Pat-Down Searches

Pat-Down Search

Until 2004 the scope of police powers regarding their authority to do pat-down searches was uncertain.

In fact, as a law student I particularly found this area of the law especially interesting. Since 2004, the contours and limits of pat-down law have been for the most part well defined. Some recent cases have re-ignited the scope of the pat-down search.

1993

Up until 1993, in Canada, a police officer had no power or authority to conduct a pat-down search on a person unless they had reasonable and probable grounds to arrest that person for an offence. I have no doubt that as a matter of routine, pat down searches were conducted all the time, under the genuine concern for officer safety or perhaps as a ruse or guise to search for evidence. In the latter case such a search would really have been conducted on nothing more than suspicion, an educated guess based on “officer experience”.  In any, event prior to 1993 a bright line existed in the law: detention of a person and search was only permissible if a police officer had reasonable and probable grounds to arrest a person.  In 1993 in a case called R. v. Simpson (1993) 12 O.R. (3d) 182 the Ontario Court of Appeal decided that the police did not have what they termed “articulable cause” a term borrowed from U.S. jurisprudence to stop and do a pat-down search on the individual they were stopping. In that case, police followed a suspect from a known drug house. They stopped his vehicle, and did a “pat-down” search located narcotics. The Court excluded the evidence and held that the police did not have articulable cause to stop and search for investigative purposes which they defined as:
. . . a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

Although Mr. Simpson was acquitted, this decision ushered a new era in Canadian police enforcement. For the first time, a Canadian Court recognized a police power that fell below the status quo level “reasonable and probable grounds”.

2004

In 2004 the Supreme Court of Canada rule on a case R. v. Mann 2004 SCC 52 and endorsed the Simpson decision but replaced the terminology of articulable cause with “reasonable grounds”. The Court held that a pat-down search was permissible but only to the extent necessary to secure officer safety. A police first had to genuinely feel it necessary to conduct a pat-down search for his/her safety. Second, the search would not allow him to search pockets or objects on a person that were non-threatening. For example, a handbag may be searched or patted down but unless an hard object is felt inside the bag there would be no reason to open up the bag.

2015

Some recent cases have questioned the police practice of doing pat-down searches when investigation persons for impaired driving offences. See for example R. v. Schwab 2015 AJ No 903. Simply, if a motorist is transported to a police vehicle for a screening test (assuming that transport is valid), what gives a police officer the right to conduct a pat-down search on the person as a matter of practice?

Certainly, we have not heard the end of the pat-down search issue in relation to impaired driving cases. I will eagerly await an Appellate case and post if one becomes available.