Searches Incident to Arrest:  Presumptively Unreasonable?

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 with the Supreme Court of Canada’s majority reasons in R. v. Saeed, [2016] 1 SCR 518, 2016 SCC 24 (CanLII), in which the Court concluded that 

·         no matter the context, to be constitutional, searches incident to arrest must be reasonable, and

·          it does not necessarily follow from the fact that a search occurs as a search incident to arrest that the search is constitutionally reasonable. The reasonableness of a search involves, among other things, a balance between the accused’s privacy interests and valid law enforcement objectives. 

See R. v. Saeed, at paras. 4 & 5.

The balancing of the accused’s privacy interests against the valid law enforcement objectives is the very thing that the general rule requiring prior judicial authorization in order to search (usually in the form of a warrant) ensures. The absence of that prior authorization process results in the Crown having to justify that the search was nonetheless constitutional. 

This is the rule in R. v. Collins, that is, once the accused has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

      R. v. Collins, [1987] 1 SCR 265, 1987 CanLII 84 (SCC), para. 22.

It is sensible that the rule in Collins applies and that searches incident to arrest not provide an exception to it, as the privacy interests of the accused will be circumstance dependent, and thus the reasonableness of the search cannot be automatically assumed. 

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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