Search Incident to Investigative Detention: Difference between revisions
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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>''R v Mann'', [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII), [2004] 3 SCR 59{{perSCC|Iacobucci J}} at para 40 <br> | 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>''R v Mann'', [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII), [2004] 3 SCR 59{{perSCC|Iacobucci J}} at para 40 <br> | ||
See also R v Clayton, [http://canlii.ca/t/1rxzv 2007 SCC 32] (CanLII), [2007] 2 SCR 725{{perSCC|Abella J}}<br> | See also ''R v Clayton'', [http://canlii.ca/t/1rxzv 2007 SCC 32] (CanLII), [2007] 2 SCR 725{{perSCC|Abella J}}<br> | ||
see also R v Plummer, [http://canlii.ca/t/fl8zk 2011 ONCA 350] (CanLII){{perONCA|MacPherson JA}} | see also ''R v Plummer'', [http://canlii.ca/t/fl8zk 2011 ONCA 350] (CanLII){{perONCA|MacPherson JA}} | ||
</ref> | </ref> | ||
If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.<ref> | If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.<ref> | ||
R v Calderon, [http://canlii.ca/t/1hpvs 2004 CanLII 7569] (ON C.A.){{perONCA|Laskin JA}}<br> | ''R v Calderon'', [http://canlii.ca/t/1hpvs 2004 CanLII 7569] (ON C.A.){{perONCA|Laskin JA}}<br> | ||
R v Logan, [http://canlii.ca/t/1k8tr 2005 ABQB 321] (CanLII){{perABQB|Macklin J}}<br> | ''R v Logan'', [http://canlii.ca/t/1k8tr 2005 ABQB 321] (CanLII){{perABQB|Macklin J}}<br> | ||
R v Byfield, [http://canlii.ca/t/1jn72 2005 CanLII 1486] (ON C.A.){{perONCA|Rosenberg JA}}<br> | ''R v Byfield'', [http://canlii.ca/t/1jn72 2005 CanLII 1486] (ON C.A.){{perONCA|Rosenberg JA}}<br> | ||
R v Cooper, [http://canlii.ca/t/1jzvf 2005 NSCA 47] (CanLII){{perNSCA|Fichaud JA}}<br> | ''R v Cooper'', [http://canlii.ca/t/1jzvf 2005 NSCA 47] (CanLII){{perNSCA|Fichaud JA}}<br> | ||
</ref> | </ref> | ||
There is no general power to search bags or vehicles incident to detention.<ref> | There is no general power to search bags or vehicles incident to detention.<ref> | ||
R v Plummer, [http://canlii.ca/t/fl8zk 2011 ONCA 350] (CanLII){{perONCA|MacPherson JA}}</ref> | ''R v Plummer'', [http://canlii.ca/t/fl8zk 2011 ONCA 350] (CanLII){{perONCA|MacPherson JA}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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'''Religious Dressings'''<br> | '''Religious Dressings'''<br> | ||
The right of a detainee to observe religious practices such as wearing a turban must be balanced against the security concnerns.<ref> | The right of a detainee to observe religious practices such as wearing a turban must be balanced against the security concnerns.<ref> | ||
R v Purewal, [http://canlii.ca/t/g7fgh 2014 ONSC 2198] (CanLII){{perONSC|Durno SCJ}}<br> | ''R v Purewal'', [http://canlii.ca/t/g7fgh 2014 ONSC 2198] (CanLII){{perONSC|Durno SCJ}}<br> | ||
R v Singh, [http://canlii.ca/t/gs8mb 2016 ONCJ 386] (CanLII){{perONCJ|Copeland J}} at para 9<br> | ''R v Singh'', [http://canlii.ca/t/gs8mb 2016 ONCJ 386] (CanLII){{perONCJ|Copeland J}} at para 9<br> | ||
</ref> | </ref> | ||
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''R v McComber'', (1988), 44 CCC (3d) 241 (Ont. C.A.), [http://canlii.ca/t/g9gck 1988 CanLII 7062] (ON CA){{perONCA|Dubin ACJO}}<br> | ''R v McComber'', (1988), 44 CCC (3d) 241 (Ont. C.A.), [http://canlii.ca/t/g9gck 1988 CanLII 7062] (ON CA){{perONCA|Dubin ACJO}}<br> | ||
Johnson v Ontario (Minister of Revenue), [http://canlii.ca/t/g1ddv 1990 CanLII 6742] (ON CA), (1990), 75 O.R. (2d) 558 (Ont. C.A.){{perONCA|Arbour JA}}<br> | Johnson v Ontario (Minister of Revenue), [http://canlii.ca/t/g1ddv 1990 CanLII 6742] (ON CA), (1990), 75 O.R. (2d) 558 (Ont. C.A.){{perONCA|Arbour JA}}<br> | ||
See also R v Ruiz, [http://canlii.ca/t/1lk9j 1991 CanLII 2410] (NB C.A.){{perNBCA|Angers JA}}<br> | See also ''R v Ruiz'', [http://canlii.ca/t/1lk9j 1991 CanLII 2410] (NB C.A.){{perNBCA|Angers JA}}<br> | ||
''R v McKarris'', [1996] 2 SCR 287 [http://canlii.ca/t/1fr81 1996 CanLII 205] (SCC){{perSCC|Sopinka J}} <br> | ''R v McKarris'', [1996] 2 SCR 287 [http://canlii.ca/t/1fr81 1996 CanLII 205] (SCC){{perSCC|Sopinka J}} <br> | ||
R v Damianakos Regina v Klimchuk, [http://canlii.ca/t/1q092 1991 CanLII 3958] (BC C.A.){{perBCCA| Wood JA}} | R v Damianakos Regina v Klimchuk, [http://canlii.ca/t/1q092 1991 CanLII 3958] (BC C.A.){{perBCCA| Wood JA}} | ||
<br>R v Lee, [http://canlii.ca/t/1ddhr 1995 CanLII 1135] (BC C.A.){{perBCCA|Wood JA}}<br> | <br>''R v Lee'', [http://canlii.ca/t/1ddhr 1995 CanLII 1135] (BC C.A.){{perBCCA|Wood JA}}<br> | ||
R v Caslake, [1998] 1 SCR 51, [http://canlii.ca/t/1fqww 1998 CanLII 838] (SCC){{perSCC|Lamer CJ}}<br> | ''R v Caslake'', [1998] 1 SCR 51, [http://canlii.ca/t/1fqww 1998 CanLII 838] (SCC){{perSCC|Lamer CJ}}<br> | ||
R v Nicolosi, [http://canlii.ca/t/6h03 1998 CanLII 2006] (ON C.A.){{perONCA|Doherty JA}}<br> | ''R v Nicolosi'', [http://canlii.ca/t/6h03 1998 CanLII 2006] (ON C.A.){{perONCA|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> | </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> | ||
R v Klimchuk, [http://canlii.ca/t/1q092 1991 CanLII 3958] (BC CA), (1991), 67 CCC (3d) 385 (BCCA){{perBCCA|Wood JA}}<br> | ''R v Klimchuk'', [http://canlii.ca/t/1q092 1991 CanLII 3958] (BC CA), (1991), 67 CCC (3d) 385 (BCCA){{perBCCA|Wood JA}}<br> | ||
see also R v Rao, [http://canlii.ca/t/g12df 1984 CanLII 2184] (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.){{perONCA|Martin JA}}<br> | see also ''R v Rao'', [http://canlii.ca/t/g12df 1984 CanLII 2184] (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.){{perONCA|Martin JA}}<br> | ||
R v Debot, (1986), 30 CCC (3d) 207 (Ont. C.A.), [http://canlii.ca/t/1npn0 1986 CanLII 113] (ONCA){{perONCA|Martin JA}}</ref> | ''R v Debot'', (1986), 30 CCC (3d) 207 (Ont. C.A.), [http://canlii.ca/t/1npn0 1986 CanLII 113] (ONCA){{perONCA|Martin JA}}</ref> | ||
It has been suggested the following requirements for a warrantless search:<ref> | It has been suggested the following requirements for a warrantless search:<ref> | ||
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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".<ref>R c Higgins, [http://canlii.ca/t/1ngfp 1996 CanLII 5774] (QC C.A.){{TheCourt}}</ref> | 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>R c Higgins, [http://canlii.ca/t/1ngfp 1996 CanLII 5774] (QC C.A.){{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> R v Mellenthin, [http://canlii.ca/t/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>R v Stephens, [1993] BCJ No. 3017 (B.C.S.C.){{NOCANLII}}<br> | 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> ''R v Mellenthin'', [http://canlii.ca/t/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>''R v Stephens'', [1993] BCJ No. 3017 (B.C.S.C.){{NOCANLII}}<br> | ||
R v Jacques, [http://canlii.ca/t/1fr7n 1996 CanLII 174], [1996] 3 SCR 312{{perSCC|Gonthier J}}<br> | ''R v Jacques'', [http://canlii.ca/t/1fr7n 1996 CanLII 174], [1996] 3 SCR 312{{perSCC|Gonthier J}}<br> | ||
R v Murray, 136 CCC (3d) 197 (Que. C.A.), [http://canlii.ca/t/1n8rq 1999 CanLII 13750]{{TheCourt}}<br> | ''R v Murray'', 136 CCC (3d) 197 (Que. C.A.), [http://canlii.ca/t/1n8rq 1999 CanLII 13750]{{TheCourt}}<br> | ||
</ref> | </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> | It is permissible to search a vehicle for identification where the driver has failed to produce documentation while being investigated for an offence.<ref> | ||
R v Burachenski, [http://CanLII.ca/t/29rjv 2010 BCCA 159] (CanLII){{perBCCA|Bennett JA}} ("the law is clear that the police are entitled to search a vehicle | ''R v Burachenski'', [http://CanLII.ca/t/29rjv 2010 BCCA 159] (CanLII){{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.") | for identifying documentation when it is not produced by a driver who is being investigated for an offence.") | ||
</ref> | </ref> | ||
Revision as of 12:15, 13 January 2019
General Principles
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]
- ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J at para 40
See also R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J
see also R v Plummer, 2011 ONCA 350 (CanLII), per MacPherson JA - ↑
R v Calderon, 2004 CanLII 7569 (ON C.A.), per Laskin JA
R v Logan, 2005 ABQB 321 (CanLII), per Macklin J
R v Byfield, 2005 CanLII 1486 (ON C.A.), per Rosenberg JA
R v Cooper, 2005 NSCA 47 (CanLII), per Fichaud JA
- ↑ R v Plummer, 2011 ONCA 350 (CanLII), per MacPherson JA
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]
- ↑
R v Purewal, 2014 ONSC 2198 (CanLII), per Durno SCJ
R v Singh, 2016 ONCJ 386 (CanLII), per Copeland J at para 9
- ↑
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]
- 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 bear a reasonable relationship to the offence suspected and the evidence sought.
- ↑
R v McComber, (1988), 44 CCC (3d) 241 (Ont. C.A.), 1988 CanLII 7062 (ON CA), per Dubin ACJO
Johnson v Ontario (Minister of Revenue), 1990 CanLII 6742 (ON CA), (1990), 75 O.R. (2d) 558 (Ont. C.A.), per Arbour JA
See also R v Ruiz, 1991 CanLII 2410 (NB C.A.), per Angers JA
R v McKarris, [1996] 2 SCR 287 1996 CanLII 205 (SCC), per Sopinka J
R v Damianakos Regina v Klimchuk, 1991 CanLII 3958 (BC C.A.), per Wood JA
R v Lee, 1995 CanLII 1135 (BC C.A.), per Wood JA
R v Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC), per Lamer CJ
R v Nicolosi, 1998 CanLII 2006 (ON C.A.), per Doherty JA
- ↑
R v Klimchuk, 1991 CanLII 3958 (BC CA), (1991), 67 CCC (3d) 385 (BCCA), per Wood JA
see also R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.), per Martin JA
R v Debot, (1986), 30 CCC (3d) 207 (Ont. C.A.), 1986 CanLII 113 (ONCA), per Martin JA - ↑
R v IDD, 1987 CanLII 206 (SKCA), per Sherstobitoff JA
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.
- ↑ R c Higgins, 1996 CanLII 5774 (QC C.A.), per curiam
- ↑ R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J
- ↑ R v Stephens, [1993] BCJ No. 3017 (B.C.S.C.)(*no CanLII links)
R v Jacques, 1996 CanLII 174, [1996] 3 SCR 312, per Gonthier J
R v Murray, 136 CCC (3d) 197 (Que. C.A.), 1999 CanLII 13750, per curiam
- ↑ R v Burachenski, 2010 BCCA 159 (CanLII), per 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.")