In R v. Myers, 2022 NSCA 69, November 16, 2022, the accused was a passenger in a motor vehicle stopped pursuant to the Motor Vehicle Act. The vehicle was seized and the police conducted an “inventory search”.  This included searching a backpack located on the floor on the passenger side of the vehicle.  Drugs were found and the accused provided a statement.  He was charged with an offence pursuant to the Controlled Dugs and Substances Act.

At trial, the accused argued that the inventory search violated section 8 of the Charter.  He sought exclusion of the drugs and statement.  The trial judge concluded that the search was lawful and admitted the drugs and statement.  The accused was convicted.  He appealed from conviction.

The appeal was allowed and an acquittal entered.  The Nova Scotia Court of Appeal concluded that the trial judge “erred in law when he concluded the search of the appellant’s backpack was a reasonable inventory search” (at paragraph 6).

Inventory Searches:

The Court of Appeal pointed out that the law recognizes “that the right to impound a vehicle under provincial legislation includes the ability to inventory the contents thereof” (at paragraph 22).  The Court of Appeal held that the following principles “apply in assessing whether an inventory search triggered by the detention of a vehicle pursuant to the MVA, was conducted reasonably” (at paragraph 29):

• Courts must exercise vigilance in assessing whether an inventory search was conducted reasonably.  The power of police to search the contents of a vehicle under the detention power contained in the MVA is one fraught with the risk of purposeful or inadvertent misapplication.  Police must be vigilant that the manner in which an inventory search is conducted does not go beyond its purpose;

• The purpose of an inventory search is to document the contents of a vehicle that will be taken into possession of the police;

• Whether an inventory search is conducted reasonably will depend on an assessment of the totality of the circumstances in a particular case;

• Given its purpose, a reasonable inventory search does not extend to personal property of occupants that will not remain in the vehicle when taken into police custody;

• Occupants should be given the opportunity to remove their personal belongings from the vehicle prior to it being placed under police control, unless doing so would interfere with the investigation being conducted;

• As the Crown has the burden of establishing the inventory search was conducted reasonably, police should explain why personal belongings which could have been taken by occupants were retained and/or searched; and

• As per Wint, if personal belongings such as a purse, backpack or bag remain in the vehicle after it is placed in police control, it is reasonable, as part of an inventory search, to document the contents thereof.  It is important to recognize the opening of a purse (or bag) in one situation may be found to be part of a reasonable inventory search, whereas the context in another case may lead to the conclusion such action is unreasonable.

This Case:

The Court of Appeal concluded that in this case, there “was no justification to search [the accused’s] backpack as part of an inventory search” (at paragraphs 33 and 34):

As the principles stated earlier establish, an inventory search only applies to the contents which will be remaining with the vehicle after it is taken into police control.  This does not give the police carte blanche to search personal belongings, unrelated to the particular investigation, which the occupants may wish to remove from the vehicle.  The trial record does not support there being any necessity to search the appellant’s backpack as part of the MVA investigation, indeed, such a justification was never advanced either at trial, or on appeal.

Before commencing the inventory search, the appellant ought to have been invited to remove his personal belongings from the vehicle.  There was no justification to search his backpack as part of an inventory search.  Sgt. Rose’s search of the appellant’s backpack exceeded what was required to effect an inventory search in these circumstances.  As such, I am satisfied the appellant’s rights under s. 8 of the Charter were infringed, and the trial judge erred in concluding otherwise.

Section 24(2) of the Charter:

The Court of Appeal concluded that “the nature of the evidence flowing from the search creates a strong pull towards admissibility.  However, the other two factors, although falling slightly lower on the seriousness spectrum, lead me to conclude the drugs and the appellant’s police statement ought to be excluded. In the circumstances of this case, the admission of the evidence garnered from a passenger who had no involvement with the MVA investigation, would risk bringing the administration of justice into disrepute, and set a poor precedent for the future use of inventory searches by police in this Province” (at paragraph 57).