Blue Line


April 30, 2013  By Mauro Succi

3105 words – MR

Investigative detention: Motor vehicles

by Mauro Succi

In the 2004 decision <R. v. Mann> <1> the Canadian Supreme Court ruled on the issue of investigative detention (commonly referred to as articulable cause). Although the evidence was excluded in this particular case the court nonetheless upheld a police officer’s common law authority to detain an individual and search for safety incidental to investigative detention.

The detention must be based on more than mere suspicion, as outlined in <R. v. Simpson><2>. In other words, an investigative detention is only justified at common law “if the detaining officer has some ‘articulable cause’ for the detention.”<3> Articulable cause was defined as:


A search incidental to investigative detention has three components:

(1) A “pat-down” search of the person detained; (2) For weapons; and (3) For reasons of police and public safety.<5>

The search must be in accordance with both the Waterfield and Collins test.<6>

A problem arose with a pat-down search being restricted to a suspect only for weapons. This is because was fact driven, based on a single individual walking and detained after officers suspected him of being involved in a possible break and enter in progress. Therefore, the Supreme Court ruling referring to the pat-down search was specific to the events that occurred in but that decision did not address a variety of other situations an officer may encounter.

For example, what about a suspect detained for possible criminal activity after operating or sitting in a motor vehicle? Does the pat-down search extend to searching the vehicle? Further, if the search incidental to investigative detention must be only for public safety, what about a situation where a person is detained for possibly transporting drugs in a vehicle? In this type of scenario, it often begins with a traffic stop for a minor offence, but ends with the officer suspecting the driver of being involved in criminal activity? At what point does the traffic stop become an arbitrary detention?

Fortunately the courts have subsequently addressed parts of these issues.

  1. Authorities to stop vehicles

In Ontario,<7> “where a person is operating a ‘motor vehicle’ as defined under the on a ‘highway,’<8>

of the act<9> permits a police officer to stop the driver and take investigative steps to determine if there are grounds for a breath or drug evaluation demand. Also, <216(1) HTA> <10> provides police with a broad power to stop motorists on a highway, even arbitrarily or randomly, so long as the stop is associated with traffic safety or the enforcement of laws relating to motor vehicles – for example checking for valid driver’s licence, motor vehicle registration and insurance, mechanical fitness and the sobriety of the driver.” <11>

It is well established in law that the random stopping of vehicles is justified by <s.1> of the <Charter.> For example, in <R. v. Hufsky,> the Supreme Court of Canada ruled:


Similarly in <R. v. Ladouceur,> the high court once again confirmed the position previously taken in <Hufsky;> The random stopping of motorists on a highway is the only way of checking a driver’s licence and insurance, mechanical fitness of a vehicle and sobriety of the driver. However, in <Ladouceur,> the court went further by stating:


In other words, the initial stop (outside of common law or other some legislated authority) is authorized under highway safety, providing it is of short duration and the driver is minimally inconvenienced. The driver is usually required to produce valid documents and any questioning will only be in connection with traffic enforcement and highway safety, including the mechanical fitness of the vehicle, and a sobriety check. As mentioned, any further, more intrusive procedures could only be undertaken based upon common law or some other legislated authority. <14>

  1. Investigative detention and vehicles

As stated, once the motorist is stopped under the authority of a traffic act, driver questioning is limited to traffic enforcement and highway safety; this brief detainment is justified and in accordance with the . However, more intrusive questioning, detainment outside of the area of traffic enforcement and highway safety can only be undertaken based upon a common law or some other legislative authority, <e.g. arrest, Criminal Code, Controlled Drugs and Substances Act or Liquor Act searches, exigent circumstances and investigative detention. >

and are so closely related that they are often one and the same. To rely on requires a belief of urgency or and require an immediate police response that usually results in the officer detaining under the authority of ; especially in situations that are quickly unfolding and prior to an officer formulating the grounds for an arrest or other lawful search authority.

For example, in <R. v. Pearson><15> the accused was initially stopped for speeding. The officer noticed it was a rental. The accused, the sole occupant, was asked for his driver’s licence, insurance, registration and rental agreement. He produced a valid driver’s licence showing a Richmond, B.C. address and the officer asked where he was headed to and coming from. The accused initially said he was coming from Edmonton (he was stopped driving towards Edmonton), then clarified that he and his fiancé flew to Edmonton and rented the vehicle there, then drove to Vancouver, where he dropped off his fiancé, and he was returning the rental vehicle to Edmonton.

The officer noticed the vehicle had been rented in Edmonton at 9:00 am the previous day, which meant the accused had made a very long journey in a very short period of time. He therefore questioned Pearson about his travel choices. The officer thought the accused’s explanations were odd since it wasn’t economically feasible. In returning the documents, the officer leaned into the window and saw that the accused’s hands were trembling and detected a faint odour of raw marijuana. He also noticed the accused becoming more nervous as the questioning continued. The officer testified he wasn’t convinced that marijuana was actually located within the car based upon such a faint odour, although he was sure he smelled it. He became suspicious that Pearson might have drugs in his vehicle.

After running some computer inquiries, the officer initiated a formal investigative detention. He asked Pearson to get out and advised him he was being formally detained because he was believed to possess a controlled substance and that a police dog would sniff around the vehicle. The officer provided Pearson with his right to counsel and cautioned him.

Within minutes, a trained sniffer dog twice positively indicated the presence of drugs in the passenger side doors area. Pearson was arrested for possession of a controlled substance, again provided his Charter rights and cautioned. The officer searched the vehicle and located two backpacks; one contained four bricks of cocaine weighing more than four kilograms. The accused was re-arrested for possession of cocaine for the purpose of trafficking and convicted in lower court following a and trial.

All three appellate judges dismissed the appeal with differing reasons. Suffice it to say they all agreed that in the totality of the circumstances, the officer had reasonable grounds to suspect and detain Pearson for investigation. Further, the initial search using a trained dog wasn’t a Charter breach, even though it went beyond a pat-down search of the suspect. <16>

However, what about situations of suspect detention that don’t begin with a traffic stop? In <R. v. Batzer,><17> officers responded to a 911 gun call from a house on the outskirts of town and soon noticed another vehicle parked close behind their cruiser. They had not heard it drive up and were concerned the suspects may have returned. They were aware that some two weeks earlier, shots had been fired at one of the other two houses in an apparently random drive-by shooting that remained unsolved.

The officers saw the two male occupants were dressed in dark clothing, thus fitting the general description provided by the dispatcher. They ordered them out onto the ground, handcuffed them and asked what they were doing there at that time of night. The accused, the driver, provided an inadequate explanation. Concerned about their own safety, the officers conducted a pat-down search of both men looking for a gun, but found nothing.

They also searched the vehicle but found nothing. On a second search, they found a zippered case in the glove compartment, opened it and discovered 22 grams of cocaine and 13 pills of ecstasy.

During the initial trial, the justice acknowledged there were serious concerns of public and officer safety, but ultimately concluded that the extended search of the vehicle went beyond the pat-down search and was therefore unreasonable. The circumstances lacked the constellation of events that would warrant such an extensive search incidental to investigative detention. The evidence was excluded.

On appeal by the crown, the Ontario Court of Appeal agreed with the final outcome of the trial judge’s findings in excluding the evidence but nonetheless ruled that the vehicle search is permissible under certain circumstances, even though it is beyond a pat-down search of the suspects:


In <R. v. Plummer,> the accused met his girlfriend, who had parked in the fire lane in an apartment complex. Plummer was wearing body armour and carried a handgun in his waistband. The accused sat in the passenger seat of his girlfriend’s car. Moments later, two officers on patrol saw the vehicle parked facing the wrong way in a clearly marked no-parking zone and knew there had been a number of drug arrests at this location.

They saw an expression of surprise or shock on Plummer’s face as they passed by and watched him bend forward and slouch down. They thought his movements were consistent with concealing drugs, came back to investigate and asked the occupants for their names. When the accused provided his name, one of the officers immediately associated it with an “officer safety alert” that had circulated a week before.

The alert described Plummer as possibly armed with a handgun and possessing body armour. They asked Plummer to get out. One officer believed he had grounds to search him on the basis of the alert, the reaction to seeing police and his apparent attempt to hide something. He conducted a pat-down search and discovered the body armour, told the other officer and proceeded to the car with a view to searching it.

The officer’s purpose was to determine if there was a gun and, if so, seizing it. Plummer remained standing outside the car near the officers. As one began searching, he fled from the scene. The search turned up a loaded firearm in the handbag belonging to Plummer’s girlfriend. The accused was convicted at trial and appealed the decision.

The Ontario Court of Appeal agreed with the trial judge’s findings:

<First, the threshold of reasonable grounds for an investigative detention must be determined through an examination of the totality of the circumstances… There is abundant authority for observations of reactions by suspects to police presence permissibly forming part of the constellation of factors that may determine the legality of an investigative detention… For these reasons, I conclude that the trial judge did not err by determining that the investigative detention of the appellant was lawful.><20>

The defence argued that the trial judge erroneously created an ancillary police power to conduct a motor vehicle search incidental to an investigative detention. In short, the only search permitted in the context of investigative detention is a limited pat-down search of the person being detained. This detention and search authority leads to the obvious question:

The defence argued that there is no such recognized common law power to do so. Put another way, had the accused been arrested, police would have been entitled to search the car as a search incidental to the arrest but no such search authority exists with investigative detention. <21>

In adopting Batzer, the court concluded:


In closing, the court summarized this key point with a realistic common-sense approach to the situation by stating:



A motor vehicle search incidental to investigative detention is clearly not what the Supreme Court of Canada referred to when first laying down the rules regarding a pat-down search. However, with the passing of time, the courts have come to recognize that in certain circumstances, a search, although it goes beyond a pat-down, may nonetheless be justified incidental to investigative detention.

To be clear, this would be in situations where the officer has neither the grounds for an arrest nor is able to rely on some other legislated search authority where reasonable grounds exist. Therefore, in these types of situations, what matters most is the officer’s articulation. That is, an officer should be prepared to articulate in detail all of the reasons that led to the detention and subsequent search incidental to investigative detention.

Further, the articulation must contain both subjective and objective grounds and an explanation of the urgency that existed at the time, including the concerns for public safety. By doing so, the courts will hopefully draw the conclusion that both the detention and subsequent search of the motor vehicle as search incidental to investigative detention was “reasonable”.


<1>< R. v. Mann, (2004) S.C.R.

<2> R. v. Simpson, (2004) Ont. C. A.

<3> Simpson, supra

<4> Simpson, supra

<5> Mann, supra

<6> <R. v. Waterfield, (1963) C.C.A.> – The search must fall within the general scope of the police duty to protect life and property and involve a justified use of the police powers associated with that duty. In other words, it must be reasonably necessary in all the circumstances and the officer must have a reasonable belief that his or her safety or that of others is at risk.

<R. v. Collins, (1987) S.C.R.> – It must be authorized by law, the law must be reasonable and the search must be carried out in a reasonable manner.>

<7> Other provinces have similar legislation (*see footnote 10)

<8> “Motor vehicle” – includes an automobile, motorcycle, motor-assisted bicycle unless otherwise indicated in this act and any other vehicle propelled or driven other than by muscular power. Does not include a street car or other motor vehicle running only upon rails, power-assisted bicycle, motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine. “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

<9> <48(1) HTA> – A readily identifiable police officer may require a driver to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code.

<10> <216(1) HTA> – A police officer, in the lawful execution of his or her duties and responsibilities, may require a driver to stop. When signalled or requested to stop by a police officer who is readily identifiable as such, a driver shall immediately come to a safe stop.

*Note: similar legislation exists in other provinces.

<11> Barker, Greg – Assistance Crown Attorney – Drinking and Driving Law: An investigator’s and breath tech guide, 2005.

<12> <R. v. Hufsky, (1988) S.C.R.>

<13> <R. v. Ladouceur, (1990) S.C.R.>

<14> When referencing ‘further intrusion or detainment of the driver’ – “consent search” – for the purposes of this training package is not considered – even though a “consent search” – albeit by its very nature is a further intrusion or detainment – may also authorize police to detain and search the suspect(s) and motor vehicle.

<15> <R. v. Pearson, (2012) S.K.C.A.>

<16> See also <R. v. Savage (2011) SKCA>

<17> <R. v. Batzer, (2005) Ont. C. A.>

<18> Batzer, supra

<19> <R. v. Plummer, (2011) Ont. C. A. >

<20> Plummer, supra

<21> The officers were adamant that they felt they did not have the requisite reasonable grounds required to arrest or rely on Criminal Code authority to search and therefore could not rely on their common law search power for search incident to the arrest or other legislated authority, which would have allowed them to search the vehicle and bag.

<22> Plummer, supra

<23> Plummer, supra


Mauro Succi is an instructor with the Ontario Police College. Email him at for a more complete dialogue on this subject.

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