Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158
Richard Langlois and Jean‑Pierre Bédard Appellants
and
Pierre Cloutier Respondent
indexed as: cloutier v. langlois
File No.: 20519.
1989: November 1; 1990: February 1.
Present: Lamer, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Assault ‑‑ Searches ‑‑ Police officers accused of assault for having searched respondent after his arrest ‑‑ Whether search of respondent justified ‑‑ Existence and scope of police power to search a person who has been lawfully arrested ‑‑ Criminal Code, R.S.C. 1970, c. 34, s. 245(b).
Criminal law ‑‑ Police powers ‑‑ Search incidental to an arrest ‑‑ Existence and scope of police power to search a person who has been lawfully arrested.
Criminal law ‑‑ Appeals before appellate court ‑‑ Question of law ‑‑ Legality of search carried out at time of arrest ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 771(1)(a).
This appeal raises the question of the existence and scope of the power of the police to search a person who has been lawfully arrested. The appellants, both officers with the Montréal Urban Community Police Department, stopped the vehicle driven by the respondent after the latter had violated a municipal by‑law. They proceeded to arrest him upon being informed by police headquarters that a warrant of committal for unpaid traffic fines had been issued against him in Municipal Court. Highly agitated and abusive, the respondent accompanied the officers to their car, where they carried out a "frisk" search: with the respondent's hands on the hood of the car and his legs spread, the officers patted him down. The respondent was then taken to the police station, where he filed an information against each of the police officers for common assault. At trial, the respondent argued that the police officers were not authorized to search him and that the search was an assault within the meaning of s. 245(b) of the Criminal Code. The Summary Convictions Court judge dismissed the informations and this judgment was upheld by the Superior Court. The Court of Appeal in a majority judgment allowed the respondent's appeal and entered a verdict of guilty. Section 8 of the Canadian Charter of Rights and Freedoms was not invoked by the parties.
Held: The appeal should be allowed.
Determining the legality of the search in this case is strictly a question of law within the meaning of s. 771(1)(a) of the Criminal Code. The resolution of the dispute as to the basis of the power to carry out a search after an arrest is not dependent on the facts, since it concerns the exact scope of the legal rule.
At common law a police officer may carry out a "frisk" search of a person who has been lawfully arrested and the existence of reasonable and probable grounds is not a prerequisite to the existence of such a power. A "frisk" search incidental to a lawful arrest reconciles the public's interest in the effective and safe enforcement of the law and its interest in ensuring the freedom and dignity of individuals since it constitutes a minimal intrusion on individual rights which is necessary to ensure that criminal justice is properly administered.
The exercise of the power to search is not however unlimited. First, this power does not impose a duty. The police have some discretion and, if satisfied that the law can be effectively and safely applied, they may see fit not to conduct a search. They must also be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives forming the basis of the right to search. Second, as regards these objectives, the search must be for a valid objective in pursuit of the ends of criminal justice ‑‑ such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused ‑‑ and the purpose of the search must not be unrelated to the objectives of the proper administration of justice. Third, the search must not be conducted in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.
In this case, the frisk search of the respondent was justified. The evidence showed that the police carried out the search taking into account all the circumstances and the desired objectives, that they searched the respondent in pursuit of a valid objective, i.e., police safety in making a lawful arrest, and that the search was conducted without excessive constraint. Therefore the Summary Convictions Court judge made no error in dismissing the informations for assault brought against the appellants.
Cases Cited
Applied: R. v. Morrison (1987), 1987 CanLII 182 (ON CA), 20 O.A.C. 230; R. v. Miller (1987), 1987 CanLII 4416 (ON CA), 38 C.C.C. (3d) 252; R. v. Brezack (1949), 1949 CanLII 115 (ON CA), 96 C.C.C. 97; referred to: Bessell v. Wilson (1853), 1 El. & Bl. 489, 118 E.R. 518, 17 J.P. 52; Leigh v. Cole (1853), 6 Cox C.C. 329; R. v. Barnett (1829), 3 Car. & P. 600, 172 E.R. 563, R. v. Jones (1834), 6 Car. & P. 343, 172 E.R. 1269; R. v. Kinsey (1836), 7 Car. & P. 447, 173 E.R. 198; R. v. O'Donnell (1835), 7 Car. & P. 138, 173 E.R. 61; Dillon v. O'Brien (1887), 16 Cox C.C. 245; R. v. Lushington, [1894] 1 Q.B. 420; Elias v. Pasmore, [1934] 2 K.B. 164; R. v. Naylor, [1979] Crim. L.R. 532; Lindley v. Rutter, [1981] Q.B. 128; Brazil v. Chief Constable of Surrey, [1983] 3 All E.R. 537; United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973); Weeks v. United States, 232 U.S. 383 (1914); Spalding v. Preston, 21 Vt. 9 (1848); Closson v. Morrison, 47 N.H. 482 (1867); Michigan v. DeFillippo, 443 U.S. 31 (1979); New York v. Belton, 453 U.S. 454 (1981); Gottschalk v. Hutton (1921), 1921 CanLII 376 (AB SCAD), 66 D.L.R. 499; R. v. McDonald (1932), 1932 CanLII 361 (AB SCAD), 59 C.C.C. 56; Gordon v. Denison (1895), 22 O.A.R. 315; Yakimishyn v. Bileski (1946), 1946 CanLII 219 (MB KB), 86 C.C.C. 179; Welch v. Gilmour (1955), 1955 CanLII 462 (BC SC), 111 C.C.C. 221; Laporte v. Laganière (1972), 1972 CanLII 1209 (QC CS), 18 C.R.N.S. 357; Reynen v. Antonenko (1975), 1975 CanLII 1233 (AB SCTD), 20 C.C.C. (2d) 342; R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 12 C.C.C. (3d) 97; R. v. Rousseau, 1983 CanLII 2665 (QC CQ), [1985] R.L. 108; R. v. Lerke (1986), 1986 ABCA 15, 43 Alta. L.R. (2d) 1; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739; Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145; Semayne's Case (1604), 5 Co. Rep. 91a, 77 E.R. 194; Eleko v. Officer Administering the Government of Nigeria, [1931] A.C. 662; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; RWDSU c. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 8.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 25, 29, 245(b) [rep. & sub. 1972, c. 13, s. 21; am. 1974‑75‑76, c. 93, s. 22; 1980‑81‑82‑83, c. 125, s. 19], 744, 771(1)(a).
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s. 32.
Authors Cited
Archibald, Bruce P. "The Law of Arrest". In Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982.
Béliveau, Pierre, Jacques Bellemare and Jean‑Pierre Lussier. On Criminal Procedure, Montreal: Éditions Yvon Blais Inc., 1982.
Canada. Law Reform Commission. Report 32. Our Criminal Procedure. Ottawa: Law Reform Commission, 1988.
Feldman, David. The Law Relating to Entry, Search and Seizure. London: Butterworths, 1986.
Hampton, Celia. Criminal Procedure, 3rd ed. London: Sweet & Maxwell, 1982.
LaFave, Wayne R. Search and Seizure, 2nd ed., vol. 2. St. Paul, Minn.: West Publishing Co., 1987.
Leigh, L. H. Police Powers in England and Wales. London: Butterworths, 1975.
McCalla, Winston. Search and Seizure in Canada. Aurora, Ont.: Canada Law Book Inc., 1984.
Paikin, Lee. "The Standard of "Reasonableness" in the Law of Search and Seizure". In Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982.
Robilliard, St John Anthony and Jenny McEwan. Police Powers and the Individual. Oxford: Basil Blackwell Ltd., 1986.
Salhany, Roger E. The Police Manual of Arrest, Seizure and Interrogation, 3rd ed. Toronto: Carswells, 1986.
Wharton's Criminal Procedure, 12th ed., vol. 1. By Charles E. Torcia. Rochester, N.Y.: Lawyers Co‑operative Publishing Ltd., 1974.
Whitebread, Charles H. Criminal Procedure: An analysis of Constitutional Cases and Concepts. Mineola, N.Y.: Foundation Press, 1980.
APPEAL from a judgment of the Quebec Court of Appeal, 1987 CanLII 664 (QC CA), [1987] R.J.Q. 1479, 7 Q.A.C. 169, allowing an appeal by respondent from a judgment of the Superior Court1, dismissing respondent's appeal from the acquittals of the appellants pronounced by a judge of the Court of Sessions of the Peace2, on informations for common assault laid by respondent. Appeal allowed.
Richard Mongeau and Guy Lafrance, for the appellants.
Pierre Cloutier, for himself.
//L'Heureux-Dubé//
The judgment of the Court was delivered by
L'HEUREUX‑DUBÉ J. -- This appeal raises squarely, for the first time in this Court the question of the existence and scope of the power of the police to search a person who has been lawfully arrested.
Facts
The facts out of which this issue arose are not in dispute and may be summarized as follows. The appellants Langlois and Bédard are constables employed by the police department of the Montréal Urban Community. The respondent Cloutier is a lawyer practising in that city. On November 3, 1983, early in the evening, the respondent made a right turn from the centre lane of St‑Denis Street in Montréal. In so doing, the respondent's vehicle passed directly in front of a police vehicle parked at the street corner. The constables decided that the respondent's turn was in breach of a municipal by‑law, stopped him and asked for his driver's licence and other documents for identification purposes. As conceded by the respondent in this Court, [TRANSLATION] "the tone became somewhat heated" during this exchange.
While constable Langlois was writing up a notice of violation, officer Bédard learned by radio contact with police headquarters that a warrant of committal had been issued against the respondent in the Municipal Court for unpaid traffic fines. The constables informed the respondent and asked him to accompany them to the police station. When they asked the respondent to get into the patrol car, the constables carried out a "frisk" search: the hands of the accused were placed on the hood of the car, his legs spread and the constables patted him down. The respondent was then taken to the police station.
Subsequent to these events the respondent, relying on the provisions of the Criminal Code, R.S.C. 1970, c. C‑34, dealing with summary convictions, filed an information against each of the police officers for common assault, contrary to s. 245(b) of the Criminal Code.
The primary allegation made by the respondent in his pleading was that the arrest was illegal, since the police officers had no power to arrest him unless they had actual possession of the arrest warrant issued by the Municipal Court. The respondent also argued incidentally that the police officers were not authorized to search him. He contended that the arrest and the search constituted assaults within the meaning of the Criminal Code. However, in the course of events, the respondent's incidental submission became his principal argument.
Decisions of Quebec Courts
Summary Convictions Court
Judge Choquette dismissed the informations laid against each of the two constables. First, he found that the arrest was lawful in light of ss. 25 and 29 of the Criminal Code, even though the police did not have in their possession at the time of the search the arrest warrant issued by the Municipal Court. The judge further concluded that the Canadian law on the subject granted to the police officers the power to search a lawfully arrested person. He added that in the case at bar the constables had reasonable grounds to conduct the search and the force used was neither excessive nor disproportionate. Though it is not clear from the reasons of Judge Choquette, it appears that he relied on the common law, not s. 25 of the Criminal Code, in concluding that a defence existed against the information for assault.
Superior Court
Barrette‑Joncas J., who heard the appeal brought by the respondent, dismissed it on the ground that the trial judge had committed no manifest error.
Court of Appeal
The Court of Appeal, which granted leave to appeal [TRANSLATION] "on questions of law only", in a majority judgment (Kaufman and McCarthy JJ.A.) allowed the appeal and entered a verdict of guilty on the informations laid against each of the police officers, Rothman J.A. dissenting: 1987 CanLII 664 (QC CA), [1987] R.J.Q. 1479. However, the court ruled unanimously that the arrest was lawful and justified by s. 25 of the Criminal Code. It was divided on the question of whether the search was lawful, the majority concluding that in the circumstances the search was illegal and therefore constituted an assault. Kaufman J.A. was of the opinion that the police officers did not have the power to search the accused and that the search was a "technical assault" (p. 1481). McCarthy J.A. also expressed the view that s. 25 of the Criminal Code did not protect the constables against an information for assault in connection with the search (at p. 1481):
[TRANSLATION] Although opinion is divided it seems to be generally accepted that there is no common law right to automatically search a person who has been arrested [Del Buono, Procédure pénale au Canada (1983), at p. 180, note 136]. The right only exists if the circumstances make such a search necessary to preserve evidence or to prevent escape or the commission of another offence by the person arrested. It is clear in the case at bar that the respondents could not rely on any of these grounds as reasonable or probable. Cloutier was arrested only because he had failed to pay a fine imposed "for a traffic offence".
In my view, s. 25 Cr. C. did not protect the respondents. Though the force they used in searching Cloutier was minimal, they were guilty of assault.
Rothman J.A. was of a different opinion. In his view, the police officers were justified in conducting the search. He also appears to have concluded that the legality of the search is a defence at common law against an information for assault. He wrote (at pp. 1484-85):
The reasonableness of a search made as an incident to a lawful arrest is, of course, a function of all the circumstances that existed at the time of the arrest. Often enough, these decisions must be made in difficult circumstances and with little time for reflection. For this reason, while police officers have no automatic right to conduct a personal search on making an arrest, I believe they must be accorded some latitude in deciding whether or not it would be prudent to search and, if so, the nature of the search that should be done.
In my respectful opinion, the personal search conducted by the police officers may have been unnecessary but, in the circumstances, it was not unreasonable.
The Court of Appeal accordingly appears to have unanimously held that at common law, in Canada, the power to search a person lawfully arrested is not incidental to the arrest but requires the existence of reasonable grounds, which in turn depends on the circumstances of the particular case, circumstances which the majority and the dissenting judge interpreted differently. This Court granted leave to appeal in order to determine the existence and scope of the police power of search at the time of a lawful arrest.
Arguments
Besides the legality of the search, the parties raised two other issues, namely the jurisdiction of the Court of Appeal and costs.
Appellants
As to the legality of the search, the appellants contend that if the power to search is not expressly conferred by specific legislation such power has its origin in common law. The appellants submit that, at the time of arrest, the police may make a [TRANSLATION] "related or incidental" search of the individual, for safety reasons, in order to transport the person arrested or to preserve evidence, provided of course that the search is not wrongful in the circumstances.
So far as jurisdiction is concerned, the appellants argue that the legality of the search is a mixed question of law and fact. They submit that the Court of Appeal had undertaken a reassessment of the facts, though leave to appeal was granted on questions of law only, in accordance with s. 771(1)(a) of the Criminal Code.
Respondent
The respondent, who represented himself throughout the proceedings, did not file a brief in this Court and confined his oral argument to the legality of the search. He contended that the power to search is not automatic but instead depends upon the existence of reasonable grounds, especially in cases where the arrest is made in connection with a penal rather than criminal offence. In his view, the search seriously compromised his human integrity and dignity. He added that the search, which occurred in public, in the neighbourhood where he lives and practices his profession, had an adverse effect on his professional reputation.
In the event that the appeal is allowed however, the respondent asked not to be ordered to pay costs. He stated that he brought the action [TRANSLATION] "for the sake of human justice and freedom, not through any desire for vengeance or in bad faith".
Neither of the parties pleaded s. 8 of the Canadian Charter of Rights and Freedoms.
Jurisdiction
I do not think that it is necessary to deal with this matter at any length. The respondent's principal argument was not that the search was wrongful in the circumstances, but rather that there was no legal basis for it. Precedent and scholarly opinion are not unanimous as to the basis of the power to search. According to one view, the power to carry out a search flows automatically from the arrest of an individual, while another view feels that the existence of reasonable grounds is a prerequisite. The resolution of this dispute is not dependent on the facts, since it concerns the exact scope of the legal rule, a rule essentially derived from a series of common law precedents. In this context, determining the legality of the search seems to me to be strictly a question of law within the meaning of s. 771(1)(a) of the Criminal Code. The appellants' argument therefore fails.
Legality of Search
In the absence of any specific Canadian legislation, it is necessary to review the origin and evolution of the common law rule. It will also be instructive in my view to see how the rule, originally developed by the English courts, has been treated in the U.S., whose law is also derived from the common law and whose criminal procedure is, in many areas, similar to that applicable in Canada.
British Precedent and Academic Opinion
The first common law cases dealing with the right to "frisk" search a lawfully arrested person date from the last century, though it appears that the practice has a much longer history. In Bessell v. Wilson (1853), 1 El. & Bl. 489, 118 E.R. 518, 17 J.P. 52 (Q.B.), an arrest warrant was issued against the defendant requiring him to explain to the court the reason for his failure to pay a fine which a court had ordered him to pay. Upon arresting the defendant under this warrant, the constable conducted a search. The court in analyzing the power to search observed (1 El. & Bl., at p. 492):
He was apprehended by the police force for the city of London, and, upon being put into custody, was searched; which, it was stated, was the invariable practice of the city police. Lord Campbell C.J., upon the motion for the rule mentioned in the text, very strongly reprobated the application of the practice to such a case.
Lord Campbell C.J. was not so much concerned with the existence of the power as he was with the decision of the police to search the accused on the facts of the case, and in this regard stated (17 J.P., at p. 52):
. . . I wish to take this opportunity of correcting a misapprehension as to what is my opinion with respect to the practice of searching persons who are charged with offences. At the conclusion of the trial of this case, I expressed my disapprobation of the manner in which the plaintiff had been searched when taken to the station house. I repeat the disapprobation which I then expressed, for there is no right in a case of this kind to inflict the indignity to which the plaintiff had been subjected. But I have been informed that an erroneous impression of what I said has gone abroad. It was supposed that I had said that there was no right in any one to search a prisoner at any time. I have not said so. It is often the duty of an officer to search a prisoner. If for instance, a man is taken in [for] the commission of a felony, he may be searched to see whether the stolen articles are in his possession, or whether he has any instruments of violence about him, and, in like manner, if he be taken on a charge of arson, he may be searched to see whether he has any fire-boxes or matches about his person . . . . It may be highly satisfactory, and indeed necessary that the prisoner should be searched. I have never said that searching a prisoner was always a forbidden act. What I said applied to circumstances such as existed in this case. [Emphasis added.]
Leigh v. Cole (1853), 6 Cox C.C. 329, concerned a civil action for unjustified arrest and assault brought against a police officer following the arrest of the plaintiff. The police officer arrested the plaintiff for disturbing the peace and then searched him and seized a tobacco-box and a piece of paper that were on his person. The court decided that the arrest was justified. In his charge to the jury Williams J. made the following comments on the search (at p. 332):
With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that any general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case. [Emphasis added.]
In Williams J.'s mind, the power to search a lawfully arrested person does not flow automatically from the fact of the arrest.
In another series of cases, it was held that police officers are authorized to seize from a lawfully arrested person evidence that can be used against that person. These cases are relevant in as much as the power to seize imports that of search.
R. v. Barnett (1829), 3 Car. & P. 600, 172 E.R. 563; R. v. Jones (1834), 6 Car. & P. 343, 172 E.R. 1269; R. v. Kinsey (1836), 7 Car. & P. 447, 173 E.R. 198, and R. v. O'Donnell (1835), 7 Car. & P. 138, 173 E.R. 61, hold that police officers have no right to seize property from the arrested person unless it is connected with the charge against him. These cases implicitly recognize a right to seize property which may be used as evidence. This right was expressly acknowledged in the Irish case Dillon v. O'Brien (1887), 16 Cox C.C. 245 (Exch.), a civil action for unjustified arrest and seizure, trespass and assault (at p. 249):
I, therefore, think that it is clear, and beyond doubt, that, at least in cases of treason and felony, constables (and probably also private persons) are entitled, upon a lawful arrest by them of one charged with treason or felony, to take and detain property found in his possession which will form material evidence in his prosecution for that crime . . . . [Emphasis added.]
In that case, the plaintiff was apprehended under an arrest warrant issued in connection with the commission of an offence punishable on summary conviction. Palles C.B., speaking for the court, dismissed the civil action and observed that the common law authorized the seizure of evidence in such a case. The judgment is silent however as to the requirement of grounds in order to seize the plaintiff's money and documents. It does not appear, at least at this stage in the evolution of the common law, that reasonable grounds had to exist. Rather, the opposite would appear from Dillon v. O'Brien.
The power of seizure was later affirmed by the British courts in R. v. Lushington, [1894] 1 Q.B. 420, at p. 423:
In this country I take it that it is undoubted law that it is within the power of, and is the duty of, constables to retain for use in Court things which may be evidences of crime, and which have come into the possession of the constables without wrong on their part.
In Elias v. Pasmore, [1934] 2 K.B. 164, constables who entered premises to arrest a suspect seized documents belonging to other persons. Although it was held that the scope of the right did not justify the particular seizure in this case, the power of search was upheld (at p. 169):
As to the right to search on arrest. This right seems to be clearly established by the footnote to Bessell v. Wilson in the report in the Law Times, where Lord Campbell clearly lays down that this right exists, but this right does not seem to me to authorize what was done in this case, namely, to seize and take away large quantities of documents and other property found on premises occupied by persons other than the person of whom the arrest was made.
In two recent cases the British courts again ruled on the power of police officers to seize property in the possession of a person lawfully in custody in circumstances where that property is likely to threaten the safety of either the prisoner or the police officers. In R. v. Naylor, [1979] Crim. L.R. 532, the court held that the seizure of a necklace and other jewellery owned by a woman charged with obstructing justice was unjustified, and in Lindley v. Rutter, [1981] Q.B. 128, the seizure of the brassiere of a woman charged with disturbing the peace was also found to be illegal. Though the seizures in these judgments were found to be illegal, the power of search itself was not disputed. It was held that the interference with individual rights was disproportionate to the importance of the objective sought. These cases are exceptions that prove the rule. They confirmed and set limits on the power to search and seize in the context of a lawful arrest. In Lindley, Donaldson L.J. said the following on the power to search a lawfully arrested person (at pp. 134-35):
It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.
This is not to say there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are prima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to officers in the form of standing instructions. But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone's pockets or handbag is less an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so. [Emphasis added.]
This case was recently affirmed: Brazil v. Chief Constable of Surrey, [1983] 3 All E.R. 537 (Q.B.)
Under the common law as it has evolved in England, the existence of reasonable grounds does not appear to be a prerequisite to searching a lawfully arrested person. In Lindley, supra, the court could simply have found that the police officers lacked reasonable grounds, but instead, it left the door open to a wider "justification" for searches (at p. 135):
. . . a search would have been justified if, bearing in mind the defendant's condition, including her reaction to being in custody, W.P.C. Fry or the station officer had had any reason for thinking that the defendant might have some object on her with which she might accidentally or intentionally injure herself or others.
The forcible removal of her brassiere was understandably regarded by the defendant as peculiarly offensive. Such conduct would require considerable justification . . . . [T]here would have had to have been some evidence that young female drunks in general were liable to injure themselves with their brassieres or that the defendant had shown a peculiar disposition to do so. It would obviously be a justification if the defendant had by words or conduct threatened to do so. But that is not this case. [Emphasis added.]
The "some evidence" standard applied by Donaldson L.J. is a considerably different threshold than that of "reasonable grounds". This is significant in view of the seriousness of the invasion of human dignity which occurred in Lindley, as compared to the "frisk" search which occurred in the case before us.
This line of authority has been the subject of considerable scholarly comment. To a large degree it appears to be recognized that the common law authorizes the incidental search of a lawfully arrested person. Opinions differ mainly as to the extent of this power. L. H. Leigh, Police Powers in England and Wales (1975), at p. 50, writes:
A constable has a common law power to search a person on arrest and to take into custody articles in possession of the prisoner which the constable believes to be connected with the offence charged, or which may be used in evidence against him, or which may give a clue to the commission of the crime or the identification of the criminal, or any weapon or implement which might enable the prisoner to commit an act of violence or effect his escape.
C. Hampton, Criminal Procedure (3rd ed. 1982), at p. 41, essentially shares this view:
The police have further powers at common law. Firstly, they may search a person who has been lawfully arrested and they may take and keep any property found in his possession which may form material evidence of the offence for which he is arrested or of any other serious offence which they reasonably believe he has committed.
St John A. Robilliard and J. McEwan, Police Powers and the Individual (1986), at pp. 133-34, for their part, expressed the view that:
At common law it has long been recognised that the arrest of a suspect may justify searching him and his immediate vicinity, although originally a search had to be justifiable according to the overall circumstances; viz., the search of an arsonist for matches was justified, as was the search of a person arrested for acting in a disorderly way in order to ascertain whether he had on him a weapon which could be used to harm himself or another. However, as the twentieth century progressed this has become seen as a general right to search on arrest. [Emphasis added.]
See also the discussion by D. Feldman, The Law Relating to Entry, Search and Seizure (1986), at pp. 227-48.
The scope of the common law rule has lost much of its importance in England since the adoption of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60. In particular, s. 32 authorizes the search of a lawfully arrested person if "the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others" (s. 32(1)) or reasonable grounds for believing that the person has anything on him which he might use to escape or which might be evidence (s. 32(1) and (5)).
U.S. Case Law and Scholarly Opinion
The appellants based their argument in part on the U.S. rule, which reached its zenith in United States v. Robinson, 414 U.S. 218 (1973), and Gustafson v. Florida, 414 U.S. 260 (1973). In the United States the power to search is recognized as being incidental to arrest and the police are not required to have reasonable grounds for searching a lawfully arrested person.
In Robinson, the police arrested the accused for driving without a licence, searched his clothing and found a quantity of heroin on him. A majority of the judges of the Supreme Court held that this search did not contravene the Fourth Amendment to the Constitution. The court had to decide whether the police had the power to conduct such a search. The court exhaustively reviewed the U.S. precedents and concluded that since the decision in Weeks v. United States, 232 U.S. 383 (1914), it has been recognized that the search of a lawfully arrested person is incident to arrest. Two older cases, Spalding v. Preston, 21 Vt. 9 (1848), and Closson v. Morrison, 47 N.H. 482 (1867), in the view of the majority, illustrated that this power of search was well rooted in the U.S. legal tradition. In Robinson the majority left no doubt as to their view that a search is incident to arrest and does not have to be justified each time a police officer makes an arrest (at p. 235):
The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement under the Fourth Amendment, but is also a "reasonable" search under that Amendment. [Emphasis added.]
Similarly, in Gustafson the majority clearly established that it was not necessary for the police to believe on reasonable grounds that their safety was threatened prior to searching the person arrested for weapons.
These two cases were subsequently followed by the Supreme Court in Michigan v. DeFillippo, 443 U.S. 31 (1979), at p. 35, and in New York v. Belton, 453 U.S. 454 (1981), at p. 461.
The conclusions that emerge from this line of authority have been commented on and accepted in scholarly analysis recognizing that a power of search exists as an incident of arrest: Wharton's Criminal Procedure (12th ed. 1984), vol. 1, No. 180, at pp. 363‑73, and C. H. Whitebread, Criminal Procedure (1980), at p. 133. The only controversy in the U.S. concerns the extent of this power: W. R. LaFave, Search and Seizure (2nd ed. 1987), vol. 2, No. 5.2.
However, U.S. law is of limited assistance since Canadian public law is derived primarily from British common law, which, in the absence of specific legislation or modification by our courts, continues to be relevant.
Having completed this review of relevant British and American authorities I now turn to the law as it has been recognized and developed in Canada.
Canadian Case Law and Scholarly Opinion
Canadian courts have sometimes thought it useful to consider the U.S. rule in their analysis of the power to search a lawfully arrested person: Gottschalk v. Hutton (1921), 1921 CanLII 376 (AB SCAD), 66 D.L.R. 499 (Alta. S.C., App. Div.); R. v. McDonald (1932), 1932 CanLII 361 (AB SCAD), 59 C.C.C. 56 (Alta. S.C., App. Div.); R. v. Morrison (1987), 1987 CanLII 182 (ON CA), 20 O.A.C. 230 and R. v. Miller (1987), 1987 CanLII 4416 (ON CA), 38 C.C.C. (3d) 252 (Ont. C.A.) However, the Canadian courts have more often turned to British common law in this area.
Leigh v. Cole, supra, was considered in Canada for the first time in Gordon v. Denison (1895), 22 O.A.R. 315. Though dissenting on another point, MacLennan J.A. noted about Leigh that "there can be no question of its correctness" (p. 327).
The British case Leigh v. Cole was again applied in Canadian case law in Yakimishyn v. Bileski (1946), 1946 CanLII 219 (MB KB), 86 C.C.C. 179 (Man. K.B.) which stated (at p. 181): "It is well established that when a prisoner is in custody the right to search his person exists". In Yakimishyn, a prisoner was searched when he arrived at the penitentiary and his money was seized. The court held that a creditor of the prisoner had no right to the money. I note here that in Welch v. Gilmour (1955), 1955 CanLII 462 (BC SC), 111 C.C.C. 221 (B.C.S.C.), the principles put forward in Yakimishyn were approved.
The power to search received additional support in R. v. Brezack (1949), 1949 CanLII 115 (ON CA), 96 C.C.C. 97 (Ont. C.A.), a case involving the prosecution of a police officer for assault. The accused was arrested for the possession of narcotics. When the police officer tried to search inside his mouth he resisted and hit the officer. Robertson C.J. wrote (at p. 101):
It is important to observe that the search that was made is justifiable as an incident of the arrest. The constable who makes an arrest has important duties, such as to see that the prisoner does not escape by reason of being armed, and to see if any evidence of the offence for which he was arrested is to be found upon him. A constable may not always find his suspicions to be justified by the result of a search. It is sufficient if the circumstances are such as to justify the search as a reasonable precaution. [Emphasis added.]
These comments are all the more forceful as they were made in connection with a considerably more intensive search than that conducted in the case at bar.
The legality of a search at the time of an arrest was again the subject of a judgment in Laporte v. Laganière (1972), 1972 CanLII 1209 (QC CS), 18 C.R.N.S. 357 (Que. S.C.) Hugessen J. noted that the power to search could not be extended so as to authorize surgery several months after the arrest to obtain a bullet lodged in the body of the arrested person. On the other hand, in Reynen v. Antonenko (1975), 1975 CanLII 1233 (AB SCTD), 20 C.C.C. (2d) 342 (Alta. S.C.), it was held that, in the circumstances, the right of search authorized a rectal search of the accused.
In R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 12 C.C.C. (3d) 97 (Ont. C.A.), Martin J.A. speaking for the court summarized the Canadian law on this point as follows (at p. 110):
At common law there is no power to search premises without a warrant (or with a warrant except for stolen goods) save as incident to lawful arrest. After making a lawful arrest, an officer has the right to search the person arrested and take from his person any property which he reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape . . . . The power to search the person of the arrestee has generally been considered to extend to the premises where he is arrested and which are under his control . . . . Thus, where a person has been arrested in his house, it seems that his house may be searched for evidence of the crime with which he is charged . . . [Emphasis added ‑‑ references omitted.]
Though that case involved the power to search the premises where the arrest was made, which is not the case here, these comments are relevant in so far as they discuss the existence of the right to search a lawfully arrested person.
The power to search has also been recognized in R. v. Rousseau, 1983 CanLII 2665 (QC CQ), [1985] R.L. 108 (C.S.P.) In R. v. Lerke (1986), 1986 ABCA 15, 43 Alta. L.R. (2d) 1, the Alberta Court of Appeal extended this right to cover arrests carried out by ordinary citizens. In Morrison, supra, a woman was arrested for theft, and when she arrived at the police station she was asked to remove her clothing so that a search could be made. As she was removing her clothing a quantity of narcotics fell out, which resulted in a charge of possession. The police argued that the strip search was necessary to locate all the money reported as stolen. Dubin J.A., speaking for the Ontario Court of Appeal, wrote (at p. 232):
At common law, as incident to a lawful arrest, an officer has the right to search the person arrested. The proposition is an old one and has never been seriously challenged.
With respect, the right of a peace officer to search the person under arrest with a view of determining whether that person has on his or her person any property which may be connected to the offence charged or any weapon is not dependent upon his belief that the person arrested has in fact such property or weapons on his or her person. [Emphasis added.]
And at p. 233:
As incident to a lawful arrest, a peace officer has the right to search the person arrested and take from his person any property which he reasonably believes is connected with the offence charged, or may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested, but he need not have reasonable grounds to believe that either such weapons or evidence will be found. It is the fact that the search of the person is made as incident to a lawful arrest which gives the peace officer the authority to search the person arrested. [Emphasis added.]
Morrison rejected in the clearest possible terms the theory that reasonable grounds are a prerequisite to the existence of the power to search a lawfully arrested person. This case was recently applied by the Ontario Court of Appeal in Miller, supra.
To conclude this review of Canadian case law, two recent judgments of this Court have discussed in obiter the power of search. In R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 403-4, La Forest J. alluded to the power to fingerprint a lawfully arrested person:
It should be observed that the common law permitted a number of other, in my view more serious, intrusions on the dignity of an individual or persons in custody in the interest of law enforcement. As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person; see R. v. Morrison (1987), 1987 CanLII 182 (ON CA), 20 O.A.C. 230. This authority is based on the need to disarm an accused and to discover evidence. In the course of custodial arrest an accused may be stripped.
Also, in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, Lamer J. assumed that "[t]he right to search incident to arrest derives from the fact of arrest or detention of the person" (p. 1146).
Turning to consider writings in the area, P. Béliveau, J. Bellemare and J.‑P. Lussier, On Criminal Procedure (1982), simply indicate that "[a]t common law, one may, during a legal arrest, seize the product of the crime or anything that may serve as evidence. The person being arrested may also be searched for evidence" (p. 200). B. P. Archibald, "The Law of Arrest", in V. M. Del Buono, ed., Criminal Procedure in Canada (1982), for his part, writes (at pp. 157-58):
It is generally accepted that there is no common law right to search automatically a person who has been arrested and the Criminal Code makes no mention of such authority. On the other hand, the common law has consistently allowed searches of the person incident to arrest where the arresting person has reasonable grounds to believe that the suspect may have concealed upon his person articles which may afford evidence with respect to an offence, weapons, or other objects which may enable the suspect to commit acts of violence or effect an escape.
This view is difficult to reconcile with the precedents discussed earlier. Though they recognize limits on the power to search, Canadian courts do not generally require the existence of reasonable grounds as a prerequisite to the exercise of this power. Moreover, as L. Paikin notes, "The Standard of "Reasonableness" in the Law of Search and Seizure", in Criminal Procedure in Canada, op. cit., at p. 111:
Canadian jurisprudence, while citing and adhering in principle to English authorities, has been deferential in practice to police interests in this regard. No modern reported Canadian case has invalidated a search performed incidental to arrest, although in one instance the attempted seizure of a prisoner's property unconnected to the offence has been held to be wrongful.
For his part, W. McCalla, Search and Seizure in Canada (1984), at pp. 128-29, notes:
The power to search incidental to arrest is firmly established at common law. It was never based on any express or specific authority other than the view that the power was a natural or assumed adjunct to the officer's control over the suspect. This has been attributed in part to the traditional tolerance of intrusive acts upon the person of an arrested individual.
In both Anglo-Canadian and American jurisdictions, the power to search incidental to arrest is the largest exception to traditional warrant requirements, whether imposed constitutionally, or as a matter of judicial or legislative reference. The most important justification for the power is the need to prevent suspects from destroying evidence, committing violence, or attempting to escape. Nevertheless, it is not always clear that courts do not see the power as an automatic right following arrest, or rather one that is only justified by additional circumstances. [Emphasis added.]
Finally, according to Hon. R. E. Salhany, The Police Manual of Arrest, Seizure and Interrogation (3rd ed. 1986), at pp. 60-61:
Nor is there recognized under Canadian law or the common law of England the right to search automatically someone who has been arrested. The right to search someone is permitted only as an incident to an arrest. The purpose must be to locate further evidence relating to the charge upon which he has been arrested or to locate any item which might assist the accused to escape from custody (such as a gun or a knife) or permit him to cause any violence . . . .
In other words, the police have no right to search a person merely because that person has been arrested for a criminal offence. The search must have a purpose and such purpose must be founded upon a belief based on reasonable and probable grounds.
In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him. The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively. While the existence of the power is accepted, there seems to be some uncertainty as to its scope. While at common law the British courts did not impose reasonable grounds as a prerequisite to the power to search a person lawfully arrested, neither have they gone so far as to recognize a power to search as a simple corollary of arrest. The Canadian courts on the other hand do not seem to have hesitated in adopting this latter approach.
Analysis
In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, and R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145). Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by "justifiable use of the power" in question (at p. 35):
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.]
It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.
Having stated these premises, I now turn to considering the power of search at the time of a lawful arrest.
As we have seen, the power to search a lawfully arrested person has its roots deep in the common law. In fact, at common law the police power of search extended to encompass a search of the surroundings of the arrest location and the seizure of anything they found there. The precedents I have referred to make it unnecessary to consider this aspect at greater length. What must be determined, rather, is the extent to which the competing interests in the context of a lawful arrest justify a search as an incident of the arrest.
In terms of applying the law, the ultimate purpose of criminal proceedings is to convict those found guilty beyond a reasonable doubt. Our system of criminal justice is based on the punishment of conduct that is contrary to the fundamental values of society, as statutorily enshrined in the Criminal Code and similar statutes. That is its primary purpose. The system depends for its legitimacy on the safe and effective performance of this function by the police. In the context of an arrest, these requirements entail at least two primary considerations. First, the process of arrest must be capable of ensuring that those arrested will come before the court. An individual who is arrested should not be able to evade the police before he is released in accordance with the rules of criminal procedure, otherwise the administration of justice will be brought into disrepute. In light of this consideration, a search of the accused for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the accused himself. Incidents of this kind are not unknown. Further, the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt. The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest. These interests have been recognized since the courts first considered the power to search; in Dillon v. O'Brien, supra, at p. 250, Palles C.B. wrote:
. . . the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form.
However, while the common law gives the police the powers necessary for the effective and safe application of the law, it does not allow them to place themselves above the law and use their powers to intimidate citizens. This is where the protection of privacy and of individual freedoms becomes very important.
For centuries the common law has spearheaded the protection of individual freedoms. The concept that a person and his home are inviolable has been gradually set up in the face of the potential abuse of power by the State. In the early seventeenth century the common law had already held "[t]hat the house of everyone is to him as his castle and fortress" (Semayne's Case (1604), 5 Co. Rep. 91a, 77 E.R. 194). Similarly, an invisible "fortress" was built bit by bit around each subject of the Empire and gradually any interference with individual freedom was seen as prima facie unlawful, the representatives of the State having the burden of establishing a legal basis for their actions: "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice" (Eleko v. Officer Administering the Government of Nigeria, [1931] A.C. 662 (P.C.), at p. 670). This fundamental role of guardian of freedom and property continued and expanded with the advent of the Charter (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at p. 164, per Wilson J.): "Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence".
Though the parties have not relied on the Charter, and have simply referred to the common law sources in examining the scope of the power to search, I feel that the courts should "apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution" (RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 603). In this regard this Court has held that, consistent with the values contained in the Charter, a search will not be wrongful if it is authorized by law, if the law is itself reasonable and if the search is conducted in a reasonable manner (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; and R. v. Debot, supra, at p. 1148, per Lamer J., and at p. 1160, per Wilson J.) The concept of freedom as traditionally safeguarded by the courts has been reexamined since the Charter and now generally means the absence of constraint and coercion. As Dickson J. (now C.J.) noted in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 336:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint.
As important and fundamental as these values may be, they are not absolute. As the Law Reform Commission of Canada notes, Our Criminal Procedure (1988), Report 32, at p. 14:
In order to safeguard freedom it is sometimes necessary to limit it, through prohibitions. However, if human dignity, freedom and justice are among the major values which the criminal law enshrines, we must carefully assess the way in which the law is enforced in order to ensure that our law and practices respect and do not undermine these values.
As we have seen, the common law gave the police only such powers as were consistent with the protection of individual rights. The courts have always held that a proper balance between these two fundamental components is vital, as illustrated by the observations of Williams J. in 1853 in Leigh v. Cole, supra, at pp. 330-31:
On one hand, it is clear that the police ought to be fully protected in the discharge of an onerous, arduous, and difficult duty -- a duty necessary for the comfort and security of the community. On the other hand, it is equally incumbent on every one engaged in the administration of justice, to take care that the powers necessarily entrusted to the police are not made an instrument of oppression or of tyranny towards even the meanest, most depraved, and basest subjects of the realm.
In this regard a "frisk" search is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds. Though the search, if conducted, is in addition to the arrest, which generally entails a considerably longer and more sustained loss of freedom and dignity, a brief search does not constitute, in view of the objectives sought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives.
A "frisk" search incidental to a lawful arrest reconciles the public's interest in the effective and safe enforcement of the law on the one hand, and on the other its interest in ensuring the freedom and dignity of individuals. The minimal intrusion involved in the search is necessary to ensure that criminal justice is properly administered. I agree with the opinion of the Ontario Court of Appeal as stated in Brezack, Morrison and Miller, supra, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a police power to search. The exercise of this power is not however unlimited. Three propositions can be derived from the authorities and a consideration of the underlying interests.
This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.
That is the background against which the Court must examine the facts of this case to determine whether the "frisk" search conducted by the appellants constituted an assault. Needless to say, if the search in question is justified at common law it cannot possibly constitute criminal conduct, more particularly, assault.
Application to the Facts of the Case
It should be noted that all the Quebec courts have approached the evidence in this case on the basis that a "frisk" search is not necessarily incidental to a lawful arrest, but instead, depends on the existence of reasonable grounds.
Despite the imposition of a standard higher than that required at common law, Judge Choquette of the Court of Summary Proceedings, the only judge to have seen and heard the witnesses, after considering whether the accused [TRANSLATION] "had reasonable grounds to make a search of the complainant", answered in the affirmative:
[TRANSLATION] Considering the circumstances of the case as a whole, the court feels that the police definitely had reasonable grounds that would justify them in lawfully making the arrest and search of the complainant, and that in view of the insults heaped on them by Mr. Cloutier they acted courteously.
As regards the force used to do this, it does not seem excessive or disproportionate in view of the events. The accused made a "frisk" search of the complainant using no excessive violence or force.
Barrette-Joncas J. of the Superior Court came to the same conclusion. Rothman J.A., dissenting in the Court of Appeal, took a similar view and accepted the trial judge's findings of fact and the conclusions drawn by him. The majority of the judges in the Court of Appeal seem to have taken a stricter approach to the facts. They concluded, contrary to the finding of the trial judge, that reasonable and probable grounds did not exist.
Applying the legal standard to the facts of this case, the evidence indicates that the police considered that in light of all the circumstances it was necessary to search the respondent. The respondent's conduct, which the Court of Appeal judges characterized as "unpleasant" and "highly agitated and verbally abusive", was such as to arouse a concern in the police officers for safety and effectiveness objectives. Secondly, the evidence showed to my satisfaction that the police searched the respondent in pursuit of a valid objective, here, police safety in making a lawful arrest. As to this I will simply cite a passage from the opinion of Rothman J.A. in which he reproduces this part of the evidence (at p. 1484):
Among the reasons that would justify a personal search is the possibility that the person arrested might be armed and might endanger the officers arresting him. In this case, that was the only justification given by Constable Bédard:
[TRANSLATION]
Q. So now, Constable Bédard, what happened? You told Mr. Cloutier -- there was an exchange, which you have just described to the court -- what happened then?
A. Mr. Cloutier, after being told at least three times, got out of his car and voluntarily went with us to the radio car; then at that point, we before . . . putting in anyone who has been arrested, whether for a traffic ticket or something else, in our radio car -- I don't know this guy, he could be anyone, he can say he is anything he wants, I don't want to say anything, it is nothing personal, but he is someone who perhaps may take the law into his own hands because he hates the police, he may turn on me inside the car, so for my own safety . . .
Q. What do you do?
A. For . . . we search him.
Q. So, you search him?
A. We search him.
Q. Yes . . .
A. Briefly. . .
Looking at the matter now, it would not be difficult to conclude that the police officers did not have any real reason to fear physical violence from Mr. Cloutier. But, on the evidence, it is clear that he was highly agitated and verbally abusive. The conclusion of the trial judge that it was Cloutier's conduct that made the situation as tense as it became is amply supported by the evidence.
Third, as to the way in which the search was conducted, as already noted, it is not disputed that in the circumstances, the police did not use either excessive force or constraint.
Furthermore, the fact that there existed a general directive in the police department to search an arrested suspect for any weapon or object potentially dangerous to the policemen has no bearing on this case, since the evidence of the police officers who conducted the search was that they exercised their independent discretion taking into account all the circumstances of this case.
I accordingly consider that, as an incident to the lawful arrest of the respondent, the frisk search was justified, and accordingly Judge Choquette made no error in dismissing the informations for assault brought against the appellants. This is sufficient to dispose of the appeal.
Costs
On the question of costs, the Summary Convictions Court may in its discretion order the payment of the defendant's costs against the informant when the information is dismissed (s. 744 of the Criminal Code). In the case at bar none of the Quebec courts applied this provision. Therefore each party paid its own costs in the lower courts. The appellants did not argue strongly on this point. In the circumstances, I feel it is proper not to award costs.
Conclusion
For all these reasons, I would allow the appeal and restore the verdict of acquittal, the whole without costs in any court.
Appeal allowed.
Solicitors for the appellants: Mongeau, Gouin, Roy, Montréal.
Solicitor for the respondent: Pierre Cloutier, Montréal.
