Search Incident to 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." If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.
There is no general power to search bags or vehicles incident to detention.
- R v Mann 2004 SCC 52 (CanLII),  3 SCR 59 at para 40
See also R v Clayton, 2007 SCC 32 (CanLII),  2 SCR 725
see also R v Plummer, 2011 ONCA 350 (CanLII)
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)
- R v Plummer, 2011 ONCA 350 (CanLII)
Search of Person
The right of a detainee to observe religious practices such as wearing a turban must be balanced against the security concnerns.
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.
A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items. 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.
It has been 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.
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,  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,  1 SCR 51, 1998 CanLII 838
R v Nicolosi, 1998 CanLII 2006 (ON C.A.)
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
R v D. (I.D.), 1987 CanLII 206 (SKCA)
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".
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. 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.
It is permissible to search a vehicle for identification where the driver has failed to produce documentation while being investigated for an offence.
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.
- R c Higgins, 1996 CanLII 5774 (QC C.A.)
- R v Mellenthin, 1992 CanLII 50 (S.C.C.),  3 SCR 615.
- R v Stephens,  BCJ No. 3017 (B.C.S.C.)(*no link)
R v Jacques, 1996 CanLII 174,  3 SCR 312
R v Murray, 136 CCC (3d) 197 (Que. C.A.)1999 CanLII 13750
- 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.")