Two recent cases heard together by the Court of Appeal examining when police can search a car without a warrant had very different outcomes.
In R. v. Dunkley and R. v. Ellis, both appellants were convicted of weapons offences based on evidence that was found in their cars after police seized them as abandoned vehicles. The appeals concerned the authority of police to conduct such inventory searches of abandoned cars, under s. 221 of the Highway Traffic Act, and how that interacts with the right to unreasonable search and seizure under s. 8 of the Charter.
At the heart of both proceedings was whether the defendants abandoned their vehicles when approached by police. The court granted Norman Dunkley’s appeal, but it dismissed that of Winston Ellis.
Lawyers say the decisions are the first two cases at the Court of Appeal that deal with the police’s power to search an abandoned vehicle under the Highway Traffic Act.
“It’s really significant in terms of the idea of when the police can seize a vehicle as being abandoned,” says Mark Halfyard, a lawyer with Rusonik O’Connor Robbins Ross Gorham & Angelini LLP, who was not involved in the cases.
Dunkley was arrested after he ran away from the police outside a gas station when they approached him, leaving his car behind. The police searched his car without a warrant and found a handgun as well as a Taser. In his trial, he applied to have the evidence excluded under s. 24 of the Charter.
The trial judge found the police had reasonable grounds to detain Dunkley and to search his car.
The Court of Appeal, however, disagreed.
In the decision, Justice William Hourigan said the trial judge “made no finding whether the police had reasonable and probable grounds to arrest the appellant at the time of the search.”
Hourigan said the police had reasonable suspicion but not the reasonable grounds required. Hourigan added that the search could not be justified under S. 221 of the Highway Traffic Act, as there was no indication that Dunkley had abandoned his car, which was parked in a the gas station parking lot.
“When the officers confronted the appellant, he took off on foot,” he said.
“This could be consistent with abandonment but, without more, it is difficult to conclude that he intended to abandon his vehicle.”
The court allowed Dunkley’s appeal, the evidence was excluded and he was given an acquittal.
“The courts are really saying it’s a fact-specific determination,” says Dunkley’s lawyer, Breana Vandebeek.
“There’s still this factual determination on a case-by-case basis as to whether or not a vehicle is going to be abandoned or not,” she adds.
In Ellis, the court dismissed the appeal of Winston Ellis who had been racing in a car when police started to follow him. He parked the car and walked away before eventually being arrested for careless driving. Police searched his pockets, found his car keys and then searched the car and discovered a loaded handgun.
Ellis applied to have the handgun excluded, arguing his rights had been breached under s. 8, 10 and 9 of the Charter. The trial judge, however, ruled that the police were authorized to search the vehicle under s. 221 of the Highway Traffic Act.
In this instance, Hourigan agreed with the trial judge and dismissed Ellis’ conviction appeal. In Dunkley, Hourigan said the main difference between the two factual scenarios was that Ellis “parked his vehicle with the intention of distancing himself from it, and that he left it on a private driveway where he knew it could not legally remain.”
In his appeal, Ellis also challenged the fact that police searched his pockets and seized his car keys, saying it violated his s. 8 rights. The court found that this was not a violation as the police had learned that Ellis was affiliated with a gang and had a previous firearm conviction.
“It’s unclear in the future how this is going be applied,” says Ellis’ lawyer, Candice Suter.
“I think it does need to be limited to situations where there is additional information.”
Toronto lawyer Sean Robichaud says the Ellis decision will make it easier for police to justify warrantless searches of vehicles when they have a suspect in custody.
“It may be argued this is for limited circumstances, but my view is that practically speaking it applies to any arrest where an individual is connected to a vehicle,” says Robichaud, who was not involved in either case.
Robichaud says s. 221 of the Highway Traffic Act should not be applied to circumstances such as the Ellis case.
He added that it’s meant to give police the power to seize abandoned vehicles at the side of the road and “not to circumvent constitutional rights protected under s. 8 by warrantless searches pertaining to a criminal investigation.”
Halfyard says the differing decisions ultimately came down to a difference in the factual scenarios of the two cases.
“The two cases and remedies came down to a factual distinction as to how far along the investigative process the police were before they came across the accused in the vehicle and the actual circumstances of the abandonment,” he says.
“In one it was obviously much more clearly abandoned than the other.”
That being said, Halfyard says there is still a valid concern that the police could overstep their authority and attempt to use the Highway Traffic Act to try to justify warrantless arrests.
“There’s always a worry that the police use an inventory search as a pretext to not get a judicial authorization like a warrant.”