What is the law relating to the power of the police to search a person incidental to a lawful arrest?

Ontario, Canada


The following excerpt is from R. v. Brown, 2008 CanLII 20988 (ON SC):

The law relating to the power of the police to search a person incidental to a lawful arrest, is aptly summarized in the headnote in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 (S.C.C.) as follows: At common law a police officer may carry out a "frisk" search of a person who has been lawfully arrested and the existence of reasonable and probable grounds is not a prerequisite to the existence of such a power. ... The exercise of the power to search is not however unlimited. First, this power does not impose a duty. The police have some discretion and, if satisfied that the law can be effectively and safely applied, they may see fit not to conduct a search. They must also be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives forming the basis of the right to search. Second, as regards these objectives, the search must be for a valid objective in pursuit of the ends of criminal justice -- such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused -- and the purpose of the search must not be unrelated to the objectives of the proper administration of justice. Third, the search must not be conducted in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.

Other Questions


What is the power of the police to search the home of a lawfully arrested person? (Ontario, Canada)
What is the common law common law authorizes a search incident to a lawful arrest? (Ontario, Canada)
Is a police disciplinary record that is not in the control of the police force required to be disclosed by the police officer to the police community? (Ontario, Canada)
In what circumstances will a search warrant be used to obtain personal information about a person who has not been arrested? (Ontario, Canada)
Is a search incidental to an arrest not lawful? (Ontario, Canada)
What are the implications of a family law case law review of the applicable provisions and case law principles for costs in family law? (Ontario, Canada)
In a personal injury action brought by the wife against the husband for child support because of his drug addiction, does the wife rely on the law of drug addiction to argue that the husband's drug addiction would be wrong at law and contrary to public policy? (Ontario, Canada)
Is there any case law or case law relating to the municipality's conduct on title issues? (Ontario, Canada)
Is there any case law relating to an accident benefit application where a delay in submitting the Application due to a personal relationship preventing the Applicant from making an application? (Ontario, Canada)
Does the Crown have the burden of proving that a search conducted incidental to an arrest is reasonable? (Ontario, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.