R. v. Caslake [1998] 1 S.C.R. 51: -- Search and seizure -- Inventory search of accused's car following lawful arrest -- Search conducted pursuant to police policy and without warrant or permission -- Admissibility of evidence

1997: November 10; 1998: January 22.

Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and Bastarache JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law -- Charter of Rights -- Search and seizure -- Inventory search of accused's car following lawful arrest -- Search conducted pursuant to police policy and without warrant or permission -- Whether search infringing Charter right to freedom from unreasonable search or seizure -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Admissibility of evidence --Evidence seized as result of inventory search of accused's car following lawful arrest --Search conducted pursuant to police policy and without warrant or permission -- Whether evidence found in search in violation of Charter admissible -- Canadian Charter of Rights and Freedoms, s. 24(2).

An RCMP officer, several hours after arresting the accused for possession of narcotics, conducted an inventory search of the accused's impounded car pursuant to police policy and found cash and two individual packages of cocaine. He did not have permission or a search warrant. The accused unsuccessfully appealed his conviction of possession of marijuana for the purposes of trafficking and of possession of cocaine. At issue here was whether the search of the car was consistent with s. 8 of the Canadian Charter of Rights and Freedoms which guarantees the right to be secure against unreasonable search or seizure, and if not consistent, whether the evidence should have been admitted.

Held: The appeal should be dismissed.

Per Lamer C.J. and Cory, McLachlin and Major JJ.: A search, to be reasonable under s. 8 of the Charter, must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. Because a warrantless search has been held to be prima facie unreasonable, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable.

Searches and seizures must be authorized by law and can fail to meet this requirement if any one of three conditions is not met. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. Third, a search must not exceed its scope as to area and as to the items for which the law has granted the authority to search.

If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest: the police must be able to explain, within the purposes recognized in the jurisprudence (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they conducted a search. They do not need reasonable and probable grounds. However, they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. That inference may be rebutted by a proper explanation.

A police search of the car for the purpose of finding evidence which could be used at the accused's trial on the charge of possessing marijuana for purposes of trafficking would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search. However, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. Agents of the state must act in accordance with the rule of law. Hence, they must not only objectively search within the permissible scope but also turn their mind to this scope before searching, and satisfy themselves that there is a valid purpose for the search. Here, the purpose of the search was to inventory the contents of the vehicle which falls outside the bounds of the legitimate purposes of search incident to arrest.

The delay in searching the vehicle was not, in and of itself, problematic.

The evidence should not be excluded under s. 24(2) of the Charter. First, the evidence was non-conscriptive and would have no effect on the fairness of the trial. Second, the breach was not serious. The inobtrusiveness of the search, the individual's low expectation of privacy in the area searched, the existence of reasonable and probable grounds and the good faith of the police all pointed in favour of admitting the evidence. Finally, excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it for the prosecution had no case without the evidence.

Per L'Heureux-Dubé, Gonthier and Bastarache JJ.: The search, given that the arrest was lawful, was incidental to the arrest because it was related, subordinated, to the arrest, rather than the arrest's being incidental to the search. The common law right to search incidentally to an arrest extends to an accused's vehicle as part of the accused's immediate surroundings. The question of delay was immaterial for the search to qualify as "incidental".

Regardless of the police officer's subjective belief in the purpose and justification for his inventory search, the officer had the right to search the vehicle pursuant to the common law power of search incidental to an arrest in the circumstances of this case. This power draws its authority from the arrest itself. It is not necessary to establish reasonable and probable grounds independently to conduct a search incidental to an arrest. There was no onus on the Crown to establish at trial that the police officer was acting pursuant to a specific purpose recognized in the jurisprudence in order to establish that the search was truly incidental to the arrest.

The common law power to search incident to an arrest is not unreasonable and does not violate s. 8 of the Charter if it is consistent, in the circumstances, with the proper administration of justice. The issue must be whether the inventory search was truly incidental to the arrest and reasonably performed, and not whether the Charter was infringed because the police officer could have obtained a warrant. In the context of the surrounding circumstances, the search of the accused's vehicle was reasonable.

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