Mr. Justice Shabbits discussed the common-law power of a peace officer to make a lawful investigative detention and the Supreme Court of Canada decision of R. v. Mann, 2004 SCC 52. He then excluded the evidence after considering the line of inquiry for admissibility of evidence as set out in R. v. Grant, 2009 SCC 32.
35 Iacobucci J. says that the general duty of officers to protect life may in some circumstances give rise to the power to give a pat-down search incidental to an investigative detention. Such a search power does not exist as a matter of course. The officer must believe on reasonable grounds that his own safety or the safety of others is at risk. Iacobucci J. says that he disagrees with the suggestion that the power to detain for investigation endorses an incidental search in all circumstances. The officer's decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified.
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37 Iacobucci J. says that an investigative detention should be brief in duration and does not impose and obligation on the detained individual to answer questions posed by the police. He says the investigative detention and protective search power are to be distinguished from and arrest and its incidental power to search.
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42 I have concluded that Constable Bentley did not conduct the search for officer safety incidental to his investigative detention of Mr. Darling. I have concluded that Constable Bentley did exactly what he told Mr. Darling he would be doing - that is to say, he searched Mr. Darling for evidence that Mr. Darling had committed the robbery. He did that without having a lawful basis for arresting Mr. Darling for the robbery - he had no reasonable and probable grounds to believe that Mr. Darling was the robber.
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47 Constable Bentley was not an experienced police officer. He did not know what he was entitled to do during an investigative detention. He was of the mistaken belief that he was entitled to detain for investigative detention anybody leaving the area of the robbery that he reasonably suspected of having been being involved in the robbery, and that he was entitled to search them for evidence relating to the robbery.
48 Constable Bentley's search of Mr. Darling was conducted in a respectful and non-intimidating fashion, and Constable Bentley thought he was acting pursuant to legitimate policing powers. In that sense, at least, he was not acting in bad faith.
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50 In Grant, Chief Justice McLachlin says this:Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith; R. v. Jenest [1989] 1 S.C.R. 59 at page 87 per Dickson C. J.; R. v. Kokesch [1990] 3 S. C. R. 3 at pages 32-33 per Sopinka J.; R. v. Buhay 2003 SCC 30, [2003] 1 S.C.R. 631 at paragraph 59.
51 She writes that wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court disassociate itself from such conduct, and that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
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53 The search of Mr. Darling was a result of deliberate police conduct in violation of established Charter standards. Constable Bentley ought not to have searched Mr. Darling without determining the scope of his authority to search.
54 In my opinion, the seriousness of this Charter infringing state conduct supports exclusion of the evidence.
