Infringement of the Canadian Charter

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Case: R. V. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 In our country, everyone is protected under the law. The Canadian Charter of Rights and Freedoms guarantees certain political rights to citizens as well as civil rights of everyone who resides in Canada. However, in some cases where law enforcement or other government agencies carry out their duties, the civil rights of a person may be infringed. Section 24 of the Charter of rights and freedoms protects residents of Canada from being violated of their civil rights. Any evidences or arrests made while one’s civil right is infringed or denied, will be neglected in any court trials. An example of this is clearly shown in the case of Regina Vs Mann 2004. The breakdown of the case is as follows: On December 23, 2000, a police dispatcher notifies that a break and enter is in progress in a district near downtown Winnipeg, MB. Two police officers respond to this dispatch around midnight. The dispatcher informs the officers that the suspect is known to be “Zachary Parisienne” a 21 year old aboriginal male, five feet eight, 165 pounds and is wearing a black jacket with white sleeves. However, when the officers arrive near the scene, they find a person walking casually along the side walk who matched the description of the suspect. They identify the man to be Philip Mann, who agrees a pat down search of any concealed weapons. During the search, one of the officers feels that there is something in Philip Mann’s kangaroo pouch pocket in the front. The officer proceeded to reach into the pocket to find a plastic bag containing 27.55 grams of marijuana. In his other pockets were small plastic baggies and two valium pills. Philip Mann was arrested for the offence of possession of marijuana for the purpose of trafficking under Section 5(2) of the Controlled Drugs and substances Act. After the arrest, Mann appealed his case. The reason of the appeal was that the search on him was unlawful. His argument was that the police who have detained and searched him had no legal rights to search his body. According to the Charter of Rights and Freedom Section 9, everyone has the right not to be arbitrarily detained or imprisoned. In the case of Philip Mann, however, the detention was justified. A police officer may arrest or detain without warrant when they have reasonable grounds to believe that a person has committed an indictable offence According to section 495 of the Criminal Code. Prior to the detention of Mann, the police officers were provided with the description of the suspect for the break and entering and since Philip Mann matched the description of the suspect, police officers had a reasonable ground to stop and conduct an investigative detention. Everything was very clear and lawful until this point. Mann was compliant towards the officers and allowed a pat down search. Unlike the search procedure incident to arrest where police officers are authorized to search a person for weapons, evidence and means of escape, a pat down search is only used as a protective measure; to remove any weapons that may harm the officers. Police officers are only authorized to roughly check if the detainee has a weapon, they cannot go through their pockets or belongings. Unless the officer who reached into Mann’s pocket had a reasonable ground that what he felt in Mann’s pocket during the pat down was a weapon, he must not search his pocket. For example, a police officer detains a suspect that matches the description for an armed robbery suspect. The officer may perform a pat down check on the suspect to ensure the safety of themselves as well as people around them. However, unless the officer can identify that some object that the suspect has underneath their clothing is a weapon, they may ask what it is but not reach into the suspect’s clothing and grab it out as the search is not the result of an arrest. During the appeal of this case, the Court found that the detention was on reasonable grounds. The two officers had reasonable grounds via suspect description that matched Mann. However, the judge confirmed that the search went beyond of a minor security pat down and thus causing a serious breach on Mann’s civil rights against unreasonable search. When the officer reached into Mann’s pocket, at that moment the focus of the search changed from a security search to evidence search in which the officers lacked reasonable ground on. This completely violated section 8 of the Canadian Charter of Rights and freedoms. The Court added that even if the officer acted in good faith, it cannot be claimed if there is a violation of the Charter. As mentioned above, if the right of an individual is infringed in any way during an arrest or a detainment (section 24 Charter of rights), any evidence that are found must be neglected on trial. In other words, the 27 grams of marijuana and other pills found cannot be used against Mann, rendering the charge of possession for the purpose of trafficking useless. In my opinion, the police officers who has responded to the dispatch of a break and enter should have responded differently. It is very true that Mann matched the initial description of the suspect of the dispatch; however, the dispatcher gave the name and age of the real suspect in the first place. Upon establishing identity with Mann, the police officers should have realized that Mann was not the person they were looking for. The officers should have warned Mann of the incident and allowed him to leave. Upon reading about this case law, I asked myself what would I have done if I was the arresting officer to avoid the arguments this case brought up? Well, I am very strict when it comes to rules especially when it comes to our civil rights. As an officer, I would first establish the identity of the suspect. When the identity is established, I would ask the following questions to myself.
  1. What is my authority on detaining this person? – I have reasonable grounds to believe this is the suspect of a Break and enter as he matches the description of the suspect although name is not the same.
  2. What is my search authority of this person? – Since I have detained this suspect, I have the authority to pat him down for the safety of myself and my partner.
  3. I found a soft object in the suspect’s pocket. – This suspect is not under arrest. I may not collect evidence through going into his pocket meaning I do not have authority to search.
  4. Ask what is in the pocket – Suspect says marijuana, then great I have reasonable grounds to search and arrest. If he says none of your business, then I would simply back off, knowing that I do not have the authority to search.
  5. Thank you for your time, walk away, proceed with the pervious dispatch and attend the site of break in.
This way, I can completely avoid the argument raised in the case. However, this was for the price of letting go of a potential drug dealer. But, I believe that the police officers got distracted by this minor possession offence (I say minor since I think an ounce of marijuana is not very big in quantity) that they completely neglected the break and enter offence. At the time of the arrest of Mann, the real suspect for the break and enter may have caused serious harm in property or even to another person. The reason why I have choose this topic of Charter of rights and freedoms infringement is because there are many unreasonable search and arrest that are made by our police services and I wanted to learn more about them. Many people with little education do not know their rights when stopped by an officer which can be easily taken advantage of. As the defender of our law, police officers must dedicate themselves in being familiar with their authorities for arrest and search. Furthermore, as aspiring police officers ourselves, we must also know these authorities in order to be credible servants of the law. Through this assignment, I was able to look in-depth of the search authorities of a police officer. This allowed me a greater understanding of the procedures to take during an arrest through the use of a case law. References Greenspan, E., & Martin, J. C. (2014). Martin's annual criminal code. S.l.: Canada Law Book Ltd.. Lafreniere, G. (n.d.). Police powers and Drug related offences. Parliament of Canada. Retrieved March 02, 2015, from http://www.parl.gc.ca/content/sen/committee/371/ille/library/powers-e.htm#A. Powers to Conduct Searches R. V. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 Sharpe, R. J., & Roach, K. (2002). The Charter of Rights and Freedoms (2nd ed.). Toronto: Irwin Law.
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