R. v. Dunkley, 2016 ONCA 597 (CanLII), is interesting for a number of reasons.

First, in a rare move, Court of Appeal for Ontario overturned the decision of the trial court to include gun evidence which was obtained in violation Canadian Charter of Rights and Freedoms.

Second, the appeal considered the interaction between the authority of the police to conduct an inventory search of a vehicle impounded pursuant to the Highway Traffic Act and the right under s. 8 of the Charter to be free from unreasonable search and seizure.

And third, in considering whether the police had the lawful authority to search the appellant’s vehicle under the common law investigative detention doctrine, the Court said this:

In this case, the Crown cannot rely on this power to justify a search for identification after the appellant has fled the scene.  The search of the car at that point had no nexus to a concern for officer or public safety directly arising out of an investigative detention.

This would seem to imply that where there are safety concern arising out of the completedinvestigative detention
[i]the common law ancillary powers doctrine (upon which investigative detention and searches is based) may allow for a limited search directed to those safety concerns, likely to the degree that is reasonable necessary.

While in the context of this appeal, the statement made by the Court of Appeal is obiter, and thus does not constitute a binding rule of law, in my opinion it signals the direction in which the doctrine of search/seizure incident to investigative detention is likely to develop.  In my opinion, such is a logical extension of the doctrine.  The Court was clear on the distinction between search incident to arrest and search pursuant to investigative detention.

The power to search pursuant to an investigative detention operates differently from the power to search incident to arrest.  The former is rooted in concerns for officer and public safety: Mann, at para. 40; see also R. v. Plummer, 2011 ONCA 350 (CanLII), 272 C.C.C. (3d) 172, at para. 79.  Our law has recognized that police officers who engage a member of the public in an investigative detention may take reasonable steps to protect their safety and the safety of the public. Therefore, the search power is much more limited than a search incident to arrest: Plummer, at para. 76. The search must be related to articulable safety concerns

 Nonetheless, the two doctrines, though distinct, continue to move ever closer to each other.

[i] The Appellant in response to an interaction with police had chosen to flee. The Court of Appeal held that although the detention was only momentary, it was a detention nonetheless.