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

General Principles 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."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 If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.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 There is no general power to search bags or vehicles incident to detention.R. v. Plummer, 2011 ONCA 350 2 Vehicle Searches A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items.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 ; R. v. Nicolosi, 1998 CanLII 2006 (ON C.A.) 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.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 In R. v. D. (I.D.), 1987 CanLII 206 (SK C.A.), the Court suggested the following requirements for a warrantless search: that the vehicle be stopped or the occupants be detained lawfully; 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; that exigent circumstances, such as imminent loss, removal or destruction of the evidence, make it not feasible to obtain a warrant; that the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought. 2 Roadside Stops 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".R. c. Higgins, 1996 CanLII 5774 (QC C.A.) 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. R. v. Mellenthin, 1992 CanLII 50 (S.C.C.), [1992] 3 S.C.R. 615. 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.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 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. 2