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[85] As to the police authority to search a vehicle without a search warrant, the following principles apply:
(1) warrantless searches are an exception in Canadian law and are presumptively unreasonable unless justified by the Crown on a balance of probabilities: R. v. Nolet, 2010 SCC 24 (CanLII), [2010] 1 S.C.R. 851, at para. 21; R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3 S.C.R. 679, at para. 84
(2) however, “[a] warrantless search…may be justified at common law if it is a search incident to arrest”: R. v. Valentine, 2014 ONCA 147 (CanLII), at para. 43 (appln for leave to appeal filed [2014] S.C.C.A. No. 183)
(3) if the arrest itself is not lawful or valid, then the search incident to such an arrest is itself unlawful and therefore unreasonable and violative of s. 8 of the Charter: Chehil, at para. 55; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13; R. v. Day, 2014 NLCA 14 (CanLII), at para. 60 (appeal as of right filed [2014] S.C.C.A. No. 136)
(4) a search incident to arrest is constrained by these limits:
In Cloutier [v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158], L'Heureux-Dubé J. also recognized the potential breadth of this police power. She held that the court must balance the state's interests in law enforcement and the protection of the police against the arrested person's interest in privacy in order to determine whether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to search incident to arrest (at p. 186):
1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
2. 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. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. 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.
If all three of these conditions are met, and the arrest itself is lawful, the search will be "authorized by law" for the purposes of s. 8 of the Charter. In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive. Rather, the problem in this case is that the objective and scope of the search exceeded its permissible limits.
(Caslake, at para. 14)
(5) in appropriate cases, a search incident to arrest may be executed upon a motor vehicle: Caslake; Day.
[86] To be reasonable, any search must be executed in a reasonable manner:
(1) it must be borne in mind that when the police work in a close encounter with someone who may have committed a criminal offence, they must have reasonable resort to measures to minimize, to the greatest extent possible, harm to themselves: R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, at para. 43; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 623
(2) when the police execute extraordinary measures as an aspect of arrest or search, consideration of whether their actions are based upon reasonably based and genuinely held beliefs, depends not only the factual circumstances of a particular case, but also the experience of the officers in similar situations, and their related training - “Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions”: Florida v. J.L., at p. 272 - the courts should exercise some caution before attempting “to micromanage the police’s choice of equipment”: R. v. Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142, at para. 31
(3) indeed, the courts have recognized the real potential for the presence of firearms in the immediate vicinity of significant quantities of illicit drugs as the trafficker seeks to protect his or her valuable commodity: United States v. Garcia, U.S.C.A. 10th Cir. (May 12, 2014; No. 13-2155), at pp. 12-3, 16; United States v. Beltram, U.S.C.A. 7th Cir. (May 15, 2014; No. 12-2990), at p. 9.
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