B.C. Delayed Access to Lawyer, Not Operating Motor Vehicle, Unlawful Search

It’s amazing how one small case can have a few interesting tidbits of law included.

  1. Unlawful search and why?
  2. Denied access to a lawyer for too long? How long is too long?
  3. When is one not operating a vehicle?
  4. And is asking for a drivers license when not operating a motor vehicle unlawful?

Read the decision to understand the circumstances the judge considered and how he concluded rights were violated in each.

R. v. Abarca, 2019 BCPC 232 (CanLII), <http://canlii.ca/t/j2s0j>

PDF – Abarca-delay-access-counsel-search-MV-not-operating-2019bcpc232


[94]        Based on the above I conclude the following;

Section 9 – Arbitrary Detention

[95]        Constable Cheng unreasonably detained Mr. Abarca when he detained him for the purpose of demanding that he produce a driver’s licence. He also unreasonably detained Mr. Abarca when he arrested him for obstructing a police officer. Finally, Constable Cheng’s detention of Mr. Abarca for officer safety was lawful and reasonably performed, thus, I am not satisfied that the detention for this purpose was unreasonable.

Section 8 – Unreasonable Search And Seizure

[96]        The interior search of Mr. Abarca’s vehicle was performed in absence of lawful authority and therefore in violation of Mr. Abarca’s right to be secure against unreasonable search and seizure. As for the drugs seized from the open door, the drugs were in plain view and accordingly validly located and seized.

Section 10 (b) – Right To Retain And Instruct Counsel Without Delay

[97]        Mr. Abarca was not provided immediate access to counsel and therefore his section 10 (b) rights were violated. He was not given access to counsel until 2 hours and 40 minutes had elapsed from his first request to speak to a lawyer. Some of this period was justified, however, having Mr. Abarca waiting in a police car and at the detachment without explanation fails to justify the total delay.