R v Lee
Response or Comment
Charter, Unreasonable Search and Seizure
In Lee Justice Pardu warns against the danger of after-the-fact justification of police action on the basis of a common law power, since the "hindsight bias" caused by only seeing the cases in which evidence has been found creates a distorting effect. One might note, in addition, the exacerbating effect of the plain view doctrine on that observation. In this case, the police were searching for a gun, and expanded the scope of their safety search beyond what seemed initially to be intended by the power of the search incident to arrest: in the end - as in so many cases both before and after R. v. Mann, 2004 SCC 52 (S.C.C.) - those safety concerns were never made out. Rather, what was found was evidence of an entirely different offence, unrelated to any weapon. The Supreme Court noted in R. v. Chehil, 2013 SCC 49 (S.C.C.) at para. 28 that "[t]he fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime." At least insofar as any weapons offence was concerned, Lee was such an innocent person: it is in effect only a coincidence that he happened to be committing some other offence.
Stephen Coughlan, "R v Lee", Case Comment, (2017) 39 CR (7th) 404.