HIS MAJESTY THE KING Respondent - v. -, 2023 SKKB 180

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 180 Date: 2023 08 24 Docket: CRM-SA-00081-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING Respondent - and - BLANE OWEN McDONALD Appellant Counsel: Cory M. Bliss for the respondent Crown Mark Brayford, K.C., and Brian R. Pfefferle, K.C. for the appellant ___________________________________________________________________________ JUDGMENT CURRIE J.

August 24, 2023 ___________________________________________________________________________ Introduction [ 1 ] Blane Owen McDonald appeals from his conviction in Provincial Court of driving over .08, contrary to s. 320.14(1) (

b) of the Criminal Code , RSC 1985, c C-46 . His appeal relates to the power of police to search an individual incidental to obtaining a roadside breath sample. Circumstances [ 2 ] This appeal arises from the circumstance described generally by the trial judge at paragraph 4 of his judgment ( R v McDonald (4 March 2021) Saskatoon, Information 90400608 (Sask Prov Ct), per Klause P.C.J.): [4] The facts disclosed that the accused was stopped driving his motor vehicle with the attending officer intending to do an impaired driving check.

The officer required the accused to leave his own motor vehicle and walk to the police officer’s car. Prior to being placed in the police officer’s car, the officer did a pat down search of the accused. [ 3 ] At around 2:00 a.m. on February 2, 2020 Mr. McDonald was operating a motor vehicle in Saskatoon, northbound toward the northern boundary of the city. Cst. Gordon of the Corman Park Police Service observed that Mr. McDonald’s vehicle appeared to be speeding. Once the vehicle had left the city and entered the Rural Municipality of Corman Park, Cst.

Gordon pulled in behind the vehicle as it continued northward. [ 4 ] Cst. Gordon determined that the vehicle was travelling at 114 km/hr in a 90 km/hr zone. Subsequently the vehicle passed into a 110 km/hr zone and continued north on Highway 12. At one point Cst. Gordon observed the vehicle swerving into the adjacent left lane and then back into the lane it had been occupying. [ 5 ] Cst. Gordon decided to stop the vehicle for the purpose of conducting a sobriety check on the driver, as is permitted under s. 209.1 of The Traffic Safety Act , SS 2004, c T-18.1 .

He also decided to check on registration, licence and mechanical fitness of the vehicle. Cst. Gordon caught up to the vehicle and activated his vehicle’s emergency lights to signal the driver to stop. [ 6 ] Cst. Gordon testified that he knew that Mr. McDonald saw the emergency lights immediately (apparently because Mr. McDonald applied his brakes about four seconds later), but that Mr. McDonald continued to drive for about 45 seconds before stopping his vehicle. Mr. McDonald stopped his vehicle south of Martensville, which Cst. Gordon testified is a “bedroom community” of Saskatoon.

At the location of the stop the northbound

section of Highway 12 was comprised of three driving lanes and a shoulder. Mr. McDonald stopped his vehicle not on the shoulder of the road but in the far-right driving lane which, Cst. Gordon testified, could be interpreted as a turning lane. [ 7 ] Cst. Gordon testified that, having approached Mr. McDonald’s vehicle and conversed with him, he observed that Mr. McDonald was agitated. Mr. McDonald explained that he had just broken up with his girlfriend. The officer smelled beverage

alcohol coming from Mr. McDonald’s breath, but Mr. McDonald repeatedly denied having been drinking. [ 8 ] Cst. Gordon decided to proceed with the roadside breath test, as authorized by s. 320.27 of the Criminal Code : Testing for presence of alcohol or drug 320.27

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (

a) and (

b) in the case of alcohol or with the requirements of either or both of paragraphs (

a) and (

c) in the case of a drug: (

a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose; (

b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose; (

c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose. Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 9 ] Cst. Gordon directed Mr. McDonald to exit his own vehicle and to enter Cst. Gordon’s police vehicle. Mr. McDonald complied. When Mr. McDonald exited his own vehicle for that purpose, Cst. Gordon conducted a pat-down search of him. [ 10 ] Once in the police vehicle, Mr.

McDonald supplied a breath sample on an approved screening device (“ASD”). He failed the ASD test, leading to his being arrested, transported to the Martensville RCMP detachment, completing and failing a breathalyzer test, and being charged with driving over .08 and impaired driving. The trial judge dismissed the impaired driving charge, and so only the .08 conviction is the subject of this appeal. [ 11 ] At the trial, Mr. McDonald alleged that Cst. Gordon had breached Mr. McDonald’s rights under ss. 7 , 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms . On this appeal, Mr. McDonald’s focus is on s. 8 , which identifies his right to be secure against unreasonable search. He argues that Cst. Gordon’s pat-down search breached that s. 8 Charter right. [ 12 ] Mr. McDonald did not expressly abandon his reliance on the other Charter sections on this appeal, but the allegation that they were breached stands or falls with the determination of whether the pat-down search was lawful. Trial decision [ 13 ] In his written decision at paragraphs 11 to 13, the trial judge summarized Cst.

Gordon’s explanation of his decision to administer the roadside test in the police vehicle, and his reasons for conducting the pat-down search: [11] He was asked to explain why he adopted this procedure.

He wanted the accused to accompany him to his patrol car to complete the test as it was a secure warm environment for the test to be conducted; secondly it would allow both the officer and the accused to be off the main travelled portion of the road and in a car instead of conducting the test by leaning into the accused’s car. [12] He searched the accused prior to placing him in his patrol car for officer safety as he has had previous occasions where an accused upon learning of the negative results of a test got violent in the rear of his patrol car.

He testified that the pat down search took approximately 20 seconds and did not involve any skin being touched. [13] In a nutshell, his patrol car was a safer place to conduct the test and to confine the accused when he was an officer on a solo patrol. [ 14 ] The trial judge took into account Cst. Gordon’s description of Highway 12 at that location as a “very busy” highway. He considered the evidence that the temperature was below freezing, with a wind blowing. The trial judge also took into account the fact that Cst.

Gordon was acting alone at a highway location, without assistance being immediately available if needed. The trial judge further took into account Cst. Gordon’s explanations of his decisions. Considering these circumstances, the trial judge concluded that Cst. Gordon’s decision to require Mr.

McDonald to enter the police vehicle for the breath test “was the most sensible approach that could have been adopted by this police officer” ( R v McDonald , para 27). [ 15 ] The trial judge reviewed the law relating to a search in such circumstances, ultimately adopting the reasoning in R v Fournier , 2017 ABQB 533 (“ Fournier ABQB ”) , the appeal of which was dismissed as moot at R v Fournier , 2019 ABCA 265 , 89 Alta LR (6th) 75 [ Fournier ABCA ] .

In Fournier ABQB , Justice Ross, after reviewing court decisions discussing different approaches, wrote at paragraphs 53 and 54: [53] In my view the Kim [2016 ABPC 9] and Parkar [2016 ABPC 169] cases relied on by the Trial Judge correctly state the applicable law. In considering whether decisions to administer an ASD test in a police vehicle and to conduct a pat-down search are reasonable, the particular nature of the investigative detention form a significant part of the “totality of the circumstances”.

The risks associated with such detentions, and the time pressures facing police officers, support a degree of latitude in the assessment of police

decisions. The circumstances justifying a decision to administer the test in a police vehicle are not limited to safety issues, but may alsoinclude other factors such as the need for a controlled environment. If the decision to administer the test in the police vehicle isreasonable, it will generally follow that a minimally intrusive pat-down search prior to placing the individual in the vehicle is alsoreasonable.

Where the individual in unknown to police, and there is little opportunity to interact prior to administration of the ASD test,police cannot be expected to demonstrate reasonable grounds to believe that a particular detainee poses a safety risk in order to perform apat-down search. [54] As to the cases relied on by the Appellant, to the extent that they stand for the position that mere reliance on police policy ortraining is not sufficient to justify a detention or search, this is undoubtedly correct. A detention and search must be justified in thecircumstances.

But to the extent that those decisions require an assessment that the particular detained individual poses a risk to safety, Irespectfully disagree. [16] The trial judge here found that both the requirement to enter the police vehicle and the pat-down search werejustified on the basis of officer safety. [17] As I will discuss, part of Mr. McDonald’s criticism of the pat-down search is that the alleged need for a searcharose only because Cst. Gordon required Mr. McDonald to leave his own vehicle. That requirement, Mr. McDonald argues, was notreasonable.

On that point, the trial judge observed that s. 320.27 repeatedly uses the word “accompany”. Specifically regarding theprovision of a breath sample, both s. 320.27(1)(

a) and s. 320.27(2) provide that a police officer may require a person to accompany thepolice officer for the purpose of providing samples of breath. The trial judge ascribed to the word “accompany” the usual meaning of“go somewhere with”. Thus he concluded that s. 320.27 authorizes a police officer to require a person to go somewhere with the officerfor the purpose of providing samples of breath. [18] The trial judge, then, found that requiring Mr.

McDonald to accompany him to the police vehicle wasreasonable and authorized in law, and that the pat-down search was reasonable and authorized in law. [19] Thus the trial judge found no Charter breach. As a matter of abundant caution the trial judge then conducted ananalysis of whether – if there had been a Charter breach – the breach must lead to exclusion of evidence. This is the s. 24(2) Grantanalysis, so referred to because the Supreme Court set out process of such an analysis in R v Grant, 2009 SCC 32, [2009] 2 SCR 353.The trial judge concluded that – if there had been a breach of Mr.

McDonald’s Charter right – that breach would not lead to exclusion ofevidence. Law relating to a search incidental to obtaining a roadside breath sample [20] In R v Mann, 2004 SCC 52, [2004] 3 SCR 59, Justice Iacobucci wrote at paragraphs 36 and 40: [36] Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search.Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test establishedin R. v. Collins, (SCC), [1987] 1 S.C.R. 265.

Under Collins, warrantless searches are deemed reasonable if (

a) they areauthorized by law, (

b) the law itself is reasonable, and (

c) the manner in which the search was carried out was also reasonable …. … [40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down searchincident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonablegrounds that his or her own safety, or the safety of others, is at risk. … The officer’s decision to search must also be reasonably necessaryin light of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can thesearch be premised upon hunches or mere intuition. [Emphasis added] [21] Here the issue relates to the third element, the reasonableness of the pat-down search.

In R v MacDonald, 2014SCC 3, [2014] 1 SCR 37, Justice LeBel expanded on the topic, saying at paragraphs 36 to 38 and 41: [36] … Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particularduty in light of all the circumstances (Mann [2004 SCC 52, [2004] 3 SCR 59], at para. 39; Clayton [2007 SCC 32, [2007] 2 SCR 725], atparas. 21 and 29). [37] To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed tobalance the police duty against the liberty interest in question.

These factors include: 1. the importance of the performance of the duty to the public good (Mann, at para. 39); 2. the necessity of the interference with individual liberty for the performance of the duty (Dedman [ (SCC), [1985] 2SCR 2], at p. 35; Clayton, at paras. 21, 26 and 31); and 3. the extent of the interference with individual liberty (Dedman, at p. 35).

If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action inquestion will not constitute an “unjustifiable use” of police powers (Dedman, at p. 36). … [38] As can be seen, the Dedman-Mann line of cases does not stand for the proposition that all acts related to an officer’s duties areauthorized by law. Quite the opposite, only such acts as are reasonably necessary for the performance of an officer’s duties can beconsidered, in the appropriate circumstances, to be so authorized. …

… [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled… 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 ( Mann , at para. 40 ; see also para. 45).

The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter …. [Emphasis added] [ 22 ] In Saskatchewan (Attorney General) v Latzkowski , 2019 SKQB 335 at para 21 , Justice Scherman emphasized that the “reasonably necessary” test cannot be met with: [21] … generalized grounds of concerns about officer safety or police or personal practice.

The law is clear that a pat-down search during an investigative detention must be justified on objectively reasonable grounds related to the specific circumstances the police are then dealing with. … [ 23 ] As to the decision of Justice Ross in Fournier ABQB , while the Alberta Court of Appeal in Fournier ABCA declined to rule on the matter because it had become moot, that Court did say at paragraphs 10 to 12: [10] Counsel for Mr.

Fournier advised the Court that the SCA judge’s decision is cited as an authority on the question of the permissible bases for a safety search when a driver is detained under s 254(2) of the Code for an ASD test.

The SCA judge stated at paragraph 53 of her reasons that, “[w]here an individual is unknown to police, and there is little opportunity to interact prior to administration of the ASD test, police cannot be expected to demonstrate reasonable grounds to believe that a particular detainee poses a safety risk in order to perform a pat down search”. [11] While this statement may be too broad, it is unnecessary to further to elaborate on the point at this time, other than to state that the law as to safety searches remains that expressed in Mann [2004 SCC 52 , [2004] 3 SCR 59 ] at paras 40-41; R v Clayton , 2007 SCC 32 at para 29-31 , [2007] 2 SCR 725 and R v MacDonald , 2014 SCC 3 at para 41 , [2014] 1 SCR 37 . [12] The individual factual circumstances in each case will govern whether a safety pat down search is warranted in the context of a detention for a roadside ASD test under s 254(2) of the Code , or whether the search is in breach of s 8 of the Charter .

Issue on this appeal [ 24 ] Mr. McDonald argues that the pat-down search breached his right under s. 8 of the Charter to be secure against unreasonable search. He says that the pat-down search was unreasonable because: (

a) the alleged need for the search arose only because Cst. Gordon unreasonably required Mr. McDonald to exit his own vehicle and enter the police vehicle – a requirement arising from Cst. Gordon’s practice rather than from the circumstances; and (

b) in any event, in the circumstances a pat-down search was not necessary or appropriate. Standard of review [ 25 ] As reviewed by Justice Keene in R v Drysdale , 2013 SKQB 392 , 56 MVR (6th) 184 , the standard of review here is correctness. I will review the trial judge’s decision to ensure that he referred to and applied the law correctly. [ 26 ] Further, I will review the evidentiary basis for the trial judge’s decision, with an eye both to whether the evidence supports the trial judge’s decision and to whether the trial judge applied the law to the facts so that the correct legal test is satisfied.

Reasonable necessity of requiring Mr. McDonald to exit his vehicle and enter the police vehicle [ 27 ] Cst. Gordon testified as to why he required Mr. McDonald to exit his own vehicle and to enter the police vehicle to give a breath sample: Q Okay. And so, what is your plan at that point, after you read him the ASD demand? A My plan at that point is to have Mr. McDonald accompany me back to my vehicle to provide a sample of breath into the approved screening device. The reason why I did that is because the – there’s multiple reasons. So safety being the number 1 concern.

Ultimately, standing at the side of a double-lane very busy highway at any time makes you nervous. You don’t know who’s coming down the highway, at what speed, you don’t know what the condition is of any other drivers. So I did not feel comfortable standing with my back to traffic. So I wanted to conduct the test in my vehicle. [Transcript, page T13, lines 22-33] … So at this point, I asked Mr. McDonald to accompany back to my vehicle, and go into the warm temperature-regulated environment of my vehicle.

We use an instrument called the Alco-Sensor FST that has temperature parameters on it and cannot be used in an environment colder than minus 12. So to ensure the accuracy of the test for the accused and provide the fairest – fairest test I could possibly provide, I decided to conduct the test inside the back seat of my vehicle.

[Transcript, page T14, lines 1-7] [ 28 ] As to the point regarding the temperature, Mr. McDonald argues that the trial judge misapprehended the evidence when he accepted that the cold temperature justified requiring Mr. McDonald to enter the police vehicle. Mr. McDonald points to Cst. Gordon’s evidence at other points of the trial that left open the possibility that at the time of the stop the temperature was closer to -2°C. Mr.

McDonald’s point is that a temperature of around -2°C would not reasonably necessitate using the ASD in the police vehicle, in light of the ASD being useable in temperatures as low as -12°C. [ 29 ] In fact, while the trial judge referred to the temperature and to the use of the ASD in the appropriate environment, that factor was not determinative in his decision. The determining factor for the trial judge was officer safety. Even if the trial judge misapprehended the evidence regarding the temperature, that misapprehension had no significant effect on his decision. [ 30 ] On the same point, while Cst.

Gordon referred to the temperature and the appropriate use of the ASD in his explanation, his primary reason for requiring Mr. McDonald to enter the police vehicle was officer safety: “So safety being the number 1 concern.” [ 31 ] As to Cst. Gordon’s concern about his safety while standing on the driver’s side of Mr. McDonald’s vehicle (as opposed to being in the police vehicle), Mr. McDonald argues that the trial judge misapprehended the evidence in accepting that at the time of the stop, Highway 12 at that location was busy.

In so saying, he points to video that is in evidence, where by his count only 22 vehicles are shown passing in the far left lane of the northbound lanes during a period of 30 minutes. [ 32 ] On the other hand, Cst. Gordon testified as to his concern about standing on the driver’s side of a vehicle that was parked in a driving lane of a highway, as set out above: Ultimately, standing at the side of a double-lane very busy highway at any time makes you nervous. You don’t know who’s coming down the highway, at what speed, you don’t know what the condition is of any other drivers.

So I did not feel comfortable standing with my back to traffic. So I wanted to conduct the test in my vehicle. [Transcript, page T13, lines 29-33] [ 33 ] There is no reason to doubt that Cst. Gordon subjectively believed that such a situation presented danger to him. That is especially so given that the stop occurred at about 2:00 a.m. and that oncoming vehicles were doing so at highway speed. [ 34 ] As to the objective reasonableness of his concern, Cst.

Gordon voiced the question about who was among those drivers on the highway at that time, and whether any of them might have been driving under the influence of alcohol or drugs. The ongoing problem in Canada of driving under the influence has been recognized frequently by the courts, and it is recognized expressly in s. 320.12 of the Criminal Code : Recognition and declaration 320.12 It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; (

c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration; and (

d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug. [ 35 ] In the circumstances here the potential danger to Cst. Gordon, from a driver who was under the influence and approaching the location of the stop, was exacerbated by the fact that Mr. McDonald’s vehicle was stopped in a driving lane , so that Cst.

Gordon would be standing between two highway driving lanes, with his back to oncoming traffic, while administering the ASD breath test. [ 36 ] In these circumstances, I conclude that Cst. Gordon’s decision to require Mr. McDonald to exit his own vehicle and to enter the police vehicle was reasonably necessary for officer safety. The trial judge made no error in that regard. Reasonable necessity of the pat-down search [ 37 ] As I have reviewed above, Cst. Gordon’s pat-down search was reasonably necessary, and therefore lawful and not in breach of Mr.

McDonald’s s. 8 Charter right, only if ( MacDonald , para 37 ): (

a) it was important to the public good that Cst. Gordon determine whether Mr. McDonald had been driving while impaired or over .08; (

b) patting down Mr. McDonald, which interfered with his individual liberty, was necessary for Cst. Gordon to make that determination; and (

c) the pat-down did not constitute an excessive interference with Mr. McDonald’s individual liberty. [ 38 ] As to item (a), there is no dispute that it is important to the public good to determine whether a driver had been

driving while impaired or over .08. [ 39 ] As to item (c), the evidence demonstrates that Cst. Gordon’s pat-down search of Mr. McDonald was for weapons (not for illicit substances or any other evidence), was conducted through Mr. McDonald’s clothing, did not involve touching Mr. McDonald’s skin, and was brief. Subject to item (b), the pat-down did not constitute an excessive interference with Mr. McDonald’s individual liberty. [ 40 ] Item (b) – the necessity of the pat-down search – is the issue here. As I have reviewed above, Cst.

Gordon must have believed that the pat-down search was reasonably necessary, and the pat-down search objectively must have been reasonably necessary. [ 41 ] The following excerpts from Cst. Gordon’s testimony at trial are relevant to determining the question of reasonable necessity: Because I could smell beverage alcohol coming from the driver’s breath. Also, in combined – the driver indicated to me that he was having a tough night and he had just broken up with his girlfriend, which may possibly lead to some alcohol consumption for coping. Also, typically, when I’m dealing with a driver, they will look at me.

The driver in this particular incident, he was looking down and away from me, which – it could indicate several things. It could indicate nothing. The way I perceived it is he didn’t want me to smell his breath or smell the alcohol coming from him. I also – when somebody’s not looking at me and I’m trying to talk to them, I take it as a threat to you.

There’s – that’s an indication that somebody may be looking to formulate some sort of plan to attack and they don’t want to look at you. [Transcript, page T9, lines 35-41] … Also, sometimes people, after you provide – or they provide a breath sample – if I were to do it at the driver door – have become belligerent, which, ultimately, poses a – a safety risk to myself and the public. If somebody provides a sample that indicates that they are over the legal limit, they may not be happy with that.

And now I’m at a – a position of complete disadvantage for the public safety if he decides to drive the vehicle away from me. [Transcript, page T13, lines 35-40] … Yeah. So when Mr. McDonald was in his vehicle, he mentioned to me that he was not having a good night and his girlfriend had broken up with him, or something – a relationship has ended with his girlfriend. I’m not sure the logistics of how that worked out. He did seem, I’m going to say, sad and also I perceived a cue with him not being able to look at me and not looking at me as a threat cue to myself. So when I asked Mr.

McDonald to come back to my vehicle, there is safety concerns in doing so. I’m a single police officer on the side of the road, and being a police officer in rural Saskatchewan, out backup is not very close at any given point. I’d be looking at 7 to 10 minutes at the very best situation for backup to come and assist me. … [Transcript, page T14, lines 21-30 … When I got Mr. McDonald close to the back seat of my vehicle, I completed an officer safety pat-down search.

I searched for weapons at this point. … [Transcript, page T14, lines 33-34] … I’ve come across a situation in the past where I was – I was conducting an impaired driving investigation. What had happened was I placed an individual into the back seat of my vehicle without conducting a pat-down search. And I provided an – or he provided an ASD sample which had the result of fail. Upon the fail, this individual became belligerent and started yelling at me, he was going to kill himself and slit his own throat. I was extremely concerned for his safety at this point, thinking that he may have a knife in his pocket.

I attempted to reach into the vehicle and twist – and use a – a joint lock to twist him so I can get a handcuff on him. While doing so, this individual assaulted me and kicked me in the stomach, jumped out of the vehicle, and swung at me multiple times, attempting to strike me in the face. I had no backup with me, he had four friends with him, and I ended up in – on the ground in a fight with this individual. While I was on the ground fighting with this individual, I struck him in the face multiple times with – with my hand and I really did not have any results from that.

I was attempting to reach for my conducted energy weapon to subdue this individual, and this individual tried to disarm me of my firearm. He was pulling on my holster. And at this point, I was truly scared for my life. I was able to pin this individual’s arms to the ground and, as I had this guy’s arms pinned to the ground, he was spitting blood into my face. And I was able to pin him there for about another two to three minutes, give or take, until I was able to have backup arrived and we were able to get the subject into custody.

So, therefore, when I’m conducting an investigation and putting somebody in the back seat of my vehicle, ultimately, it’s for both of our safety that I complete a pat-down search, so I don’t have to take the risk of having – this person having something in the back of my vehicle I don’t want him to have, so I have to use force on this individual. [Transcript, page T15, lines 4-31] …

… This individual, he was completely cooperative up until the point he blew a fail… [Transcript, page T15, lines 37-38] [ 42 ] Thus in his testimony Cst. Gordon identified the following additional concerns about safety: (

a) he was dealing with a driver who had been drinking; (

b) he was dealing with a driver who was emotionally upset about just having broken up with his girlfriend; (

c) he was dealing with a driver who was resisting making eye contact – sometimes an indication of imminent violence; (

d) some drivers become belligerent and physically aggressive on failing the ASD test; and (

e) if he required backup in the event of aggression from the driver, that backup would take several minutes to arrive. [ 43 ] There is no reason to doubt that Cst. Gordon subjectively believed that in these circumstances patting down Mr. McDonald before he entered the police vehicle was reasonably necessary. [ 44 ] I find that the pat-down search objectively was reasonably necessary as well. Mr. McDonald points out that he was polite and co-operative throughout, arguing that his demeanour was reason for Cst. Gordon to conclude that there was no need for a pat-down search. As demonstrated by Cst.

Gordon’s previous experience with another driver, though, that circumstance did not guarantee that Mr. McDonald’s demeanour would not change after he had provided a breath sample. The potential for an aggressive reaction by Mr. McDonald was heightened because he had been drinking and because he already was emotionally upset. [ 45 ] As Justice Ross observed in Fournier ABQB , a police officer in Cst. Gordon’s position knows little about the driver with whom he is dealing. In the circumstances that were facing Cst. Gordon, his concern about safety was objectively reasonable.

The pat-down search was reasonably necessary to address that concern, and thereby to allow Cst. Gordon to obtain the breath sample. [ 46 ] Mr. McDonald argues, however, that the real reason that Cst. Gordon required Mr. McDonald to enter the police vehicle, leading to the pat-down search, was that doing so was Cst. Gordon’s practice – perhaps his invariable practice. A habit or practice, Mr.

McDonald says, does not constitute an objectively reasonable basis for a search, because such implementation of an habitual practice is not based on the circumstances of the particular situation. [ 47 ] I agree with the principle that Mr. McDonald asserts. If an officer conducts a search merely as a matter of practice, that practice is not an objectively reasonable basis for the search. The search must be justified by the particular circumstances that are facing the officer. [ 48 ] While I agree with the principle, I do not agree that it applies here. In arguing that it does, Mr.

McDonald relies on this excerpt from Cst. Gordon’s cross-examination at trial: Q One of the things that it appears, sort of, habitual, if I could put it this way, is that there – from the disclosure that we’ve received is that you have the practice of having an accused person go to your motor vehicle for the purposes of a screening demand. Because as the accused is detained, you want to observe their walk and interact with them, and also you want to be able to conduct the ASD inside your patrol vehicle because you don’t want them to potentially try to leave the scene or become belligerent; correct?

A With suspicion, that is the case. Yes. [Transcript, page T56, lines 23-30] [ 49 ] Cst. Gordon’s answer is not an admission that he required Mr. McDonald to enter the police vehicle (leading to the pat-down search) just because doing so was his practice. His answer included the phrase “with suspicion”, indicating that he requires a driver to enter the police vehicle if the circumstances so dictate.

This is clear from the exchange that followed in that cross-examination: Q So the – if I could say the mandatory demands that you make at the – at the roadside, you make those at the police vehicle – or at the accused person’s vehicle? A The – the demand itself, or the test? Q The test, sorry. A Yeah. If the environment allows for it. Yes. [Transcript, page T56, lines 35-41] [ 50 ] Cst. Gordon’s pat-down search of Mr. McDonald was reasonably necessary in the circumstances and therefore was lawful. The pat-down search did not breach Mr. McDonald’s s. 8 Charter right, or his rights under any of ss. 7 , 9 or 10(

b) of the Charter . [ 51 ] This was the conclusion that was reached by the trial judge. His conclusion was supported by the evidence. His adoption of Fournier ABQB (which may yet be shown to be correct) did not interfere with his application of the correct law to the circumstances. Conclusion

[ 52 ] The trial judge did not err. Cst. Gordon’s pat-down search of Mr. McDonald was reasonably necessary in the circumstances, and it did not breach Mr. McDonald’s rights under the Charter . [ 53 ] The appeal is dismissed. “G.M. Currie” J. G.M. CURRIE