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Criminal - Search Incident to Arrest. R. v. Dautruche
In R. v. Dautruche (Ont CA, 2024) the Ontario Court of Appeal considers common law 'search incident to arrest' powers:[5] The common law “permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them”: R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at para. 34. The “surrounding area” can include an automobile: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 15.
[6] The common law power of search incident to arrest requires that the individual searched (1) has been lawfully arrested, (2) the search be incident to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and (3) the search be conducted reasonably: Stairs, at para. 35. The law enforcement purposes for the search must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable: Stairs, at para. 37; Caslake, at para. 19. To meet this standard, the police require “some reasonable basis” to do what they did: Caslake, at para. 20. This is a much lower standard than reasonable and probable grounds: Stairs, at para. 37.
[7] Because searches incident to arrest are warrantless, the Crown bears the burden of proving on a balance of probabilities that a search incident to arrest was conducted lawfully and reasonably: Caslake, at paras. 11-12. To establish that the search was lawful at common law, the Crown must establish that the search conducted was “truly incidental to arrest”. As Lamer C.J. explained in Caslake, at para. 27:[T]he police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. A search that “was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest … falls outside the scope of this power”: Caslake, at para. 29. . R. v. Sureskumar
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal considered the Charter s.8 issue of 'search incident to arrest', here where the purpose of the arrest was for identification:(i) Search Incident to Arrest
(a) Section 8 Breach
[9] In effecting an arrest, peace officers have the power to search incident to arrest. This is an extraordinary power because it requires neither a warrant nor independent reasonable and probable grounds, but, instead, arises from the lawful arrest itself: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13, citing Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158. This power permits a peace officer to “search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest”: R. v. Stairs, 2022 SCC 11, 467 D.L.R. (4th) 579, at para. 34.
[10] The common law standard for a search incident to arrest requires that (i) “the individual searched has been lawfully arrested”; (ii) “the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest”; and (iii) “the search is conducted reasonably”: Stairs, at para. 35; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27.
[11] The jurisprudence from the Supreme Court has identified three valid law enforcement purposes connected to a search incident to arrest: (i) police and public safety, (ii) preventing the loss or destruction of evidence, and (iii) discovering evidence that may be useful at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. However, those categories are not closed, as the Supreme Court has left open the possibility that further valid law enforcement purposes may develop in subsequent case law. In Caslake, for example, the court stated, at para. 25, that “the police must be able to explain, within the purposes articulated in Cloutier… (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched.” [Emphasis added.]
[12] The requirement that the search be truly incidental to the arrest involves both a subjective and an objective component. Subjectively, the police officer must have one of the purposes in mind when searching. Objectively, the police officer’s belief that the search will serve the intended purpose must be reasonable: Caslake, at para. 19.
[13] This appeal raises the issue of whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. There is no binding authority on this point. However, there is precedent in the Ontario Superior Court of Justice that supports the idea that a search to confirm an arrestee’s identity constitutes a valid law enforcement purpose because it is consistent with the proper administration of justice: R. v. Singh, 2015 ONSC 6312, 343 C.R.R. (2d) 127, at para. 35; R. v. Nunnery, 2006 CanLII 35002 (ON SC), [2007] 147 C.R.R. (2d) 325, at paras. 25-29. The issue was also raised in the Supreme Court in the context of a civil claim for unlawful arrest, but the court declined to determine the point: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 100.
[14] It is unnecessary to rule whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. That is because this case can be determined on the issue of reasonableness. As noted above, the jurisprudence is clear that a valid search incident to arrest must be carried out reasonably: Stillman at para. 27; Stairs, at para. 35. The same conclusion was reached in Cloutier. However, in the course of her analysis in Cloutier, at pp. 181-82, L’Heureux‑Dubé J. extended the notion of reasonableness beyond a consideration of how the search was carried out:In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, and R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145). Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by “justifiable use of the power” in question (at p. 35):The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.] It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [15] It is apparent from the foregoing that in crafting an analytical approach to determining the validity of a search, the Supreme Court in Cloutier was taking a holistic view of whether the search was a justified intrusion into the rights of the accused. The court instructed that it was essential to consider whether the search was both necessary and reasonable. Somewhere in the development of the jurisprudence on search incident to arrest, the notion of necessity seems to have been lost. For example, in Stairs, the most recent examination of the law of search incident to arrest from the Supreme Court, there is no reference to necessity. However, nothing in the case law suggests that necessity is not a valid consideration.
[16] In any event, it may be simpler to view necessity as a component of the larger notion of reasonableness discussed in Cloutier (i.e., a reasonableness inquiry that considers more than how the search was conducted). The appellant submitted that it was unnecessary for the police to have undertaken a search for further identification because they already had ample proof of his identity. If the focus of the reasonableness inquiry was limited to the manner in which the search was conducted, I would be required to ignore this concern, even if meritorious, and the police would be free to conduct an unnecessary search even though the power to search is premised on promoting peace officers’ abilities to execute their duties. An analysis of the necessity of the search should be a component of the broader reasonableness analysis under the third branch of the search incident to arrest test, because it allows the court to determine whether the search is consistent with the underlying public policy imperatives.
[17] In the case at bar, I accept the trial judge’s finding that the arresting officer was genuinely attempting to confirm the appellant’s identity before he was transported to the police station and that she was not obliged to accept his self-identification. The trial judge then found that while other means were available to the arresting officer to confirm the appellant’s identity, the search was not unreasonable, stating: “I cannot and do not fault [the arresting officer] for wanting to confirm Mr. Sureskumar’s identity before transporting him to the station. While other avenues may have been available to her, it was not an unreasonable step to take in the circumstances of this case where identity theft was an allegation” (emphasis in original). The trial judge also determined that the way the search was conducted was reasonable.
[18] With respect, the trial judge erred in failing to analyze why a search that she found was one of many avenues to confirm identity was reasonable in the circumstances. Had she done so, it would have been clear that there were multiple equally convenient and expeditious means to obtain confirmation of identity. For example, the arresting officer could have confirmed the appellant’s identity by speaking with bank employees, including the bank investigator who was in the branch at the time of the arrest. I am also comfortable taking judicial notice of the fact that the arresting officer had an onboard computer in her police vehicle that would have provided her access to the driver’s licence database.
[19] The trial judge was required to consider why a search that was unnecessary for the arresting officer to carry out her stated police purpose of confirming the identity of the appellant was reasonably conducted. Had the trial judge done so, it would have been evident that it was not reasonable for the arresting officer to search the appellant’s vehicle and seize the wallet. Therefore, the search of the appellant’s vehicle to locate the wallet constituted a breach of his s. 8 Charter rights.
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