Manner of Search

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 92616)

General Principles

Where persons other than the accused have their privacy invaded during the search will be a factor in considering the reasonableness of the search.[1]

The manner of search must be reasonable.[2] The "manner" of search refers to the "physical way in which [the search] is carried out."[3]

Disruptive Searches

Once an item has been searched and determined not to be relevant, "it should be returned to where it was found.”[4] The "deliberate and unnecessary damage to property" and "deliberate and unnecessary disorder and disarray" of property may produce a breach of s. 8 of the Charter of Rights and Freedoms.[5]

  1. R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per La Forest J in dissent, at paras 47 to 48
  2. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
  3. R v Hamilton, 2014 ONSC 447 (CanLII), 65 MVR (6th) 239, per MacDougall J, at para 100
    R v Debot, 1986 CanLII 113 (ON CA), 30 CCC (3d) 208, per Martin JA, at para 6
  4. R v Thompson, 2010 ONSC 2862 (CanLII) (working hyperlinks pending), per Code J, at para 74
  5. Thompson, ibid., at para 75

Use of Force During Search

Section 25 governs the use of force during which a police executes their duties:

Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

[omitted (a)]
(b) as a peace officer or public officer,
[omitted (c) and (d)]

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When not protected

(3) Subject to subsections (4) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

[omitted (5)]
R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 25(1), (2), (3), and (4)


Defined terms: "peace officer" (s. 2) and "person" (s. 2)

Once it is shown that force was used, the onus shifts to the Crown to establish that s. 25 was complied with.[1]

Section 25 intends to constrain police conduct "by the principles of proportionality, necessity and reasonableness."[2]

Regarding the use of force with respect to sentencing see State and Police Misconduct.

  1. R v Davis, 2013 ABCA 15 (CanLII), 295 CCC (3d) 508, per curiam (2:1)
  2. Davis, ibid.

Strip Searches

Timing of Search

A search must be commenced within the time period specified by the warrant, but it need not conclude within the period specified in the warrant as long as it it completed "without unreasonable delay."[1]

  1. R v Woodall, [1993] OJ No 4001 (ONCA)(*no CanLII links)
    R v Butters, 2014 ONCJ 228 (CanLII), 311 CCC (3d) 516, per Paciocco J, at para 46

See Also