In the Caslake case (1998), a majority of the Supreme Court of Canada held that a search made for purposes of an inventory, conforming to police policy (RCMP) but without a search warrant or permission, constituted an abusive search. Caslake was arrested and accused of possession of narcotics (marijuana). Several hours after his arrest, an RCMP officer proceeded to search his vehicle in order to make an inventory and discovered a sum of money and some cocaine. Caslake was found guilty of possession of drugs with the intention of trafficking. He contended he was the victim of an abusive search. The Crown argued that it was simply a matter of a search incidental to an arrest.
Chief Justice Lamer held that the search was not incidental to the arrest. Three of his colleagues concurred with his opinion. Even though the search was abusive, the evidence so collected was not rendered inadmissible, the police officers having acted in good faith and the search not being invasive because the evidence was not obtained in a manner that arrayed the accused against himself. Judge Bastarache, with whom Judges L'Heureux-Debé and Gonthier concurred, held that the search was incidental to an arrest and, consequently, that it was not abusive.
In this case the Court established some basic rules for searches. For a search to be reasonable under section 8 of the Canadian Charter of Rights and Freedoms, the search must be authorized by law, the law must be reasonable and the search must be carried out in a reasonable manner. A search conducted without a warrant is initially deemed to be unreasonable. The Crown has an onus to show on a balance of probabilities that the search was reasonable. To justify a search incidental to arrest, the police must have subjectively had a reason, incidental to arrest, to search and the reasons must have been objectively reasonable.