Most people who get pulled over are pulled over for minor traffic violations. If the traffic stop remains confined to a Highway Traffic Act investigation then, in almost all situations the answer to the question is no. The word “search” only appears 3 times in the HTA and these constitute the only times where a purely traffic related infraction could result in a search. While we are on the topic, all three of these instances refer to situations where the officer has ‘reasonable grounds to believe’ you have some illegal device in your car (radar detector, radar jammer, or toll-evasion device). The police have good equipment to catch some of these things and if they come up behind you getting a stronger and stronger signal (which drops off after they pass you), that will give them ‘grounds to believe’ you’ve got one. Bottom line is under the traffic laws of Ontario, you’re making yourself an easy target for a legal search if you have one of these devices. Otherwise, you’re pretty much immune to a search.
Before departing this point, it’s worth noting also that there are a few other provincial statutes (non-criminal) which give the police power to search. For instance, the Liquor Licence Act allows an officer to search a car or boat if he believes (on reasonable grounds) that liquor is being unlawfully kept (i.e. not as directed under that particular law).
As it pertains to criminal law, the laws are complex and this article is no substitute for proper legal advice. I can however mention a few key points.
- If the police get a search warrant, then they will search your vehicle and there is a very good chance this search would hold up in Court.
- Getting a search warrant for roadside traffic stops is very uncommon. In my over 10-years of defending traffic cases and traffic-related criminal cases (as a lawyer and before as an ‘agent’) I have never seen such a case. I also don’t know any lawyer who has ever seen such a case although I am sure it happens from time to time in the right circumstances.
- If there is no warrant, the search needs to be authorized by some law (i.e. a section of the criminal code similar to the ‘radar detector’ section; or authorized by common law — a body of higher court decisions setting out police powers derived from unwritten law), the law allowing it must be constitutional, and the search must be carried out in a reasonable way. Going back to our radar detector example, if the police think you have a radar detector and then dismantle your car to find it and leave you at the side of the road with a dismantled car, that might not be reasonable!
- The constitutionality of laws rarely comes up although when new search powers are created by new laws, this offers people charged a chance to challenge the new law.
- Most commonly, the debate over whether or not a search is legal revolves around whether the search was actually authorized by the law. Generally speaking, whatever the law is, there will be some conditions where, if they are met the police officer can search your car and if they are not met, that provision doesn’t apply. Therefore the debate in Court is often whether or not the conditions were met.
- One of the most common examples is “search incident to arrest”. When a police officer arrests a person he or she may search the person and their vehicle to look for evidence of the offence, things which may pose a danger to the officer or others, and things which could be used to escape. As a result, if the arrest is found to be unlawful, then the search flowing from it can also be held to be unlawful.
In the end, as discussed above, this is not legal advice and what constitutes a search can even depend on where the officer’s head is when observations are made and what other circumstances are. If you’d like to discuss your case more, please give me a call any time.