Case Brief Wiki


Tomaso was involved in a motor vehicle collision and was taken to hospital unconscious. A police officer on the scene noticed broken beer bottles in his vehicle. At the officer's request, a breathalyzer technician came to the hospital and collected a sample of blood which was flowing from a wound on Tomaso's ear without his consent. The appellant was arrested approximately two weeks later and charged with impaired driving, driving over 80, and criminal negligence in operation of a motor vehicle. At trial he was convicted of the lesser offence of dangerous driving.

Tomaso appealed stating that the collection of blood was a violation of his rights under s. 8 of the Charter and the evidence should have been excluded under s. 24(2).


  1. Is the collection of blood incident to arrest reasonable?


Appeal allowed, new trial ordered.


Howland, writing for a unanimous court, stated it was evident that at common law a police officer has the power to search a person as incident to a lawful arrest, and to take from his person any property which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested. The case law also demonstrated that it was legal for some searches incident to arrest can be done in advance of the actual arrest.

However, in the case at bar two weeks had elapsed between the seizure of the blood sample and the arrest of the accused for criminal negligence. In addition, it had not been established that the police officer had reasonable grounds to arrest the accused for criminal negligence at the time of the seizure. Consequently, the seizure could not be justified on the basis that it was incidental to arrest.


  • Warrantless search and seizure incidental to arrest are lawful as long as there were reasonable grounds for believing that the accused will have property connected to the offence on their person.
  • Search and seizure prior to arrest may be legal as long as:
    • there already exist reasonable grounds for arrest prior to the search, and
    • the search is reasonably contemporaneous with the arrest.