R. v. Castle

2022 BCSC 1292 R. v. Castle IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Castle, 2022 BCSC 1292 Date: 20220622 Docket: 42081-2 Registry: Duncan Regina v. Brandon Alexander Castle Before: The Honourable Madam Justice Sharma Oral Reasons for Reasons (Voir Dire) Counsel for the Crown: T. McFadgen Counsel for the Defence: C. Hodson Place and Date of Trial/Hearing: Duncan, B.C. June 20-22, 2022 Place and Date of Judgment: Duncan, B.C. June 22, 2022 [1] THE COURT: Brandon Alexander Castle is charged with five counts of possession of controlled substances, namely fentanyl, heroin, cocaine, methamphetamine, and LSD, for the purposes of trafficking, contrary to ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [2] This is my ruling on a voir dire considering the validity of a pat-down search conducted on Mr. Castle. He submits that the search violated his rights under s. 8 of the Charter, and the evidence should be excluded. In his application filed in April 2022, he also raised a challenge based on s. 10(a) of the Charter, but Mr. Castle has abandoned that. [3] Although Mr. Castle bears the burden to persuade the court on a balance of probabilities that his rights have been infringed, because the search was warrantless, it is presumed to be unreasonable, and the Crown has the onus to demonstrate it was authorized by law and carried out in a reasonable manner. FACTS [4] Mr. Castle was detained, searched and arrested, and released on September 19, 2020. The two officers involved in that interaction were Constable Matthew Laing and Constable David Grey. Both testified during the voir dire. The parties also agreed to a number of admissions, pursuant to s. 655 of the Criminal Code, R.S.C., 1985, c. C-46, relating to the chain of custody and proof of the substances seized. [5] I find both officers to be candid, fair, and straightforward in their testimony. They were not evasive or argumentative during cross-examination and made fair concessions when appropriate. I find their evidence was not shaken during cross-examination. For the most part, their evidence was consistent, although there are a few differences in their account of that evening. Uncontroversial Facts [6] Both constables are officers with the Duncan/North Cowichan RCMP. Both have been members of the RCMP since 2016. They were on duty, starting the late afternoon of September 19, 2020. They were both members of the street crime unit. Its mandate is the investigation of prolific offenders and enforcement of drug and property crimes. Members of the unit do curfew checks and assist with major crime investigations. [7] Although Officer Grey was unsure, I find that both were in police uniform (rather than plain clothes), driving in an unmarked police vehicle on September 19, 2020. Except for the lack of identifying decals on the outside of that vehicle, and the location of emergency lights within the vehicle (rather than on top), it was identical to a marked police vehicle. [8] With regard to their interaction with Mr. Castle, my findings are as follows: a. At about 8:30 p.m., they were in an unmarked vehicle, driving eastbound on Trunk Road in Duncan. Trunk Road feeds into Highway # 1. Officer Laing was driving. b. At the point where the interaction started, Trunk Road has two lanes of traffic going each way. It was a clear and dark evening. c. As they were driving eastbound on Trunk Road, there was a truck in front of the police vehicle, in the left lane. They noticed the truck brake suddenly, for no apparent reason, causing Officer Laing to brake quickly. Both officers testified the braking was strange, as there was no other traffic. They then saw a cyclist in front of the truck. The cyclist crossed the two westbound lanes of Trunk Road and turned left onto St. Julien Street. They surmised that the cyclist cut the truck off. They were concerned, as they believed the cyclist almost got hit by the truck. d. The cyclist was not wearing a helmet, and there were no lights on the bike. e. The officers followed the cyclist, intending to stop him with regard to Motor Vehicle Act, R.S.B.C. 1996, c. 318, violations and to speak to the cyclist about safety, given the lack of helmet and lights. To do so, Officer Laing turned left onto St. Julien Street. f. The officers' testimony differs on when the emergency lights were engaged and whether the cyclist delayed in stopping, which I address later. In any event, the emergency lights were activated, and the police vehicle stopped just ahead of the cyclist, parking at an angle towards the sidewalk. The officers refer to this as the vehicle "nosing in" towards the sidewalk where the cyclist was. g. Officer Laing took the lead in the interaction, and Officer Grey provided back-up or cover. h. At that point, when the vehicle pulled up to the cyclist, Officer Grey recognized the cyclist as Mr. Castle, and he then got out of the vehicle. Officer Laing also got out of the vehicle and immediately recognized Mr. Castle. He had to walk around the front of the vehicle to approach him. i. Officer Laing explained to Mr. Castle that he was stopped to discuss his lack of helmet and lights. Officer Laing also told Mr. Castle he was going to conduct an officer safety pat-down search. At this point, Officer Laing was about ten to 15 feet away from Mr. Castle. j. Officer Laing directed Mr. Castle to get off his bike and remove the backpack he was wearing. k. Officer Laing indicated he would start the pat-down search, and at this point Mr. Castle reaches towards his waistband at the back. Officer Laing was concerned by that movement, and he told him not to reach for anything, but Mr. Castle continued and replied he was grabbing his phone, which he did. It was attached to his belt with a clip, and he removed it and placed it on the ground. l. Mr. Castle was wearing a long-sleeve sweater, which I understood to be a hoodie with a large front pocket near the waistband, accessible from both sides. Both officers testified that as Mr. Castle reached down to put the phone on the ground, his hoodie lifted slightly and they could see another object on his belt. Officer Laing recognized it as a Leatherman multi-tool, which he was aware contained a knife. He removed it from the belt and placed it on the ground. m. Officer Laing directed Mr. Castle to put his hands on his head, so he could conduct the pat-down search. n. Officer Laing started the pat-down search, but as his hands reached Mr. Castle's torso, Mr. Castle moves his arms down, and Officer Laing had the impression he was attempting to reach the front pocket of his hoodie. Officer Grey said it was only his right arm, but I find it immaterial whether Mr. Castle moved one or both arms. o. Officer Laing told Mr. Castle to stop and place both arms on his head. He began the pat-down search again, and again Mr. Castle reached towards the front of his hoodie. At this point, both officers placed Mr. Castle in handcuffs. p. Officer Laing then concluded the pat-down search. He saw a noticeable bulge in the front pocket of Mr. Castle's hoodie. He testified that he had encountered people having needles numerous times, and knowing Mr. Castle was possibly a drug user, he was concerned that if he reached in, he may get poked by a needle. For that reason, he peered into the pocket with his flashlight and could see there was a small box whose end appeared to measure about 1.5 inches square, although he could not tell the length of the box. q. He removed the box from the pocket. He estimated it was about three inches long. He opened the box and saw a number of baggies containing what he suspected was fentanyl. [9] At this point, Mr. Castle was arrested for possession for the purpose of trafficking, and Officer Grey took him into custody, placing him in the back of the police vehicle. Officer Grey advised him of his right to counsel. Mr. Castle declined. [10] The officers then conducted a search, incidental to arrest, of the backpack. In it, they found another multi-tool object containing a knife, another cellphone, a clear bag containing a number of individually wrapped packets of what turned out to be crack cocaine, a small plastic container containing what turned out to be crystal methamphetamine, and a wallet containing what turned out to be LSD. The items were seized, and Mr. Castle was then released from police custody at that time without further procedures being instigated. [11] The officers estimated that the entire incident, from the moment the truck braked until Mr. Castle was released from custody, was about 18 minutes. The officers estimated that Mr. Castle was stopped on St. Julien Street between 30 seconds and a minute after they noticed the truck braking. Testimony about Why Pat-Down Search Was Done [12] The testimony was clear that after getting out of the vehicle and upon recognizing Mr. Castle and being aware of his history, Officer Laing decided very quickly to do a pat-down search. Defence emphasized the decision was made in haste, and contends that at that point there was insufficient concern for an imminent threat to justify the pat-down search. [13] Officer Laing testified the following factors led him to that decision. a. His past experience with Mr. Castle, including that: i. Mr. Castle was likely a drug user and his residence is a possible drug house; ii. Mr. Castle was involved in three or four drug-impaired driving investigations; iii. Mr. Castle's strange behaviour in cutting off the truck, while cycling; iv. Mr. Castle was a suspect in at least two thefts of motor vehicles, and Officer Laing had some involvement with one of those investigations, where it was alleged Mr. Castle stole a vehicle, abandoned it, and then fled; v. Mr. Castle's fairly large stature, and the fact that it was dark outside. b. Combined with his knowledge of Mr. Castle, Officer Laing relied on his experience and training to articulate why he decided to do the search, including that: i. suspects involved in breaking and entering or stealing vehicles may have instruments of theft with them, which can include pry bars, screwdrivers or other sharp objects which can be used as weapons. He was taught to be on high alert in such situations; ii. his experience was that, more often than not, people involved in these types of property crimes are homeless and addicted to drugs, and those individuals often carry knives for their own protection and to assist in property crimes. As already noted, he was aware that Mr. Castle was possibly a drug user; iii. he has encountered many people using drugs and is aware that they can be calm one minute and behave erratically and illogically the next. He recalled an incident of a person who was calm one minute and then assaulted three officers; iv. his experience suggested that when people have a knife or "edged weapon", 95% of the time it is concealed, meaning it cannot obviously be seen when looking at the person. He recalled an incident when someone had a small knife, of only about one and a half inches long, in a leather bracelet worn on the wrist. [14] Officer Laing also mentioned his safety concern was raised because Mr. Castle did not immediately stop when the lights were engaged, which is a topic where the evidence was inconsistent between the officers. Did Mr. Castle delay in stopping after lights were engaged? [15] The officers' testimony was quite consistent in terms of the location where the cyclist stopped and the timing of the stop. However, they differed on one aspect, which the defence submits is significant. [16] Officer Laing testified that after engaging the lights, the cyclist slowed down a bit, but "made no sign" of stopping. He explained, in part, that is why he drove ahead of him and "nosed" in the vehicle, in order to get out and physically block him from moving. [17] Both officers testified that the cyclist stopped not too far down the block. Their estimate of distance (in yards or feet) differed, but in relation to landmarks it was very similar. [18] Officer Laing testified that he activated the emergency lights on the vehicle either before turning onto St. Julien Street or while still engaged in that turn. He testified by the time the vehicle was on St. Julien Street, the lights were already engaged. [19] Officer Grey's testimony was different. He said the lights were engaged once they were on St. Julien Street. [20] When the lights were engaged relates to the issue of whether Mr. Castle delayed stopping or not. That matters because Officer Laing testified that the failure of the cyclist to stop right away informed, in part, his decision to do a pat-down search. Officer Grey's testimony was that the cyclist stopped immediately after the lights were engaged. [21] Officer Laing explained that when police conduct a vehicle stop, depending on the circumstances, a delay is suspicious and, therefore, is relevant to his risk assessment. In his experience, a person may not stop immediately because they are trying to get rid of an item such as a weapon or something else they are not supposed to have. There are times when the reason for the delay is because a person is attempting to hide or dispose of items, or may indicate an intention to try and flee. He mentioned examples of people trying to switch seats in a car. [22] In his mind, during this incident, there was no reason, such as busy traffic, for a delay, making the delay suspicious. [23] The officers' testimony of the delay did differ, but I do not find that difference to reflect poorly on either officer's credibility or reliability. This was a very short interaction that took place almost two years ago. The entire incident lasted less than 20 minutes, and that portion of the incident being challenged was perhaps only a minute long. [24] Nevertheless, there is an inconsistency in their evidence. [25] Crown emphasized the evidence was consistent that Officer Laing, not Officer Grey, made the decision to conduct the pat-down search of Mr. Castle without discussion. That being the case, Crown argues, it is his subjective belief that matters, not Officer Grey's. [26] That analysis is sound, but I understand defence' position to be that I should reject Officer Laing's testimony that he perceived a delay, to the degree that it subjectively contributed to a safety concern. Its point is that, looking at all the evidence, I should not be satisfied there was a delay; That undermines significantly Officer Laing's evidence that he was alerted to safety concerns by Mr. Castle's behaviour. [27] Defence further points out that the reasons Officer Laing gave for being on alert, when someone does not stop or pull over immediately, simply do not apply to the situation at hand, because they apply to vehicle stops, not bicycles. This was bolstered by the officer's specific, reference that people switch places or try to hide items. I agree there could be no switching of places, but I do not agree that someone on a bicycle could not try to hide something on their person or try to dispose of something, while riding, requiring some delay in stopping. I accept that it is less likely to arise on a bicycle, but I do not agree it is implausible. [28] Defence also argues that the possibility of the cyclist fleeing was unrealistic, and again, I do not necessarily agree, although I accept it has a different degree of risk than a vehicle. It has a different contribution to someone's assessment of risk than when a vehicle does not stop immediately. [29] I find the behaviour of cutting off the truck is consistent with Officer Laing's expressed concern. It may be risky behaviour, in terms of the cyclist's safety, but it also could be behaviour of someone wanting to get away from an unmarked, but identifiable, police vehicle. [30] I also note that while their evidence differed, whether someone stopped immediately or delayed in stopping is not a black and white issue, but requires observation, perception, and judgment. Defence points out that both officers agreed that where Mr. Castle stopped was not a great distance on St. Julien after the turn, which defence argues is more consistent with Officer Grey's testimony than Officer Laing's about stopping immediately. I am not sure this is necessarily true. [31] However, it is on this point that the testimony about when the lights were engaged is relevant. If Officer Grey's testimony is accepted and the lights were engaged after the police vehicle completed the turn onto St. Julien Street, and both officers agreed the bike stopped not too long a distance thereafter, the delay seems less plausible. However, if the lights were engaged before or during the turn, even though the bike stopped not too far down the block, the perception of the delay becomes more plausible. [32] Defence also questioned whether it would be fair to characterize any delay as suspicious when the sirens were not engaged. I accept the defence's position that the evidence made it more probable than not that the sirens were not engaged. [33] However, Officer Laing disagreed that the lights alone would not have been noticeable to alert someone to stop. He said it was dark, and the lights would have been visible on their own, even from the back, and especially because they reflected off buildings. He did not agree that the lack of sirens would make the failure to stop immediately unsuspicious. I find his testimony reasonable and credible on this point. [34] Another basis to diminish Officer Laing's subjective suspicion in a safety concern would be to reject as not credible or reliable that Mr. Castle did delay in stopping. This would be based on accepting Officer Grey's testimony on that point and rejecting Officer Laing's. [35] I find both officers to be candid and honest. To the degree their evidence differed, I do not find they were intentionally not being accurate. However, the issue is which of the officers' recollection is more reliable, as to whether Mr. Castle stopped immediately or not. [36] Overall, I prefer the evidence of Officer Laing for a number of reasons. He was driving and was effectively the lead officer. While they agreed they may have commented that the cyclist almost got hit by the truck, they did not discuss what to do. Since Officer Laing was driving, he decided to follow and stop the cyclist, and I find it more probable than not that he was both more alert and attentive to the circumstances at that time. Therefore, I find that he had better recall of this aspect of the interaction. [37] For those reasons, I find Officer Laing's testimony that Mr. Castle did not immediately stop is reliable and credible. Accordingly, I do find there was a noticeable delay in Mr. Castle stopping after the police vehicle lights were engaged. [38] Therefore, I accept that the incident of a cyclist cutting off the truck at night, causing it to brake suddenly, which also caused Officer Laing to brake, did subjectively raise in Officer Laing's mind a concern not only about the cyclist's safety but the possibility of suspicious activity on the part of cyclist. LEGAL PRINCIPLES [39] For the most part, there was no dispute about the applicable legal principles. The leading case is R. v. Mann, 2004 SCC 52. In that case, the Supreme Court of Canada confirmed police have a common law power to detain and search individuals for investigative purposes. That detention must be viewed as "reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence" (para. 34). [40] Searches incidental to investigative detention are warrantless and must meet the three factors articulated in R. v. Collins, [1987] 1 S.C.R. 265 at para.36: authorized by law, the law itself is reasonable, the manner in which the search was carried out was also reasonable. The Crown bears the burden, on a balance of probabilities, to prove a warrantless search can meet the test. [41] The Court, in Mann, confirmed the power to search incidental to investigative detention exists in common law, flowing from the general scope of a duty to protect life and property (para. 38). That general duty can, in some circumstances, give rise to the power to conduct a pat-down search incidental to investigative detention. However, that does not exist at all times.The officer must "believe on reasonable grounds that his or her own safety, or the safety of others is at risk" (para. 40). It must be reasonably necessary, in light of the totality of circumstances, and cannot be justified on "vague or non-existent concern for safety", hunches, or mere intuition (para. 40). The officer must be acting on reasonable and specific inferences drawn from the known facts of the situation and confined in scope to intrusion reasonably designed to locate weapons (para. 41). [42] Once an officer has "reasonable grounds to suspect in all the circumstances the individual is connected to a particular crime", and where in the circumstances, the officer has reasonable grounds to believe someone's safety is at risk, the officer may engage in a protective pat-down search (para. 45). [43] However, in Mann, the Court concluded the officer exceeded the investigative detention search power. That is because the officer went beyond an initial pat-down and reached into the detained person's pocket, after feeling a "soft object". The more intrusive act of reaching into the pocket violated the person's expectation of privacy, and s. 8 was breached. [44] Another important case is R. v. MacDonald, 2014 SCC 3. In that case, the police responded to a noise complaint. Upon knocking on Mr. MacDonald's door, the officer observed there was an object in his hand, hidden behind his leg that was "black and shiny". Mr. MacDonald refused to answer what it was, so the officer pushed the door further open a few inches to see what it was. It was a firearm. [45] The majority of the Supreme Court of Canada concluded that the act of pushing the door open constituted a search, however, the search was held to be justified because it fell within the scope of the officer's common law duty to protect life and safety, even though the case did not involve the detention of a person. Regardless, on behalf of the majority, Justice LeBel made the following comments at (paras. 40-41): [40] I am convinced that the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search. [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41). [46] Counsel identified that the wording in some cases. about what has to be demonstrated to justify the search incidental to investigative detention may be confusing, because the phrase "reasonable grounds to believe" suggests a higher standard than the reasonable suspicion standard. [47] The issue was addressed in R. v. Webber, 2019 BCCA 208, because the appellant argued, among other things, that the trial judge erred by applying the reasonable suspicion standard to the search conducted, rather than a reasonable ground to believe. It is recognized that the latter is the equivalent to reasonable and probable grounds to believe (see para. 46). [48] The Court of Appeal suggests that the wording used in Mann itself has led to some difficulties. Nevertheless, it relied on R. v. Chehil, 2013 SCC 49, where the Supreme Court of Canada referred to "reasonable suspicion" as a sufficient threshold to justify safety searches in certain investigative contexts, including limited searches incidental to detention (para. 59). [49] In my view, the issue, at least in British Columbia, is resolved by Webber: [61] In the result, in my view, this Court is free to follow the reasonable suspicion standard as set out by the unanimous court in Chehil and which is at least implicit in Mann. I agree with the minority in MacDonald that the whole context of the discussion in Mann, including the "history from which Mann emerged", lead to the same unavoidable conclusion: "Mann recognized a protective search power predicated on reasonable suspicion" (at para. 86). (See also R. v. Bassi, 2019 BCSC 1224 at para. 73.) [50] Furthermore, the Supreme Court of Canada has recently reiterated that Mann continues to be the controlling case with respect to pat-down searches in R. v. Tim, 2022 SCC 12 at para. 53. [51] Moreover, having the same lower standard applying for both detention and safety searches accords with logic, as explained by Justice Fitch in R. v. Patrick, 2017 BCCA 57 at para. 93: [93] It would be incongruous to bring a more restrictive interpretation to the scope of permissible searches in an investigative detention context - a context in which the police have already formed reasonable ground to suspect that the detained individual is connect to a particular crime and that his or her detention is necessary - than in the safety context. [52] As counsel noted, if the higher reasonable and probable grounds test were to apply, then the police would be in a position to arrest, and the common law power of search incident to detention, affirmed by the Supreme Court of Canada in Mann, would effectively be superfluous. This would be illogical and incompatible with the reasoning in Mann to recognize that power. [53] Thus, the applicable standard for safety searches incidental to investigative detention is a reasonable suspicion of a risk to safety. The inquiry is done through the lens of a reasonable person standing in the shoes of a police officer (Webber at para. 62), and in light of their training and experience (Webber at para. 64). Justice Fitch provides a helpful summary of the power to search incidental to investigative detention, in Patrick at para. 94: [94] I take from these authorities the following points. First, the power to search incident to a lawful investigative detention is not necessarily restricted to a physical pat-down of the person detained. Second, whether the search was justified and conducted in a reasonable manner must be assessed in light of the rationale underlying the common law power itself - the prevention of avoidable harm through a brief and minimally intrusive search. Third, the public duties of police officers oblige them to interact with members of the public in potentially dangerous situations; they must be allowed reasonable latitude in determining how to conduct the search in the context of the particular case. As this Court noted in Crocker at para. 72, detainees may be in possession of weaponry of microscopic size. As this case illustrates, detainees may be in possession of concealed, loaded firearms. Detainees may also be in possession of concealed sharp objects like knives or uncapped hypodermic needles that could seriously injure an officer conducting a pat-down search if no prior inquiry is made of the detainee about whether they are in possession of any such items. Imminent Threat [54] However, counsel identified another possible debate regarding the specific wording of the test, and that is whether the court must be satisfied that the search was necessary because of the existence of an imminent threat. [55] The debate is addressed in R. v. A.R., 2021 BCSC 1539, a recent decision of Justice Crossin. The Crown, there, argued that the Court of Appeal in Webber did not use the phraseso there is no requirement in B.C. to demonstrate imminent harm when justifying a search incidental to detention. [56] Justice Crossin reviewed Mann at paras. 56- 61 of his judgment, and then turned to MacDonald, noting that the Supreme Court of Canada again referred to the Waterfield test as being relevant, as it had been in Mann. After noting that in MacDonald Justice LeBel reviewed the factors relevant to balancing the police duty to protect life and safety against the individual's liberty interest, Justice Crossin noted that the terms "imminent threat" appeared several places in the majority judgment of MacDonald (paras. 40-41, 43, 46- 47). [57] Before Justice Crossin, the Crown emphasized that in MacDonald, there was no detention, and the Court of Appeal considered both MacDonald and Mann, although for a different purpose, but did not use the term "imminent threat". Crown also argued that imminent threat was not relevant to a search incidental to detention, but only in situations like MacDonald, where there is no detention, but a safety risk legitimately exists, sometimes referred to as a stand-alone safety search. Crown's position was that MacDonald, together with the Supreme Court of Canada cases R. v. Aucoin, 2012 SCC 66 and Chehil, demonstrated a different test for stand-alone searches (requiring an imminent threat) versus searches incidental to detention. [58] Justice Crossin noted that many cases in this Court have stated a requirement for imminent threat or harm, for a search to be lawful (para. 82 and cases listed therein), although he also noted cases which have found incidental searches valid without referring to imminent threat, notably Bassi. Furthermore, in R. v. Aikman, 2019 BCCA 318the Court of Appeal distinguished MacDonald from Mann on that issue. [59] Justice Crossin then commented at paras. 87-88: [87] With respect, I do not interpret our appellate jurisprudence directing a narrow or restrictive reading of MacDonald. In addition, I do not take the silence on this issue by the Court in Webber as rejecting the imminent threat or harm requirement in searches incident to investigative detention. It does not appear to have been squarely before the court. [88] It is fair to say however, appellate jurisprudence across Canada has not always taken the opportunity to fully explore the legal requirements relating to searches incident to investigative detention. [60] He then discussed some Ontario cases. One was R. v. Peretkin, 2015 ONCA 8, where the court was alive to the issue but declined to comment on it, on the basis that the facts before that court clearly involved a stand-alone search, and the facts met the arguably higher standard set by MacDonald. [61] In another, the Ontario Court of Appeal was alive to the issue. In R. v. Le, 2018 ONCA 56, which involved an investigative detention search, but the issue was not fully argued. [62] In R. v. McGuffie, 2016 ONCA 365, Justice Doherty appeared to refer to imminent threat in investigative detention. [63] Justice Crossin also discussed cases from other jurisdictions (para. 92). [64] He ultimately concludes that imminent threat remains part of the B.C. law, for both stand-alone and investigative detention searches, but agrees that only requires that the evidence evince something more than a vague or general concern, and there need not be evidence of a need to repel an immediate attack. He stated at paras. 93-96: [93] While it might reasonably be argued the Supreme Court of Canada has not spoken definitively on this point, the task of this Court is to apply the law, as I understand the law to be, to the facts of this case, in relation to this offender. I am satisfied that the law as it stands in B.C. supports the requirement that there be an "imminent threat" concerning searches incident to investigative detention. In my view importing such a requirement accords with the principles in Mann and MacDonald that police safety searches be constrained by "objectively verifiable necessity": MacDonald at para. 31, citing Mann at para. 26. The requirement of necessity follows as a matter of logic from an imminent threat. [94] At the hearing of this matter, the Crown submitted that an "imminent threat" should not demand a requirement of immediacy, such that a safety search would only be justified in cases of repelling an immediate attack. The Crown argues that the police power for safety searches must account for the changing and dynamic nature of policing, and must not be confined to situations in which an officer is defending against an immediate attack or threat. [95] I agree with the Crown. It makes little sense to demand a requirement that the threat be immediate. This would make a lawful safety search authorized only in situations necessary to repel a threat that was thought to be occurring instantaneously. The "imminent threat" in MacDonald was the observance of a black and shiny item behind Mr. MacDonald's case. There was no indication that an attack would immediately follow the officer's observation of that item. [96] In my view, the jurisprudence simply demands the imminent threat or harm must be more than a vague and general concern for safety. The police must act, as was stated in Mann "on reasonable and specific inferences drawn from the known facts of the situation". This also recognizes that policing is not a static exercise and circumstances in any given situation are dynamic. [65] In my view, I am obliged by the rule in Hansard Spruce Mills to follow this recent decision of my colleague. Justice Crossin clearly engaged the identical issue raised before me. He reviewed extensive authorities, not only in B.C., but from other provinces, and fully explained his reasoning. This is a thoughtful and detailed consideration of the issue before me. [66] In light of that, I agree there is a requirement of imminent threat when analyzing the test for a search incidental to detention. I also agree that imminent threat does not mean the evidence must show something happened that required police to repel and attack that is about to happen. This accords with the previous discussion from the case law, more generally, in Bassi and Patrick, and others, that there need not be any overt sign of aggression from a detainee for police to have a subjective concern for safety, based on reasonably objective grounds. ANALYSIS [67] The defence submits the evidence falls short to justify the pat-down search of Mr. Castle. In the alternative, if the court finds the circumstances justified a search, Mr. Castle contends removing the box from his hoodie and opening it went beyond that justification and was unrelated to the concern for safety, thereby breaching his s. 8 rights. [68] The Crown argues looking at the totality of circumstances, the search, including retrieval and opening the box, were justified. Was the pat-down search lawful? [69] Defence emphasizes that the decision to conduct the pat-down was made quickly, at the moment Officer Laing recognized Mr. Castle. This accords with his testimony. [70] The issue then is whether, at that point, the evidence demonstrated that Officer Laing had a reasonable suspicion of a risk to safety. That suspicion must be grounded in objectively discernible facts, or reasonable and specific inferences drawn from known facts, not based on hunches, mere intuition, or vague concerns for safety. [71] Defence submits the evidence falls short, for a number of reasons. While defence accepts that Officer Laing's articulation of why he decided to do the pat-down search touched on concerns that could be relevant to safety, it submits they must be analyzed in the context of the situation before the officer as it was unfolding. Viewed from that perspective, the defence submits, each of the concerns articulated to justify his suspicion of a risk to safety are diminished to the point that the totality of evidence cannot meet the test from Mann. [72] Part of Officer Laing's decision was based on his experience that Mr. Castle was a drug user, lived in a possible drug house, and had three or four driving while impaired by drugs incidents, combined with his experience and knowledge of the sometimes erratic, unpredictable, and illogical behaviour of people under the influence of drugs. [73] Defence points out that both officers agreed that upon encountering Mr. Castle, they had no indicia that he was under the influence of drugs. Similarly, Mr. Castle submits his history of driving while impaired by drugs must be militated, given the officer's confirmation that he was not presenting as someone influenced by drugs that evening. [74] The defence emphasizes the following were incompatible with Officer Laing's subjective belief that Mr. Castle presented a safety risk: a. Mr. Castle was sober, and his stance was stable. b. He was calm and in control of the bike. c. He did not display "blading: behaviour, which was understood to be someone positioning their body to hide a large weapon, such as a machete. d. He did not appear nervous or fidgety, and there was no indication that he was thinking about fleeing. e. He complied without difficulty with directions to dismount the bike, take off his backpack, and put his hands on his head. [75] The Crown's position is that the case law makes it clear that one must look at all circumstances. It also emphasizes that the focus is on the police's perception of the risk, even absent overt aggressive actions by the detainee. The lack of overt, threatening behaviour does not diminish the reasonability of officer's subjective belief. [76] I agree. This was explained in Bassi at para. 77: [77] In other words, if the police reasonably suspect that there is a risk to their safety, they are entitled to take minimally intrusive steps to proactively ensure their interim safety rather than only being reactive once violent behaviour has erupted. Placing undue emphasis on a lack of aggression in the analysis is inconsistent with the rationale underlying the power to search incident to an investigative detention being the prevention of avoidable harm: Patrick at paras. 71-72; R. v. Willis, 2003 MBCA 54 at para. 33-38. [77] Also, as stated in Patrick, "the issue is not whether the detainees manifested behaviour giving rise to reasonable safety-based concern, but whether [the officer]'s subjective perception of the risk to officer safety was reasonable in all the circumstances" (para. 70). Justice Fitch stated this approach was consistent with the underlying rationale for the power to conduct investigative detention searches, which is the "prevention of avoidable harm" (para. 71). The trial judge in Patrick placed primary importance on the absence of actions taken by detainees to confront the police. The Court of Appeal found that overwhelmed the analysis and tainted the ultimate conclusion (para. 72). [78] In my view, this answers, to a very large degree, defence counsel's submissions related to Mr. Castle's behaviour as being calm and sober. His lack of aggressive or assertive behaviour cannot negate the reasonableness of Officer Laing's suspicions, based on his knowledge and experience. [79] I find Officer Laing articulated with detail and thoroughness why he had safety concerns. This was not a generalized "drug users are unpredictable" rationale. He was aware of specific incidents where Mr. Castle was suspected to have driven while impaired with drugs, and possible vehicle thefts, including one where he may have fled the scene. He was suspected to live in a drug house and was known to be a possible drug user. This was not a hunch. It was a concern based on facts known to the officer. [80] In Webber, the Court of Appeal quotes with approval its earlier decision in R. v. Crocker, 2009 BCCA 388, noting that the "court should exercise restraint in second guessing an officer's testimony as to their honest belief in the need for a protective safety search where the officer can 'articulate reasonably clear and focused reasons that inform their risk assessment" (Webber at para. 48, quoting Crocker at para. 71). I find both officers clearly articulated, with clear reasoning, their concerns about safety. [81] Moreover, defence focused on behaviours that were exhibited and apparent to officers only after the decision was made to pat down, not before. While I accept the situation unfolded quickly and was evolving, it is difficult to see how the lack of aggressive behaviour, after a decision has been made, could operate to negate in the officer's mind suspicions of safety, for the reasons stated in both Patrick and Bassi. [82] Also, I do not discount Officer Laing's testimony that drug users can behave in unpredictable, sudden ways. Again, this was not a generalized statement but was accompanied by a specific example of a previously calm person who then had to be subdued by three officers. [83] On this point, I also find it relevant and significant that the reason for the stop was the cyclist cutting off the truck, at night. Not only was there a concern for the cyclist's safety, but that type of reckless behaviour, once it was known to be someone possibly associated with drug use, provided clear, cogent, and reasonable reasons for Officer Laing to suspect there could be a safety risk. [84] In Patrick, the Court of Appeal held the trial judge erred in concluding the only safety concern was an incident of noncompliance by the detainees in not showing their hands when getting out of their vehicle. The Court of Appeal held that conclusion ignored other evidence, including the reputation of detainees for violence, their known connections to the drug trade, and other factors, including that it was a vehicle stop in darkness. [85] I find those factors apply here, and importantly, they were present in Officer Laing's mind when he decided to conduct the pat-down search. [86] Even if behaviour after the decision was made could operate to temper the officer's subjective belief, I disagree with defence's characterization that Mr. Castle was compliant and cooperative. He did follow directions to dismount the bike, remove his backpack, and initially to place his hands on his head, but twice he removed his hands from his head and attempted to reach something lower on his body. Not only is this noncompliant, I find it is behaviour inherently suspicious of possible risk; the person may have been reaching for a weapon. [87] I also note that upon being approached and told there would be a pat-down search, Mr. Castle moved his hand to his waist at the back. While it turns out to be true that he was only grabbing his phone, this was unknown to the officer at the time, and Officer Laing immediately directed him not to reach for anything, a command Mr. Castle ignored. That motion, again, was inherently suspicious. [88] Defence argues that the movement had a more innocent explanation, as it may have followed the direction to put down his backpack on the ground. Even if so, to the approaching officers, it was reasonable to view that as a possible sign of noncompliance consistent with a possible risk to safety. [89] Mr. Castle was also suspected to have been involved in thefts of vehicles, and Officer Laing testified his experience led him to suspect he may have had tools with him. His training indicated that placed him in a position of high alert. Defence argues that concern was unconnected to the circumstances that led to his being stopped--riding a bike without a helmet and without lights, and cycling in a dangerous fashion. On that basis, Mr. Castle suggests, whatever relevance that information may have had, it was insufficient to provide a reasonable basis for Officer Laing's subjective concerns about safety. [90] I do not agree. The concerns about risks to safety are not limited to arising only from the particular suspected infraction justifying the detention. In Patrick, the vehicle was stopped for a suspicion of being stolen. The factors leading to the officer's concerns about safety related to factors well beyond that (para. 24). Similarly, in Webber, the purpose of the stop was erratic driving, but upon further facts unfolded, including the observation of possible hiding behaviour and information from a search of the licence plate, the officers had a heightened concern which justified a pat-down search. Safety concerns, therefore, could be said to be unrelated to the situation that presented itself to the officers upon detention. [91] The purpose of allowing a pat-down search is the avoidance of preventable harm. The concerns cannot be vague or based on hunches or intuition, but nothing in the cases I was directed to suggested that they must be strictly circumscribed only by the risks that are inherent to the precise behaviour that justified the stop. It is true the test requires that forming a decision to pat down out of safety, the police must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann at para. 41). As discussed, those known facts can include the officer's training, experience, and knowledge of background, including suspicious previous activities of the persons being detained. [92] Among other things, this is necessary to adequately account for the inherently dynamic, unpredictable, and sometimes dangerous context in which police officers are obliged to discharge their duties: Patrick at para. 61. [93] The defence also argues Mr. Castle's stature cannot be related to a concern about weapons, especially when combined with his presentation as being calm and cooperative. I did not understand Officer Laing to suggest his stature alone justified a safety concern, but his knowledge as a drug user and possibly carrying theft tools combined to the make the fact of his stature a concern. I accept that, although I find it does not weigh heavily in favour of a reasonable justification for the pat-down, but I do not agree it is irrelevant. [94] Defence also says it being dark outside was an irrelevant consideration, in terms of safety. I diagree. The Court of Appeal, in Patrick, identified a roadside stop at night as being part of the constellation of factors that formed the reasonable basis for the officer's subjective belief in safety risks. [95] Despite this being a brief encounter, the case law is clear that police are in a vulnerable position when performing their duties, and that roadside stops are unpredictable, dynamic, and potentially dangerous situations. That does not mean that every roadside stop justifies a search incident to detention, but I am satisfied that the officer's subjective safety concerns, which I accept were credible, were reasonably grounded in the situation he encountered and the facts he observed, based both on his knowledge of, and experience in dealing with, Mr. Castle, and his training. [96] I also find it significant and relevant that very shortly after the decision was made to conduct the pat-down search, an undisclosed weapon was located on Mr. Castle. Even if the circumstances thus far had not strongly justified the pat-down search (a finding that I do not make), that discovery, in my view, would have justifiably heightened the situation considerably to have made it reasonable to conduct the pat-down. Specifically, I find the discovery of the weapon does fit within the imminent threat, as that term is understood in the case of A.R. [97] In all those circumstances, I conclude there existed reasonable grounds, based on facts known and observed, for Officer Laing to suspect and indeed believe his safety was at risk by an imminent threat of harm, and the pat-down search does not violate s. 8. Did retrieval of box exceed permitted scope of search? [98] Defence argues if the court concluded the pat-down search was lawful, the retrieval of the box and opening it went beyond the parameters of the pat-down search and violated Mr. Castle's s. 8 rights. For that reason, he contends, the evidence obtained from that and subsequent search of his backpack should be excluded. In the event the court agrees, the parties stated they would address the 24(2) issues after the ruling. [99] The Crown submits, given all the circumstances, Officer Laing's search of Mr. Castle's hoodie pocket, retrieval of the box, and opening of it were all authorized as searches incidental to the detention being done for safety. [100] There is no doubt that a search incidental to detention, flowing as it does from the general duty of officers to protect life and property, does not exist as a right. The search itself must be reasonably conducted (as per Collins) in light of all the circumstances. [101] The search must be "confined in scope to an intrusion reasonably designed to locate weapons" (Mann at para. 41), Further, the Court, in Mann at para. 45, stated that the detention should be brief in duration and both it and the connected protective search are distinct from arrest and the incidental powers search on arrest. [102] In Mann, the Court concluded there were reasonable grounds for a protective search, and the facts were that the police approached the scene of a break and enter, and Mr. Mann matched the description of a suspect walking casually along the sidewalk. They stopped him and did a pat-down search. [103] The Court held that the search was lawful, because "there was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons". The Court also mentioned the encounter was after midnight with no one else in the area. [104] However, the police went beyond the initial pat-down by reaching into Mr. Mann's pocket after feeling a soft object during the pat-down. The Supreme Court of Canada held this was a more intrusive search. It stated that the Court of Appeal, which had overturned the trial judge, failed to give due deference to the trial judge's finding that "there was nothing from which [he could] infer that it was reasonable to proceed beyond a pat-down search for security reasons". [105] Defence submits that reaching into the pocket exceeded the scope of Officer Laing's description of what constitutes an acceptable officer safety search. Officer Laing testified he understood the scope of a pat-down to be a brief, quick head to toe pat-down for weapons, not pulling things out of the pockets, and that it was a search for weapons. [106] Mr. Castle submits that he was cooperative, not aggressive or angry. His position is that at that point the officer sees a box, which was small, the pat-down should have stopped. His position is that by proceeding further, the officer was no longer engaged in a pat-down search for safety, but was wanting to know what was in the box, and this is not an acceptable purpose for a search incidental to detention. [107] Officer Laing was cross-examined on this point and denied that the reason he retrieved and looked into the box was unrelated to his concerns for safety and was only to figure out what was in the box which attracted Mr. Castle's attention. He also agreed that Mr. Castle was cooperative and calm, at that point. [108] Defence argues that because Mr. Castle was handcuffed at this point, there was no realistic possibility that Mr. Castle posed a threat. It also emphasizes that the search was incidental to the detention. The purpose of the detention must be kept in mind, when analyzing the validity of the search. The Court stated in Mann at para. 34: 34 The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. [109] There is no dispute that the purpose of detention and, therefore, the decision to do a pat-down was the possible Motor Vehicle Act violations in terms of lack of a helmet and lights on the bike. Defence argues a search, therefore, must be related to that alone. [110] Crown's position is that the pat-down search was justified for officer safety. The issue, then, is whether, in light of the justification to pat down for safety, the reaching into pocket exceeds the scope. [111] A weapon had already been located on Mr. Castle's person. Officer Laing testified it was concealed. Defence challenges that assertion, saying that the evidence was clear that Mr. Castle made no actions consistent with an attempt to hide it. In fact, he pulled out his phone and put it down, which ended up revealing the tool on his belt. [112] However, as the case law previously discussed makes clear, police are in a vulnerable, unpredictable, and unknown situation. It is reasonable, in the circumstance, for Officer Laing to consider something to be concealed if it is not immediately visible. [113] He also testified that in his experience, weapons, especially knives, are almost always hidden. I agree that officers, when acting in their duties at roadside stops such as this one, are entitled to protect themselves and the public and are entitled, therefore, to consider things they cannot see to be concealed. [114] The situation was evolving, and it would be unrealistic, implausible, and, in my view, contrary to the juristic reasons justifying searches incidental to detention, for officers not to be able to rely on new facts as they emerge. Discovery of a weapon is a significant fact. [115] To the extent that defence argued the multi-tool should not have raised a safety concern because it also contained pliers and surely can be used innocently. I disagree. The tool could clearly and easily be used as a weapon. It therefore represented an immediate risk to safety. [116] Whatever degree of risk existed at that point, I find it was significantly and further heightened by Mr. Castle's motions of removing his hands from his head on two occasions, during the pat-down search and reaching down toward his waist. [117] Most significantly, during the pat-down, I do not agree that Mr. Castle was compliant, even if he was not combative or aggressive. Twice, he removed his hands from his head when instructed to keep them there. He reached towards his waist, where a weapon had been located. [118] The case law stresses that roadside encounters are dynamic, and both counsel agree it is appropriate for officers to take into account the situation as it evolves. [119] In my view, after a decision was made to pat down, the discovery of a weapon and the two attempts of Mr. Castle to reach for something significantly increased any reasonable person's assessment of a possible risk to safety. Therefore, Officer Laing had objectively reasonable grounds to believe whatever risk may have existed when he started the pat-down was elevated. [120] In my view, this necessarily changed the acceptable scope of the safety search. This was not a situation in Mann, where a soft object was felt in a pocket, after a pat-down revealed no weapons. A weapon was located on Mr. Castle by the officer; Mr. Castle did not volunteer its existence. Prior to that, he moved to reach his phone, and I agree that raised a suspicion, notwithstanding that it could also reasonably have been an innocent movement to put his phone on the ground. Once the pat-down started, however, twice disobeying the direction to keep his hands on his head significantly altered the dynamic. [121] This was not a vague concern for safety, based on a hunch or intuition. Instead, Mr. Castle's actions themselves elevated the risk of safety to the officers. In light of that, the officer was justified in searching the pocket precisely because Mr. Castle reached for it, and a weapon had already been located. As noted in Patrick, the court must give latitude to the officer as to how to conduct the search on the particular facts of a case. [122] Defence argues, in the further alternative, even if it had been reasonable to look into the pocket and to withdraw the box, upon seeing the small size and nature of the box, there was no reason to open it. Defence submits the suggestion that there could be a weapon in there is not believable. [123] I disagree. Officer Laing testified he had encountered a knife with a blade as small as 1.5 inches on someone's bracelet. He had real experience of a weapon being small. That risk was recognized in Patrick at para. 94, where Justice Fitch refers to "possession of weaponry of microscopic size". I also do not accept that objects could be used as weapons are unlikely to be found in small boxes. Among other things, a Swiss Army knife or a razorblade could easily fit within the box that was retrieved. [124] I also note that cases after Mann have made it clear that the particular facts in Mann were important to the conclusion that reaching into a pocket, in that case, was a violation. Particularly, in R. v. Ellis, 2016 ONCA 598, the Ontario Court of Appeal said the following at para. 28: [28] What the Supreme Court did not do in Mann was pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets. Implicit in the court's holding was that, had the pat-down search revealed a safety concern, the officers would have been justified in extending the search to the accused's pockets. Indeed, there would be no point in conducting the pat-down search if, as suggested by the appellant, an officer cannot take further steps to protect his or her safety on having a reasonable basis for believing that there is a safety concern: [Citations omitted.] [125] I find, like in Bassi at paras. 78-79, this search was minimally intrusive. This was not reaching into the pocket of a pant or shirt, but a loose hoodie. It was clearly focused on an object of concern that was obvious both upon observation, that is the bulge in the pocket, and by Mr. Castle's actions in moving his hands toward that object during the pat-down. [126] Accordingly, I find the officer had justifiable reasons to reach into the pocket, to retrieve it, and to open the box, based on the imminent concern for safety. Accordingly, the search was authorized by the law as being incident to Mr. Castle's detention. As such, it did not breach his s. 8 rights, and the application is dismissed. "Sharma J."