Timeliness and Necessity: Rethinking Searches Incident to Arrest in Canadian Criminal Law
Haydn Bechthold, JD Candidate at Toronto Metropolitan University Lincoln Alexander School of Law
1. Introduction
The doctrine of search incident to arrest is a cornerstone of Canadian criminal law, granting police extraordinary powers to conduct warrantless searches in specific circumstances. Rooted in common law, this authority is designed to ensure police and public safety, prevent the destruction of evidence, and facilitate the discovery of evidence that may be used at trial. However, it is also a significant intrusion into individual privacy rights, raising critical questions about its scope and limits under section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), which guarantees protection against unreasonable search and seizure.
The jurisprudence surrounding searches incident to arrest has undergone considerable evolution as courts have grappled with balancing the competing imperatives of law enforcement and individual privacy. This paper examines the development of this doctrine, with a focus on a valid law enforcement purpose that has yet to be touched by the Supreme Court of Canada (the “Court” or the “SCC”): preventing the destruction of evidence. The analysis is anchored in a critical review of recent landmark decisions, including the SCC’s ruling in Stairs, and explores the dissenting views that advocate for a stricter necessity-based framework.
This article will culminate with my proposal of a standard for the Court to adopt when addressing the issue of searches incident to arrest aimed at preventing the destruction of evidence. Specifically, I argue that the Court should modify the common law framework it developed for searches incident to arrest by incorporating a temporal element akin to a quasi “but-for” test. This standard would objectively assess the necessity of the search.[1]
2. Analysis
a. The Law on Search Incident to Arrest
The common law standard for search incident to arrest allows police to search a lawfully arrested person and seize items in their possession or within their immediate surroundings.[2] This authority aims to ensure police and public safety, prevents escape, and preserves evidence for prosecution.[3] Unlike other police powers, this authority is considered “extraordinary” because it does not require a warrant or reasonable and probable grounds.[4]
The standard for search incident to arrest is well established. In Fearon, the SCC outlined three requirements: (1) the individual must be lawfully arrested; (2) the search must be truly incidental to the arrest, serving a valid law enforcement purpose connected to the arrest; and (3) the search must be conducted reasonably.[5]
Under the second requirement, valid law enforcement purposes include: (a) ensuring police and public safety; (b) preventing the destruction of evidence; and (c) discovering evidence for trial.[6] However, these purposes are not exhaustive, and the Court has acknowledged the possibility of new valid purposes emerging in future cases.[7]
The police’s law enforcement purpose must establish a subjective connection between the search and the arrest. Additionally, the officer’s belief that the search will achieve the law enforcement purpose must be objectively reasonable.[8] Importantly, the police are not required to meet the higher standard of reasonable and probable grounds. Instead, they need only demonstrate “some reasonable basis” for the search,[9] a significantly lower threshold.[10]
The search must also remain proximate in time and space to the arrest.[11] This ensures it is a “focused power” tailored to the specific circumstances of the arrest.[12] The scope and objectives of the search will depend on the nature of the offence and the arrest’s context.[13]
In certain situations, the Court has adjusted the common law framework to account for strong individual privacy interests. For example, restrictions have been placed on searches involving hair, buccal swabs, teeth impressions,[14] strip searches,[15] cell phones,[16] and penile swabs.[17] Most recently, in Stairs, the Court modified the framework to reflect the heightened privacy interests individuals have in their homes.
b. R v Stairs – Did the Court Get it Wrong?
In Stairs, the police responded to a 911 report of a man assaulting a woman in a car. They located the suspect's car in a driveway and entered the house after knocking and announcing themselves, concerned for the woman’s safety. Inside, they saw a woman with visible facial injuries emerging from the basement. The appellant, Stairs, ran past the staircase and barricaded himself in a basement laundry room, where he was arrested. Following the arrest, the police conducted a visual search of the adjacent basement living room for safety purposes, where they spotted drugs in plain view. Stairs was charged with possession with the purpose of trafficking, assault, and breach of probation, and he was convicted on all counts at trial.[18]
On appeal to the SCC, Stairs argued that a safety-related search of a home requires reasonable grounds to believe or suspect an imminent safety threat. He claimed this standard was not met, rendering the search unconstitutional and the drug evidence inadmissible.[19]
The SCC balanced the need for effective law enforcement against the heightened privacy rights in a home. The majority of the Court modified the common law standard for home searches incident to arrest, distinguishing between areas within and outside the physical control of the arrested person. For areas outside the arrested person’s control but sufficiently proximate to the arrest, a search is valid only if: (1) the police have reason to suspect a safety risk to the police, the accused, or the public that justifies the search; and (2) the search is conducted reasonably and respects the heightened privacy interests in a home.[20]
Applying this standard, the majority of the Court found that the police reasonably suspected a safety risk in the basement living room and conducted a minimally intrusive search.[21] They concluded Stairs’ section 8 Charter rights were not breached, and the drug evidence was properly admitted, thus dismissing the appeal.[22]
However, my view aligns more with the dissenting opinion in this case. Writing in dissent, Karakatsanis J. wrote that the appeal should be allowed, the accused’s conviction for possession of a controlled substance for the purpose of trafficking should be set aside, and an acquittal should be entered.[23] The police searched the basement only after handcuffing the accused and escorting the victim upstairs. They lacked particularized facts to justify a safety search and relied instead on generalized uncertainty about potential weapons or other individuals. The searching officer provided no reasonable basis to suspect that anyone’s safety was at risk following the arrest.[24] As a result, the search and seizures were unlawful and violated the accused’s section 8 Charter rights.[25]
The dissent relied on Nordheimer J.A.’s dissenting opinion at the Court of Appeal for Ontario to frame the balance between privacy and law enforcement interests under section 8.[26] Unlike the majority in Stairs, the dissent stated that police should only conduct a search incident to arrest inside a home when they reasonably suspect an imminent threat to the safety of police or the public. The dissent also explained that safety risks arising from an arrest in a home, where obtaining a warrant is not feasible, will generally be imminent. Imminence serves as a critical standard because it justifies situations where a warrant cannot be secured in time. Moreover, it underscores that if police can obtain a warrant before searching a home, they must do so.[27]
While the dissent did not explicitly mention it, I believe they were addressing the principle of necessity in searches incident to arrest, which I will explain in the following section.
c. Was the Search Necessary?
The jurisprudence is clear: a valid search incident to arrest must be conducted reasonably.[28] This principle was established in Cloutier, where L’Heureux-Dubé J. extended the concept of reasonableness beyond the manner of the search.[29] It is apparent that the Court in Cloutier took a holistic approach, assessing whether the search was both necessary and reasonable, and treated these as essential considerations for justifying intrusions into the rights of the accused.
However, the concept of necessity has seemingly diminished in the evolution of search incident to arrest jurisprudence. For example, the Court in Stairs made no reference to necessity.[30] Nevertheless, nothing in the case law suggests that necessity is not a valid consideration. This changed with the Court of Appeal for Ontario’s decision in R. v. Sureskumar(“Sureskumar”).
In Sureskumar, the accused was convicted of fraud.[31] On appeal, the Court of Appeal was tasked with addressing whether a search incident to arrest for identification purposes serves a valid law enforcement purpose.[32] However, the Court of Appeal concluded it was unnecessary to resolve this question because the case could be decided based on the reasonableness of the search.[33]
The Court of Appeal in Sureskumar clarified that necessity is a component of the broader reasonableness analysis established in Cloutier.[34] They said a reasonableness inquiry limited to the manner of the search ignores whether the search was necessary.[35] This oversight of necessity could lead to unnecessary searches, even though the power to search exists to help peace officers fulfill their duties.[36] The Court of Appeal continued by stating 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 underlying public policy imperatives.[37]
Applied to the facts, the Court of Appeal found the trial judge failed to address why a search, unnecessary to confirm the appellant’s identity, was reasonable.[38] If this analysis had been conducted, it would have been evident that searching the appellant’s vehicle and seizing their wallet was not reasonable.[39] Consequently, the search violated the appellant’s section 8 Charter rights.[40]
d. Search Incident to Arrest to Preserve Evidence – My Proposed Framework
The Court of Appeal’s discussion in Sureskumar did not address the necessity of an imminent search incident to arrest. However, the temporal aspect of a search’s reasonableness is not a novel concept in Canadian jurisprudence.
The Court has previously established that a search incident to arrest does not need to occur immediately after the arrest. Instead, the general rule is that the search should occur “within a reasonable period of time.”[41] A “substantial delay,” however, may lead to an inference that the search was not sufficiently connected to the arrest.[42] For instance, in Caslake, a vehicle search for inventory purposes conducted six hours after an arrest was deemed unlawful.[43] In Fearon, the Court held that the discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest.[44] Yet, depending on the circumstances, a delay of several hours may still result in a lawful search, and the availability of time to obtain a warrant does not automatically mean a warrant is required.[45]
If necessity is to factor into the analysis, I argue that an immediate search is essential. If the incidental search is necessary to preserve evidence, it must be conducted immediately; otherwise, there is no justification for bypassing the warrant requirement. Therefore, to propose a standard for searches incident to arrest that aim to preserve evidence, I draw on the necessity principle from Sureskumar and the dissenting opinion in Stairs, which emphasized the importance of timeliness.
Generally, when modifying the common law standard for searches incident to arrest, the standard must address a specific category (e.g., strip searches, home searches, or vehicle searches) rather than altering the general law enforcement purposes outlined in the second step of the common law framework. Given my view that timeliness is crucial for searches incident to arrest aimed at preserving evidence, I propose modifying the standard to focus on the law enforcement purpose. This standard could be adapted as needed for different categories of searches. My proposed standard is as follows:
Was there some reasonable basis to believe that the evidence would have been destroyed but-for an immediate search incident to the arrest?
If yes, the search was necessary and therefore objectively reasonable.
If no, a warrant should have been obtained.
Generally, I see no justification for requiring more than the common law standard of a “reasonable basis” to prevent the destruction of evidence, specifically due to the imminence of the law enforcement purpose. However, in situations where the accused has a heightened privacy interest—such as in Stairs, where the search occurred in the accused’s home—I believe there may be circumstances in which my proposed standard would necessitate an augmented “reasonable suspicion” threshold.
In summary, my modified standard for a lawful search incident to arrest for the purpose of protecting evidence is as follows:
The individual has been lawfully arrested.
The search was incidental to the arrest, such that the evidence would have been destroyed but-for an immediate search.
The search was necessary in the circumstances and conducted reasonably.
To facilitate comparison, I reiterate the common law standard for searches incident to arrest. A search is permitted if: (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is a reasonable basis for the search connected to the arrest, and it serves a valid enforcement purpose; and (3) the nature and extent of the search are reasonable.[46] My proposed standard modifies the second and third steps.
e. Practical Considerations for the Framework
The Stairs majority rejected the dissenting Court of Appeal judge’s standard of reasonable belief in imminent harm, opting instead for a reasonable suspicion standard.[47] The majority argued that an imminence requirement would effectively eliminate the search incident to arrest power, reducing it to the exigency exception. Under exigent circumstances, police could act on that basis alone, rendering the search incident to arrest power unnecessary.[48]However, I believe the Stairs majority’s reasoning presents a false dichotomy.
My proposed standard is distinct from the exigency exception, which arises when there is imminent danger requiring immediate action to prevent evidence from being lost, removed, destroyed, or disappearing.[49] The need to protect evidence under exigent circumstances applies where: (1) there are sufficient grounds to obtain authorization to seize evidence; (2) there are reasonable grounds to believe that evidence faces “imminent danger” of loss or destruction without prompt seizure; and (3) the delay in obtaining authorization poses a “serious risk” to preserving evidence.[50]
In contrast, my proposed standard only requires police to have “some reasonable basis” to believe that conducting the search is necessary to prevent the destruction of evidence. Further, the lawfulness of the search incident to arrest stems from the lawfulness of the arrest itself and does not require independent reasonable grounds.[51] By comparison, searches under exigent circumstances are justified by reasonable grounds to believe evidence will be destroyed without prompt action. My standard acknowledges that while exigent circumstances may appear relevant, the authority to search derives from the arrest, not the threat of evidence being destroyed. If the arrest itself is unlawful, there would be a violation of section 8 of the Charter.
I should also address concerns about whether police can realistically apply a “but-for” test to assess the necessity of preserving evidence in high-pressure situations. Courts must recognize the volatility and unpredictability of policing. Officers face uncertain and fast-changing circumstances, requiring them to expect the unexpected.[52] The Court of Appeal in Sureskumar upheld this high standard for police, stating that multiple equally efficient and convenient options existed for obtaining information without conducting the search in question.[53] However, given their mandate, “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing.”[54] My proposed “reasonable basis” standard strikes a balance between empowering police to act swiftly and effectively while safeguarding individual privacy. It ensures that officers can fulfill their mandate without compromising constitutional rights.
3. Conclusion
The common law doctrine of search incident to arrest has evolved significantly under the guidance of the SCC to reflect a balance between effective law enforcement and the privacy interests protected by section 8 of the Charter. However, the law governing searches incident to arrest to prevent the destruction of evidence remains underdeveloped. My proposed standard provides an objective and clear mechanism for determining when searches incident to arrest for the purpose of preserving evidence are justified.
By adopting this standard, the Court would affirm its commitment to safeguarding Charter rights while providing practical guidance to law enforcement officers navigating the complexities of criminal procedure. As the Court continues to refine the common law framework for searches incident to arrest, my proposed standard could serve as a robust and principled addition to this evolving body of law.
[1] R v Sureskumar, 2023 ONCA 705 at paras 12, 16 [Sureskumar].
[2] Cloutier v Langlois, [1990] 1 SCR 158 at 180, 1990 CanLII 122 (SCC) [Cloutier].
[3] Ibid at 180-81.
[4] R v Fearon, 2014 SCC 77 at paras 16, 45 [Fearon].
[5] Ibid at paras 21, 27; see also R v Stairs, 2022 SCC 11 at para 35 [Stairs].
[6] Fearon, supra note 4 at para 75; Stairs, supra note 5 at para 36.
[7] R v Caslake, 1998 CanLII 838 (SCC) at para 25 [Caslake].
[10] Stairs, supra note 5 at para 37.
[11] Caslake, supra note 7 at para 25.
[12] Fearon, supra note 4 at paras 13, 16.
[13] Caslake, supra note 7 at para 25.
[14] R v Stillman, 1997 CanLII 384 (SCC) [Stillman].
[15] R v Golden, 2001 SCC 83.
[16] See generally Fearon, supra note 4.
[18] Stairs, supra note 5 at paras 11-19.
[22] Ibid.
[28] Ibid at para 35; Stillman, supra note 14 at para 27.
[29] Supra note 2 at 181-82.
[30] Sureskumar, supra note 1 at para 15.
[35] Ibid.
[36] Ibid.
[37] Ibid.
[40] Ibid.
[41] Caslake, supra note 7 at para 24.
[42] Ibid.
[43] Ibid.
[45] R v Sinclair, 2005 MBCA 41 at para 18.
[46] Fearon, supra note 4 at paras 21, 27; Stairs, supra note 5 at para 35.
[47] Stairs, supra note 5 at paras 75-77.
[49] R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223 at 241-242.
[50] R v Kelsy, 2011 ONCA 605 at paras 25-30; R v Paterson, 2017 SCC 15 at para 37.
[51] Caslake, supra note 7 at para 13; R v Campbell, 2024 SCC 42 at para 102.