When Is a Search Reasonably Conducted?

• Author: Robert Diab/Chris D.L. Hunt
• Profession: Professor in the Faculty of Law at Thompson Rivers University/Professor in the Faculty of Law at Thompson Rivers University
• Pages: 301-327

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C H A P T E R 8

WHEN IS A SEARCH REASONABLY CONDUCTED?

A. INTRODUCTION

Our focus in this chapter is the third part of the Supreme Court’s test in R v Collins for when a search or seizure under section 8 of the Charter will be reasonable. Under Collins, a search or seizure will be reasonable and comply with section 8: “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”¹What, then, constitutes a search or a seizure conducted in a reasonable manner?

We explore the various answers to this question courts have provided in three main areas: searches and seizures involving the person and their efects, territory or buildings, and information. Before embarking on this survey, however, we briely address the origin and nature of this criterion of legality.

When Lamer J, as he then was, invoked the idea of the “manner” in which a search is conducted in his formulation of a general test for section 8 in 1987, he was not the irst judge to do so. The idea appeared three years earlier in Hunter v Southam Inc, when Dickson J, as he then was, remarked at the outset of the decision that it “does not concern the reasonableness or otherwise of the manner in which the appellants

1 R v Collins, [1987] 1 SCR 265 at 278 [Collins], holding also that once the accused establishes that s 8 is engaged, the burden shifts to the Crown to establish the search was reasonable (i.e., all three grounds) on a balance of probabilities.

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carried out their statutory authority” — suggesting that he was aware of it as a possible basis for challenging a search.²The same year, judges in at least a few cases involving challenges to searches under the Narcotic Control Act had also invoked it. Justice Martin of the Ontario Court of Appeal in R v Rao may have been the irst to do so when he held that

[a] challenge to the reasonableness of a particular search may be made under the Charter on two bases. Firstly, the reasonableness of the legislation authorizing the search is subject to challenge; secondly, a search under a constitutionally valid statutory authority may be carried out in an unreasonable manner, for example, by the use of excessive force.³The British Columbia Court of Appeal and Federal Court cited Rao in formulating a framework for assessing section 8 that included “manner of search” as a consideration, but did not make indings in relation to this ground.⁴Collins may be the irst notable appellate decision to make substantive use of conduct as a ground, in ways to be explored further below. By then, the idea of a “reasonable search” comprising reasonable conduct as well as authority had gained a measure of recognition in the caselaw — as a fundamental rather than a marginal consideration.

The Supreme Court clariied in a general sense what is meant by “the manner in which a search is conducted” in R v Debot.⁵In that case, the appellant was pulled over on a tip that he was in possession of a narcotic, on his way to meet a buyer. An oicer ordered him to assume a “spread eagle” position and empty his pockets and found him in possession of speed. The majority rejected the proposition that the right to counsel arose from the fact of being searched, and that a denial of counsel prior to the search rendered the “manner” in which the search was carried out unreasonable. Justice Lamer, as he then was, held that “[t]he ‘manner’ in which the search is conducted relates to the physical way in which it is carried out and should not, in my view be inclusive of restrictions of other rights that already receive the beneit of protection from the Charter.”⁶The majority was staking a position against a view held by Wilson J in this case and in earlier decisions that the denial of counsel prior to search could amount to a search unreasonably conducted.⁷As

2 Hunter v Southam Inc, [1984] 2 SCR 145 at 154.
3 R v Rao, 46 OR (2d) 80 (CA). Justice Martin’s dicta here may also have been a point of origin for the second prong of the Collins test.
4 R v Hamill, [1984] 6 WWR 530 (BCCA); Danielson v Sterba, [1985] 1 FC 821

(FC); Minister of National Revenue et al v Kruger et al, [1984] FC 535 (FCA).
5 [1989] 2 SCR 1140 [Debot].
6 Ibid at 1148.
7 R v Simmons, [1988] 2 SCR 495; R v Strachan, [1988] 2 SCR 980; and R v Jacoy,

[1988] 2 SCR 548.

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Lamer J would go on to note, a search found to be done in a reasonable manner might still result in the exclusion of evidence for other Charter breaches, but the analysis under section 24(2) of the Charter would involve diferent considerations as a result.⁸As a inal point of general application, the Supreme Court has held that the purpose of requiring that a search be conducted in a reasonable manner is that “[t]his ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives.”⁹Justice Cromwell’s formulation of this rationale can also be read as a general principle or test for determining whether and when a search has been conducted in an unreasonable manner. The question to be asked in every context is whether police or other state agents have done more than was reasonably necessary to achieve their objective of investigating an ofence or addressing a safety concern. This principle informs all the cases we canvass in this chapter, inviting us to read them as applications of this general principle or test to speciic kinds of search.

B. REASONABLE SEARCH OF THE PERSON

1) On Arrest or Detention

Two common scenarios in which police search a person in ways that are held to be unreasonable involve search incident to arrest or detention. The Court’s pronouncements on the reasonable conduct of these searches delineate boundaries and set out guidelines meant to assist police in avoiding and trial courts in judging unreasonable conduct.

The Supreme Court in Cloutier v Langlois airmed a police power at common law to conduct a brief frisk or pat down search incident to a lawful arrest.¹⁰Although the search in that case was not challenged as a section 8 breach, and predates Collins, L’Heureux-Dubé J sought to craft the scope of this power “in a manner consistent with the fundamental values enshrined in the Constitution.”¹¹She set out a set of qualiications on the use of the power, including one stipulating that “[t]he search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the

8 Debot, above note 5 at 1148–49.
9 R v Vu, 2013 SCC 60 at para 22 [Vu].
10 Cloutier v Langlois, [1990] 1 SCR 158 [Cloutier]. The scope of this power is discussed in Chapter 6, Section D(4)(a).
11 Ibid at 184, citing RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 at 603.

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objectives sought and the other circumstances of the situation.”¹²Given the appellant’s “highly agitated and verbally abusive conduct” in the course of his encounter with police, the decision to conduct the brief pat down was reasonable.¹³And since it was quick and cursory, with police ordering Cloutier to place his hands on the hood of his car while being patted down, and did not involve “either excessive force or constraint,” it was reasonably conducted.¹⁴

Collins involves a case of excessive force. The oicer acted on a tip that the accused was a heroin dealer. Finding her seated in a pub, he tackled her to the loor and (in his words) “grabbed her by the throat” to prevent her from swallowing the evidence.¹⁵The oicer conceded at trial that the force he used was “considerable.”¹⁶The Supreme Court was concerned with both the authority for the search and the way it was conducted. The oicer lacked suicient grounds for an arrest and had no other authority to conduct the search. Justice Lamer, as he then was, also held that the search was “carried out with unnecessary violence”¹⁷— a distinct ground on which it violated section 8. However, at the end of the decision, Lamer J noted that had the oicer had more certainty that the accused was a “handler of drugs,” “taking a lying tackle” at her may not have been unreasonable.¹⁸We query whether, today, this amount of violence would be considered “proportionate to the objectives sought” as L’Heureux-Dubé had held in Cloutier.

The Court would go on to consider the scope of search on arrest in various cases that trace the limits of this power, expanding it well beyond the frisk search initially authorized in Cloutier.¹⁹R v Stillman marked an important limit by requiring a warrant for the seizure of bodily samples,²⁰but in R v Golden, R v Saeed, and R v Fearon the Court declined to impose a warrant requirement for strip searches, penile swabs, and device searches incident to arrest — all forms of search that engage

12 Cloutier, above note 10 at 186.
13 Ibid at 187.
14 Ibid at 188.
15 Collins, above note 1 at 270–71.
16 Ibid at 271.
17 Ibid at 279.
18 Ibid at 288.
19 The cases are canvassed in Chapter 6, Section D(4)(a), including R v Caslake,

[1998] 1 SCR 51, permitting the search of a car incident to arrest, hours or possibly days after the arrest has occurred, and R v Stairs, 2022 SCC 11 [Stairs], permitting a search of a person’s immediate surroundings when arrested in a dwelling house.
20 R v Stillman, [1997] 1 SCR 607.

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heightened privacy interests.²¹In each of these cases, the Court sought to address the privacy concerns at issue by imposing a requirement to satisfy further grounds or conditions for the kind of search at issue, and by setting out guidelines for their reasonable conduct.

Before turning to those cases, we note an important extension to search incident to arrest in the Supreme Court’s most recent consideration of this power. In R v Stairs,²²the Court recognized the power...