How sure do police have to be of a safety risk to search? The Supreme Court clarifies in R v MacDonald

In R v MacDonald, 2014 SCC 3 [MacDonald], the Supreme Court of Canada has clarified the constitutional bounds of police searches conducted to ensure the safety of police or the public (“safety searches”). In a narrow majority (4:3), LeBel J held that safety searches do not violate section 8 of the Charter as long as the police officer has reasonable grounds to believe that the search is necessary to eliminate an imminent threat to the safety of the public or the police and that the search is carried out reasonably. The minority’s concurring reasons, written by Moldaver J and Wagner J, agreed in the result, but argued for a lower standard of reasonable suspicion.

A Noise Complaint, and a Beretta

The issue arose when police officers responded to a noise complaint in Halifax. When Mr. MacDonald answered the door, an officer saw an object in his hand. After Mr. MacDonald did not respond to the officer’s request to identify the object, the officer pushed the door open a few inches further. The officer identified the object as a handgun and arrested Mr. MacDonald after a struggle. Mr. MacDonald was charged with violating section 86(1) of the Criminal Code, RSC, 1985, c C-46 [Code], which prohibits the handing of a firearm without reasonable precautions for the safety of other persons. The primary issue in this case was whether the officer’s opening of the door constituted a search that violated the Charter’s section 8 prohibition on unreasonable searches.

This case also addressed the mens rea requirement for section 95(1) of the Code, which prohibits holding a loaded restricted firearm when one does not have authorization or a license to do so in that place. Mr. MacDonald was charged with section 95(1), but the majority and minority agree that the Court of Appeal’s conviction should stand. Accordingly, this post will focus solely on the Charter section 8 issue.

Lower Courts: No Charter Violation

It was held both at trial and on appeal that the police officer’s door pushing did not violate section 8 of the Charter. The trial judge held that there is an exception to section 8 that allows a police officer to enter a home to ensure his or her safety, and that the officer’s actions in this case fell within this exception. On appeal, the Court of Appeal applied R v Mann, [2004] 3 SCR 59 [Mann], which recognized a common law police power to search without a warrant where the safety of the public or the police is at stake. Finding that the officer acted reasonably, and that no other action would have been appropriate, the Court of Appeal held that the officer did not violate Mr. MacDonald’s section 8 rights.

Lebel J. and “Reasonable Belief”

A four-justice majority of the Supreme Court agreed with the Court of Appeal. It also used Mann to determine that the officer’s actions were reasonable. Mann lays out three requirements for warrantless searches to avoid violating section 8 by being deemed reasonable: (1) the search is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search was carried out was also reasonable.

The bulk of the majority’s analysis is focused on the first prong of this test. R v Waterfield, [1963] 3 ALL ER 659, outlines two requirements which must be met for a search to be authorized by law: (1) the action must fall within the general scope of a police duty imposed by statute or recognized at common law; and (2) the action must constitute a justifiable exercise of powers associated with that duty. The officer’s action here did fall within the general scope of a police duty.

The court cites Dedman v The Queen, [1985] 2 SCR 2, to expand on the “justifiable exercise of powers” rung of this test — “the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances…” (MacDonald, para 36). The Court further draws on police searching jurisprudence to outline a list of factors that is used to determine whether a particular exercise of police powers was reasonable: The importance of the performance of the duty to the public good, the necessity of the interference with individual liberty fort he performance of the duty, and the extent of the interference with individual liberty.

The Court determined from balancing these factors that the police should have the power to conduct a safety search “where a search is reasonably necessary to eliminate an immanent threat to the safety of the public of the police…” (para 40). Recognizing that the officer on the ground is responsible for determining when this threshold is met, the Court cites Mann as providing a test that can be used for determining this:

[T]he 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 (para 41).

Applying this test, the majority quickly finds that the officer’s safety search, in the form of nudging the door open further, was reasonable and did not violate section 8 of the Charter. Since the officer had reasonable grounds to believe that Mr. MacDonald was armed and dangerous, the Court held that the search was necessary, “in order to eliminate that threat” (para 44).

The Minority’s Alternative Standard: “Reasonable Suspicion”

Moldaver J and Wagner J wrote a set of concurring reasons. The only point of difference between the majority reasons and the concurring reasons is the threshold for triggering the “reasonable necessity” requirement authorizing safety searches. The majority holds that the officer must believe on reasonable grounds that his or her safety is at stake, but the minority lowers this threshold to the level of “having reasonable grounds to suspect” that his or her safety is at stake (para 66).

The minority comes to this conclusion through a purposeful and textual analysis of Mann. First, the minority argues that the rationale underlying safety searches is the protection of public or officer safety, which justifies a lower standard for triggering “reasonable necessity”:

Police officers cannot be asked to intervene in dangerous or fluid situations and, at the same time, be denied the authority to take protective measures when they reasonably suspect their own safety is at risk, especially when there is a suspicion weapons are involved (para 67).

In addition to this purposive approach, the minority argues that Mann’s use of language points to a lower standard for “reasonable necessity.” The minority takes Mann’s statement that an officer must have “reasonable grounds to believe that his or her safety … is at risk” as connoting a possibility more closely aligned with suspicion than belief: “Mann says a safety search is justified if it is probable that something might happen, not that it is probable that something will happen” (para 70).

Deliberate, But Don’t Dither

This case essentially revolves around the question of how sure a police officer must be of the presence of a safety risk before he or she can perform a safety search. The minority’s “reasonable suspicion” standard would certainly give police officers more latitude to perform safety searches than the majority’s “reasonable belief” standard. In this respect, the minority’s reasoning seems more aligned with the situational demands faced by police officers in potentially dangerous situations. The jump from “suspicion” to “belief” may take very little time, but the danger of a higher standard for triggering safety searches is that the potential danger in that moment could come to a head.

The majority decided that more police deliberation before a safety search is performed is desirable. They may be right, as long as this judgment does not produce police dithering in potentially dangerous situations.