La fouille d’inventaire.
La principe de base caractérisant la fouille à des fins d’inventaire est le suivant :
La police peut inventorier, pour ses propres fins, le contenu d’une automobile en sa possession, mais, si elle souhaite utiliser les fruits de cette fouille à des fins d’inventaire comme éléments de preuve lors d’un procès criminel, la fouille doit être effectuée en vertu d’un pouvoir légal. Le travail effectué par un policier qui est accessoire aux procédures administratives d’un corps policier plutôt qu’à l’arrestation d’un accusé ne satisfaisait pas aux exigences d’une fouille sans mandat et les fruits de la fouille à des fins d’inventaire sont récoltés en contravention de l’art. 8 (R. c. Nolet, 2010 CSC 24). Par conséquent, aux fins du présent pourvoi, je suis d’avis de conclure que la fouille à des fins d’inventaire n’est pas autorisée par la loi et viole donc l’art. 8 de la Charte.
Nous n’avons pas ici à répondre à la question de savoir si une telle loi serait compatible avec l’art. 8. Il suffit de dire qu’une fouille à des fins d’inventaire ne vise pas en soi un «objectif valable dans la poursuite des fins de la justice criminelle» (Cloutier, précité, à la p. 186) dans le contexte d’une arrestation, de manière à pouvoir être effectuée légitimement en vertu de ce pouvoir de common law de fouille sans mandat. Son objectif a trait à des préoccupations étrangères au droit criminel. Si la police sent le besoin d’inventorier, pour ses propres fins, le contenu d’une automobile en sa possession, c’est une chose. Mais si elle souhaite utiliser les fruits de cette fouille à des fins d’inventaire comme éléments de preuve lors d’un procès criminel, la fouille doit être effectuée en vertu de quelque pouvoir légal (R. c. Caslake, [1998] 1 R.C.S. 51 au para. 31).
Cependant, la saisie d’éléments de preuve apparents est permise dans certaines circonstances : voir R. v. Strilec, 2010 BCCA 198
[50] On this point, counsel for the Crown began his submissions with the observation that in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 (“Caslake”) the Supreme Court of Canada (at para. 31), declined to decide whether there exists a “general inventory search” exception to s. 8 of the Charter. In Caslake the accused had been stopped in his vehicle and arrested for possessing marihuana. He was taken into custody and his vehicle towed to a garage. The police later attended the garage and searched the vehicle, discovering other drugs. The officer who searched the vehicle said he had done so on the basis of a police policy that all seized vehicles were to be inventoried. Since Caslake dealt mainly with the doctrine of search incident to arrest, the Court declined to decide the inventory search issue saying that it was “not an appropriate case” to decide the issue.
[51] Counsel for the Crown submitted that subsequent to the Caslake decision there have been several courts which have recognized the authority of the police to conduct inventory searches in connection with the impoundment of vehicles under provincial motor vehicle legislation. He referred in particular to R. v. Nicolosi 1998 CanLII 2006 (ON CA), (1998), 110 O.A.C. 189, 127 CCC (3d) 176, which concluded that the OntarioHighway Traffic Act, R.S.O. 1990 c. H8 (“1990 HTA”) authorized such a search.
[…]
[57] The appellant says that the reasoning in Nicolosi has little application to the Motor Vehicle Act as the wording of the two statutes is quite different. I accept that the wording is different, but the purpose of the statutes is similar. Both authorize the impoundment of vehicles for traffic safety reasons. In both cases, the police can take possession of the vehicle and require that it be stored in a particular place. I agree with the submissions of the Crown that it is implicit in the legislation that the police have the duty and responsibility under the Motor Vehicle Act to ensure the safety of the vehicle and its contents, and to do that they must be entitled to conduct an inventory of the vehicle’s contents.
[58] I am supported in this view by the recent Ontario Court of Appeal case of R. v. Wint, 2009 ONCA 52 (CanLII), 2009 ONCA 52, 244 O.A.C. 324. In that case, Mr. Wint was arrested for “stunt driving” in violation of s. 172(1) of the 1990 HTA. The police decided to impound his vehicle pursuant to s. 172(5) of the 1990 HTA. The relevant portions of s. 172 provide:
172(1) No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.
(5) Where a police officer believes on reasonable and probable grounds that a person is driving, or has driven, a motor vehicle on a highway in contravention of subsection (1), the officer shall,
(a) request that the person surrender his or her driver’s licence; and
(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (7) (b).
(6) Upon a request being made under clause (5) (a), the person to whom the request is made shall forthwith surrender his or her driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, his or her driver’s licence is suspended for a period of seven days from the time the request is made.
(7) Upon a motor vehicle being detained under clause (5) (b), the motor vehicle shall, at the cost of and risk to its owner,
(a) be removed to an impound facility as directed by a police officer; and
(b) be impounded for seven days from the time it was detained under clause (5) (b).
(8) Subject to subsection (15), the motor vehicle shall be released to its owner from the impound facility upon the expiry of the period of impoundment.
(9) Despite the detention or impoundment of a motor vehicle under this section, a police officer may release the motor vehicle to its owner before it is impounded under subsection (7) or, subject to subsection (15), may direct the operator of the impound facility where the motor vehicle is impounded to release the motor vehicle to its owner before the expiry of the seven days if the officer is satisfied that the motor vehicle was stolen at the time that it was driven on a highway in contravention of subsection (1).
(11) Every officer who detains a motor vehicle under this section shall prepare a notice identifying the motor vehicle that is to be impounded under subsection (7), the name and address of the driver and the date and time of the impoundment and shall, as soon as practicable after the impoundment of the motor vehicle, provide the driver with a copy of the notice showing the time from which the impoundment takes effect, the period of time for which the motor vehicle is impounded and the place where the vehicle may be recovered.
(12) A police officer shall provide a copy of the notice prepared under subsection (11) to the owner of the motor vehicle by delivering it personally or by mail to the address of the owner shown on the permit for the motor vehicle or to the latest address for the owner appearing on the records of the Ministry. [Emphasis added.]
[59] I note here that these sections are similar to those of the Motor Vehicle Act under consideration in the case at bar. Unlike the provisions under consideration in Nicolosi, they do not refer to the police taking “custody” of the vehicle, but use other language to describe the seizure.
[60] After the police decided to impound Mr. Wint’s vehicle, they searched it and discovered a bag behind the passenger seat which contained a CD case. On opening the CD case, the officers discovered a quantity of marihuana and cocaine. Mr. Wint was convicted of trafficking in the two substances. He argued on appeal that the trial judge had erred in admitting the contents of the vehicle search. He argued that Nicolosilimited the police to itemizing only “visible property of apparent value”.
[61] The Court dismissed Mr. Wint’s argument saying:
[14] The underlying rationale for inventory searches, as explained in Nicolosi, belies the appellant’s submission that the police may only itemize objects found in a car, but not their contents.
[15] Given the underlying rationale for inventory searches, to proceed in that fashion would render these searches virtually meaningless. Thus if the police found a purse and could not look inside it, they would have no way of knowing whether it contained pennies or thousands of dollars and if the latter, what steps should be taken to safeguard the large sum of money. That, in our view would defeat the purpose of the exercise. In short if inventory searches are to be meaningful and serve the purpose for which they are intended, the police cannot be hobbled as the appellant would suggest. They must be able to search and itemize the contents of objects such as purses, wallets and bags like the one observed in this case, to determine their contents. Of course, any inventory search must be executed in a reasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totality of the circumstances revealed in each case.
[16] It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents was entirely reasonable and justified. Indeed, the police would have been derelict in their duties had they not carried out the searches.
[62] I would apply the same reasoning to the case at bar. In my view the authority to impound provided by s. 104.1 of the Motor Vehicle Actcarries 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.
[63] Given my conclusions about the authority of the police to conduct an inventory search in these circumstances I would, on this basis, support the conclusion of the trial judge that the appellant was not subject to an unreasonable search. It follows that it is not necessary to discuss the finding of the trial judge that Mr. Strilec had no privacy interest in the pouch found on the dirt bike motorcycle he had been driving.
[64] I would therefore not accede to the appellant’s second ground of appeal.
Au Québec, il semble que l’article 636.2 du Code de la sécurité routière peut s’interpréter eu égard aux principes susmentionnés.
