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Supreme Court Clarifies the Law of Police Safety Searches

  • February 16, 2014
  • Clayton Rice, Q.C.

In an important judgment released on January 17, 2014, the Supreme Court of Canada clarified the constitutional requirements of police searches conducted to ensure the safety of the police or the public.

In R. v. MacDonald, 2014 SCC 3 two police officers had gone to the appellant’s Halifax condo as a result of a noise complaint. When the appellant answered the door he refused to identify a “black and shiny” object in his hand behind his leg. The police officer believed it might be a knife. He pushed the door open “a few inches further” and identified the object as a handgun. The appellant was arrested and charged with various firearm offences.

Justice Louis LeBel, writing for a four member majority, held at para. 40, that, “…where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.” However, he went on to state, at para. 41, that this search power is not unbridled. Safety searches require circumstances of necessity, reasonably and objectively considered. Justice LeBel also emphasized the high privacy interests that are at stake in these kinds of searches, at para. 41:

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 legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances…A search cannot be justified on the basis of a vague concern for safety. [Emphasis added]

 

Justice LeBel concluded, at para. 44, that the police officer’s safety search, by nudging the door open further, was reasonable and did not violate s. 8 of the Charter. Since the officer had reasonable grounds to believe that the appellant was armed and dangerous, the search was necessary, “…in order to eliminate that threat.”

The three member minority opinion, written by Justice Michael J. Moldaver and Justice Richard R. Wagner, would have adopted a lower standard of reasonable suspicion. They stated the following, at para. 66:

Our colleagues assert…that officers are only empowered to conduct “safety searches” where they have reasonable grounds to believe an individual is armed and dangerous (paras. 39 and 44). With respect, we do not agree with that conclusion…[O]fficers may conduct safety searches when they have reasonable grounds to suspect an individual is armed and dangerous.

 

A critical factor in the majority opinion is that safety searches predominately involve searches of the person and private residences. Canadians have a high expectation of privacy in both and the state’s invasion of that privacy ought to be based on reasonable grounds to believe and not a lower standard of reasonable grounds to suspect. The higher the privacy interest, the higher the standard.

In R. v. Evans, [1996] 1 S.C.R. 8 the Supreme Court held that the police have an implied licence to approach the door of a residence and knock. This is not considered an invasion of privacy constituting a search if the purpose of the police is to communicate with the occupant. Justice LeBel affirmed in MacDonald, at para. 26, that where the conduct of the police goes beyond that which is permitted by the implied license to knock, the conditions of that licence have been breached and the person carrying out the unauthorized activity approaches the dwelling as an intruder.  (See: Evans, at para. 15). In such circumstances, the police action constitutes a search.

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