B.C. appellate ruling shows ‘clarity’ still needed on use of pat-down searches: law prof

By Ian Burns

Law360 Canada (February 7, 2023, 8:41 AM EST) -- B.C.’s top court has ruled that a police safety search during a traffic stop did not violate a man’s constitutional rights, but his lawyer is saying the ruling raises questions that could benefit from an answer from the Supreme Court of Canada.

The accused in the case, Devinder Singh Dhillon, was found guilty in provincial court of a number of firearm offences after he was found to be in possession of a loaded handgun during a traffic stop in Vancouver. The police decided to conduct a pat‑down search because of safety concerns arising from Dhillon’s behaviour, such as appearing startled when the police drove past him in a high-crime area and then heading off rapidly in the opposite direction.

At trial, Dhillon argued his rights had been infringed under s. 8 of the Charter, which protects against unreasonable search and seizure. But the provincial court judge held that his rights had not been infringed, a finding he appealed on the ground that the judge had applied the wrong test finding that officers were justified in subjecting him to a pat‑down safety search as part of an investigative detention — specifically that there must be an imminent threat to an officer or to public safety in order for a safety search to be lawful and that such a threat was absent in his case.

But Justice Ronald Skolrood rejected Dhillon’s argument, writing that the law does not require an imminent threat for a search incidental to investigative detention to be lawful — and doing so would set too high a bar, preventing the police from taking immediate steps to address risks to their safety and that of the public.  

“Ultimately, the test for justifying a safety search incident to investigative detention must balance the privacy interests of the detained individual with the interests of the police officers in maintaining their safety and the safety of the public,” he wrote. “That balance is maintained by permitting an officer to engage in a protective or safety pat‑down search of a detained individual when the officer has reasonable grounds to suspect that there is a risk to their safety, or the safety of others, which would be addressed by an immediate search.”

Justice Skolrood wrote the “threshold standard” is whether an officer had reasonable suspicion to believe that a detainee may pose a threat to the officer or the public.

“The reasonable suspicion must be based on ‘objectively discernible facts,’ rather than on a hunch or vague concern for safety, and must be conducted in a reasonable and minimally intrusive manner,” he wrote.

And Justice Skolrood also ruled the failure of police to provide access to counsel at the roadside when Dhillon was arrested did not violate his rights under s. 10(b) of the Charter, which says that individuals have the right to retain and instruct council without delay and be informed of that right.

“Cst. Waller explained in her testimony why it was not practical or safe to provide Mr. Dhillon with cell phone access to counsel roadside and why the decision was made to first transport him to the jail,” he wrote. “These concerns have been recognized by the courts as valid.”

Justice Skolrood was joined by Justices Susan Griffin and David Harris in his decision, which was issued Jan. 27 (R. v. Dhillon, 2023 BCCA 38).

But despite the unanimous ruling, Dhillon’s lawyer David L. Karp said he is “already having a conversation” about seeking leave to appeal to the Supreme Court. He said the law surrounding officer safety searches has been watered down since R. v. Mann, 2004 SCC 52, where it was held that a police officer may conduct a pat‑down search incident to a lawful detention if the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk.

“And what has happened in practicality is ‘officer safety concerns’ have become magic words for the police to go into people’s pockets or rip them out of cars,” he said. “What a case called MacDonald [R. v. MacDonald, 2014 SCC 3] said is that you have got to have an imminent safety concern, which to me basically means something articulable in the moment that he police can point to and say here is why I was concerned and here is why I did what I did. But this case now seems to say they don’t need that.”

Lisa Silver, University of Calgary

Lisa Silver, University of Calgary

University of Calgary criminal law professor Lisa Silver said there is a recognized common law power to search incident to arrest, but the case in Dhillon is different because it involved investigative detention in which a person is not arrested.

“Investigative detention is in place to assist police officers to investigate crimes, but it is not arrest,” she said. “It is a very specific form of detention where rights accrue, but it is not supposed to be something that the police are supposed to use as a long-term situation — it is primarily for the purpose of investigating a crime if they have reasonable grounds attached to that.”

Silver said the Dhillon case shows that there is still no clarity around investigative detention and protective pat-down searches.

“The main issue here is this requirement for an imminent threat, and the case law is not clear as to whether this is required,” she said. “And if you are going to say you don’t need any imminent threat for a protective pat-down search then the question is are you just watering down this context of investigative detention which is to be treated exceptionally.”

Karp said it is a “no-brainer” that police have a difficult job and need to be protected, but that needs to be balanced “with people’s fundamental rights to be free from intrusive searches whenever the police see fit.”

“We don’t want to live in a country like that,” he said. “We live in a democracy and there are checks and balances that people need to look at — and a case like this is very scary in terms of eroding that democracy.”

The B.C. Prosecution Service (BCPS) was unable to provide a comment by press time.

If you have any information, story ideas or news tips please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

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