Search Incident to Detention

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General Principles

See also: Investigative Detention

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


Search of Person

Religious Dressings
The right of a detainee to observe religious practices such as wearing a turban must be balanced against the security concnerns.[1]

A failure to return a turban to a detainee while they are still in custody is an interference with religious freedoms and may result in a breach of the religious protections under the Charter and would result in exclusion of evidence under s. 24(2) of the Charter.[2]

  1. R v Purewal, 2014 ONSC 2198 (CanLII) per Durno SCJ
    R v Singh, 2016 ONCJ 386 (CanLII) at para 9 per Copeland PCJ
  2. Purewal, ibid.
    Singh, supra

Vehicle Searches

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]

It has been suggested the following requirements for a warrantless search:[3]

  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 CCC (3d) 241 (Ont. C.A.)(*no link)
    Johnson v Ontario (Minister of Revenue), 1990 CanLII 6742 (ON CA), (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 SCR 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 SCR 51, 1998 CanLII 838
    R v Nicolosi, 1998 CanLII 2006 (ON C.A.)
  2. R v Klimchuk, 1991 CanLII 3958 (BC CA), (1991), 67 CCC (3d) 385 (BCCA)
    see also R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.)
    R v Debot, (1986), 30 CCC (3d) 207 (Ont. C.A.), 1986 CanLII 113
  3. R v D. (I.D.), 1987 CanLII 206 (SKCA)

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".[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]

It is permissible to search a vehicle for identification where the driver has failed to produce documentation while being investigated for an offence.[4]

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 SCR 615.
  3. R v Stephens, [1993] BCJ No. 3017 (B.C.S.C.)(*no link)
    R v Jacques, 1996 CanLII 174, [1996] 3 SCR 312
    R v Murray, 136 CCC (3d) 197 (Que. C.A.)1999 CanLII 13750
  4. R v Burachenski, 2010 BCCA 159 (CanLII) ("the law is clear that the police are entitled to search a vehicle for identifying documentation when it is not produced by a driver who is being investigated for an offence.")

Seizure Incident to Detention

Case Digests