R. v. Pelgrom

R. v. Pelgrom

The arrest was unlawful because s.79 MVA authorizes warrantless arrest only where the officer finds the person driving (direct observation of the offence); here the officer did not find the accused driving at the time of arrest (he was walking), so the arrest was arbitrary under s.9 of the Charter. Consequently the incidental search was unlawful and s.8 and s.7 were also engaged.

Citation
2020 BCSC 2310
Parties
Crown: Regina; Accused: Roy Joseph Pelgrom
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 December 2020
Procedural Posture
Criminal / Voir Dire (charter Ss.7,8,9)
Outcome
Application under s.9 allowed; arrest found unlawful and arbitrary. Applications under s.8 and s.7 are technically allowed. Further submissions ordered on s.24(2).
Legal Topics
Arbitrary Arrest, Detention, Section 79 Motor Vehicle Act, Section 95 Motor Vehicle Act, Charter S.9, Charter S.8, Charter S.7, Section 24(2) Remedy, Incidental Search
Source Language
English
Criminal Law Constitutional Law Search and Seizure Motor Vehicle Law Arbitrary Arrest Detention Section 79 Motor Vehicle Act Section 95 Motor Vehicle Act +5 more

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Parties

Regina

Crown

Roy Joseph Pelgrom

Accused

Procedural Posture

Criminal / Voir Dire (charter Ss.7,8,9)

Legal Issues

  1. 1 Whether the warrantless arrest under s.79 of the Motor Vehicle Act was valid
  2. 2 Whether the arrest constituted an arbitrary detention or arrest contrary to s.9 of the Charter
  3. 3 Whether subsequent search was unreasonable under s.8 of the Charter

Ratio Decidendi

The arrest was unlawful because s.79 MVA authorizes warrantless arrest only where the officer finds the person driving (direct observation of the offence); here the officer did not find the accused driving at the time of arrest (he was walking), so the arrest was arbitrary under s.9 of the Charter. Consequently the incidental search was unlawful and s.8 and s.7 were also engaged.

Court Disposition

Application under s.9 allowed; arrest found unlawful and arbitrary. Applications under s.8 and s.7 are technically allowed. Further submissions ordered on s.24(2).

Orders

  • Application under s.9 of the Charter allowed (arrest under s.79 MVA unlawful and arbitrary)
  • Applications under ss.8 and 7 of the Charter allowed (breaches found)