R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51

R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51

Terence Lawrence Caslake Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General of Nova Scotia,

the Attorney General for New Brunswick,

the Attorney General of British Columbia and

the Attorney General for Alberta Interveners

Indexed as: R. v. Caslake

File No.: 25023.

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.

Cases Cited

By Lamer C.J.

Considered: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; referred to: R. v. Garcia (1992), 1992 CanLII 3917 (QC CA), 72 C.C.C. (3d) 240; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136; R. v. Charlton (1992), 1992 CanLII 367 (BC CA), 15 B.C.A.C. 272; R. v. Drapeau (1993), 1993 CanLII 370 (BC CA), 38 B.C.A.C. 237; R. v. Leclerc (1995), 1995 CanLII 6993 (NB CA), 163 N.B.R. (2d) 225; R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743; R. v. Smellie (1994), 1994 CanLII 1612 (BC CA), 95 C.C.C. (3d) 9; R. v. Speid (1991), 8 C.R.R. (2d) 383; R. v. Arason (1992), 1992 CanLII 1008 (BC CA), 78 C.C.C. (3d) 1; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195, aff’d 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341; South Dakota v. Opperman, 428 U.S. 364 (1976).

By Bastarache J.

Considered: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158; referred to: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; Lindley v. Rutter, [1981] Q.B. 128.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Criminal Code, R.S.C., 1985, c. C-46, ss. 487 [am. c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12], 494, 495 [am. c. 27 (1st Supp.), s. 75].

Authors Cited

Canada. Law Reform Commission. Report 24. Search and Seizure. Ottawa: The Commission, 1984.

Canada. Law Reform Commission. Working Paper 30. Police Powers -- Search and Seizure in Criminal Law Enforcement. Ottawa: The Commission, 1983.

APPEAL from a judgment of the Manitoba Court of Appeal (1995), 1995 CanLII 6263 (MB CA), 107 Man. R. (2d) 24, 109 W.A.C. 24, 101 C.C.C. (3d) 240, 45 C.R. (4th) 98, [1995] M.J. No. 383 (QL), dismissing an appeal from conviction by Kennedy J. Appeal dismissed.

John A. MacIver and Donald Neil MacIver, for the appellant.

David G. Frayer, Q.C., and Clyde R. Bond, for the respondent.

Michael Bernstein, for the intervener the Attorney General for Ontario.

Maurice Galarneau and Gilles Laporte, for the intervener the Attorney General of Quebec.

William D. Delaney, for the intervener the Attorney General of Nova Scotia.

Graham J. Sleeth, Q.C., for the intervener the Attorney General for New Brunswick.

Gregory J. Fitch, for the intervener the Attorney General of British Columbia.

Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.

The judgment of Lamer C.J. and Cory, McLachlin and Major JJ. was delivered by

The Chief Justice --

I. Introduction

1This case provides an opportunity for the Court to clarify the principles governing the common law power of search incident to arrest. Although it is a topic which has been extremely well canvassed in the lower courts (see, among others, R. v. Garcia (1992), 1992 CanLII 3917 (QC CA), 72 C.C.C. (3d) 240 (Que. C.A.); R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont. H.C.); R. v. Charlton (1992), 1992 CanLII 367 (BC CA), 15 B.C.A.C. 272; R. v. Drapeau (1993), 1993 CanLII 370 (BC CA), 38 B.C.A.C. 237; R. v. Leclerc (1995), 1995 CanLII 6993 (NB CA), 163 N.B.R. (2d) 225 (C.A.); R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.); R. v. Smellie (1994), 1994 CanLII 1612 (BC CA), 95 C.C.C. (3d) 9 (B.C.C.A.); R. v. Speid (1991), 8 C.R.R. (2d) 383 (Ont. C.A.)), this Court has not, until now, had the opportunity to expound on some of the principles L’Heureux-Dubé J. set out in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158.

II. Facts

2The facts of this case are quite straightforward. The appellant’s car was observed by the side of a highway outside Gimli, Manitoba by Natural Resources Officer Kamann. Officer Kamann parked behind the car, got out of his own vehicle, and saw the appellant in three to four-foot high grass, 30 to 40 feet off the roadway. Suspecting that he may be hunting, the officer asked the appellant what he was doing. The appellant replied that he was relieving himself in the bushes. After a short conversation, they returned to their respective vehicles and the appellant drove away. Officer Kamann then went to the area where he first observed the appellant and found a yellow garbage bag containing approximately nine pounds of marijuana wrapped in cellophane. He returned to his vehicle and contacted the RCMP to request backup. He then pursued and overtook the appellant’s vehicle and arrested him for possession of narcotics.

3A few minutes later, RCMP Constable Thomas Boyle arrived on the scene and took custody of the appellant. He took him to the RCMP detachment in Gimli and had his car towed to a garage across the street. Approximately six hours after the arrest, Constable Boyle went to the garage, unlocked the appellant’s vehicle and searched it. He had neither a search warrant nor the appellant’s permission to search the vehicle. He found $1,400 in cash and two individual packages containing approximately 1/4 gram of cocaine each. According to his testimony, the search was conducted pursuant to an RCMP policy which requires that an inventory be taken of the condition and contents of a vehicle that has been impounded by the RCMP during the course of an investigation. The purpose of the policy, as explained by Constable Boyle, was to safeguard the valuables belonging to the owner of the vehicle and to note the general condition of the vehicle. He also testified that the sole reason he conducted the search was that it was required by the RCMP policy.

4The appellant was convicted of possession of marijuana for the purposes of trafficking, and possession of cocaine. He appeals the latter conviction on the grounds that the search of his car was not reasonable under s. 8 of the Canadian Charter of Rights and Freedoms, and the cocaine should not have been admitted into evidence under s. 24(2).

III. Courts Below

A. Manitoba Court of Queen’s Bench

5The trial judge found that the search of the car was not merely an “inventory search” as the police officer claimed. In his opinion, it was far too thorough for those limited purposes, as it included searching inside the glove compartment and under the seats. However, he held that it was a valid search incident to arrest. He cited L’Heureux-Dubé J.’s decision in Cloutier for the proposition that, upon arrest, the police have the power to search a person and his or her immediate surroundings for the purposes of guaranteeing the safety of the police and the suspect, preventing the suspect’s escape, preserving evidence that may be lost or destroyed, or merely gathering evidence.

6With respect to the delay between the arrest and the search, the trial judge accepted the police officer’s testimony that the detachment was short staffed on the day of the arrest and that the delay was the result of the officer attending to other matters in respect of the arrest. He cited Smellie, Charlton and Drapeau, supra, and R. v. Arason (1992), 1992 CanLII 1008 (BC CA), 78 C.C.C. (3d) 1 (B.C.C.A.), to say that such a delay should not deny the police the opportunity to conduct a search of a vehicle. Moreover, he held that although the police officer did not subjectively believe he had reasonable and probable grounds for conducting a search, objectively such grounds existed. Hence, he was entitled to search the vehicle incidental to the arrest, notwithstanding the passage of time.

7Having found that the search was reasonable, there was no need for the trial judge to consider s. 24(2). However, he held that even if the search had not been reasonable, he would have admitted the evidence, as its admission would not bring the administration of justice into disrepute.

B. Manitoba Court of Appeal (1995), 1995 CanLII 6263 (MB CA), 107 Man. R. (2d) 24

8The main issue in the Court of Appeal which divided Helper J.A. (Huband J.A. concurring) and Lyon J.A. (dissenting on the substantive issue, but concurring in the result) was not the legality of the search of the appellant’s car. Rather, it was the proper uses that could be made of the cocaine once it was admitted into evidence. Specifically, the appellant argued that the presence of cocaine in his car was irrelevant to the charge of possession of marijuana for the purposes of trafficking, and should not have been used as evidence of the appellant’s guilt on this charge. The majority of the court agreed, but held there was no substantial wrong or miscarriage of justice. No leave to appeal was granted on this issue.

9On the issue of the search, Helper J.A. simply stated at p. 29 that “[t]he trial judge correctly concluded the search of the accused’s automobile was incidental to his arrest.” Lyon J.A. did not address the issue.

IV. Analysis

10The issue in this appeal is whether the search of the automobile was consistent with s. 8 of the Charter, which guarantees the right to be secure against unreasonable search or seizure. In cases involving s. 8 rights, the appropriate starting point is the judgment of this Court in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. In that decision, Dickson J. (as he then was) set out the basic framework of analysis for s. 8. He held that it only protected an individual’s reasonable expectation of privacy, and that reasonableness is to be evaluated by balancing that privacy interest against the state’s interest in law enforcement. In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, with those principles in mind, I set out three pre-requisites to a reasonable search under s. 8. In order to be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.

11Ordinarily, the person alleging a violation of Charter rights bears the burden of proving that violation. However, in Hunter and Collins, supra, the Court held that a warrantless search is prima facie unreasonable. Hence, 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. In this case, as I will explain, the Crown has failed to do so.

A. The Search Must Be Authorized by Law

12In order to be reasonable, searches and seizures must be authorized by law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someone’s property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. There are three ways in which a search can fail to meet this requirement. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C., 1985, c. C-46, authorizes searches, but only with a warrant issued by a justice on the basis of a sworn information setting out reasonable and probable grounds. A failure to meet one of these requirements will result in a search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.

B. Search Incident to Arrest

13In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search. In Cloutier, supra, my colleague L’Heureux-Dubé J. (for a unanimous Court) discussed this power in detail. She held that it is an exception to the ordinary requirements for a reasonable search (articulated in Hunter, supra) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495). However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27, “[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful.”

14In Cloutier, L’Heureux-Dubé J. also recognized the potential breadth of this police power. She held that the court must balance the state’s interests in law enforcement and the protection of the police against the arrested person’s interest in privacy in order to determine whether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to search incident to arrest (at p. 186):

1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

If all three of these conditions are met, and the arrest itself is lawful, the search will be “authorized by law” for the purposes of s. 8 of the Charter. In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive. Rather, the problem in this case is that the objective and scope of the search exceeded its permissible limits.

C. The Scope of Search Incident to Arrest

15Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right to privacy. The scope of search incident to arrest can refer to many different aspects of the search. It can refer to the items seized during the search. In Stillman, Cory J. for a majority of this Court held, at para. 42, that bodily samples could not be taken as incident to arrest, as a search so invasive is an “affront to human dignity”. It can also refer to the place to be searched. The appellant argues that the power of search incident to arrest does not extend to automobiles. I would reject this position. Automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles referred to above.

16Scope can also refer to temporal limits on the power of search, which are at the core of the case at bar. The appellant suggests that the delay between the search and the arrest (six hours in this case) was too long to make the search “incident” to the arrest. In my opinion, the Court should be reluctant to set a strict limit on the amount of time that can elapse between the time of search and the time of arrest.

17In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. See the Law Reform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers -- Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.

18This position has been taken by a number of lower courts, and particularly well articulated by Doherty J.A. In Lim (No. 2), supra, at p. 146, he stated:

I begin with a determination of whether the search was truly an incident of the arrest. If it is not, the common law power to search as an incident of arrest cannot be relied upon. . . .

In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search.

Similarly, in R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195, at p. 213, Doherty J.A. held that an arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle, stating “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.” This decision was affirmed by this Court (1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341), although Cory J., who wrote for the majority, did not address this issue.

19As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.

20To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.

21In my view, it would be contrary to the spirit of the Charter’s s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer’s belief that he or she has a legitimate reason to search is reasonable in the circumstances.

22Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).

23As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.

24The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.

25In summary, searches must be authorized by law. 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. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have 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. However, that inference may be rebutted by a proper explanation.

D. Was the Search in this Case Truly Incidental to the Arrest?

26The police arrested the appellant because they believed that he was either buying or selling the nine-pound bag of marijuana which Natural Resource Officer Kamann found. In this case, the appellant was arrested in his car, which had been observed at the place where the marijuana was discovered. Had Constable Boyle searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant’s trial on the charge of possessing marijuana for purpose of trafficking, this 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 of the vehicle. However, by his own testimony, this is not why he searched. Rather, the sole reason for the search was to comply with an RCMP policy requiring that the contents of an impounded car be inventoried. This is not within the bounds of the legitimate purposes of search incident to arrest.

27Naturally, 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. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur.

28I would note that the six-hour delay in searching the vehicle is not, in and of itself, problematic in the case at bar. There were only two police officers in Gimli, and the regular policing commitments of one of them and the investigating matters undertaken by the other demonstrate that there is a reasonable explanation for the delay in searching the car. However, the delay further reinforces Officer Boyle’s testimony that he was not searching for evidence, but simply conducting an “inventory search”.

29The fact that this search was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest means that it falls outside the scope of this power. As a result, the search cannot be said to have been authorized by the common law rule permitting search incident to arrest.

30The respondent and the interveners (all provincial attorneys general) have argued that even if the search was not properly authorized by search incident to arrest, there ought to be an “inventory search exception” to s. 8, for the protection of the accused’s belongings. The United States Supreme Court has held that such an exception exists to the Fourth Amendment in South Dakota v. Opperman, 428 U.S. 364 (1976). In my view, this is not an appropriate case to decide this question. In order to meet the standards set out by the Charter, all searches must be authorized by law. Warrantless searches are prima facie unreasonable, and the burden shifts to the party who is seeking to uphold the search. This means, inter alia, the party must be able to point to a law which authorizes the search. The respondent was unable to find either statutory or common-law authority for inventory searches. Hence, for the purposes of this appeal, I would hold that the inventory search is not authorized by law and therefore violates s. 8 of the Charter. Whether such a law would be consistent with s. 8 need not be answered here. Suffice to say that an inventory search per se does not serve a “valid objective in pursuit of the ends of criminal justice” (Cloutier, supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Its purposes relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.

31Having reached the conclusion that the search in this case was not authorized by law, I find it unnecessary to deal with the other pre-requisites for a valid search set out in Collins, supra.

E. Having Found that the Search is Unreasonable, Should the Evidence Be Excluded Under Section 24(2) of the Charter?

32When considering s. 24(2), the test for the exclusion of evidence comes from this Court’s decision in Collins, supra. There are three categories of factors which must be considered: the fairness of the trial, the seriousness of the Charter violation and the possibility that excluding the evidence would bring the administration of justice into greater disrepute than admitting it.

33Whether admitting the evidence will have an effect on the fairness of the trial usually depends on whether the evidence was found as a result of conscripting the accused against himself, or whether it was otherwise discoverable. As Cory J. reiterated in Stillman, supra, at para. 74, “[t]he admission of evidence which falls into the ‘non-conscriptive’ category will, as stated in Collins, rarely operate to render the trial unfair. If the evidence has been classified as non-conscriptive the court should move on to consider the second and third Collins factors....” In this case, the evidence was clearly non-conscriptive. This weighs in favour of admission.

34The next category is seriousness of the breach. When considering this issue, the court looks at some or all of the following factors: the obtrusiveness of the search, the individual’s expectation of privacy in the area searched, the existence of reasonable and probable grounds; and the good faith of the police. In my opinion, all of these point in favour of admitting the evidence. The search was not especially obtrusive. There is no evidence that there was any damage or harm done to the car, the police simply did a thorough search of the interior. There is a lesser expectation of privacy in a car than there is in one’s home or office, or with respect to their physical person. Although Officer Boyle did not know that he had reasonable and probable grounds to conduct a search, objectively speaking, he did. Finally, the search was conducted in good-faith reliance on an RCMP policy that requires the interior of impounded cars be inventoried. As a result, the breach was not sufficiently serious to justify exclusion of the evidence.

35The third question from Collins is whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it. This factor generally relates to the seriousness of the offence and the importance of the evidence to the case for the Crown. In this instance, the prosecution had no case without the evidence. This also weighs in favour of admission.

V. Conclusion

36In sum, the application of the Collins factors strongly suggests that the evidence should be admitted under s. 24(2). The trial was still fair, the breach was not serious, and exclusion of the evidence would have a more detrimental impact on the administration of justice than its admission. I would therefore hold that the evidence is admissible and, despite the s. 8 breach, dismiss the appeal.

The reasons of L’Heureux-Dubé, Gonthier and Bastarache JJ. were delivered by

37Bastarache J. -- While I agree with the Chief Justice that the appeal should be dismissed, I respectfully disagree with the reasons expressed by my colleague. The Chief Justice has set out the facts and judgments and there is no need to restate them here.

38This appeal deals with the scope of the common law power of search incidental to an arrest. What must be determined in this appeal is whether Constable Boyle’s inventory search of the appellant’s vehicle, after the appellant had been lawfully arrested, falls within the scope of action authorized by the common law power of search incidental to an arrest.

39In R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, Cory J., at p. 634, summarized the three conditions that must be satisfied in order for a search to be valid under the common law power of search incidental to an arrest: the arrest must be lawful; the search must be conducted as an incident to the lawful arrest; the manner in which the search is carried out must be reasonable.

40After having established that the appellant was lawfully arrested for possession of narcotics, the issue to be determined is whether the search was fully incidental to the arrest. In this case, it can be said that the search was incidental to the arrest because it was related, subordinated, to the arrest rather than the arrest’s being incidental to the search. See Stillman, supra, at p. 634. The common law right to search incidentally to an arrest extends to an accused’s vehicle as part of his or her immediate surroundings. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 180.

41It should be noted that while the arrest of the accused and the conducting of the search did not occur at the same time as the arrest, this question is immaterial for the qualification of the search as “incidental”. The delay was reasonably explained by the officer’s having to attend to other necessary aspects of the investigation when the detachment was relatively short staffed. This later search did not cause any further infringement on liberty, dignity or privacy rights of the arrested person.

42At trial, Constable Boyle testified that he only searched the accused’s vehicle in order to comply with an RCMP policy which required that the interior of impounded vehicles be inventoried. He further testified that it was his understanding that the purpose of the policy was to secure the valuables of the owner of the vehicle in order to protect the RCMP against civil claims that might arise from the damage, loss or theft of the personal property of the owner of the vehicle. Regardless of Constable Boyle’s subjective belief in the purpose and justification for his inventory search, the trial judge found that Constable Boyle had the right to search the vehicle pursuant to the common law power of search incidental to an arrest.

43I agree with the trial judge. The power to search incidentally to an arrest draws its authority from the arrest itself. It is not necessary to independently establish reasonable and probable grounds to conduct a search incidental to an arrest. See Cloutier, supra, at pp. 185-86. Therefore, there was no onus on the Crown to establish at trial that Constable Boyle subjectively turned his mind to whether he was properly exercising his power to search incidentally to the arrest.

44The scope of the common law power of search incidental to an arrest was comprehensively explained in Cloutier, supra. Three broad propositions were unanimously endorsed by this Court. At page 186, L’Heureux-Dubé J. described the common law power in the following terms:

1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

45The Chief Justice is of the opinion that the propositions elaborated by L’Heureux-Dubé J. in Cloutier, supra, are to be construed in a restrictive manner. While he accepts that it is the Court’s responsibility to set boundaries in this area on the basis of the legitimate interests of the state, he adopts the position that there are three main purposes justifying a search incidental to an arrest, and that there is a subjective test to be applied to such purposes. Consequently, in his view, the requirements of the second paragraph above are not satisfied because Constable Boyle did not pursue the specific objective of obtaining evidence. I respectfully disagree with this interpretation.

46In my opinion, Cloutier describes a power of the common law which is, by definition, subject to interpretation on a case by case basis. The enumeration of purposes in Cloutier begins with the words “such as”. This is consistent with the fact that the enumeration was taken from Lindley v. Rutter, [1981] Q.B. 128, where, at p. 134, it is followed by these words: “This list is not exhaustive, but it is sufficient for present purposes.” Nowhere in Cloutier is it suggested that a subjective element is required to justify the search. To impose such a condition is tantamount to imposing that “reasonable and probable grounds” for the search be present. Indeed, how can the search be reasonable if the purpose of the police officer must be to find evidence and he or she conducts the search while having no reason to believe that the vehicle contains such evidence? I believe that a search conducted for the purpose of taking an inventory can be considered as a search for a “valid objective” under the proper circumstances. This type of search is less intrusive than a search conducted for the purpose of gathering evidence. In Cloutier, L’Heureux-Dubé J. described the condition under which a valid objective will be found where she wrote, at p. 186: “The purpose of the search must not be unrelated to the objectives of the proper administration of justice”.

47While an inventory search may be conducted for the purposes of securing the vehicle and protecting its contents, it may, in fact, provide evidence against the accused if such evidence can be found or is found. Since the test is not a subjective one, the intention of the officer is irrelevant and without any consequence, unless it is evidence of bad faith. In the case at bar, the search can then be justified because it is in fact related to the proper administration of justice. The arrest was legal, as was the impounding of the vehicle. The vehicle was a probable instrument in the perpetration of the crime. An inventory search was justified because its purpose was related to the arrest and consequential impounding of the vehicle.

48The Chief Justice states that the purpose of the search must be related to the purpose of the arrest; he adds that the search must be subjectively carried out in furtherance of that purpose. I do not agree with a restrictive interpretation of the search purposes and fail to see why a subjective test is required. In my opinion, the relationship required here is simply a requirement regarding the reasonableness of the conduct of the police in conducting the search. The search must objectively be considered reasonable with regard to the circumstances and purpose of the arrest, taking into consideration the expectation of privacy of the accused and the degree of intrusion of the search. In the present case, the appellant’s expectation of privacy, given his lawful arrest, was significantly diminished. See Stillman, supra, at p. 647. Furthermore, the degree of intrusiveness is minimal. The search of a motor vehicle is less of an affront to a person’s liberty, dignity and bodily integrity than the minimally intrusive body search or frisk search approved in Cloutier, supra, at p. 185. See also Stillman, supra, at p. 638. Objectively, the present search was also reasonable in view of the purpose and circumstances of the arrest. This is where I differ with the Chief Justice. He agreed that, “objectively”, the search of the vehicle could be justified, but that it is not reasonable in the present circumstances because the officer had not, in fact, addressed his mind to the pursuit of the legitimate objective of collecting evidence against the accused.

49The appellant argues that if the common law power to search incidentally to an arrest can authorize a search of his vehicle for evidence which is in no danger of being destroyed, then the common law is unreasonable and violates s. 8 of the Canadian Charter of Rights and Freedoms. According to the appellant, because Constable Boyle could have obtained a warrant in these circumstances, to do otherwise was unreasonable. But this reasoning is a distortion of the law. The existence of reasonable and probable grounds is precisely not a prerequisite to the existence of a police power to search incidentally to an arrest. The issue is therefore not whether Constable Boyle could have obtained a warrant, but rather whether the inventory search undertaken in these circumstances was truly incidental to the arrest and whether it was reasonably performed. As I have already established, in considering the purpose of the arrest in the context of the surrounding circumstances, the search of the appellant’s vehicle was reasonable. It is then unnecessary to consider the issue of s. 24(2) of the Charter.

50For the reasons set out above, I conclude that the inventory search in this case is authorized by the common law power of search incident to an arrest and I would dismiss the appeal.