Searches Incident to Investigative Detention after the Investigative Detention has Ended?
R. v. Dunkley, 2016 ONCA 597 (CanLII), is interesting for
a number of reasons.
First,
in a rare move, Court of Appeal for Ontario overturned the decision of the trial
court to include gun evidence which was obtained in violation Canadian Charter of Rights and Freedoms.
Second,
the appeal considered the interaction between the authority of the police to
conduct an inventory search of a vehicle impounded pursuant to the Highway
Traffic Act and the right under s. 8 of the Charter to be free from
unreasonable search and seizure.
And
third, in considering whether the police had the lawful authority to search the
appellant’s vehicle under the common law investigative detention doctrine, the
Court said this:
In
this case, the Crown cannot rely on this power to justify a search for
identification after the appellant has fled the scene. The search of the
car at that point had no nexus to a concern for officer or public safety
directly arising out of an investigative detention.
This
would seem to imply that where there are safety concern arising out of the completed
investigative detention[i]
the common law ancillary powers doctrine (upon which investigative detention
and searches is based) may allow for a limited search directed to those safety concerns,
likely to the degree that is reasonable necessary.
While
in the context of this appeal, the statement made by the Court of Appeal is
obiter, and thus does not constitute a binding rule of law, in my opinion it
signals the direction in which the doctrine of search/seizure incident to investigative
detention is likely to develop. In my
opinion, such is a logical extension of the doctrine. The Court was clear on the distinction
between search incident to arrest and search pursuant to investigative detention.
The
power to search pursuant to an investigative detention operates differently
from the power to search incident to arrest. The former is rooted in
concerns for officer and public safety: Mann, at para. 40; see also
R. v. Plummer, 2011 ONCA 350 (CanLII), 272
C.C.C. (3d) 172, at para. 79.
Our law has recognized that police officers who engage a member of the
public in an investigative detention may take reasonable steps to protect their
safety and the safety of the public. Therefore, the search power is much more
limited than a search incident to arrest: Plummer, at para. 76. The
search must be related to articulable safety concerns
Nonetheless, the two doctrines,
though distinct, continue to move ever closer to each other.
[i] The
Appellant in response to an interaction with police had chosen to flee. The
Court of Appeal held that although the detention was only momentary, it was a
detention nonetheless.
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