WestlawNext Canada insight Blog

Digest of the Week — Test for Police "Safety Search"

R. v. MacDonald |  (WestlawNext Canada)
2014 CarswellNS 16 |  (Westlaw Canada)
Supreme Court of Canada


Criminal law | Charter of Rights and Freedoms | Unreasonable search and seizure [s. 8] | Reasonable expectation of privacy

Criminal law | Offences | Firearms and other weapons | Possession offences | Possession of prohibited or restricted firearm with ammunition | Sentencing

Criminal law | Offences — Firearms and other weapons — Possession offences — Unauthorized possession of firearm — Miscellaneous

Criminal law | Charter of Rights and Freedoms | Unreasonable search and seizure [s. 8] | Reasonable grounds


Police officers responded to noise complaint at accused's Nova Scotia condominium unit — When accused opened door, officer noticed something "black and shiny" in accused's right hand that was partially hidden by his right leg — Officer twice asked accused what was behind his leg, but accused did not respond and wanting to get better look at what he had in his hand, officer pushed door open few inches further — Accused was holding loaded gun, which was restricted firearm — Trial judge convicted accused of handling firearm in careless manner or without reasonable precautions for safety of other persons, unlawfully having in his possession weapon for purpose dangerous to public peace and possessing loaded restricted firearm without being holder of authorization or license and sentenced accused to three years imprisonment — Court of Appeal upheld trial judge's decision that officer did not violate s. 8 of Canadian Charter of Rights and Freedoms, upheld ss. 86 and 88 Criminal Code convictions but significantly reduced sentences and allowed accused's appeal of his s. 95 conviction, substituting acquittal — Crown and accused appealed — Crown's appeal from s. 95 acquittal allowed; accused's appeal of s. 8 Charter issue dismissed — Accused's rights under s. 8 of Charter were not violated — Officer's action of pushing door open further constituted "search" however, search was reasonable and manner in which it was carried out was also reasonable — Because officer had reasonable grounds to believe that accused was armed and dangerous, further opening door was authorized by law — Officer had reasonable grounds to believe that there was imminent threat to public and police safety and that search was necessary to eliminate that threat.


Held: The Crown's appeal was allowed and the accused's appeal was dismissed.

Per LeBel J. (McLachlin C.J.C., Fish, Abella JJ. concurring): The accused's rights under s. 8 of Charter were not violated. The officer's action of pushing the door open constituted a "search" however, the search was reasonable and the manner in which it was carried out was also reasonable. Because the officer had reasonable grounds to believe that the accused was armed and dangerous, the further opening of the door was authorized by law. The officer had reasonable grounds to believe that there was an imminent threat to public and police safety and that a search was necessary to eliminate such a threat. Additionally, the offence provided for in s. 95 of the Criminal Code was a mens rea offence, but it did not include knowledge of unauthorized possession. The Court of Appeal erred in law by improperly reading a defence of ignorance of law into s. 95(1) of the Code. It was trite law that a mistake of law was no defence in our criminal justice system.
Per Moldaver, Wagner JJ. (Rothstein J. concurring): The majority concluded that the police officers were only empowered to conduct "safety searches" where they had reasonable grounds to believe an individual was armed and dangerous. However, this case could have been and ought to have been resolved by extending the logic of the Mann decision. Mann decided that officers may conduct safety searches when they had reasonable grounds to suspect an individual was armed and dangerous.
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