Pierre Cloutier, a Montreal lawyer, was stopped in his vehicle by two police officers who observed him committing a traffic infraction. Upon learning that Mr. Cloutier was subject to a Warrant of Committal in Municipal Court for unpaid traffic fines, the officers arrested him and performed a “frisk” search in public view before taking him into custody.
Upon his arrival at the police station, Mr. Cloutier filed a private information against the two police officers for assault. Although the charge was dismissed by the trial judge, the Court of Appeal reversed this finding on the basis that the search of Mr. Cloutier was unnecessary and had no basis in law.
The Supreme Court of Canada restored the trial court’s decision, affirming the common law power of police officers to perform a “search incident to arrest”:
“At common law a police officer may carry out a “frisk” search of a person who has been lawfully arrested and the existence of reasonable and probable grounds is not a prerequisite to the existence of such a power. A “frisk” search incidental to a lawful arrest reconciles the public’s interest in the effective and safe enforcement of the law and its interest in ensuring the freedom and dignity of individuals since it constitutes a minimal intrusion on individual rights which is necessary to ensure that criminal justice is properly administered.”
The court noted that it is within the discretion of police whether to perform such a search, and that if it is performed, police must be able to point to a legitimate reason for the search, such as to protect officer safety or to obtain relevant evidence in the possession of the accused.
In Mr. Cloutier’s case, the court concluded that the search had a legitimate purpose due to the heated nature of the encounter, and that the officers conducted themselves in a non-abusive and proportionate manner. The two defendant police officers were acquitted on this basis.
Decided by the Supreme Court of Canada on February 1, 1990.
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