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Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Incident to Detention

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General Principles

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See Investigative Detention for further details

There is a common law power to search incident to detention where "the officer … believe[s] on reasonable grounds that his or her own safety, or the safety of others, is at risk."[1] If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.[2]

There is no general power to search bags or vehicles incident to detention.[3]

  1. ↑ R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 40
    See also R. v. Clayton, [2007] 2 S.C.R. 725 2007 SCC 32
  2. ↑ R. v. Calderon, 2004 CanLII 7569 (ON C.A.)
    R. v. Logan, 2005 ABQB 321
    R. v. Byfield, 2005 CanLII 1486 (ON C.A.)
    R. v. Cooper, 2005 NSCA 47
  3. ↑ R. v. Plummer, 2011 ONCA 350

Vehicle Searches

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A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items.[1] This however is limited to situations in which the vehicle could be moved "quickly" and there is a risk that the evidence may be lost if an attempt was made to get a search warrant first.[2]

In R. v. D. (I.D.), 1987 CanLII 206 (SK C.A.), the Court suggested the following requirements for a warrantless search:

  1. that the vehicle be stopped or the occupants be detained lawfully;
  2. that the officer conducting the search have reasonable and probable grounds to believe that an offence has been, is being or is about to be committed and that a search will disclose evidence relevant to that offence;
  3. that exigent circumstances, such as imminent loss, removal or destruction of the evidence, make it not feasible to obtain a warrant;
  4. that the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought.
  1. ↑ R. v. McComber, (1988), 44 C.C.C. (3d) 241 (Ont. C.A.);
    Johnson v. Ontario (Minister of Revenue), (1990), 75 O.R. (2d) 558 (Ont. C.A.).
    See also R. v. Ruiz, 1991 CanLII 2410 (NB C.A.) ;
    R. v. McKarris, [1996] 2 S.C.R. 287 1996 CanLII 205 ;
    R. v. Damianakos Regina v. Klimchuk, 1991 CanLII 3958 (BC C.A.) ;
    R. v. Lee, 1995 CanLII 1135 (BC C.A.)
    R. v. Caslake, [1998] 1 S.C.R. 51 [1] ;
    R. v. Nicolosi, 1998 CanLII 2006 (ON C.A.)
  2. ↑ R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.); see also R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.);R. v. Debot, (1986), 30 C.C.C. (3d) 207 (Ont. C.A.)1986 CanLII 113

Roadside Stops

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Even if the police have lawful grounds to stop a vehicle this does not allow a search of the vehicle unless there are "reasonable grounds".[1]

Check stop programs aimed to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars cannot be used by the police to search beyond its aims.[2] However, roadblocks set-up to search vehicles in order to catch suspects fleeing an armed robbery was considered a lawful search given the existence of a basis for investigative detention and the relative seriousness of the offence.[3]

Several provincial acts permit searching of vehicles without a warrant:

Section 107 of Alberta’s Gaming and Liquor Act, RSA 2000, c G-1 permits search where there is reasonable probable grounds are established that the act has been violated.

  1. ↑ R. c. Higgins, 1996 CanLII 5774 (QC C.A.)
  2. ↑ R. v. Mellenthin, 1992 CanLII 50 (S.C.C.), [1992] 3 S.C.R. 615.
  3. ↑ R. v. Stephens, [1993] B.C.J. No. 3017 (B.C.S.C.); R. v. Jacques, 1996 CanLII 174, [1996] 3 S.C.R. 312
    R. v. Murray, 136 C.C.C. (3d) 197 (Que. C.A.)1999 CanLII 13750
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