Her Majesty the Queen v. Wint

Her Majesty the Queen v. Wint [Indexed as: R. v. Wint]

93 O.R. (3d) 514

Court of Appeal for Ontario,

Winkler C.J.O., Rosenberg and Moldaver JJ.A.

January 20, 2009

Charter of Rights and Freedoms -- Search and seizure -- Police impounding accused's vehicle after stopping him for stunt driving -- Police conducting inventory search of vehicle -- Search revealing bag [page515] behind passenger's seat containing drugs and drug-related paraphernalia -- Police entitled to look inside bag in course of inventory search and not being restricted to itemizing visible property of apparent value -- Accused's rights under s. 8 of Charter not being violated -- Canadian Charter of Rights and Freedoms, s. 8 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 172.

The accused was stopped by the police for stunt driving and a decision was made to impound his vehicle under s. 172(5) of the Highway Traffic Act. The police conducted an inventory search of the vehicle before impounding it. In the course of the search, one of the officers looked inside a bag on the floor behind the passenger seat and found cocaine and marijuana. The accused was charged with drug offences. The trial judge dismissed an application to exclude the evidence of the drugs under s. 24(2) of the Canadian Charter of Rights and Freedoms and convicted the accused. The accused appealed, arguing that an inventory search only permitted the officers to catalogue visible items of apparent value and that opening the bag was an unreasonable search.

Held, the appeal should be dismissed.

The police were entitled under s. 172 of the Act to do an inventory search of the car. In conducting that search, they were not restricted to itemizing visible property of apparent value. Such a narrow interpretation would not achieve the purpose of inventory searches, which is to protect the interests of any person with property in the car when it is seized and who would look to the police to safeguard their property while it is in police custody. The police were entitled to look inside the bag to determine if it contained anything of value. The search was reasonable and justified. The accused's rights under s. 8 of the Charter were not violated.

APPEAL by accused from conviction and sentence by N.S. Douglas J. of the Ontario Court of Justice dated April 3, 2008 for drug offences.

Cases referred to R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554, 110 O.A.C. 189, 127 C.C.C. (3d) 176, 17 C.R. (5th) 134, 52 C.R.R. (2d) 265, 36 M.V.R. (3d) 125, 39 W.C.B. (2d) 132 (C.A.), consd Other cases referred to R. v. Caprara, 2006 CanLII 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211, 144 C.R.R. (2d) 287, 69 W.C.B. (2d) 727 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 172, (1), (5)

Michael Dineen, for appellant. Lisa Mathews, for respondent.

[1] BY THE COURT: -- The appellant appeals from his convictions for simple possession of marijuana and possession of cocaine for the purpose of trafficking. The sole issue on appeal is whether the trial judge erred in admitting the drugs into evidence. [page516]

[2] The appellant was stopped for "stunt driving" after he nearly side-swiped an unmarked OPP vehicle and then drove for eight kilometres along Highway 401 at a speed of 170 kilometres per hour. After stopping the vehicle, Sergeant Dziepak, the driver of the unmarked OPP vehicle, radioed for assistance and Constables Upton and Dekker arrived momentarily. In the meantime, Sergeant Dziepak saw the appellant place a number of music CDs into a small black drawstring bag on the back seat of his vehicle.

[3] Given the offence for which the appellant had been apprehended -- "stunt driving" under s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act") -- a decision was made to impound his vehicle under s. 172(5) of the Act.

[4] After the appellant had been placed in Constable Upton's cruiser, Constable Upton and his partner commenced an inventory search of his vehicle before impounding it. In doing so, Constable Dekker observed a black bag on the floor behind the passenger seat and he gave it to Constable Upton. Constable Upton opened the bag and observed a small black nylon CD case inside it. The case felt heavy and based on information he had received from the dispatcher, Constable Upton was concerned that it might contain a gun. As it turned out, it did not. Rather, it contained an ounce of crack cocaine. Elsewhere, in the black bag, he found nearly two ounces of marijuana, three cellphones, a blackberry and a digital weigh scale. Accordingly, in addition to being charged with "stunt driving", the appellant was also charged with possession of cocaine and possession of marijuana for the purpose of trafficking.

[5] The sole issue before us is whether the police were entitled, under s. 8 of the Canadian Charter of Rights and Freedoms, to search the black bag and CD case and, if not, whether the fruits of their search should be excluded from evidence under s. 24(2) of the Charter.

[6] The trial judge provided brief reasons in which he concluded that the police did not breach the appellant's s. 8 rights; but even if they did, the evidence obtained was real, the breach was technical and the officers were acting in good faith. Hence, the evidence would, in any event, have been admissible under s. 24(2).

[7] In concluding that the police did not breach the appellant's s. 8 Charter rights, among other reasons, the trial judge held that the police were entitled under s. 172 of the Act to do an inventory search of the car. In this regard, he quoted the following passage from this court's decision in R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554, 127 C.C.C. (3d) 176 (C.A.), where, at paras. 29 and 30, Doherty J.A. for the court stated: [page517]

Custody is defined in the Shorter Oxford Dictionary as "safekeeping, protection, charge, care, guardianship". Taking a vehicle into "the custody of the law" entails more than simply assuming possession and control of the vehicle. It involves the preservation and safekeeping of the vehicle while in the care and control of the police. Nor do I draw any distinction between the vehicle and its contents when the vehicle is impounded. Both are equally in the "custody of the law".

With the responsibility to keep the impounded property safe, must come the ability to take reasonable steps to achieve that end. Entering the vehicle for the purpose of itemizing visible property of apparent value is entirely in keeping with the responsibility to safeguard the vehicle and its contents while they are in the custody of the law. Given Constable Bishop's purpose in entering the vehicle, his conduct falls squarely within his authority to take the vehicle into the custody of the law.

[8] The trial judge then found that the black bag was plainly visible in the search of the interior of the car and he concluded that the police were conducting an inventory search under lawful authority.

[9] The appellant takes issue with the trial judge's factual and legal analysis of the entitlement of the police to do an inventory search.

[10] Factually, he submits that the trial judge should have rejected the evidence of Constables Upton and Dekker -- that they were doing an inventory search -- and found instead that they were really searching for a gun.

[11] We would not give effect to that submission. The trial judge made no finding that the search was a sham or conducted for an improper or ulterior purpose. Indeed, as his reasons disclose, he found that the police were in fact conducting an inventory search. As the Crown points out, the fact that they may also have been looking for a gun did not render the search unlawful: see R. v. Caprara, 2006 CanLII 18518 (ON CA), [2006] O.J. No. 2210, 211 O.A.C. 211 (C.A.), at para. 8.

[12] Legally, the appellant contends that on the authority of Nicolosi, the police were required to limit their inventory search to "itemizing visible property of apparent value". On the facts of this case, the appellant submits that the police went beyond that. In particular, he argues that:

The opening of the appellant's bag cannot be justified as part of an inventory search; the police would have no cause to do more than note the bag's presence if their search was solely to itemize the car's visible contents.

[13] With respect, we disagree with the appellant's narrow reading of the words "visible property". As Doherty J.A. pointed out, at para. 36, in Nicolosi: [page518]

By documenting the contents of the vehicle that had any apparent value, the police serve the interests of any person who has an interest in the property and who looks to the police to safeguard that property while it is in police custody. It is quite wrong to suggest that the only interest is the police interest in avoiding civil liability.

[14] The underlying rationale for inventory searches, as explained in Nicolosi, belies the appellant's submission that the police may only itemize objects found in a car, but not their contents.

[15] Given the underlying rationale of inventory searches, to proceed in that fashion would render these searches virtually meaningless. Thus, if the police found a purse and could not look inside it, they would have no way of knowing whether it contained pennies or thousands of dollars, and if the latter, what steps should be taken to safeguard the large sum of money. That, in our view, would defeat the purpose of the exercise. In short, if inventory searches are to be meaningful and serve the purpose for which they are intended, the police cannot be hobbled as the appellant would suggest. They must be able to search and itemize the contents of objects such as purses, wallets and bags like the one observed in this case, to determine their contents. Of course, any inventory search must be executed in a reasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totality of the circumstances revealed in each case.

[16] It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents, was entirely reasonable and justified. Indeed, the police would have been derelict in their duties had they not carried out the searches.

[17] Accordingly, we affirm the trial judge's conclusion that the search of the black bag and the CD case was lawful and that it did not constitute a breach of the appellant's s. 8 Charter rights.

[18] In view of that conclusion, while it is technically unnecessary to address s. 24(2), for the sake of completeness, we would simply add that we see no error in the trial judge's analysis or conclusion. Hence, even if there was a s. 8 breach here, the evidence was properly admitted.

[19] In the result, the appeal from conviction is dismissed.

Appeal dismissed.