner. “Unnecessarily and unduly hampering police duties indirectly infringes the very rights that the Charter was enacted to protect”.[1] As well, the experience and knowledge of an officer is becoming an influential factor in times of rapid decision making. I will primarily be examining the case of R. v. McKenzie at the Court of Queen’s Bench and the Court of Appeal levels. [2]

A brief summary of the facts of the McKenzie case is as follows: the accused, Clinton McKenzie, was charged with numerous offences after being found in possession of a loaded handgun, several packets of methamphetamine and fentanyl, and $540.00 in cash. “McKenzie applied to have the drug and firearms evidence excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms on the basis of alleged violations of his rights under sections 8 and 9 of the Charter”.[3]

On January 22, 2020, Constables Beattie and Kreychuk were on general patrol in the North End area of Winnipeg. The officers were standing outside their police vehicle and they noticed a male running through the yard of an adjacent property while clutching his left side. Beattie first asked if McKenzie was okay, and they proceeded to lock eyes. Beattie recognized him from the police intelligence reports which stated the accused was a long-time member of a street gang and was known to carry a weapon. Both officers formed the belief that the manner in which McKenzie was holding his left side was in an effort to conceal something. Beattie had extensive training and experience with weapons offences including the manner in which people carry them. He proceeded to attempt to detain the accused for an investigative purpose and asked the accused to “stop”, but instead, a foot pursuit occurred.

During the pursuit, Beattie observed a fanny pack on the accused and thought the accused was probably running a load of drugs or was carrying a weapon as well in the fanny pack.[4] When Beattie caught the accused, he pinned him against the wall of a house and the fanny pack was already 75% open. Beattie lifted the fanny pack fully open and shined his flashlight in and observed a handgun within the pack. The accused was arrested and the drug evidence in his jacket was subsequently discovered.

The trial judge first dealt with whether the detention was arbitrary or not. The Crown conceded that Beattie had psychologically detained McKenzie when he yelled at him to “stop”. As per R. v. Waterfield, the authority of the police to detain an individual as part of their power to investigate crime has long been recognized in common law.[5] Chehil also clarifies the reasonable suspicion standard as addressing the possibility of uncovering criminality, and not a probability of doing so.[6]

In addition, police training and experience plays a role to the overall result. The Supreme Court of Canada in R. v. Mann elaborated on the notion that police officers must be allowed to respond quickly, effectively, and have the flexibility to the diversity of encounters they encounter daily on the front lines of their job.[7] Based on the numerous objective factors and Beattie’s experience, the accused was not arbitrarily detained.

The second issue dealt with by the trial judge was whether the search was unreasonable. As per R. v. Collins, a warrantless search is presumptively unreasonable and only if the Crown establishes a search was authorized by law, the law itself is reasonable and the search was carried out reasonably will it be permitted.[8] Mann clarified the criteria for safety searches on investigative detention by stating there needs to be a reasonable belief that safety is at risk and the search is reasonably necessary in light of the totality of the circumstances.[9] Beattie believed he had the right to search the fanny pack for officer safety and that is allowed. The manner in which the fanny pack was searched was reasonable because the search happened in a quick situation and the search was extremely brief and not unreasonably intrusive. Therefore, the search was carried out reasonably. The motion to exclude evidence pursuant to section 24(2) of the Charter was dismissed.

At the Court of Appeal, the accused argued that the trial judge erred in her application of the law and that she misconstrued the facts. The Waterfield framework establishes a two-stage framework which permits the interference with an individual’s liberty or property on the basis of the ancillary powers’ doctrine. The first step is if the action falls within the general scope of a statutory or common law duty and the second step is whether the action involves a justifiable exercise of police powers associated with the duty. The Court of Appeal applied the Waterfield framework to the investigative detention and came to the same conclusion as the trial judge that the detention was reasonable. Regarding the search of the fanny pack, the Court of Appeal again agreed with the trial judge’s decision where the search of the fanny pack was reasonable and necessary for officer safety.

“The day to day operation of law enforcement depends upon the exercise of discretion”[10] and “the assessment of an officer’s conduct should not devolve into a scientific or metaphysical exercise[11]. “Common sense, flexibility, and practical everyday experiences are to be applied through the eyes of the reasonable person armed with the knowledge, training, and experience of the officer”. [12]

The case of R. v. Herritt elaborates on the important weight an officer’s experience and training has throughout the case. Mr. Herritt was stopped by the RCMP’s highway patrol. The arresting officer had been a member of the RCMP for almost 23 years and he had numerous postings which involved drug, tobacco and immigration. The officer was very experienced and well versed in tobacco related investigations from his postings in Quebec. During the stop, the officer noticed a number of factors that would normally contribute to travelling with contraband. The officer ended up being wrong in his conclusion that the accused was carrying tobacco. In the circumstance where an officer makes an arrest and honestly, though mistakenly, believes that reasonable and probable grounds existed for the arrest, even though the arrest is found unlawful it does not equate to it being arbitrary.[13]

R. v. MacKenzie is a case that demonstrates the importance and weight given to officer training and experience to determine whether reasonable suspicion standard has been met. “While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism”.[14] “Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. They do it every day. And because of that, a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police”.[15] As per this case, officer training and experience is not the tell-tale sign that the standard has been met, it is although an important factor to consider.

In light of these cases, regardless of the outcome of a search, as long as the officer had reasonable and probable grounds, the arrest and search is valid. As well, the reasonable suspicion standard applies in light of officer and public safety.

[1] R v Power, 2003 SKQB 334 at para 70. Also see R v Horner, 2004 SKQB 201, at para 29. [2] R v McKenzie, 2021 MBQB 54 rev’d R v McKenzie, 2022 MBCA 3. [3] Ibid, 2022 MBCA 3, at para 3. [4] R v McKenzie, 2022 MBCA 3. [5] Supra, note 2, 2021 MBQB 54. Citing R v Waterfield [1963] 3 All E.R. 659 (CA), as applied in R v MacDonald, 2014 SCC 3 at para. 39 [6] R v Chehil, 2013 SCC 49. [7] Supra, note 2, 2021 MBQB 54. Citing R v Mann, 2004 SCC 52 throughout but see para 33 in particular. [8] Supra, note 2. Citing R. v. Collins, [1987] 1 SCR 265, at para. 37. [9] Supra, note 7. Cities R. v. Mann at para 38. [10] R v Beare, [1988] 2 SCR 387. [11] R v MacKenzie, 2013 SCC 50. [12] Ibid, at para 73. [13] R v Herritt, 2015 NBCA 33. [14] Supra note 11, at para 65. [15] Supra note 11 at para. 62.