La fouille accessoire à l'arrestation vue par la Cour d'appel de l'Alberta

R v Araya, 2025 ABCA 61

Lien vers la décision

Search Incident to Arrest

[40]           The trial judge found that Constable Chan’s seizure of the firearm from the satchel was incident to arrest and there was no breach of the appellant’s right to be secure from unreasonable search and seizure as guaranteed by section 8 of the Charter.

[41]           Search incident to arrest requires: (1) the arrest itself must be lawful; (2) the search must be incident to arrest; and (3) the manner in which it is conducted must be reasonable: R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, 1997 CarswellNB 107 at para 27, R v Tim, 2022 SCC 12 at para 46, R v Marckoski, 2024 SKKB 162 at paras 75-78.

[42]           The appellant submits that the search was not incident to arrest because there was no imminent threat justifying a safety search.

[43]           One of the main purposes of search incident to arrest is to ensure the safety of police officers and members of the public. The police officer conducting the search must believe that the search is for their protection and that belief must be based on objective grounds which are reasonable. See Tim at para 53, R v Stairs, 2022 SCC 11 at paras 34-37. The police need not have reasonable grounds to believe that the search will produce a weapon. See, R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, 1998 CarswellMan 1 at para 19.

[44]           In this case, there were ample objective grounds for Constable Chan believing that the appellant, whom he thought was Mr. Lugela, may be carrying a firearm. In addition to being informed of Mr. Lugela’s history with firearms, Constable Chan testified that when chasing the appellant, he could see the appellant’s hand stop and try “to access something on their body like a firearm or anything that could cause us harm”. He explained he patted down the satchel to see if there was anything he needed to be worried about or anything that might risk officer safety.

[45]           Constable Chan’s grounds for the search incident to arrest more than meet the test required in Caslake. The trial judge did not err in finding that the search incident to arrest was legal. There was no breach of section 8 of the Charter.