Mackel Peterkin had a gun. He had 40 rounds of ammunition on him as well. He had two cellphones. He had some cocaine. And he had $275 in cash. The police found all of these items when they searched him incident to an investigative detention.

Peterkin was convicted at trial of offences related to the discovery of those items. He appealed: 2015 ONCA 8. He argued on appeal that the warrantless safety search was unlawful; he did not contest, on appeal, the lawfulness of his detention @25.

Watt JA wrote the decision for the Court of Appeal. He outlined the factors which led the police to have concern for their safety – and thus conduct the search – as follows:

Several features of Peterkin’s behaviour caused the officers to be concerned about their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his right hip twice and held his right wrist there. He “bladed” his body so only his left side was visible to the officers. When an officer proffered Peterkin his driver’s licence on his right side, the appellant reached awkwardly for the document, holding his right elbow tight to his hip, turning his whole body and extending only his right forearm to take the licence. When the officers told Peterkin they were going to pat him down, he backed away and began to run. @28

Watt JA then discussed the test to be applied in determining the lawfulness of a search incident to arrest.

The test for determining whether an investigative detention is justifiable under the second prong of Waterfield is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:

i. the extent to which the interference with individual liberty is necessary to perform the officer’s duty;

ii. the liberty that is the subject of the interference; and

iii. the nature and extent of the interference.

See Mann, at para. 34.

To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45. @40-41

Of particular note is Watt JA’s reference to MacDonald – the recent Supreme Court decision on “safety searches”:

A second preliminary point concerns the decision in MacDonald. We need not decide whether, as the MacDonald minority argues, the majority, without overruling the prior decision in Mann, has recalibrated the standard to be applied in determining the lawfulness of a safety search. This is because the evidence in this case satisfies the test as articulated in MacDonald: reasonable belief an individual’s safety is at stake. Further, in my respectful view, we need not determine whether the decision in MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.

To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty: Mann, at para. 24; MacDonald, at paras. 35-36. @59-60.

Watt JA thus applied the law, as outlined above, of search incident to investigative detention and offered the following conclusion:

When Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the officers were investigating a static line 911 call from the unit. In doing so, they were discharging their common law duty to preserve the peace, prevent crime, and protect life and property. Peterkin’s entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act, an arrestable offence under s. 9(1) of that Act.

As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. “Blading” to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search. @61-62.

Peterkin is one of the first appellate court decisions to deal with MacDonald. While it does not resolve the issue raised in MacDonald by Moldaver J – which i have previously discussed (see: Safety Searches Post MacDonald; and MCLBulletin 2014.05) – it does recognize that MacDonald dealt with a non-investigative detention search. The search there was “free-standing”. Here, as in Mann and Clayton, the safety search was incident to an investigative detention.