10/24/2013 15:02 EDT | Updated 01/23/2014 18:58 EST

Alleged YouTube motorcyclist's rights violated, judge rules

Saanich police acted "unlawfully and in bad faith" when they seized a motorcycle used in a three-minute video that went viral on YouTube, a B.C. judge has ruled.

Randy Scott, 26, is on trial for allegedly riding the blue Yamaha motorcycle through traffic on the Trans Canada Highway north of Victoria at speeds of up to 300 kilometres per hour, in April 2012.

The court heard how the lead investigator Const. John Cawsey knew he needed a search warrant, but ordered the seizure of the motorcycle, which was registered to the mother of the accused, from an apartment building's parking lot anyway.

Scott's lawyer Michael Mulligan had asked the judge to throw the case out because the alleged mistakes by police made it impossible to get a fair trial.

Mulligan told the court police failed to follow up on another possible suspect, and sold the bike through civil forfeiture, so it wasn't preserved as evidence.

"They plainly did get a case of tunnel vision and didn't pursue other obvious leads and then, as well, they didn't preserve what you would think would be the most important piece of evidence, which is the motorcycle."

Evidence not thrown out

On Thursday Provincial Court Judge Robert Higgenbotham found Scott's Charter rights were violated by the illegal seizure. However he decided not to throw out the evidence.

Crown prosecutor Steve Fudge said the judge ruled the breach doesn't outweigh the need to protect the public.

"There was no intrusion on the person. It was just property that was affected by the officer's behaviour. And in terms of the public interest, he found there was a strong public interest in light of the nature of the offense."

Fudge says the motorcycle was analyzed by experts and a neighbour testified Scott bragged about his exploits.

However, Fudge admits police may not have been as thorough as he would have liked.

"There's always room for things to have been better, but you have to go with what can be managed with the resources available.

The judge is expected to rule this afternoon whether the investigation hindered Scott's right to a full and fair defense, and whether the Crown proved its case beyond a reasonable doubt.