Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Incident to Detention
- See Investigative Detention for further details
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.
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.
In R. v. D. (I.D.), 1987 CanLII 206 (SK C.A.), the Court 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 C.C.C. (3d) 241 (Ont. C.A.);
Johnson v. Ontario (Minister of Revenue), (1990), 75 O.R. (2d) 558 (Ont. C.A.).
See also R. v. Ruiz, 1991 CanLII 2410 (NB C.A.) ;
R. v. McKarris,  2 S.C.R. 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 S.C.R. 51  ;
R. v. Nicolosi, 1998 CanLII 2006 (ON C.A.)
- R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.); see also R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.);R. v. Debot, (1986), 30 C.C.C. (3d) 207 (Ont. C.A.)1986 CanLII 113
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.
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.