Alberta (Justice and Attorney General) v. Petros, 2011 ABQB 541

The Defendant, Daniel Lejam Petros, was under police surveillance when officers witnessed another individual (who was suspected to be purchasing drugs) enter Petros’ vehicle and walk away carrying something in his hand. Police officers continued following Petros and intercepted his vehicle a few minutes later.

A search of the Volkswagon Jetta yielded no drugs, but one of the officers answered Mr. Petros’ cell phone which had been continually ringing throughout the search. The caller asked to buy drugs and the officer (presumably impersonating Mr. Petros) agreed to facilitate a drug transaction. The caller arrived shortly thereafter, and was apprehended by police and questioned. Meanwhile, several small bags of cocaine were found stashed under the back seat of the police car where Mr. Petros had been detained. The police used this as grounds for a strip search, which yielded a further 13.7 grams of crack cocaine.

Based on Mr. Petros’ encounter with police, the Minister of Justice applied for forfeiture of the Volkswagon Jetta, alleging that it had been used as an instrument of illegal drug trafficking. Mr. Petros challenged the forfeiture on the grounds that his Charter rights had been infringed, and argued that the evidence against him should be excluded in the context of the civil forfeiture proceedings.

The Petros case is significant because the trial judge, Mr. Justice Sullivan, found that the Charter applies in the context of civil forfeiture proceedings:

To conclude my analysis on this question and give effect to the words of La Forest J. in McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 at 261, that “the Charter is essentially an instrument for checking the powers of government over the individual”, the present circumstances must attract Charter scrutiny. Consequently, I find Charter protection and remedies pursuant to s. 24 apply in order to insulate the fairness of civil forfeiture proceedings under the Act.

This finding obliged the trial judge to engage in Charter analysis to determine whether or not the evidence was admissible. Ultimately, he found the initial search of the vehicle (based essentially on a hunch) to be a Charter breach capable of bringing the administration of justice into disrepute.

Justice Sullivan also ruled, however, that Mr. Petros had no reasonable expectation of privacy in the back of the police car, and that the cocaine which he apparently stashed there was admissible as evidence against him. He concluded by ruling that “the evidence of the physical drugs abandoned by Mr. Petros and the evidence of the drugs discovered during Mr. Petros’ strip search is sufficient for the Minister to succeed in this application.” Accordingly, Sullivan ordered full forfeiture of the Volkswagon Jetta.

All in all, this was an arguably self-contradictory ruling, given that no evidence at all would have been obtained but for the arbitrary detention of Mr. Petros in the first place. However, the finding that Charter analysis is a necessary consideration in civil forfeiture proceedings is a very positive precedent for future Defendants, which has already been used in cases such as Alberta (Minister of Justice and Attorney General) v. Squire, 2012 ABQB 194.