Stuart O'Connell Criminal Law Blog

In R. v. Aviles , 2017 ONCA 629, the Court of Appeal of Ontario accepted the appellant’s position that when the police conduct a warrantless search, the onus is on the Crown to prove on a balance of probabilities that the search was a reasonable one. It is not the first time the Court has said as much. See R. v. Gonzales , 2017 ONCA 543, at para. 143. This position conflicts with the opinion of a number of courts which have held that the long-standing common law power of search incident to arrest is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable.             “Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.” R. v. Golden , [2001] 3 S.C.R 679 at para. 84;  see also , R. v. Odbert , 2017 ONSC 4390, at para. 32. The Court of Appeal’s position does, however, appear to square ...

The search incident to arrest power is an exception to the ordinary requirements for a reasonable search in that the search neither requires judicial pre-authorization nor the requirement of credibly based probability that evidence in relation to the offence arrested will be discovered.   Rather the lawful ability of police to search arises from the fact of the arrest. The power to search and seize incidental to arrest is a common law power based on pragmatic and exigent considerations inherent to the circumstances of an arrest. These searches must be truly incidental to the arrest in question.   A search incident to arrest is only justifiable if the purpose of the search relates to the purpose of the arrest.    R. v. Caslake , [1995] 1 S.C.R 51 at para.17. In R. v. Belnavis , (1996), 107 C.C.C (3d) 195 at p. 213, for instance, Doherty J.A. for the Court of Appeal for Ontario held that an arrest for outstanding traffic fines did not authorize the...