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Is searching for motive as an incident to arrest within the scope?

This year, Blue Line celebrates 35 years. Congratulations! It was also 35 years ago when the Supreme Court of Canada heard arguments in the landmark search incident to arrest case, Cloutier v. Langlois – a decision that took the Court three months to decide. Now, more than three decades later, courts are still considering the scope of this common law power.

In one such case, R. v. Dautruche, 2024 ONCA 426, the Ontario Court of Appeal was tasked with deciding whether a search for motive—or the reason why a driver fled from a traffic stop—was truly incidental to arrest such that a search of a vehicle, which turned up cocaine, was conducted for a valid law enforcement objective.

In this case, the police tried to pull over the accused during a traffic stop sometime after 2 a.m. But rather than yielding to police, Dautruche – whose driver’s licence was suspended at the time – fled. His vehicle subsequently skidded off the road, and its driver’s side ended up tightly lodged against an eight-foot-tall hedge and a snowbank of freshly fallen snow. Dautruche, the lone occupant of the vehicle, emerged from its passenger side and was arrested for flight from police, an offence under s. 320.17 of the Criminal Code.

An officer decided to search Dautruche’s vehicle as an incident to arrest. During the search, a bag of crack cocaine was found on the driver’s side floor. When the vehicle was towed away, a bag of cocaine was found on top of the snowbank in the area where the driver’s side window would have been before the vehicle was moved. The driver’s side window was open four to six inches, and the snow around the vehicle remained undisturbed, except for the ripples on the surface where the vehicle had struck.

When this went to trial in the Ontario Court of Justice, the officer said he searched the vehicle because “maybe it would shed light as to give some reason as to why” Dautruche would have taken off. The judge held that the vehicle search was temporally and spatially connected to the arrest. She accepted that the officer had a subjective belief that a search of the vehicle might shed some light on why Dautruche had fled from police. This subjective belief was objectively reasonable. Since the search was lawful as incidental to arrest, there was no s. 8 Charter breach – the right to be secure against unreasonable search or seizure. As for the bag of cocaine found on top of the snowbank, the only rational inference from the whole of the evidence was that Dautruche threw it out of the driver’s side window. He was convicted of PPT cocaine and PPT crack cocaine, and flight from a peace officer.

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.

Dautruche then appealed his drug convictions to Ontario’s top court, claiming the search of the vehicle was not valid as an incident to arrest. Dautruche argued that the Crown had not met its burden of establishing that the searching officer subjectively turned his mind to the permissible scope of the search incident to arrest power. He suggested the officer did not have a subjective belief that searching Dautruche’s vehicle might reasonably uncover evidence related to the offence of flight from police, the reason for which he had been arrested.

However, the three-judge panel of the Ontario Court of Appeal rejected Dautruche’s contention. The Court first outlined the requirements for the common law power of search incident to arrest:

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”. The “surrounding area” can include an automobile.

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. 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. To meet this standard, the police require “some reasonable basis” to do what they did.

As for whether the police were entitled to search for the motive or reason why Dautruche fled, the Court of Appeal added this:

He was lawfully arrested for the offence of flight from police. While the police knew that he had a suspended licence, [the searching officer] was evidently alive to the possibility that the [accused] might have also had another motive to flee from the police. 

[The searching officer] and another officer both testified that they believed that the driver might be impaired. It was also a reasonable possibility in the circumstances that he might have fled because he was in possession of contraband. This gave [the searching officer] a reasonable basis to search the vehicle for evidence that might better explain why the [accused] had fled. 

While this evidence might have shown that the [accused] had committed a different offence, this evidence might nonetheless also have had probative value in relation to the flight from police charge, which required the Crown to prove, among other things, that the [accused] had no reasonable excuse for his failure to stop.

In the Court’s view, the officer’s testimony revealed he subjectively conducted the search consistent with the proper purposes of search incident to arrest — a search for evidence of Dautruche’s possible motive for fleeing from the police. Since the officer’s search of the vehicle was a valid search incident to arrest, there was no s. 8 breach and, therefore, no reason to consider whether it should have been excluded under s. 24(2). Dautruche’s appeal was dismissed, and his convictions were upheld.

Mike Novakowski is Blue Line’s case law columnist.