There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle.

See R. v. Russell, 2018 BCCA 330; R. v. Cuff, 2018 ONCA 276.

Having properly seized a vehicle,  police are under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police may have to conduct an inventory search of the vehicle.

R. v. Cuff, 2018 ONCA 276.

R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.), at paras. 29-30.

The fact that the police suspect that they may find drugs while searching the vehicle does not alter their authority to conduct an inventory search.

R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, at para. 11, leave to appeal refused [2009] S.C.C.A. No. 164:  for inventory searches to be meaningful, the police must be able to search and itemize the contents of objects such as purses, wallets and bags to determine their contents.

Inventory searches of vehicles are not searches incident to arrest.

Where an inventory search is not required (say for instance, when the accused will released immediately after arrest and thus there is not need to seize control of his vehicle), police may (or may not) have the option to conduct a warrantless search of the vehicle under the common law search incident to arrest doctrine.   

The police generally do not need to have reasonable and probable grounds to conduct a search incident to arrest – just a reasonable basis for doing so.

But see R. v. Saeed, 2016 SCC 24, at para. 42: where police took a penile swab from the accused incident to arrest.  The heightened privacy interest of the individual in those circumstances required police to have reasonable grounds to believe the swab will reveal and preserve evidence of the offence.

Valid police purposes associated with searches incidental to arrest include

·         police safety,

·         public safety,

·         securing evidence, and

·         discovering evidence

If police impound or otherwise take lawful custody of the vehicle, then that may require an inventory search. However, the fact that an accused will be released following his arrest and thereafter have access to his vehicle may, in some circumstances, supply part of the reasonable basis for a search of the vehicle incident to arrest.  While an accused’s access to a vehicle will never be sufficient in and of itself to justify the search, the prospect of access may sometimes raise legitimate concerns for officer and/or public safety).

In R. v. Valentine, 2014 ONCA 147 (CanLII), application for leave to appeal dismissed by Supreme Court of Canada, the prospect of allowing the accused back into his car (after being arrested for potential breach of an outstanding bail order) gave rise to a concern over officer safety based on the possibility there may be weapons in the car proximate to the driver’s seat. The concern was valid in the light of the accused’s criminal antecedents and the disturbing behaviour he had exhibited in the course of the stop.  At the time of the vehicle search the arresting officer had not decided whether or not to release the driver and allow him to return to his vehicle, though that remained a live prospect.

In R. v. Santana, 2020 ONCA 365, the Court noted that there was no possibility the accused, who was not the driver of the vehicle, would be released and allowed to return to his vehicle. The police had no authority to prevent the woman driving the vehicle from leaving after dealing with a minor traffic issue. The police officer did not act lawfully when after arresting the accused on an outstanding warrant he visually examined the interior of the vehicle, seized the accused’s jacket from within it, and searched the pockets of the jacket. The arresting officer had no reason to believe any officer or member of the public was in danger from anything in the vehicle. If the police were concerned about the accused losing track of his property, or being cold while in custody, they could have offered to collect the accused’s belongings from the vehicle.  Otherwise, the police had no authority to retrieve his property.

In R. v. Ellis, 2016 ONCA 598 (CanLII), applications for leave to appeal to the Supreme Court of Canada dismissed, the search of the vehicle was not incident to the arrest of the accused. The vehicle was approximately 50 metres from where the accused was arrested. He was taken back to vehicle after being placed under arrest and handcuffed. In these circumstances, the search could not be justified on the basis that it was necessary to prevent the accused from securing a weapon or destroying evidence inside the vehicle: see para. 41.


Written by Stuart O’Connell (Barrister/Solicitor)