R v McKenzie, 2022 MBCA 3

Citation: R v McKenzie, 2022 MBCA 3 Date: 20220113 Docket: AR21-30-09593 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : ) E. J. Roitenberg and her majesty the queen ) P. F. Aiello ) for the Appellant Respondent ) ) L. M.

Perron - and - ) for the Respondent ) clinton jordan frank mckenzie ) Appeal heard and ) Decision pronounced: ( Accused) Appellant ) January 5, 2022 ) ) Written reasons: ) January 13, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from 2021 MBQB 54 mainella JA (for the Court) : Introduction [ 1 ] This case is about whether common law police powers were exercised lawfully and reasonably in a dynamic situation. [ 2 ] A brief random street encounter between the accused and police led to his detention for a weapons offence investigation and a search of the “fanny pack” he was wearing under his jacket. In it a handgun was observed.

Police later located 37 grams of fentanyl, 46 grams of methamphetamine and items indicative of drug trafficking in the jacket and determined that the handgun was loaded and stolen. [ 3 ] At his trial, the accused applied to have the drug and firearms evidence excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ) on the basis of alleged violations of his rights under sections 8 and 9 of the Charter . The trial judge dismissed the motion to exclude finding that the accused was not arbitrarily detained and that the warrantless search of his fanny pack was reasonable.

She went on to add that, if she was wrong, she was satisfied that the police had acted in “good faith” (at para 66) in a fast-moving and potentially dangerous situation.

Based on her Grant analysis (see R v Grant , 2009 SCC 32 ), she concluded that “admitting the evidence seized would not bring the administration of justice into disrepute” (at para 73). [ 4 ] In his appeal of his convictions for possession of a controlled substance for the purpose of trafficking, possession of a restricted firearm with ammunition, and possession of a firearm contrary to a prohibition order, the accused argues that the trial judge erred in her application of the law relating to sections 8 , 9 and 24(2) of the Charter and that she misconstrued the facts.

[ 5 ] After considering the submissions of counsel, we dismissed the accused’s appeal and stated that we would give our reasons for doing so later in writing. We now do so. Background [ 6 ] The facts are not complicated. On a winter evening, Constables Beattie and Kraychuk were dealing with a motorist in a back lane of a residential neighbourhood in Winnipeg. The accused was observed to be jogging through nearby back yards. Beattie described it as “really weird”; Kraychuk said it was “a little bit unusual.” The accused was clenching the left side of his body with his elbow.

Beattie thought he might be injured and called out to him asking if he was okay. When the accused made eye contact, Beattie recognized him. From police intelligence reports, Beattie knew that the accused was a long-time member of a street gang and was known to carry a weapon. [ 7 ] The accused “appeared startled or frightened” at seeing the police and “immediately increased his pace to a full out sprint” (at para 7).

Both officers formed the belief that the manner in which the accused was holding his left side was an effort to conceal something. [ 8 ] Beattie had extensive training and experience with weapons offences including the manner in which people carry weapons. He believed the accused’s mannerism was an attempt to conceal a weapon between his left arm and his body. At this point, he decided to detain the accused for an investigative purpose related to a weapons offence and yelled at the accused to stop. The accused did not comply and a short foot pursuit ensued.

During the chase, the accused’s jacket was open and Beattie observed the fanny pack. It occurred to him that the accused “ was probably running a load of drugs and the fanny pack likely contained drugs” (at para 9). He testified that he thought the fanny pack would contain “one of the two” (drugs or a weapon). [ 9 ] Beattie caught the accused and pinned him against the wall of a house. He observed that the zipper to the fanny pack was about 75% open. He lifted the flap on the fanny pack to fully open it, shined his flashlight and immediately observed the handgun.

The accused was arrested and the drug evidence in his jacket was subsequently discovered. The Investigative Detention The Law [ 10 ] The Supreme Court has recognized several common law police powers that permit interference with an individual’s liberty or property on the basis of the ancillary powers doctrine using the two-stage framework set out in R v Waterfield , [1963] 3 All ER 659 (CCA) (see Fleming v Ontario , 2019 SCC 45 at paras 41-55 ). [ 11 ] Under the Waterfield framework, the lawfulness of police action turns on whether (

a) the action falls within the general scope of a statutory or common law duty, and (

b) the action involves a justifiable exercise of police powers associated with the duty (see Waterfield at 661; and Fleming at para 46 ). [ 12 ] On the second stage of the Waterfield framework, a court assesses whether the interference was “reasonably necessary for the carrying out of the particular duty” ( R v MacDonald , 2014 SCC 3 at para 36 ).

To answer that question, several competing interests are weighed: (1) the importance of the performance of the duty to the public good, (2) the necessity of the interference with individual liberty for the performance of the duty, and (3) the extent of the interference with individual liberty (see MacDonald at para 37 ). [ 13 ] One common law police power that has been recognized is in relation to investigative detentions ( see R v Mann , 2004 SCC 52 ).

A police officer may detain an individual for investigative purposes “ where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances” ( R v MacKenzie , 2013 SCC 50 at para 35 ; see also Mann at para 45 ). An investigative detention affords police the ability to take reasonable measures to investigate an offence ( see R v Clayton , 2007 SCC 32 at para 33 ).

As was said in Mann , “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing” (at para 16). [ 14 ] The common law power of investigative detention is not limited to “a specific known criminal act” but extends to recent or ongoing criminal activity that is reasonably suspected ( R v Chehil , 2013 SCC 49 at para 35 ). [ 15 ] In Mann , the Supreme Court explained how the second stage of the Waterfield framework should be assessed in the context of an investigative detention in this way (at para 34):

. . . The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield [framework]. [ 16 ] The objective of the reasonable suspicion standard for a lawful investigative detention is for meaningful judicial review of what the police knew at the time of their decision making so that society’s interest in the detection and punishment of crime can be balanced with maintaining individual rights and freedoms (see R v Ahmad , 2020 SCC 11 at paras 24-25 ). [ 17 ] The standard of reasonable grounds to suspect is both “an objective and subjective standard” ( Mann at para 27 ).

While a reasonable suspicion must be grounded in objective facts that stand up to independent scrutiny, it is a lower standard on the spectrum of standards of proof than reasonable grounds to believe as “it engages the reasonable possibility, rather than probability, of crime” ( Chehil at para 27 ; see also MacKenzie at para 74 ; and The Director of Criminal Property and Forfeiture v Ramdath et al , 2021 MBCA 23 at para 25 ). [ 18 ] Reasonable suspicion is assessed by the court examining the totality of the circumstances known to the police at the time of the detention (see Chehil at paras 29-35 ; and MacKenzie at paras 71-73 ).

This is a broad contextual inquiry that is “fact-based, flexible, and grounded in common sense and practical, everyday experience” to ascertain whether the constellation of factors rise above the level of a generalized suspicion or hunch ( Chehil at para 29 ). [ 19 ] Because the reasonable suspicion standard is invariably fact-driven, there is little in the way of guidance as to when the threshold will be met.

However, what is not disputed is that, if the sum of the objectively discernable facts support the conclusion of possible recent or ongoing criminal behaviour by the individual to be detained, then the standard of reasonable suspicion is met even if there is a reasonable innocent alternative in the circumstances. There is no duty on police to undertake further investigation to seek out exculpatory factors or to rule out possible innocent explanations (see Chehil at para 34 ).

The nature of the judicial inquiry does not require a court to choose between competing inferences or assess which was the most likely possibility at the time. While the courts have an important duty to protect the rights and freedoms of everyone, they must be mindful in an after-the-fact assessment of the reality that police often have to make quick decisions in dynamic, unpredictable and dangerous situations based on imperfect, evolving or even wrong information.

The Supreme Court has accepted that “more innocent persons will be caught” under the reasonable suspicion standard than the reasonable grounds standard ( MacKenzie at para 85 ; and see Chehil at para 28 ). [ 20 ] Finally, an investigative detention is not a “ de facto arrest” ( Mann at para 35 ). Police powers governing investigative detentions and arrests are different ( see Mann at para 45 ; and R v Suberu , 2007 ONCA 60 at para 40 , aff’d 2009 SCC 33 ).

An investigative detention is intended to generally be “a brief and limited suspension of a citizen’s right to go about his or her business freely” (James A Fontana & David Keeshan, The Law of Search and Seizure in Canada , 11th ed (Toronto: LexisNexis, 2019) at 1096). [ 21 ] An investigative detention that is carried out in conformity with common law police powers and in an otherwise reasonable manner is not an arbitrary detention for the purposes of

section 9 of the Charter (see Mann at paras 20, 45 ). Analysis [ 22 ] There is no dispute that, for the purposes of stage one of the Waterfield framework, the act of detaining the accused for a weapons offence investigation fell within Beattie’s common law duties (see Mann at para 26 ).

The thrust of the accused’s arguments focus on factual and legal errors he raises as to the trial judge being satisfied that the investigative detention was a justifiable exercise of police powers under stage two of the Waterfield framework. [ 23 ] There is no merit in the accused’s submission that the trial judge should have had a reliability concern as to Beattie recognizing the accused and knowing his criminal reputation, due to the fact that the source of knowledge was reading police intelligence reports as opposed to having had recent personal contact.

This argument is nothing more than a request for this Court to retry the case and substitute its view of the evidence. [ 24 ] We are also not persuaded that the trial judge misconstrued the facts as to what Beattie said he learned about the accused from police records such as intelligence reports and arrest photos. The complaints raised by the accused are different

interpretations of Beattie’s evidence in relation to his knowledge of the accused based on police records than what the trial judge found. That is not a reason to interfere with her findings of fact. The trial judge made no readily obvious error that goes to the substance of material parts of the evidence rather than to detail (see R v Whiteway (BDT) et al , 2015 MBCA 24 at para 32 ).

What is indisputable according to Beattie’s evidence is that, despite never having had previous personal contact with the accused, he was very familiar with him and his reputation as a long-standing gang member with a propensity to carry weapons. [ 25 ] In short, the accused has not persuaded us that the trial judge made a palpable and overriding error as to the evidentiary foundation on which her decision regarding the investigative detention was based (see R v Farrah (D) , 2011 MBCA 49 at para 7 ).

In our view, her reasons are thorough and her findings are reasonably supported by the record. [ 26 ] The accused’s argument that there were no objective factors to substantiate any reasonable suspicion must also be rejected. As is common in cases such as this, the accused asks this Court to deconstruct the circumstances, using a “divide and conquer

approach that finds each factor individually equivocal” ( Chehil at para 62 ).

Following that approach is an error in principle (see para 29; and R v Schrenk (CA) , 2010 MBCA 38 at para 70 ). [ 27 ] The trial judge was correct that there was a constellation of objective facts that gave rise to a reasonable suspicion to detain the accused for a weapons offence investigation, namely, the accused was holding his body in a manner consistent with his carrying a weapon, while running, in the absence of any reasonable explanation; upon seeing the police, he attempted to flee; and he had a criminal reputation and a propensity to carry weapons.

In assessing the possibilities from the sum of these factors, the trial judge correctly considered the circumstances through the lens of Beattie’s extensive training and experience, but did not do so uncritically (see MacKenzie at paras 61-64 ). [ 28 ] In our view, the situation here is even more compelling than in R v Willis , 2003 MBCA 54 , where this Court, on similar but less suspicious facts, accepted the validity of the investigative detention.

See also R v Plummer , 2011 ONCA 350 at paras 20-25 . [ 29 ] Finally, the detention was otherwise reasonably necessary for the purposes of the second stage of the Waterfield framework and was “conducted in a reasonable manner” ( Mann at para 45 ). Weapons offences are a serious threat to the peace, therefore there was significant importance in Beattie taking immediate action in terms of the public good as well as a necessity for him to interfere with the accused’s liberty.

In terms of the extent of the interference with the accused’s liberty, the duration of the investigative detention was brief, lasting about ten seconds (after the foot chase ended). The nature of the detention, with some limited use of force to pin the accused outside against a house, was appropriate given the inquiry related to a possible weapons offence, the accused was known to carry weapons, and the accused had knowingly attempted to evade police inquires by running (see MacDonald at para 37 ). Nothing about Beattie’s behaviour was abusive, let alone unprofessional. [ 30 ] In

summary, there is no basis to interfere with the trial judge’s finding that the accused’s

section 9 Charter right was not violated. The Search of the Fanny Pack The Law [ 31 ] Issues as to detention and search are analytically distinct (see MacKenzie at para 36 ). [ 32 ] In Mann , the Supreme Court recognized that, based on the Waterfield framework, police have a warrantless search power at common law incident to a lawful investigative detention (see paras 36-44).

A police officer may conduct a protective pat-down search for weapons incident to an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk (see Mann at para 40 ; and Clayton at paras 29-30 ). This search power is more circumscribed than the common law search power that police have incident to a lawful arrest (see Mann at paras 37, 45 ). [ 33 ] A protective search incident to an investigative detention does not arise as a matter of course.

The court must be satisfied that the officer’s decision to search was “reasonably necessary in light of the totality of the circumstances” ( Mann at para 40 ). Such searches “must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ on the basis of irrelevant or discriminatory factors” (at para 43).

A protective search “cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition” (at para 40). [ 34 ] The conduct of the protective search “must also be confined in scope to an intrusion reasonably designed to locate weapons” (at para 41) and must be otherwise reasonably conducted (see para 45). [ 35 ] The language in Mann as to the threshold for this warrantless search power was, with respect, imprecise.

In several places in the decision, the standard for a protective search was described as “reasonable grounds” that the safety of the officer or others is at risk (at paras 40, 43, 45). Yet, in the result, the Court said the initial pat-down search of the detainee in Mann was justified because there was “a logical possibility that the [ detainee] , suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons” (at para 48) (emphasis added).

Of some significance is the fact that the American case law relied on in Mann to justify the constitutionality of a search incident to an investigative detention is premised on the basis of the reasonable suspicion standard, not the higher standard of reasonable grounds ( see R v Le , 2014 ONSC 2033 at para 99 , aff’d 2018 ONCA 56 , rev’d on other grounds 2019 SCC 34 ). [ 36 ] Post- Mann , the language of the Supreme Court as to the legal threshold to conduct a protective search for a weapon incident to a lawful investigative detention was interpreted to be one of reasonable suspicion of a safety risk posed by the detainee ( see R v Crocker , 2009 BCCA 388 at para 72 ; R v Atkins , 2013 ONCA 586 at para 15 ; Clayton at paras 46, 48 ; and Chehil at para 23 ).

As noted in Le , it would be illogical to have a higher standard (see paras 99-100). [ 37 ] In MacDonald , the Supreme Court dealt with the question of a warrantless safety search pursuant to common law police powers outside the context of an investigative detention or an arrest. The Court was divided as to what was the legal threshold required to conduct a safety search. In R v Peterkin , 2015 ONCA 8 , Watt JA sketched out the judicial disagreement in the Supreme Court this way (at paras 53-54):

Citing Mann at paragraphs 40 and 45 , a majority of the court concluded safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it was necessary to conduct a search: MacDonald , at para. 41 .

A minority of the court concurred in the result (that the safety search was justified), but held the majority had been unfaithful to the teachings of Mann and the subsequent case law by positing a new standard of reasonable grounds to believe a person was armed and dangerous rather than reasonable grounds to suspect such was the case: MacDonald , at paras. 66, 77 . The minority maintained that although Mann employed the language of “reasonable grounds to believe”, pairing this language with the concept of safety being “at risk” inherently built in the standard of a possibility: MacDonald , at para. 69 .

By using the language of reasonable grounds to believe a person is armed or dangerous (at paras. 39, 42), and reasonable belief in an imminent threat to safety (at paras. 40, 43-44), the majority replaced what was in essence a reasonable suspicion standard with one of reasonable belief: MacDonald , at paras. 66-71 . [footnote omitted] [ 38 ] There are differing schools of thought that have arisen post- MacDonald regarding the impact of the majority decision on warrantless common law police powers to search. [ 39 ] One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts ( see Peterkin at para 59 ; R v Smith , 2019 SKCA 126 at paras 13-15 ; and R v Stairs , 2020 ONCA 678 at paras 54-55 ). [ 40 ] Another view is the minority in MacDonald was incorrect; the majority in MacDonald did not “recalibrate the test for lawful police safety searches from the traditional ‘reasonable suspicion’ standard ” ( R v Webber , 2019 BCCA 208 at para 65 ; and see R v McGuffie , 2016 ONCA 365 at para 52 ); all that happened was the majority in MacDonald used the same unclear language that was used in Mann .

However, a different perspective, that the minority in MacDonald was correct as to the test for lawful common law police searches being recalibrated by the majority, was reached in R v Del Corro , 2019 ABCA 156 at para 49 . [ 41 ] The trial judge, referring to Mann , stated that, in order to conduct a valid search incident to an investigative detention, there must be “reasonable grounds for the police to believe their safety is at risk” (at para 38; see also para 40).

Although the trial judge also cited MacDonald , she did not address its broad meaning as to the relevant standard for warrantless common law police powers to search, and that legal issue was not argued before her. Nor was that issue raised before this Court. As will be explained, it is not necessary for this Court to address the legal debate raised by MacDonald to decide this appeal.

It can be left for another day. [ 42 ] What is not controversial is that a protective search incident to a lawful investigative detention that is carried out in conformity with common law police powers and otherwise in a reasonable manner is not an unreasonable search or seizure for the purposes of

section 8 of the Charter (see Mann at para 44 ; and Clayton at para 20 ). Analysis [ 43 ] It is not disputed that, for the purposes of stage one of the Waterfield framework, the act of conducting a search to protect life and property incidental to a lawful investigative detention fell within Beattie’s common law duties (see Mann at paras 38-39 ).

The accused focuses his arguments on the trial judge’s decision that the search of the fanny pack was, for the purposes of stage two of the Waterfield framework, a justifiable exercise of police powers associated with the duty to protect life and property and was otherwise reasonable. [ 44 ] We do not accept the accused’s submission that there was no safety reason to search the fanny pack. In her reasons, the trial judge stated that Beattie “ was not using his lawful authority to conduct a safety search as a pretext, ruse or subterfuge to perpetuate an illegal search for evidence” (at para 52).

The accused made several submissions to us about the facts to impugn the findings of the trial judge in relation to the search of the fanny pack. None of the arguments were convincing; a palpable and overriding error in relation to the evidentiary foundation of the trial judge’s decision regarding the search of the fanny pack has not been demonstrated (see Farrah at para 7). [ 45 ] The trial judge was correct when she stated that “if a search meets the requirements of a lawful search the fact that the investigator had another unlawful reason in mind is irrelevant” (at para 50).

Here, Beattie made clear that, although he thought the fanny pack may contain drugs or weapons, the reason he decided to look inside it was “to ensure [his] safety.” He said he only opened the top of the fanny pack and “did not delve into” it. [ 46 ] The situation here is much like that in Peterkin (see para 59 ) and R v Sheck , 2015 BCCA 471 (see para 61) where it was determined that protective searches pursuant to investigative detentions were reasonable based on the standard set by the majority in MacDonald : a reasonable belief that an individual’s safety is at stake, regardless of whether that higher standard actually did apply.

[ 47 ] The starting point is the observation of Cameron JA in R v Okemow , 2019 MBCA 37 that “[t]he Supreme Court of Canada has reinforced that

section 8 [of the Charter ] does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present” (at para 66; see also Mann at para 43 ). Here, the trial judge made no error in concluding that Beattie had reasonable grounds to believe there was an imminent threat to his safety that made it reasonably necessary to conduct a protective search of the accused’s fanny pack. Protecting life and property is an important police duty that necessitates some interference with individual liberty. The situation presented to Beattie was volatile and uncertain.

Beattie had cause to have concern for his personal safety given the accused’s unusual mannerisms suggested he may be carrying a weapon. Beattie was by himself in a dark area as Kraychuk had not yet arrived. Although the accused was cooperating, he had just recently attempted to evade the police. Beattie knew that the accused was a gang member with a propensity to carry weapons.

Finally, the extent of the infringement (opening the remaining 25% of the fanny pack to shine a flashlight in) was focused entirely on a protective function. [ 48 ] In our view, the trial judge was correct that the search of the fanny pack was reasonably necessary to eliminate an imminent threat to Beattie’s safety (see MacDonald at paras 39-45 ). [ 49 ] The alternative submission of the accused is a technical one. He says that Mann stands for the proposition that a search incident to a detention must follow a rigid sequence of a pat-down search first, before a bag or pocket may be opened or otherwise searched.

Because there was no pat-down search here, he alleges that the search of the fanny pack was unreasonable.

Leaving aside the fact that Mann does not lay down such a bright line rule, this argument is not convincing in light of MacDonald . [ 50 ] As the trial judge noted, in MacDonald , the Supreme Court explained that the reasonableness of a search pursuant to common law police powers will often turn on the extent of the infringement of the detainee’s liberty in light of what is reasonably necessary to eliminate the particular threat to the officer or a third party (see paras 43-44, citing paras 39, 47 of MacDonald ).

MacDonald makes clear that searches to eliminate any imminent threat to the officer or third parties can take many forms depending on the circumstances and are not limited to pat-down searches (see para 39). [ 51 ] It strikes us as incorrect and entirely artificial to say that legally Beattie was limited in his split second decision, where there was a real threat to his safety , to use his sense of touch on the outside of the fanny pack as opposed to completely opening the already partially open zipper and using his eyesight when he was careful to conduct a minimally intrusive search that was limited in its scope to locate weapons.

We agree with the trial judge’s observation that “Beattie’s second-by-second actions” should not be “parse[d] too finely” (at para 58). What is ultimately controlling is how intrusive the character of the search conducted was in light of what was reasonably necessary to alleviate the risk to the officer or third party.

Although decided prior to the Supreme Court decision in Mann , we accept as accurate (particularly in light of MacDonald at para 39 ) Steel JA’s comment in Willis that, “ it is undesirable to measure with extreme nicety whether [police officers’] safety or that of the public in any particular search requires more or less than a quick pat-down” (at para 36).

See also R v Patrick , 2017 BCCA 57 at para 94 . [ 52 ] In MacKenzie , Moldaver J commented that, while it is important to ensure common law police powers are exercised lawfully, it is equally important for the police to carry out their duties without “the requirement that their every move be placed under a scanning electron microscope” (at para 65; and see R v Cornell , 2010 SCC 31 at para 24 ). [ 53 ] Finally, the accused’s claim that allowing a search in circumstances such as this would leave former gang members who “chose to jog” to be “forever . . . at the mercy of police search” is unfortunate hyperbole that is unpersuasive given the facts of this case.

We are satisfied that the trial judge was correct in concluding that the search of the fanny pack was conducted in conformity with Beattie’s common law police powers and was otherwise reasonable in the circumstances. [ 54 ] In conclusion, there is no basis to interfere with the trial judge’s finding that the accused’s

section 8 Charter right was not violated. Section 24(2) [ 55 ] Having found no error in the trial judge’s sections 8 and 9 Charter analysis, it is unnecessary to review her Grant analysis under section 24(2) of the Charter . Disposition [ 56 ] In the result, the appeal is dismissed. JA

JA JA