R v McKenzie: Continuing Confusion on Common Law Powers

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Charter of Rights and Freedoms, Arbitrary Detention or Imprisonment, Unreasonable Search and Seizure


In most ways the result in McKenzie is unremarkable. Police observed a known gang member who was known to carry weapons and who seemed to be concealing one at that moment, detained him, found the weapon, and he was convicted. Once the accused's challenge on appeal to the trial judge's findings that underlay the relevant legal tests failed, there was no other plausible result than that the detention and search would be found lawful.

At the same time, the case illustrates the confusion inherent in common law powers such as investigative detention and search incident to investigative detention. Some aspects of this are commented on by the Manitoba Court of Appeal, while others are demonstrated by the decision.

One nagging question around search incident to investigative detention is the standard for such a search: does it require reasonable belief that there is a safety risk, or only reasonable suspicion?