Searches Incident to Detention Conducted for Safety Reasons


Unlike an arrest, a lawful detention does not automatically give rise to a right to conduct a search.  Police officers can conduct a search for officer safety, incidental to an investigative detention where the officer believes on reasonable grounds that his or her safety, or the safety of others is at risk.  As enunciated in cases such as Mann, Clayton and elsewhere, a vague or non-existent concern for safety is not a basis for a search.

 The Absence of Handcuffs Does Not Provide a Sufficient Basis to Search

The mere fact that the accused is not handcuffed does not provide a sufficient basis to conduct a search incident to detention for safety reasons. If it did, virtually every detained individual could be searched.  There needs to be more. 

R. v. Arsenault, 2017 ONCJ 19


The  Practice of Routinely Conducting Searches Incident to Detention can Undermine an Officer’s Stated Justification for Conducting a Particular Search

 The law does not allow officers to search incident to detention simply as a matter of practice. Evidence establishing that an officer is involved in such an unjustified practice may be used to undermine that officer’s contention that the reason for a particular search incident to detention was for officer safety concerns.


R. v. Arsenault, 2017 ONCJ 19

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