Background
On March 24, 2020, a cyclist was struck by a Jeep (the “Vehicle”) at a parking lot in Vernon, BC. While the driver remained at the steering wheel, two men emerged and assaulted the cyclist before getting back into the Vehicle and driving away. Neither the victim nor police could identify any of the occupants. Police obtained a license plate, learning that the Vehicle was registered to the accused, Mr. Abdelkader, a suspected drug trafficker with no criminal record or arrests.
On May 2, 2020, police executed a search warrant in relation to the hit and run incident and seized the Vehicle from the accused, which was financed by a Bank. The Vehicle was searched the next day, triggering the three-month detention period, and by May 8, 2020, nothing of evidentiary value had been obtained. The hit and run investigation formally concluded on July 20, 2020, and police were unable to identify any of the suspects.
Instead of returning the Vehicle, a referral was made to the Civil Forfeiture Office and by August 2020, legal proceedings against the Vehicle had commenced and the Bank sent agents to repossess the Vehicle. In October 2020, an expert in hidden compartments was flown out to conduct a search. When asked about a warrant, police suggested the Bank’s Bailiff had consented and requested it herself, which was untrue.
A warrantless search of the Vehicle was conducted on October 13, 2020, after the accused’s legal team filed a notice of application seeking the return of the Vehicle under section 490(9) of the Criminal Code. Through dismantling the inner compartment, police located a concealed aftermarket compartment containing trafficking-level quantities of methamphetamine and cocaine.
During this time, the accused was still making payments on the Vehicle and continued to keep it insured. In early 2021, the Vehicle was sold without any notice to the accused, and the Bank forwarded the surplus sale proceeds to the Civil Forfeiture Office. The Bank’s representative provided consent for the continued detention of items seized from the Vehicle for the remainder of the investigation. The accused was charged on January 22, 2022, with two counts of possession of a controlled substance.
Ultimately, the evidence derived from the search was excluded following what the Court described as “numerous and flagrant” breaches of the accused’s section 8 Charter rights, and abuse of process by “[devising] a plan to hold onto the vehicle through the use of the civil forfeiture office” and “[engaging] in deceptive tactics to retain it…contrary to their statutory obligations under section 490”.
Justice Shergill found that the police had committed six Charter breaches over the course of the investigation: five under the section 8 right against unlawful search and seizure, and one under section 7 for abuse of process.
Section 8
Examinations by the state that constitute an intrusion on reasonable privacy interests of individuals are a “search” under section 8. Once it is engaged, the Court must determine whether the search or seizure was reasonable.
The Court found the following Charter breaches:
Section 8
a) An unlawful search in June 2020 when police entered the Vehicle for the purpose of obtaining its mileage (by starting it) when it was not authorized by the search warrant.
b) An unlawful search in October 2020 when police dismantled the interior of the Vehicle and seized the accused’s possessions. At that time, police were in unlawful possession of the Vehicle and knew they did not have grounds to obtain a search warrant or the legal basis to conduct a warrantless search. The investigating officers “manufactured” public safety concerns to get the consent of the Bailiff, who did not have authority to give consent.
c) Unreasonable seizure of the accused’s personal effects from July 20, 2020, onwards, when the hit and run investigation had formally concluded and police had a duty to return the items seized pursuant to section 490(5) and (6). The failure to comply with this duty breached the accused’s section 8 rights and was compounded by the fact that police took no steps to return those items when the detention order had expired.
d) Unreasonable seizure from at least August 21, 2020, onwards when police did not return the Vehicle contrary to section 490(6), “due to a combination of the police officers’ ‘ignorance of the law’ and their deliberate efforts to circumvent [the accused’s] due process rights”.
e) Non-compliance with section 490 of the Criminal Code when police failed to obtain a judicial authorization for the ongoing detention of biological samples seized from the Vehicle, and in addition, the failure to obtain proper authorization for the continued detention of exhibits in the October 2020 search.
Section 7
Although there is no specific right against abuse of process within the Charter, Courts have found that depriving someone’s liberty on the basis of an abuse of process would be a violation of the principles of fundamental justice under section 7. The abuse of process doctrine dissociates the courts from unacceptable conduct where it may offend the community’s sense of fair play and decency, and the idea that convictions are not to be obtained at any price.
In this case, the Court found that police had committed an abuse of process against the accused, writing:
Under the guise of investigating a hit and run, they launched a drug investigation into [the accused]. The police targeted [the accused] because they believed he was involved in the drug trade, and had been “untouchable” thus far…
…
When [the accused] made legal and legitimate efforts to recover his vehicle, the police refused to return it, even when the investigation for which it had been seized had concluded. To justify their continued possession of the Vehicle, they engaged in deceptive tactics to retain it beyond July 20, 2020, contrary to their statutory obligations under s. 490.
…
The police acted in concert with the Civil Forfeiture Office in a deliberate and orchestrated effort to bypass statutory safeguards under the regime set out in s. 490 of the Criminal Code, and deprive Mr. Abdelkader of due process. This misconduct violated s. 7 of the Charter.
Conclusion
On balance, the Court excluded the evidence, finding that the conduct was at the serious end of the spectrum and had a high impact on the accused. Although the public has a strong interest in ensuring that serious offences are prosecuted on their merits, that interest was subsumed by the “more pressing need to have a justice system which is beyond reproach”.
As seen by the multiple section 8 breaches occasioned by over-holding items and failing to obtain proper authorizations, Courts are increasingly finding that strict compliance with section 490 is a necessary part of the investigative process. Abdelkader is a cautionary tale for police and the latest reminder of the importance of maintaining compliance with the search and seizure provisions in the Criminal Code during an investigation.
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