[22] Courts have recognized that the right to impound a vehicle under provincial legislation includes the ability to inventory the contents thereof. In R. v. Nicolosi, 1998 CanLII 2006 (ON CA), [1998] O.J. No. 2554, Justice Doherty wrote:
28 Under s. 221(1) of the H.T.A., the police are authorized to do the following:
-- take the vehicle into the custody of the law;
-- cause it to be taken to a place of storage; and
-- store the vehicle in a suitable place.
29 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."
30 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. . .
(Emphasis added)
[23] More recently, the British Columbia Court of Appeal in R. v. Strilec, 2010 BCCA 198, recognized the authority of police to impound a vehicle under that province’s motor vehicle legislation, “…carries with it the duty and responsibility to take care of the vehicle and its contents, and to do that the police must be able to conduct an inventory of the vehicle’s contents”. (at para. 62)
[29] The following principles apply in assessing whether an inventory search triggered by the detention of a vehicle pursuant to the MVA, was conducted reasonably:
• 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.
[30] The above principles are entirely consistent with Cooper, which was adopted by the trial judge as the law applicable in this Province. I am satisfied, however, that the trial judge failed to properly apply them. Specifically, the trial judge failed to undertake a full contextual analysis of the reasonableness of the inventory search.
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