Too Much Police Power: Unreasonable Search & Arrest of Kitchener Man
As reported in both the Toronto Star and the Waterloo Record, a Kitchener man was detained and searched as a result of a picture his daughter drew. Jessie Sansone’s daughter drew a picture of a man holding a gun. When questioned about it Sansone’s daughter said the gun was her daddy’s which he uses to “shoot bad guys and monsters”. The school was unimpressed. Rather than commencing their own investigation the school decided to call the police. The police, again rather than commencing what should have been a brief investigation, decided to arrest and subsequently strip search Sansone for possession of a firearm.
By this point the only evidence to support this purported arrest was a picture of a gun, drawn by a four year old. The police had no idea if there even was a gun in the home, and if there was whether it was real (The Waterloo Record did a follow-up finding there was a toy gun, similar to what might be found in many households) or whether it was legally held. Nevertheless, Sansone was detained, searched, and told he would be held for bail.
My first question is what basis there was to even detain Sansone. I’m the first to concede that media reports often lack facts, but given that Sansone was ultimately released without charge, and his house searched and no firearm found, there doesn’t appear to me to be any basis for a charge.
Perhaps, and I say this reluctantly, there was a basis for an investigative detention. An investigative detention occurs where the police may not have grounds to make an arrest but may have “reasonable grounds to detain”. The Supreme Court explored the concept of investigative detention in the landmark case of R. v. Mann. In writing for the majority, Justice Iacobucci had this to say about the power to detain:
Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
Take note of Justice Iacobucci’s comment that the police cannot detain on the basis of a hunch. When applying Mann to these facts, I question what basis the police had to conclude Sansone had a firearm beyond a mere hunch based on the picture drawn by his daughter.
Now let’s suppose there was a reason to detain Sansone for investigative reasons. What he subsequently went through appears to me to be completely contrary to further statements in Mann. First of all, the In Sansone’s case the officers claimed the strip search was required for officer safety. Justice Iacobucci realized that there may be cases where officer safety does require such a search. The court however was very clear that the search much be minimally intrusive and specifically used the words “pat-down search”. Furthermore, the court was also clear that the detention must be brief in duration. Justice Iacobucci had this to say about both issues:
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
Seeing how Sansone was released without charge the criminal law elements of this case are over for him. If he was in fact charged he could have been subject to strict bail terms or even detained in custody. Thankfully this did not transpire. Of course this begs the question of whether Sansone has any remedy available to him. I’ll blog about this later in the week.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at firstname.lastname@example.org.