Can Police Search Incident to Arrest Prior to Arrest?

Canadian courts have generally had little problem in accepting that a search incident to arrest can precede the actual arrest, with the crucial proviso that reasonable grounds for arrest, independent of the evidence discovered on the search, existed prior to the search.  Their willingness to do so has come in large part from their willingness to accept as law the obiter dicta statements from the Court of Appeal for Ontario, namely those of Martin J.A. in R. v. Debot (1987).

R. v. Debot (1987), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 [at page 8 therein, Martin J. A. appears to accept the above premise regarding SITA based on the well-established practice in the United States; see also, R. v. Tomaso (1989), 70 C.R. (3d) 152 (Ont. C.A.) at pp. 160-16, citing R. v. Debot for authority.

However, in the recent, R. v. Sharma, 2017 ONCJ 295 (CanLII), Justice Rose rejected the Crown’s argument that if a person is arrestable, but not arrested, the police may search the detainee prior to arrest. 

The approach advocated by the Crown in the case at Bar would permit the police to detain a person without telling them that they are in fact under arrest, and then proceed to search them incident to a possible arrest in the future.  That simply does not square with Lamer CJC’s ruling in Caslake. Nor does it square up with other pronouncements that the SITA power stems from the fact of a lawful arrest See R. v. Golden, 2001 SCC 83 (CanLII) at par. 91.  The Crown argument would permit civilians to be searched physically by the police without knowing the reason why.    I reject that proposition.

As Justice Rose points out, when Debot arrived in the Supreme Court in 1989, the Court was clear that Charter rights should not be suspended during a search incidental to arrest.  The Supreme Court would not adopt the Ontario Court of Appeal’s judgement which was contrary in that sense, 

See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at paras. 50 – 51. 

 Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more