Search Incident to Investigative Detention

This page was last substantively updated or reviewed January 2017. (Rev. # 94177)

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, per Iacobucci J, at para 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 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. ")
    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), 272 CCC (3d) 172, per MacPherson JA
  2. R v Calderon, 2004 CanLII 7569 (ON CA), 188 CCC (3d) 481, per Laskin JA
    R v Logan, 2005 ABQB 321 (CanLII), 388 AR 255, per Macklin J
    R v Byfield, 2005 CanLII 1486 (ON CA), 193 CCC (3d) 139, per Rosenberg JA
    R v Cooper, 2005 NSCA 47 (CanLII), 195 CCC (3d) 162, per Fichaud JA
  3. Plummer, supra

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), per Copeland J, at para 9
  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 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;
  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 bears a reasonable relationship to the offence suspected and the evidence sought.
  1. R v McComber, 1988 CanLII 7062 (ON CA), 44 CCC (3d) 241, per Dubin ACJO
    Johnson v Ontario (Minister of Revenue), 1990 CanLII 6742 (ON CA), 75 OR (2d) 558, per Arbour JA
    See also R v Ruiz, 1991 CanLII 2410 (NB C.A.), 68 CCC (3d) 500, per Angers JA
    R v McKarris, 1996 CanLII 205 (SCC), [1996] 2 SCR 287, per Sopinka J
    R v Damianakos; Regina v Klimchuk, 1991 CanLII 3958 (BC C.A.), 67 CCC (3d) 385, per Wood JA
    R v Lee, 1995 CanLII 1135 (BC C.A.), 98 CCC (3d) 326, per Wood JA
    R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ
    R v Nicolosi, 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176, per Doherty JA
  2. R v Klimchuk, 1991 CanLII 3958 , per Wood JA
    see also R v Rao, 1984 CanLII 2184 (ON CA), 12 CCC (3d) 97, per Martin JA
    R v Debot, 1986 CanLII 113 (ON CA), 30 CCC (3d) 207, per Martin JA
  3. R v IDD, 1987 CanLII 206 (SK CA), 38 CCC (3d) 289, 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 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.
  1. R c Higgins, 1996 CanLII 5774 (QC CA), 111 CCC (3d) 206, per curiam
  2. R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J
  3. R v Stephens, [1993] BCJ No 3017 (B.C.S.C.)(*no CanLII links)
    R v Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312, per Gonthier J
    R v Murray, 1999 CanLII 13750, , 136 CCC (3d) 197, per curiam
  4. R v Burachenski, 2010 BCCA 159 (CanLII), 286 BCAC 49, 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.")

Seizure Incident to Detention

Case Digests