The Law with Respect to Investigative Detention: Philip Henry Mann V. Her Majesty the Queen

Article excerpt

Late on the evening of December 23, 2000 police in Winnipeg received a telephone call informing them of a break and enter in progress in the downtown area. A patrol car was dispatched to the scene and the officers were provided with a detailed description of the suspect. He was described as a young aboriginal male, about 5'8" in height, weighing roughly 165 pounds and dressed in a black jacket with white sleeves. The responding officers were also provided with a name--Zachery Parisienne.

As the officers neared the address where the break and enter had been reported, they saw a young man who appeared to match the description of the suspect. The officers ordered the individual to stop and asked him to identify himself. The individual gave his name as Philip Mann and agreed to a "pat down" search for possible concealed weapons. No weapons were found, nor were any tools that might have been used in a break and enter. However, one of the officers did notice a soft object in the front pouch of the kangaroo sweater the young man was wearing. The officer reached into the pouch and found a plastic bag containing 27.55 grams (slightly less than 1 ounce) of marijuana. The officer continued the search and also found several baggies, two valium pills, and a treaty card which confirmed Mann's identity. Mann was taken into custody and charged with possessing marijuana for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

The case against Mann eventually came before Judge Connor in provincial court. The evidence against Mann was clear, but questions were raised about the manner in which that evidence had been obtained. Judge Connor accepted that the officers had been justified in stopping Mann, especially given the fact that he matched the description the officers had been provided with for the break and enter suspect. Judge Connor also accepted the fact that the officers had been justified in performing a pat down search to see if Mann was carrying anything that might have been used as a weapon against them. Judge Connor, however, was not persuaded that after detecting nothing beyond the soft object in one pocket (roughly the size of a sandwich bag) the officers had any valid reason to go beyond a pat down search. Consequently, Judge Connor held that there had not been any justification for reaching into the pouch of Mann's kangaroo sweater and retrieving the soft object that had been detected. This action, he found, contravened s. 8 of the Canadian Charter of Rights and Freedoms which provides that individuals have the right to be secure against unreasonable search or seizure.

Having decided that the evidence of trafficking was tainted, Judge Connor proceeded to consider whether that evidence ought to be excluded from the trial. In the end, he decided that allowing it to be admitted would interfere with the fairness of the trial, and therefore excluded it. His decision was predicated mostly upon s. 24(2) of the Charter which states that:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it is the proceedings would bring the administration of justice into disrepute.

With this ruling, the case against Mann collapsed and he was acquitted. The Crown, however, was unsatisfied both with the characterization of the search by police as unreasonable (and thus a violation of Mann's Charter rights) and with the decision of Judge Connor to exclude the evidence found in that search from trial. …