On December 23, 2000, shortly
after midnight, two police officers approach the scene of a reported break and
enter; they stopped and detained an individual matching the description of the
reported suspect. The suspect was described as a 21-year old-aboriginal male,
approximately five feet eight inches tall, weighing about 165 pounds, wearing a
black jacket with white sleeves; thought to have been “Zachary Parisienne”, but
in fact was Philip Henry Mann. Mann identified himself and complied to a
pat-down; during so the officer felt a soft object in the individuals pocket
and Mann was arrested and charged with possession of marijuana for the purpose
of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act,
S.C. 1996, c. 19.
In the case R.v. Mann, the matter
of deciding whether the search of the individuals pocket was unreasonable- And
if so, should the evidence be excluded due to Canadian Charter of Rights and
Freedoms, ss. 8, 24(2). The courts also had to determine whether the police
have a common law power to detain individuals for investigative purposes- If
so, whether there is a power to search accompanying to detention at common
Keeping in mind, Section 10(a) of
the Charter provides that “everyone has the right on arrest or detention to
be informed promptly of the reason therefore”; Detained individuals must be
advised in clear and simple language, of the reason for their detainment.
To continue, the judge held that
the police officer was justified in the search of Mann for security reasons,
but there was no foundation in fact to conclude to look inside Mann’s pockets
for security reasons. The officer’s decision to search must be reasonably
necessary; It cannot be justified based on unclear or non-existent concern for
safety, nor be conducted upon hunches or mere intuition.
Moreover, the evidence was
omitted under s. 24(2) of the Charter- admissions would interfere with the
fairness of the trial, and the accused was acquitted. The court of Appeal set
aside the acquittal and ordered a new trial, and found that the detention and
pat-down search were authorized by law and were reasonable in the circumstance.
In any event, investigative
detentions are carried out in accordance with the common law under s. 9 of the
Charter. It is important to mention; the good faith of the officer was one
influence to be considered in conjunction with the seriousness of the breach.
Good faith cannot be claimed if a Charter violation is committed. The Court
could not avoid the task where common law rules are required to be
incrementally adapted to reflect social changes; Courts are responsible for
ensuring that the common law reflects current and emerging societal needs and
values: R. v. Salituro, 1991 3 S.C.R. 654, at p. 670.
Application to factors: The officer
had reasonable grounds to detain the appellant. Mann closely resembled the
description of the suspect given to radio dispatch. Mann was also located in a
high crime area; the presence of an individual reflects his or her proximity to
a particular crime. The logic that someone who recently committed a
break-and-enter would be concealing a weapon was considered. Furthermore, there
was reasonable grounds for a protective search of the appellant. As implied
before, the officer’s decision to go beyond pat-down was problematic. The
seizure of the marijuana from the appellant was unlawful because individuals
have reasonable expectation of privacy in their pockets.
With all things considered, the
court reviewed the three-step inquiry to determine whether admission of justice
into disrepute under s. 24(2) in Buhay. This inquiry began with a consideration
of the fairness of the trial. The final consideration was whether the exclusion
of the evidence would affect the administration of justice; Exclusion would
weaken the Crowns case, or eliminate the case against the appellant altogether.
The trial judge ruled the evidence
inadmissible on the basis of the trial unfairness. “For the foregoing reasons,
I would allow the appeal, set aside the judgment of the Manitoba Court of
Appeal, and restore the acquittal”- DESCHAMPS JJ.
The Scope of the Power of Search
Incidential to Detention: “Such searches may only be conducted with a warrant,
or a pursuant to the common law power of search incidental to arrest (see
Cloutier v. Langlois, 1990 1 S.C.R. 158, at p. 182; R. V Stillman, 1997 1
S.C.R. 607; at para, 27; and R. v. Caslake, 1998 1 S.C.R. 51, at para 15)”.
Section 24(2) of the Charter: The
Court had recently affirmed the three-step factors were taken into
consideration in determining whether evidence would be excluded under s. 24(2)
of the Charter. (1) The effect of admitting the evidence should be on the
fairness of the subsequent trial, (2) the seriousness of the police conduct,
and (3) the effects of excluding the evidence on the administration of justice.
The trial related back to Buhah,
supra- It was believed that “the officer who conducted the search did not act
in bad faith”. Moreover, it was difficult to see how the existence of
“alternative means of obtaining evidence” could have been applicable to this
case, where the police officer came upon evidence in which they did not sought
The police officer was curious to
see what was in the pocket. The officer violated the individual’s entitlement
to privacy of the pocket. The legal part of the search was touching the body,
and entering the appellants pocket was intrusive.
In the conclusion, an agreement
with majority’s conclusion regarding the existence of a common law power to
detain and search, who police have an articulable cause to believe an
individual had been involved in the instruction of a criminal offence. The
Supreme Court of Canada ruled that although the initial search was justified on
the grounds of officer safety, but incriminating evidence was in violation of
Section 8 of the Charter, and that admission of the illegally obtained evidence
would bring the administration of justice into disrepute.