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R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59  ClII

As two police officers approached the scene of a reported break and enter, they observed M, who matched the description of the suspect, walking casually along the sidewalk.  They stopped him. M identified himself and complied with a pat-down search of his person for concealed weapons.  During the search, one officer felt a soft object in M’s pocket.  He reached into the pocket and found a small plastic bag containing marijuana.  He also found a number of small plastic baggies in another pocket.  M was arrested and charged with possession of marijuana for the purpose of trafficking.


Per Iacobucci, Major, Binnie, LeBel and Fish JJ.:  The police were entitled to detain M for investigative purposes and to conduct a pat-down search to ensure their safety, but the search of M’s pockets was unjustified and the evidence discovered therein must be excluded.

Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.  

These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the interference.  

At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention.

Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.  They should be brief in duration, so compliance with s. 10(b) will not excuse prolonging, unduly and artificially, any such detention.

Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police.  Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual.  The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest.

In this case, the seizure of the marijuana contravened s. 8 of the Charter.  The officers had reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for reaching into M’s pocket.  This more intrusive part of the search was an unreasonable violation of M’s reasonable expectation of privacy in respect of the contents of his pockets.  Moreover, the Crown has not shown on the balance of probabilities that the search was carried out in a reasonable manner.

The evidence should be excluded under s. 24(2) of the Charter.  The trial judge erred in ruling the evidence inadmissible on the basis of trial unfairness because the marijuana was non-conscriptive, but his decision to exclude it was correct.  The search went beyond what was required to mitigate concerns about the officer’s safety and reflects a serious breach of M’s protection against unreasonable search and seizure.  When the officer reached into M’s pocket, the purpose of the search shifted from safety to the detection and collection of evidence, and the search became one for evidence absent reasonable grounds.  While a frisk search is a minimally intrusive search, the search of M’s inner pocket must be weighed against the absence of any reasonable basis for justification.  The good faith of the officer is but one factor to be considered alongside other factors which speak to the seriousness of the breach, and good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his authority.  Lastly, although exclusion of the evidence would substantially diminish, if not eliminate altogether, the Crown’s case against M and possession of marijuana for the purpose of trafficking is a serious offence, the nature of the fundamental rights at issue and the lack of a reasonable foundation for the search suggest that inclusion of the evidence would adversely affect the administration of justice.

Jim O'Neil, LL.B.

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