Slippage and Ambiguity: the Uncertain 'Progress' of Search Incident to Investigative Detention

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Appeals, Appeal from Conviction or Acquittal, Grounds, Error of Law, Charter, Unreasonable Search and Seizure, Reasonable Grounds, Arbitrary Detention or Imprisonment


In R. v. Webber the British Columbia Court of Appeal concludes that the power of search incident to investigate detention is available based on reasonable suspicion rather than reasonable grounds to believe. More accurately, on their own reasoning they conclude that it is still available on that basis, which points to the bigger issue. The underlying legal rule they articulate is questionable, but questioning it is at most a secondary focus of this article. The primary focus of this article is to consider the lessons about common law powers which are exhibited by the decision.