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Does mandatory vehicle impoundment violate Charter rights?

By: Ticket Lawyer on June 21, 2018


Having your vehicle impounded can be stressful, expensive and to some may seem like a punishment in itself. One BC couple recently argued that having their car suddenly taken away was a violation of their Charter rights. Their claims that mandatory vehicle impounds under the Motor Vehicle Act (MVA) are unconstitutional were dismissed, however, after they raised the issue at the BC Court of Appeal (BCCA).

Ian Sisett received a ticket for excessive speeding in June 2015 near Grand Forks, BC, and police immediately impounded his vehicle for seven days. Because he had no other means of getting home, Mr Sisett rode with the tow truck driver to Grand Forks and spent the evening there, while he arranged for family members to pick him up and take him back to Kelowna.

Mr Sisett and his wife, Marguerite Sisett, petitioned to have the ticket overturned on the grounds that impounding of the vehicle had violated their rights under the Charter. They had previously raised these constitutional issues with a provincial court judge who dismissed them. They argued the judge had made a number of errors in deciding their claims and they took their appeal to the BCCA.

What grounds do police have to impound your vehicle?

Section 251 of the MVA enables the police to impound your vehicle for a variety of reasons. They include if an officer has reasonable grounds to suspect a driver has committed the offence of excessive speeding, which is defined as 40 km/hr or more over the applicable speed limit.

“It could be argued that it infringed on his right to be presumed innocent until proven guilty.”

The couple cited several sections of the Canadian Charter of Rights and Freedoms as to why this section of the Motor Vehicle Act was unconstitutional.

Section 7: Life Liberty and Security of Person

One of the sections the Sisetts put forward was Section 7, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

According to the BCCA decision, the couple argued the provincial judge had failed to consider that excessive speeding is an absolute liability offence, meaning you are either guilty or innocent of the offence and there is no need to prove if you knew you were committing an illegal act. They argued a Supreme Court decision found that absolute liability offences that carry the risk of imprisonment violate s. 7.

The Court dismissed this argument, interpreting the fact that the sections of the Motor Vehicle Act, in this case, do not carry the potential for imprisonment to mean they do not infringe s. 7.

It is possible the petitioners also believed their right to life and liberty were being restricted by not having a vehicle, however, the Court dismissed this argument, stating that driving is a privilege, not a right.

Section 8: Search and Seizure

Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.” The appellants clearly felt that the impoundment of their vehicle amounted to an unreasonable seizure. The Court did not see it this way and dismissed the claim, stating it was, “authorized by law and was reasonable in light of the purposes and objectives of the speeding legislation”.

Section 11 (d): Proceedings in Criminal and Penal Matters

Under Section 11(d) of the Charter, “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

One of the main issues the couple raised was to do with the actual vehicle impoundment procedure and whether it went against the presumption of innocence protection under the Charter.

If you are given a ticket for excessive speeding, your vehicle can be impounded there and then, before a driver has the opportunity to fight the charge. You can understand why Mr Sisett may have felt the act of impounding a vehicle was a punishment in itself as he had to spend the evening far from home, amounting to a “de facto imprisonment”.

Because their vehicle was impounded before Mr Sisett had a chance to go to trial, it could be argued that it infringed on his right to be presumed innocent until proven guilty.

Interestingly, the reason the Appeal Court judges gave for agreeing with the provincial judge in dismissing this claim was that the MVA constitutes an administrative regime – not penal – and it is therefore not eligible for the same protections under s. 11.

The fact that it is an administrative system means there is less scope for someone accused of an offence to defend themselves. The couple raised this issue, but the Appeal Court judges felt sufficient scope existed to overturn a wrongful impoundment.

Section 12: Treatment or punishment

According to Section 12 of the Charter, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” The couple decided to cite s. 12 because they felt the judge failed to consider the punishment of being stranded far from home as being disproportionate to the crime of excessive speeding.

The standards set in order for s. 12 to apply, however, are very high. The punishment has to be so excessive it outrages standards of decency. In other words, it has to be more than just disproportionate.

The Appeal Court judges stated: “It can hardly be said that the mandatory impoundment scheme here is ‘so excessive as to outrage standards of decency’ … given the harms arising out of excessive speeding.”

What to do if your vehicle has been impounded

If you have been charged with excessive speeding or another offence that has resulted in your vehicle being impounded, you may find you face an uphill battle if you decide to go it alone.

The administrative system affords fewer protections to defendants than criminal trials. That is why we highly recommend doing something the appellants, in this case, did not do by seeking professional help. If successful, you can claim back expensive costs such as towing and storage fees and have the ticket removed from your record.

At BC Driving Lawyers, we have helped countless clients have vehicle impoundments overturned. We have been working within the administrative system for years and we have the experience needed to win these cases.

Call us today for a free consultation.