Nova Scotia Court of Appeal examines police limitations during vehicle inventory searches

By Terry Davidson

Law360 Canada (November 25, 2022, 9:41 AM EST) -- Police must stay within the legal limits when doing inventory searches of vehicles impounded due to traffic act infractions, says a Nova Scotia lawyer whose client was acquitted of drug offences because his backpack was unlawfully searched.

The Nov. 16 Nova Scotia Court of Appeal decision in R. v. Myers, 2022 NSCA 69 involved Luke Myers, a man in his mid-20s who found himself convicted of drug trafficking after a truck in which he was a passenger was stopped and impounded for infractions under the province’s Motor Vehicle Act (MVA).

It was Dec. 23, 2018, in the town of Truro, that the truck caught the attention of a police officer, who noticed its poorly attached licence plate and a burnt-out taillight. According to the written decision, the officer also recognized the driver, who not long before this had been arrested on drug and weapons charges.

Myers, an acquaintance of the driver, was being given a ride into town.

After stopping the truck, the officer discovered the driver had no insurance, and that the plates were not registered to the vehicle. He also had concerns with its safety sticker. 

Backup was called and the driver and Myers were initially detained over “officer safety concerns” due to the driver’s past arrest.

The officer ordered that the truck be towed and impounded. With this, he began a “inventory search” — a practice where police log the contents of a vehicle to protect themselves from liability should items go missing after it is towed away, as well as to ensure it does not contain weapons or other hazards.

In this case, the first thing the officer examined was Myers’ backpack, which had been in the front passenger seat of the truck. The officer allegedly found inside the pack cannabis, cocaine, pills, cash, a weigh scale, a spoon and baggies.

Myers was charged with two counts of drug possession for the purpose of trafficking. At trial, he argued the search of his backpack as part of the vehicle inventory search was unreasonable and violated his Charter rights.

But the trial judge convicted Myers, finding the inventory search of the truck was authorized and done reasonably, and thus not a breach of Myers’s Charter rights.

Myers appealed, arguing that while the trial judge cited correct law when it came to inventory searches, he applied it incorrectly. Myers asked the Appeal Court to find that the search was done unreasonably, which led to a Charter breach, and that he had been arbitrarily detained.

Nova Scotia Appeal Court Justice Cindy Bourgeois, with Justices Peter Bryson and Carole Beaton concurring, threw out the evidence against Myers and acquitted him, finding the trial judge “failed to consider if all of the [truck’s] contents needed to be inventoried.”

Justice Bourgeois referred to Myers as merely a “bystander” in this case, finding that the search of his backpack was unwarranted in the context of a vehicle inventory inspection.

“The decision to detain the vehicle arose due to the MVA infractions committed by the driver,” she wrote. “The inventory search flowed from the officer’s decision to detain the vehicle given the lack of insurance and improper registration. The appellant carried no liability in relation to these offences, he was simply a bystander. Although [the police officer] expressed having ‘officer safety concerns’ due to the driver’s criminal history, the appellant had no such involvement and had been completely cooperative.”

In coming to her decision, Justice Bourgeois turned to R. v. Cooper, 2016 BCPC 259, a British Columbia case that spoke of the reasonableness required of a proper police inventory. Front and centre was the principle that “[o]ccupants 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.”

Justice Bourgois found that, in this case, allowing “evidence garnered from a passenger who had no involvement with the MVA investigation, would … set a poor precedent for the future use of inventory searches by police in this Province.”

David Mahoney, Legal Aid Nova Scotia

David Mahoney, Legal Aid Nova Scotia

Legal Aid Nova Scotia lawyer David Mahoney, who acted for Myers, said the Appeal Court’s decision sets out limitations police must follow when doing these types of inventory searches.

“When police seize a vehicle and impound it, and then carry out an inventory search, they must do it reasonably and let the individuals who are in the [vehicle] take with them whatever belongings they have,” Mahoney told The Lawyer’s Daily. “So, passengers and driver can take their stuff and go, and anything that they can take with them doesn’t get inventoried.”

Mahoney said the Appeal Court simply pointed out that the search of Myers’s backpack was wrong because this was an MVA matter, not a criminal investigation.

“So, [what] we’re saying is, wait a second here, this is [an MVA] stop. This is the passenger. [He has] no reason to be involved in this at all. Why are you going through his backpack as part of inventory? … The stuff that can be given back to the driver and passengers, give it to them and send them on their way, which is what the provincial court is saying in the Cooper case in B.C.”

Crown Lee-Ann Conrod was asked for comment. Instead, a spokesperson with the Public Prosecution Service of Canada [PPSC] provided a sparse response.

“The PPSC does not comment or provide opinions on court decisions. In this case, we believe the decision speaks for itself and to say anything further would constitute an opinion and therefore be inappropriate,” said Nathalie Houle. “The PPSC is currently reviewing the decision to determine whether or not to seek leave to appeal in the Supreme Court of Canada.”

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