View source for Search Incident to Investigative Detention

[[fr:Recherche_d%27incident_jusqu%27à_la_détention_aux_fins_d%27enquête]]
{{Currency2|January|2017}}
{{LevelOne}}{{HeaderWarrantless}}
==General Principles==
{{seealso|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."<ref>
{{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|[2004] 3 SCR 59}}{{perSCC|Iacobucci J}}{{atL|1hmp1|40}} ("The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.  ...the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. ...  The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.") and {{atL-np|1hmp1|45}} ("... police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.  In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. ")<br> 
See also {{CanLIIRP|Clayton|1rxzv|2007 SCC 32 (CanLII)|[2007] 2 SCR 725}}{{perSCC-H|Abella J}}<br> 
see also {{CanLIIRP|Plummer|fl8zk|2011 ONCA 350 (CanLII)|272 CCC (3d) 172}}{{perONCA|MacPherson JA}}
</ref>
If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.<ref>
{{CanLIIRP|Calderon|1hpvs|2004 CanLII 7569 (ON CA)|188 CCC (3d) 481}}{{perONCA|Laskin JA}}<br>
{{CanLIIRP|Logan|1k8tr|2005 ABQB 321 (CanLII)|388 AR 255}}{{perABQB|Macklin J}}<br>
{{CanLIIRP|Byfield|1jn72|2005 CanLII 1486 (ON CA)|193 CCC (3d) 139}}{{perONCA|Rosenberg JA}}<br> 
{{CanLIIRP|Cooper|1jzvf|2005 NSCA 47 (CanLII)|195 CCC (3d) 162}}{{perNSCA|Fichaud JA}}<br>
</ref>

There is no general power to search bags or vehicles incident to detention.<ref>
{{supra1|Plummer}}</ref> 

{{reflist|2}}

==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.<ref>
{{CanLIIRx|Purewal|g7fgh|2014 ONSC 2198 (CanLII)}}{{perONSC|Durno SCJ}}<br>
{{CanLIIRx|Singh|gs8mb|2016 ONCJ 386 (CanLII)}}{{perONCJ|Copeland J}}{{atL|gs8mb|9}}<br>
</ref>

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.<ref>
{{ibid1|Purewal}}<br>
{{supra1|Singh}}<br>
</ref>

{{reflist|2}}

==Vehicle Searches==
A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items.<ref>
{{CanLIIRP|McComber|g9gck|1988 CanLII 7062 (ON CA)|44 CCC (3d) 241}}{{perONCA|Dubin ACJO}}<br>
{{CanLIIRPC|Johnson v Ontario (Minister of Revenue)|g1ddv|1990 CanLII 6742 (ON CA)|75 OR (2d) 558}}{{perONCA|Arbour JA}}<br>
See also {{CanLIIRP|Ruiz|1lk9j|1991 CanLII 2410 (NB C.A.)|68 CCC (3d) 500}}{{perNBCA|Angers JA}}<br>
 {{CanLIIRP|McKarris|1fr81|1996 CanLII 205 (SCC)|[1996] 2 SCR 287}}{{perSCC-H|Sopinka J}} <br>
{{CanLIIRP|Damianakos; Regina v Klimchuk|1q092|1991 CanLII 3958 (BC C.A.)|67 CCC (3d) 385}}{{perBCCA| Wood JA}}<br>
{{CanLIIRP|Lee|1ddhr|1995 CanLII 1135 (BC C.A.)|98 CCC (3d) 326}}{{perBCCA|Wood JA}}<br> 
{{CanLIIRP|Caslake|1fqww|1998 CanLII 838 (SCC)|[1998] 1 SCR 51}}{{perSCC|Lamer CJ}}<br> 
{{CanLIIRP|Nicolosi|6h03|1998 CanLII 2006 (ON CA)|127 CCC (3d) 176}}{{perONCA-H|Doherty JA}}<br>
</ref>
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.<ref>
{{CanLIIRP|Klimchuk|1q092|1991 CanLII 3958 |}}{{perBCCA|Wood JA}}<br> 
see also {{CanLIIRP|Rao|g12df|1984 CanLII 2184 (ON CA)|12 CCC (3d) 97}}{{perONCA-H|Martin JA}}<br>
{{CanLIIRP|Debot|1npn0|1986 CanLII 113 (ON CA)|30 CCC (3d) 207}}{{perONCA-H|Martin JA}}</ref>

It has been suggested the following requirements for a warrantless search:<ref>
{{CanLIIRP|IDD|1pfnf|1987 CanLII 206 (SK CA)|38 CCC (3d) 289}}{{perSKCA|Sherstobitoff JA}}<br>
</ref>
#that the vehicle be stopped or the occupants be detained lawfully;
#that the officer conducting the search has 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 bears a reasonable relationship to the offence suspected and the evidence sought.

{{Reflist|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."<ref>
{{CanLIIRPC|R c Higgins|1ngfp|1996 CanLII 5774 (QC CA)|111 CCC (3d) 206}}{{TheCourt}}</ref>

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.<ref> 
{{CanLIIRP|Mellenthin|1fs79|1992 CanLII 50 (SCC)|[1992] 3 SCR 615}}{{perSCC|Cory J}}</ref> 
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.<ref>
{{CanLIIR-N|Stephens|, [1993] BCJ No 3017 (B.C.S.C.)}}<br> 
{{CanLIIRP|Jacques|1fr7n|1996 CanLII 174 (SCC)|[1996] 3 SCR 312}}{{perSCC|Gonthier J}}<br> 
{{CanLIIRP|Murray|1n8rq|1999 CanLII 13750|, 136 CCC (3d) 197}}{{TheCourt}}<br>
</ref>

It is permissible to search a vehicle for identification where the driver has failed to produce documentation while being investigated for an offence.<ref>
{{CanLIIRP|Burachenski|29rjv|2010 BCCA 159 (CanLII)|286 BCAC 49}}{{perBCCA|Bennett JA}} ("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.")
</ref>

Several provincial acts permit the 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.

{{Reflist|2}}

==Seizure Incident to Detention==
* See [[Seizure of Property]] 

==Case Digests==
* [[Warrantless Searches (Cases)]]