Overheard Statements in the Ambulance – Charter Section 8

In a nutshell: R. v. Ouellette 2025 ABCA 340 – Accused’s Charter s. 8 rights not engaged by police listening and taking notes about her statements to ambulance attendant during medical assessment about her drug and alcohol consumption. Taking notes ok, audio recording not ok.

The accused had driven her motor vehicle through a red light and collided with another vehicle. Before police arrived, Emergency Medical Services (EMS) moved her into an ambulance for transport to hospital. Once the police arrived, the officer located her in the ambulance and travelled with her to the hospital in order to arrest her. At issue was whether the police could have made lawful use of information that a driver had consumed drugs and alcohol when a police officer overheard that information in an ambulance during a discussion between the driver and an ambulance attendant as part of a medical examination. The trial judge concluded that the officer’s recording of the overheard information in handwritten notes had constituted a search and seizure in breach of her rights under section 8 of the Charter. The charges against her were dismissed. That decision was upheld by the SCA judge. The Crown was granted leave to appeal on the following question: Had the SCA judge erred in law in finding that the police breached section 8 of the Charter, by riding in the ambulance to the hospital with her and taking notes of what she said to the emergency medical technician about her consumption of alcohol and drugs.

In summary, while in the ambulance, the officer overheard the discussion between the driver and the ambulance attendant. He made handwritten notes of some of her responses – that she had consumed cocaine, one cooler, and GHB, and needed medications at a particular address. He did not record any other parts of the discussion. The officer did not ask the driver any questions and said nothing to her or the ambulance attendant during the ambulance ride. The driver lost consciousness several times while being transported to the hospital and there was no indication that she was aware the officer was in the ambulance. Upon arrival at the hospital, she was more awake and aware, and the officer placed her under arrest.

The next day, the officer obtained a warrant to seize the driver’s blood from the hospital. His Information to Obtain (ITO) referred to the admissions of alcohol and drug use made by the driver during the ambulance ride. Analysis of the driver’s blood showed she had a prohibited blood concentration of GHB. She was charged with operating a conveyance while impaired by drugs, contrary to ss 320.14(1)(a) and 320.14(1)(c) of the Criminal Code.

The trial judge found that her rights under sections 8, 10(a) and 10(b) of the Charter were breached. With respect to the section 8 breach, the trial judge found that she had a reasonable expectation of privacy in the information shared in the ambulance, which he characterized as her personal health information, and which was disclosed to an ambulance attendant, a person obliged to protect its confidentiality. He noted the Crown’s argument that the officer was a passive observer of the discussion in the ambulance but found that he ceased to be a passive observer “when he started to proactively make notes and create a form of permanent record for subsequent use in the file.” The trial judge excised the driver’s admission of drug and alcohol use from the ITO pursuant to section 24(2) of the Charter and determined that the warrant could not have been issued without that information. The charges against the driver were dismissed. That decision was upheld by the SCA judge. The Crown appealed the summary conviction appeal (SCA) judge’s decision.

The Ontario Court of Appeal recently noted that section 8 “does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search”: R. v. El-Azrak, 2023 ONCA 440 at para 27.

Importantly, “‘not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8′; … It is only ‘[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search'”: R. v. Tessling, 2004 SCC 67 at para 18.

The ABCA said that information shared with a medical professional in response to a direct question during a medical examination and for the purpose of giving and receiving medical treatment is, in its view, fundamentally private and confidential information. Case law suggests that it is common practice for police officers to accompany injured individuals in ambulances when necessary to maintain continuity or effect an arrest: see, for example, R. v. LaChappelle 2007 ONCA 655 at para 34; R. v. Lyth, 2013 ABPC 41; R. v. Fisher, 2022 BCPC 74; R. v. Butler, 2018 SKQB 275; R. v. Gendron-O’Hara, 2011 ABPC 83. In all these cases, the presence of an officer in the ambulance, passively observing, was not found to engage the patient’s section 8 rights.

By now, every officer should be well versed with the Woods v. Schaeffer, 2013 SCC 71 case regarding notes of an officer (if not, please do!). Applying it here, the ABCA said in such a situation, the officer could either: (1) take notes to accurately record the information, with the risk this could constitute a breach of the person’s Charter rights even if the information was not otherwise used, and which could render the information not admissible if it was sought to be used for a legitimate law enforcement purpose; or (2) not take notes in breach of their positive duty to do so, with a risk that the information may be less accurate and reliable in the event it is sought to be used. There is a fundamental difference between creating a permanent record such as an audio or electronic recording and a police officer making notes of passively received information. Note taking by a police officer operates not as a permanent record but as a memory aid. Except in very limited circumstances, the notes on their own have little evidentiary value. Police officers have a positive duty to promptly make accurate, detailed, and comprehensive notes on events that transpire during the course of their duties.

There was nothing surreptitious or improper here in the officer’s recording in his notebook of the parts of the driver’s conversation that were relevant to his investigation. That notetaking did not convert what was otherwise the passive receipt of information into a seizure. The driver’s section 8 rights were not engaged by the officer’s presence in the ambulance to maintain continuity and effect arrest on existing grounds, his passive overhearing of her discussion with the ambulance attendant, or his recording of parts of that discussion in his notebook in accordance with his duty to keep accurate notes.

In the end, the ABCA found that while she had a reasonable expectation of privacy in the information passed to the ambulance attendant while she was receiving medical treatment, there was no unreasonable state intrusion by virtue of the police officer’s passive overhearing of that information and his taking of notes to record what he heard. The summary conviction appeal judge erred in concluding that her section 8 rights were engaged, and in upholding the trial judge’s finding of a breach of section 8.

The Crown’s appeal was allowed, the acquittal set aside, and the matter returned to the Alberta Court of Justice for a new trial.

“Implied Licence” – Considered in Detail – Impaired Operation

R. v. Singer 2026 SCC 8 – in March of 2019, two RCMP officers were investigating an impaired driving complaint in a small Saskatchewan First Nations community. At around midnight, after about an hour of investigating, they located a truck matching the description from the complaint parked in a residential driveway with its lights on and engine running. Unable to see anyone inside from the road, the officers stepped onto the driveway, approached the truck, and saw Mr. Singer sleeping or passed out in the driver’s seat. They knocked on the window for several minutes. Mr. Singer did not respond. The officers then opened the truck door to wake him, at which point they detected a strong odour of alcohol and observed bloodshot eyes and signs of fatigue. Mr. Singer provided a roadside breath sample that registered a fail. When taken into custody, he refused to provide a further breath samples and was charged with refusal.

At trial, Mr. Singer challenged the police conduct under s. 8 of the Charter, arguing that entering his driveway without a warrant was an unreasonable search. The trial judge disagreed and entered a conviction. The Saskatchewan Court of Appeal disagreed with the trial judge, found a s. 8 breach at the moment the officers set foot on the driveway, excluded the evidence, and entered an acquittal. The Crown appealed to the Supreme Court of Canada.

Thirty years ago, in R. v. Evans, [1996] 1 S.C.R. 8, the SCC affirmed that “the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock” (para. 13, per Sopinka J.). Under the implied licence doctrine, a police officer who has lawful business with the occupant of a dwelling may proceed from the street to the door of a house to communicate with the occupant (para. 15). The issue on this appeal was whether the police likewise possess an implied licence to step onto a private driveway to investigate a complaint of impaired driving when they observe, in plain view, a running vehicle matching the description in the complaint.

The majority of the SCC ruled that the police did not violate Mr. Singer’s rights simply by walking onto his driveway at midnight to investigate a drunk-driving tip. Their reasoning rests on the implied licence doctrine. The majority concluded that the police were on legitimate business investigating a safety complaint. Because the truck was in plain view and there were no physical barriers like a fence, the Court decided that merely walking onto a driveway is not a search. However, they drew a line at the door of the vehicle itself: the moment the officers opened the truck door without a warrant or a proven imminent safety emergency, they committed an unreasonable search and breached Mr. Singer’s Section 8 Charter rights.

In this case, the SCC said there was no need to recognize a new ancillary police power to protect public safety in the context of an impaired driving investigation. The police arguably had the necessary authority to open the door to the accused’s truck under the established ancillary police power to conduct a safety search, as found in R. v. MacDonald, 2014 SCC 3. A safety search will be authorized by law if the police officer has reasonable grounds to believe that the search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police. Unfortunately, in this case, while there were objective grounds for the police to believe that the circumstances presented a public safety risk (an impaired driver behind the wheel of a running truck in a private driveway could easily re-enter a public road and pose a serious danger to the public and themselves), because the issue of ancillary police powers was not argued at trial, there was no direct evidence of the officers’ subjective concern for public safety. Therefore, in the particular circumstances of this case, the warrantless search was not justified and the police breached s. 8 of the Charter by opening the truck door.

Even though the Court found a rights violation, they refused to throw out the evidence. They viewed the police’s actions as an understandable mistake and ruled that the public interest in prosecuting impaired driving outweighed the moderate impact on Mr. Singer’s privacy. Moving forward, now that the SCC has carefully considered this situation, officers will need to act lawfully within the new guidelines of implied licence in such circumstances. If your intended (stated) purpose in the interaction (and later in direct or cross) is entering the driveway or approaching the dwelling to make visual or olfactory observations (e.g., to smell the breath of the driver), that exceeds to scope of the implied licence doctrine, and police have crossed the line.

A word of caution, I’m already starting to see blog posts and hearing podcasts from several defence counsel on this issue surrounding protecting your privacy rights in light of the Singer decision, such as explicitly revoking the license to knock on the door and approach the residence by installing a locked gate or posting clear “No Trespassing” signs or a sign that says the police are not welcome. Of note, it was mentioned in the Evans decision that the implied licence can be “rebutted by a clear expression of intent” on the part of the occupant (Evans, at para. 13), such as by “installing a locked gate at the entrance to the property, or posting signs to that effect” (para. 42, per Major J., dissenting, but not on this point). Other comments I’ve read include not answering your door, and that if you don’t open the door the police cannot just force it open without a warrant or without an emergency or without a hot pursuit. So if you’re at home, minding your own business, and the police knock at your door you can, and should, just refuse to open it.

Act lawfully within the confines of the SCC decision in this regard. In the Singer case, the majority of the SCC found that the police conduct was no more intrusive than necessary and at most reflects a reasonable misunderstanding about the law. That will no longer be the case following this decision.; you will be expected to know the limits of implied licence.

Clarifications of Section 495 CC and Arrest Without Warrant

Hot off the press! Warning, this post is a long one! Although not a new legal debate, and something that I’ve invested many hours of the law program here detailing to the police recruits (and others), the SCC has made it quite clear this time around. The general arrest authority of a peace officer under Section 495(1) CC, and the interpretation of subsections (2) and (3), have been argued extensively over the years.

Before I get into this case, please allow this old law buff to dive into the history of that section: until 1972, the Criminal Code did not regulate the exercise of the power of peace officers to make arrests without warrant on the basis that an indictable offence had been or was about to be committed or that a criminal offence was being committed. The Criminal Code simply stated the grounds required for an arrest were legally justified via s. 449(a)(b)), which can now be found in s. 495(1)(a) and (b) (note: we will dispense with the (c) provision – arrest on grounds to believe that a warrant is in force within the territorial jurisdiction in which that person is found – as it is not involved in this case). However, no limitation was set out at the time in the Criminal Code to narrow the scope of the arrest power. In the 1960s, the federal government established the Canadian Committee on Corrections, entitled Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections, chaired by Justice Roger Ouimet, to study Canada’s correctional system and recommend desirable legislative changes. On the strength of those recommendations, the then Minister of Justice, John N. Turner, introduced Bill C‑218, which would become the Bail Reform Act, S.C. 1970‑71‑72, c. 37. The purpose of that statute was to implement two legislative reforms. The first was designed to limit the use of arrest by replacing it with other methods, such as a summons or an appearance notice. The second was aimed at remedying the injustice associated with cash bail, which had the effect of penalizing people who had limited financial resources and who were therefore obliged to find a surety. It is the first of these reforms that is of interest to us here, because it forms the backdrop against which the provisions equivalent to the current s. 495(2) and (3) CC were introduced.

Okay, onto the case at hand: R. v. Carignan 2025 SCC 43. The accused was arrested without warrant 11 days after committing a sexual assault. At the police station, he was subjected to an interrogation that was recorded on video, during which he made an incriminating statement, the main piece of evidence for the Crown’s case against him. Before his trial began, the accused filed a motion asking the court to exclude the incriminating statement on the ground that his arrest without warrant was unlawful and therefore arbitrary within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms. According to him, the arrest without warrant was contrary to s. 495(2) of the Criminal Code because the police did not believe on reasonable grounds that the arrest was necessary to satisfy the public interest and because there was no risk that he would fail to attend for his appearance. He was found guilty and sentenced to imprisonment for a term of 15 months, and a 2‑year probation order was also issued against him.

The trial judge had refused to hold a voir dire to determine the lawfulness of the arrest under s. 495(2). He found that an arrest without warrant that is contrary to s. 495(2) is nonetheless lawful through the application of s. 495(3) as long as the peace officer acts in compliance with s. 495(1)(a). Since the peace officers had believed on reasonable grounds that an offence had been committed within the meaning of s. 495(1)(a), the judge was of the view that the accused’s motion had no chance of success. The incriminating statement was not excluded, and the accused was convicted. On appeal by the accused, the Court of Appeal in Quebec found that the interpretation of s. 495(2) and (3) adopted by the trial judge was incorrect. In its opinion, there were valid grounds for the request for a voir dire, since s. 495(3) provides an opportunity to challenge the lawfulness of an arrest without warrant and since there was no apparent basis on which to conclude that s. 495(2) justified the accused’s arrest. The Court of Appeal ordered a new trial. The Crown appealed to the SCC, and by a 9-0 ruling, the appeal was dismissed.

The SCC admitted that s. 495(2) and s. 495(3) CC are not drafted in the clearest manner. In summary, s. 495(1) CC differs from s. 495(2) in that it provides that a peace officer “may arrest without warrant . . . a person”, whereas s. 495(2) CC instead says “shall not arrest a person without warrant”. Section 495(1) CC is therefore permissive because it grants powers, rights, authorizations, or permissions and thus connotes the existence of “an area of discretion”. The contrast between “may” and “shall not” in s. 495 CC reinforces the idea that Parliament’s intention was to confer a certain degree of discretion on peace officers in s. 495(1) CC but to impose an obligation or duty on them in s. 495(2) CC. Stated plainly, Section 495(1) CC creates a power of arrest without warrant, while s. 495(2) CC strictly regulates the exercise of this power by imposing binding limitations.

In the SCC’s view, Parliament intended that a peace officer’s exercise of the power of arrest without warrant be strictly regulated through the mandatory requirements of s. 495(2) CC in order to promote the public interest and ensure the person’s appearance in court. The purpose of s. 495(2) CC is therefore clear: it is to limit the discretion of police officers by identifying the situations in which an arrest without warrant is not required in order to reduce what are considered to be unnecessary arrests. Interpreting s. 495(2) CC as simply setting out guidelines would therefore be contrary to what Parliament intended, since it would not effectively assist in reducing unnecessary arrests without warrant.

The SCC found that an analysis of the text, context and purpose of s. 495(2) CC leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) CC are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) CC where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.

Which then left s. 495(3) CC: the SCC stated it is clear that Parliament’s intention in enacting s. 495(3)(a) CC was to protect, first and foremost, the peace officer who made an arrest without warrant contrary to s. 495(2) CC, as well as any person responsible for that officer. This protection was directed in particular at proceedings in which they could be found criminally liable themselves for non compliance with s. 495(2) CC. Since peace officers are called upon to exercise their judgment quickly to make an arrest without warrant in circumstances that are often unpredictable, it was necessary for Parliament to establish some protection in relation to the then new limitation on their discretion introduced by s. 495(2) CC. From this perspective, s. 495(3)(a) CC provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) CC, it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) CC. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) CC. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof. However, s. 495(3) CC does not otherwise justify the unlawful arrest itself, it merely provides a level of protection for the officer in criminal or civil proceedings against liability (e.g., being sued for unlawful arrest), it does not provide authority for an unlawful arrest and any evidence gleaned from that unlawful arrest.

Section 495(2) CC is mandatory and binding. Failure to comply with it may make an arrest without warrant unlawful, even if the arrest meets the requirements of s. 495(1) CC. An arrest that is unlawful may, by that very fact, be characterized as arbitrary within the meaning of s. 9 of the Charter and thus provide a basis for constitutional remedies under s. 24 of the Charter.

In the end, the SCC ordered a new trial, which will lead to a voir dire, and defence/crown will argue whether the arrest in this case was lawful, namely justification of s. 495(2) CC. I will watch this case and report back on the court’s findings.

The Good Samaritan Drug Overdose Act and the CDSA

In 2017, Parliament enacted the Good Samaritan Drug Overdose Act which added Section 4.1 to the Controlled Drugs and Substances Act. Section 4.1(2) of the CDSA provides immunity from being “charged or convicted” for possession of a controlled substance under s. 4(1) of the CDSA to those who call for help or remain at the scene of a drug overdose where evidence of possession is discovered at the scene.

In R. v. Wilson 2025 SCC 32, Wilson was with three other people driving a truck when one of them slipped into unconsciousness after using fentanyl. One member of the group called 911 to report the drug overdose. Upon arrival on the scene, an officer observed a white powder which she believed was crystal meth and smelled the odour of marihuana coming from the truck. The officer detained three of the individuals, while the fourth received medical attention. All three were subsequently placed under arrest for simple possession of a controlled substance under s. 4(1) of the Controlled Drugs and Substances Act. Incidental to the arrest, officers searched the truck and found several bags. In a backpack, which Wilson admitted was his, officers located, among other things, modified handguns and ammunition. All three were arrested again, this time for trafficking and gun offences. Ultimately, Wilson was charged with several Criminal Code offences, but not with possession of a controlled substance under s. 4(1) of the CDSA, nor with any other offences under that Act. At trial, Wilson applied for a declaration that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (Charter) had been violated and for an exclusion of the evidence on the ground that his first arrest was arbitrary because s. 4.1(2) of the CDSA prevented him from being charged with committing the offence for which that arrest was made. The trial judge dismissed the application. The trial judge admitted the evidence and convicted Wilson of various firearms offences and of possession of identity documents intended to be used for identity fraud. He concluded that the police did not breach Wilson’s s. 9 Charter right, but he did not directly address the impact of s. 4.1(2) of the CDSA on the lawfulness of Wilson’s arrest. He also concluded that the search did not breach s. 8 of the Charter, finding that it was routine and related primarily to officer safety. On appeal, Wilson argued his Charter rights were violated. The Crown submitted that Wilson’s first arrest was authorized by law and justified, therefore, not arbitrary. The SKCA unanimously quashed Wilson’s convictions and directed verdicts of acquittal on all counts. The Crown appealed to the SCC.

The SCC (6:3) dismissed the appeal. Justice Karakatsanis wrote as follows (at paras. 3-9):

“The Crown appeals, arguing before this Court that police officers have lawful authority to arrest people for the offence of simple possession, and to search them incidentally to that arrest, even if those people are immune from charge and conviction for that offence because of s. 4.1(2). The Crown says Parliament deliberately omitted an explicit immunity from arrest from the text of the provision, as the police require the power to arrest so that they can search for and seize illegal drugs and prevent the commission of other crimes at the scene of an overdose. Mr. Wilson responds that immunity from arrest for simple possession of a controlled substance is necessarily implied by the immunity from charge and conviction. Permitting the arrest of people in such circumstances would undermine both the purpose of s. 4.1(2) and the well-established principle that arrest is not available solely for investigative purposes.

I would dismiss the Crown’s appeal. The immunity from charge and conviction for simple possession explicitly mentioned in s. 4.1(2) of the CDSA includes, by necessary implication, immunity from arrest for that offence. This interpretation best serves the clear purpose of the provision: to save lives.

An arrest is a significant infringement of personal liberty. It can give rise to searches incident to arrest and to the prosecution of other criminal offences based on those searches. An interpretation of s. 4.1(2) which allows arrests for possession, and intrusive searches incident to those arrests, would maintain a strong disincentive to seek emergency assistance in life-threatening overdose situations. Parliament did not intend this result.

Further, while the word “arrest” is not included in the text of s. 4.1(2), an immunity from charge and conviction would be commonly — and legally — understood to include immunity from arrest for that charge. The frequent mentions of immunity from arrest in the parliamentary debates leading to the adoption of the provision attest to this understanding.

Finally, an interpretation of s. 4.1(2) that provides immunity not only from charge and conviction, but also from arrest on that charge, reflects the fact that our law has never permitted arrest purely for the purposes of investigation and tightly circumscribes the power to arrest and the power to search incidentally to arrest. Accepting the Crown’s position would let the police circumvent the principled limits this Court has placed on police powers by using arrests on immune charges as a pretext to conduct searches for other law enforcement purposes, such as investigating or preventing other offences for which no reasonable grounds are apparent. Such purely investigative arrests would be a novel expansion of police powers. There is nothing to suggest Parliament intended to expand the accepted uses of those police powers in this way when it enacted s. 4.1. The better view of the provision is that Parliament intended immunity from arrest for the offence of possession to form part of the immunity from charge and conviction for that offence.

This interpretation of s. 4.1(2) does not create a threat to public or officer safety. When responding to the scene of a drug overdose, the police still retain all their usual powers to respond to evidence of crimes other than the specific offence for which s. 4.1(2) offers an immunity and to ensure both their own safety and the safety of the public. For example, the police can still seize controlled substances in plain view. They can conduct certain warrantless searches in exigent circumstances or if necessary to protect their own safety and that of the public. The police can still detain individuals if reasonably necessary in all the circumstances, conduct investigative detentions, or arrest them where there are sufficient grounds to do so outside the scope of the immunity. These powers all have their own thresholds and preconditions for use. Parliament did not intend to allow the police to bypass these preconditions by permitting arrests for an offence that cannot be charged.

Parliament’s purpose in enacting s. 4.1(2) was to save lives. Accepting the Crown’s position in this appeal would not only undermine this clear purpose, but would also lead to an expansion of police powers by empowering the police to use arrests for offences immune from charge and conviction as a pretext for other investigatory and search purposes.”

Supreme Court of Canada Cases to Watch

While this is not a law post per se, I wanted to make you aware of two very important SCC cases on the horizon to keep an eye out for:

• Chief of the Edmonton Police Service v. McKee et al. (appeal of R. v. McKee, 2023 ABKB 698) – the SCC will determine whether findings of police misconduct (McNeil Disclosure) that have been expunged or pardoned are disclosable.
• Procureur général du Québec c. Luamba et al. (appeal of Procureur général du Québec c. Luamba et al., 2024 QCCA 1387) – the SCC will determine whether the Quebec Court of Appeal erred in finding that: (1) the power to stop a motor vehicle for a random traffic check considered in R. v. Ladouceur does not exist at common law, and (2) the power to stop a vehicle for a random traffic check provided for in s. 636 of Quebec’s Highway Safety Code unjustifiably infringes ss. 9 and 15(1) of the Charter and could not be justified by s. 1 of the Charter. This decision will confirm or refute similar provisions in HTA/MVA across Canada.

Can a police officer stop any driver at any time, on any street or parking lot, and demand a Screening Device breath sample without any reason?

At the onset, I want to highlight that this is a provincial court case out of Saskatchewan, R. v. Kopperud, [2024] SJ No 315, and thus not binding by any means, and the wording of that province’s legislation varies greatly from ours in Atlantic Canada, but I did want to discuss some concepts nonetheless.

An officer was dispatched on the morning of September 20, 2023, in response to a 911 report of erratic driving on Highway #6 north of Regina at approximately 7:50 a.m. The caller reported that another vehicle had driven up close behind him and nearly collided with oncoming traffic. The driver in question was Ms. Kopperud, who was on her way to work in Regina, driving a grey Jeep Compass. After passing the complainant’s vehicle, she continued toward the city, and her driving reportedly improved. The complainant, however, chose to follow her while remaining on the line with police, noting that she drove normally for the rest of the journey down the highway and into the industrial area of Regina. At 8:13 a.m., the officer located Ms. Kopperud’s vehicle turning into her workplace parking lot. Only after she had parked did he engage his emergency lights and block her vehicle in its parking stall. When Ms. Kopperud attempted to exit her vehicle, the officer ordered her back inside. Approaching her vehicle on foot, he informed her of the complaint, indicating she had been “all over the road.” She denied this, asserting that her driving had been appropriate.

The officer then checked her paperwork and assessed her sobriety. Ms. Kopperud provided her driver’s licence and denied any alcohol or drug use. Upon inspection, the officer found no signs of impairment–no odor of alcohol, slurred speech, bloodshot eyes, or any visible alcohol in the vehicle. However, the officer decided to engage the mandatory breath demand provisions of the Criminal Code, i.e., 320.27(2). By way of reminder, there are two prerequisites for a lawful MAS demand under that section: (1) the officer must possess an ASD; and (2) the demand must be made in the lawful exercise of police powers. She questioned the demand, asking why it was necessary if she had done nothing wrong, and what the consequences of refusal would be. The officer explained that he did not require specific grounds to make the demand and outlined the penalty for refusal. After two additional demands, he ultimately arrested and charged Ms. Kopperud with refusing to provide a breath sample, contrary to section 320.15(1) of the Criminal Code.

At trial, the main issue was whether the ASD breath demand was made “in the course of the lawful exercise of powers”? The statutory authority of police officers to stop and detain drivers is found in section 209.1 of the Saskatchewan Traffic Safety Act. Section 209.1 is commonly recognized as the power of police to conduct random or routine stops. That Act defines “highway” as:

a road, parkway, driveway, square or place designed and intended for or used by the general public for the passage of vehicles, but does not include any area, whether privately or publicly owned, that is
primarily intended to be used for the parking of vehicles and the necessary passageways on that area;

By way of comparison, “highway” in the Prince Edward Island Highway Traffic Act:

the entire width between the boundary lines of every road, street, lane, alley, or right-of-way designed or intended for or used by the general public for the passage of vehicles, and includes any bridges over which every such road, street, lane, alley, or right-of-way is laid, and every private place or passage way to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited;

Nova Scotia Motor Vehicle Act:

a public highway, street, lane, road, alley, park, beach or place including the bridges thereon, and private property that is designed to be and is accessible to the general public for the operation of a motor vehicle;

New Brunswick Motor Vehicle Act:

the entire width between the boundary lines of every street, road, lane, alley, park, parking lot, drive-in theatre, school yard, picnic site, beach, winter road across ice or place when any part thereof is used by the general public for the passage or parking of vehicles, and includes the bridges thereon……

Newfoundland and Labrador Highway Traffic Act:

a place or way, including a structure forming part of the place or way, designed and intended for, or used by, the public for the passage of traffic or the parking of vehicles and includes all the space between the boundary lines of the place or way;

In Saskatchewan, however, the settled law establishes that section 209.1 of the TSA does not confer authority upon police to conduct random vehicle stops on private property, including private parking areas. The overarching objective of the TSA is to ensure the safe operation of motor vehicles on a “highway”. The TSA’s provisions, including random stops, are primarily intended to apply to highways, not private parking areas. The court discussed several cases, some SCC, others in Ontario and its own province, that it could be a lawful exercise of police powers providing the police communicate their intention to initiate a random stop by signalling or requesting that the driver stop their vehicle while the driver is still on a highway and that driver subsequently turns into a parking lot or private property to stop their vehicle. That was not the case in Kopperud. By the time the officer initiated the stop/interaction, Ms. Kopperud had already parked. The court also addressed the common law standard to conduct traffic stops:

the police may detain an individual at common law for investigative purposes if there are reasonable grounds to suspect that the individual is connected to a specific crime and that such detention is necessary. This allows a brief investigative detention based on reasonable suspicion, but if the police lack such grounds regarding a recent or ongoing offence, the detention is unlawful.

The Ontario Court of Appeal’s decision in R. v. McColman, 2021 ONCA 382, 156 OR (3d) 253, arguably, remains the leading authority in Canada on the common law authority of police to conduct random stops on private property. In McColman ONCA, the Ontario Court of Appeal held that the common law does not empower police to conduct a random sobriety check on private property without reasonable suspicion. While police have a general common law power to stop vehicles on public roads to ensure public safety, this power is limited. Under the ancillary powers doctrine, police actions that interfere with individual liberty must be necessary to fulfill a recognized duty, such as preventing impaired driving. Following a driver from a highway onto private property without grounds to suspect an offence interferes with an individual’s liberty and higher expectation of privacy than on public roads. Although preventing impaired driving is a legitimate police duty, the Crown did not establish that the authority to pursue drivers onto private property without grounds was reasonably necessary. The court concluded that police have other less intrusive means available to combat impaired driving and that extending this power to groundless stops on private property was not justified.

The trial judge in Kopperud found that, as in McColman ONCA, the police lacked common law authority to detain Ms. Kopperud on private property, just as in McColman SCC, they lacked statutory authority to stop her vehicle in a private parking lot. While an anonymous tip alone is often insufficient, it can, when combined with subsequent police observations or other confirming details, form part of the “constellation of factors” leading to a lawful detention or arrest. Here, the complainant provided minimal information and could not identify the driver’s gender. While the officer was able to confirm the vehicle was a grey Jeep Compass, he had no description of the driver and did not know whether there were any passengers in the vehicle when he initiated the stop.

Considering all the circumstances in this case, the judge found that the officer did not, and could not, have held a reasonable suspicion of any offence or infraction involving Ms. Kopperud that would justify a Mann investigative detention. A general public complaint of poor or erratic driving alone is typically insufficient to establish reasonable suspicion for either a statutory or common law detention. Accordingly, Ms. Kopperud was found not guilty of this offence and acquitted.

Feeney Warrants and Dynamic Entries

Although the case R. v. Brown 2024 ONCA 453 litigated other concepts in law, the focus here will be concerning the Feeney Warrant and the dynamic entry undertaken by the arresting officers. Coles notes, from a project, Brown was the subject of an investigation into trafficking in cocaine and possession for the purpose of trafficking in cocaine, and with possession and trafficking of a firearm. From that, an Information to Obtain [ITO] a warrant to arrest Mr. Brown in his dwelling [the Feeney Warrant] was approved. Included in the ITO was information with respect to Mr. Brown’s alleged involvement in firearms trafficking and cocaine trafficking. Also included was information that during the course of the investigation, on a prior arrest of Mr. Brown, he had fled from police and was arrested after a short foot chase. The Feeney Warrant authorised officers to enter the basement unit between 9 am on October 9 and 11:59 pm on October 15, 2020 for the purposes of arresting Mr. Brown. The warrant did not authorise a no knock entry as officers did not request it upon application (i.e., 529.4(1) CC). However, the law does permit dynamic entry even if prior judicial authorization is not approved, providing at the time of execution, exigent circumstances exist that either provide reasonable grounds for officers to believe that prior announcement of the entry would: (a) expose the peace officer or any other person to imminent bodily harm or death; or (b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence (i.e., 529.4(3) CC). Otherwise, in executing the warrant, officers are presumptively required to knock on the suspect’s door, identify themselves as police, and give the suspect an opportunity to answer the door before entering forcibly. The purpose of the knock and announce rule is two-fold. First, it is intended to “minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the door and surrendering himself”: (Feeney, at para. 50), and the rule promotes the safety of both the suspect and the police because “An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.”

The rule “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public” (R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 19).

A decision was made to execute the warrant on October 15, 2020 before dawn. Shortly after 5 am, Mr. Brown’s door was forced open with the ram and the six officers ran in. Mr. Brown and his girlfriend were in bed, covered with a blanket. The blanket was ripped off to reveal them lying there naked. Mr. Brown was handcuffed to the rear. The officer then pulled Mr. Brown, who was naked and handcuffed, off of the bed. His girlfriend was told to sit on the couch and was given a blanket before she did so. It was not until after the officers left, however, that she had an opportunity to get dressed.

Mr. Brown contended that the forcible, unannounced entry by police into his residence violated his 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”; under s. 7 of the Charter; his right against unreasonable search and seizure under s. 8; and his right against arbitration detention under s. 9. The Crown conceded that the unannounced, forcible entry by police into Mr. Brown’s residence violated his rights under ss. 8 and 9. The trial judge held that it also violated Mr. Brown’s s. 7 rights.

Lesson to be learned? Unlike a search warrant, which is authorised for the purpose of gathering evidence, a Feeney Warrant authorises the collection of a person and thus engages the right to liberty and security of the person. Sections 529 and 529.1 of the Criminal Code codifies what is required in order for judicial authorisation to be given to police to enter dwelling houses to carry out arrests. The purpose of the section is to ensure that such arrests are Charter compliant and respect the dignity and privacy of the arrestee. Not to single out officers for the sake of doing so for any other reason than mentioning it for a learning moment: the officer in charge of the team that executed the Feeney Warrant did not read the warrant. He testified that he did not understand there was any difference between a Feeney Warrant and a search warrant. In his view, a no-knock entry was required to minimize the safety risk to his team and other persons, including Mr. Brown. Unfortunately, the Feeney Warrant did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry.

Section 10(a) and (b) of the Charter, the “When” and “Where” Dilemma

It’s been a minute since my last post, but most cases of late are simply reaffirming earlier decisions and practices, and so is this one for the most part, but given its significance, I thought it worthy of a post. The facts around this case began back in 2014, which cumulated to arrests and charges in 2016. In R. v. Brunelle 2024 SCC 3, during a large-scale police operation arising out of an investigation into allegations of organized narcotics trafficking, 31 persons were arrested by approximately 250 police officers. Almost all were arrested at their residences in the first few minutes of the operation, and the others were arrested at various locations later the same day or during the days that followed. Following charges, they were divided into four different groups for separate trials.

The trial judge stayed all charges, holding that the police practice of postponing the exercise by the accused of the right to retain and instruct counsel without delay until they were taken to the police station infringed the right of all of the accused in that group under s. 10(b) of the Charter. All of the appellants acknowledge that they were informed of their right to retain and instruct counsel without delay at the time they were arrested. However, the evidence shows that they did not all respond in the same way: many indicated a desire to exercise their right as soon as they were informed of it, some did not ask to exercise their right until they were at the police station, and the others said that they did not wish to retain and instruct counsel or that they had already done so. In the end, out of the appellants who were arrested the morning of March 31, 2016, and who indicated a desire to immediately exercise their right to retain and instruct counsel without delay, only one was given an opportunity to do so while in the police vehicle. The others had to wait until they arrived at the police station. The time between being arrested and being given an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes, depending on the case.

Both the Court of Appeal and the Supreme Court of Canada ruled that the trial judge did not analyze the breaches properly. According to the SCC, upon arrest or detention, police have the following corresponding duties:

• without delay, inform the person of their right to retain and instruct counsel without delay and of the availability of legal aid and duty counsel (para. 80);
• if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) (para. 80);
• to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) to exercise right to counsel (para. 80);
• if the detainee indicates a desire to exercise their right to counsel, the police are under a constitutional obligation to facilitate access to counsel at the first reasonably available opportunity and to refrain from eliciting evidence from the detainee until that time (para. 82);
• where there is a delay, the burden is always on the Crown (police) to prove the circumstances, exceptional or not, that make the delay reasonable (para. 83);
• in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual, and the law does not yet require police to have inexpensive devices on hand so that detainees can exercise their right to retain and instruct counsel without delay. While s. 10(b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity (para. 84);
• certain circumstances that were relevant to assessing the reasonableness of the delay may include the fact that a search was in progress, the proximity of the police station, the police officers’ safety, the presence of a telephone at the scene and issues relating to the confidentiality of any call made (para. 102);
• delays caused solely out of an officer’s preference or a standard practice of not allowing access to counsel until the person is back at the police station without even turning their minds to the obligation to provide this access, whether a private phone call would have been possible, and so on may result in a failure to facilitate access (para. 97).

Overall, as a general rule, the police may not assume in advance that it will be impracticable for them to facilitate access to counsel. On the contrary, they must be mindful of the particular circumstances of the detention and take proactive steps to turn the right to counsel into access to counsel. This is the case because the detainee’s ability to exercise their right depends entirely on the police (para. 95). Upon arrest or detention, Section 10(a) and (b) CH are paramount, the clock starts ticking, and it’s on the officer to justify any lapse in time and delays.

Obstruction offence requires some additional misconduct over and above mere breach of provincial statute

Mr. Walker was charged with unlawfully resisting an arrest and with assault P.O. causing bodily harm. Both charges hinged on proof that the officer was acting in the execution of his duty. Mr. Walker proved in a pre-trial application however that his arrest was unlawful. Here is the court’s reasoning (R. v. Walker 2023 ABKB 341).

Without going into all the specifics of the actual incident, the officer arrested Walker for obstruction contrary to the Criminal Code for refusing to produce his driver’s licence and requisite documentation. The ABKB ruled that the arrest for obstruction was unlawful as failing to produce driver documentation was punishable under Traffic Safety Act and an obstruction offence requires some additional misconduct over and above mere breach of provincial statute. Allow me to expand on this as I feel this is the crux of the matter at hand.

As backdrop, the case of R. v. Sharma, [1993] 1 S.C.R. 650 and other like-minded authorities stand for the principle the a court cannot convict a person of Criminal Code obstruction merely because they have infringed a provincial or municipal (bylaw) legislation and have failed to stop doing so after a peace officer has told them to do so.

In summary, I conclude that the decision of the Supreme Court of Canada in Sharma, and the authorities which interpret Sharma, make it clear that when police are exercising their duty pursuant to Provincial legislation or a By-law and where that legislation provides for a means of enforcement, then a suspect who simply refuses to comply with police demands that he do what the legislation provides, cannot be properly subject to an obstruction charge pursuant to s. 129(a) of the Criminal Code. Instead of invoking a criminal sanction, police are restricted to pursuing the means of enforcement specified in the Provincial legislation or the By-law. However, if in their attempts to pursue the specified means of enforcement, police are interfered with by the actions of the suspect, then an obstruction charge is appropriate provided that the conduct complained of is not “precisely the same conduct” as that prohibited or required by the legislation (Walker, at para. 9).

Basically, if the legislation gives police authority to order a person to stop infringing a law, and that law requires the person to obey, their refusal can, if it is intentionally obstructive, expose them to an obstruction conviction. But where the law has set a penalty, such as a fine, and the lawbreaker has not enlarged their conduct from merely refusing to obstructive conduct, the officer must use the process and penalties set by the law, in my example to follow, the MVA or HTA.

By way of example, let’s say an officer is in Nova Scotia and the driver fails to produce a driver’s licence upon demand of a peace officer (i.e., Section 78(2) MVA), or similar in New Brunswick (i.e., Section 92(1) MVA), Newfoundland and Labrador (i.e., Section 49(2) HTA), Prince Edward Island (i.e., Section 253(3) HTA), and the driver does indeed fail to do so upon request/demand. Because the provincial legislation in question has set a penalty, such as a fine by the issuance of a ticket (SOT or POPA), and the lawbreaker has not enlarged their conduct from merely refusing to obstructive conduct, the officer must use the process and penalties set by the law. In those cases, a mere refusal cannot amount to an obstruction conviction under the Criminal Code. If, however, the driver who has been requested to produce his/her driver’s licence is not known to the officer, or fails to identify themselves through other means to the satisfaction of the officer, the officer is not without remedy to deal with a mere refusal because they can arrest the individual to find out their identity, if they need to, and then issue a ticket. If they still need to find out their identity, they could further detain them to find it out or to ensure their attendance in court. If the lawbreaker has a legal duty to obey, an officer can also arrest the person to prevent their continuation of the offence and then issue them a ticket for failing to comply.

So, where a bylaw or provincial offence provides a means of enforcement, police must resort to that means of enforcement — rather than to the criminal law of obstruction — when without more an accused refuses to comply with police demands that he do what the legislation provides. However, a driver at a traffic stop can be convicted of obstruction under the Code for actions that obstruct police, when they are not breaching a specific legal obligation they have under the traffic legislation, for example, and police have no remedy in that legislation for that driver action. In short, when enforcing provincial or municipal legislation, the criminal law must be an instrument of last resort. It must be used as little as possible.

Absence of an ASD at the time of the demand and the “forthwith” temporal requirements

R. v. Breault 2023 SCC 9 – in April of 2017, two police officers were informed by forest trail patrollers that an individual who was intoxicated was driving an all-terrain vehicle (“ATV”). At about 1:35 p.m., the police officers arrived at the scene, saw B and stopped him as he was about to leave the scene on foot. One of the officers noticed that B’s eyes were bloodshot and that his breath smelled strongly of alcohol. At 1:41 p.m., that officer radioed for an approved screening device (“ASD”) to be brought to him, since the officers did not have one in their possession. Once he had requested an ASD, the officer demanded that B provide forthwith a breath sample pursuant to s. 254(2)(b) of the Criminal Code (now 320.27(1)(b) CC). Starting at 1:45 p.m., B refused three times to provide the requested sample on the ground that he had not been driving the ATV in question. He was arrested for refusing to comply with a demand to provide a breath sample contrary to s. 254(5).

The Trial Court judge held that the validity of the demand made by the police officer did not depend on the presence of an ASD at the scene. He convicted B of the offence of refusing to comply with a demand made under s. 254(2) Cr. C., contrary to ss. 254(5) and 255(1) Cr. C. B’s appeal to the Superior Court was dismissed, but his subsequent appeal to the Court of Appeal was allowed. The Court of Appeal found that, in order for a demand to be valid, the peace officer must be in a position to demand that the driver provide a breath sample forthwith, which means that the officer must have immediate access to an ASD. The court was of the view that the demand made to B by the police officer was invalid due to the absence of an ASD. It reversed the lower courts’ judgments and directed that a judgment of acquittal be entered. The SCC dismissed the Crown’s appeal.

The SCC ruled that absent unusual circumstances, the absence of an ASD at the time of the demand means that the “forthwith” temporal requirements cannot be met and a refusal to that invalid demand is not an offence. So, what does the SCC view as unusual circumstances? Well, although stating the list is not exhaustive, it did provide some indications of what some unusual circumstances could be:

• unusual circumstances related to the use of the device or the reliability of the result – for example, delay for the device to warm up is okay. If the device needs a few minutes to warm up and go through a self-check phase.
• if you have reason to believe that mouth alcohol or some other substance in the driver’s mouth may skew the results, you can wait for it to dissipate if necessary.
• delays to ensure everyone’s safety, circumstances involving urgency in ensuring the safety of the public or of peace officers might be recognized.

The SCC made it clear that unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency. A flexible interpretation of the immediacy requirement cannot be justified by the magnitude of the public funding required to supply police forces with ASDs or by the time needed to train officers to use them. There is nothing unusual about such utilitarian considerations. Allocating a limited budget is the daily reality of any government, said the SCC.

So, what does this mean for the officer at the scene?

That being said, peace officers who have no ASD with them when they stop a driver who is suspected of having alcohol in their body are not entirely without options. They can require the driver to perform coordination tests, as permitted by the current s. 320.27(1)(a) Cr. C. These officers also have common law powers to check for sobriety. Where doing so is reasonable and necessary, they can, among other things, question a driver who is lawfully stopped about prior alcohol consumption or ask the driver to perform physical tests other than those provided for in the Criminal Code

Para.66

The SCC further said that a person cannot be criminally liable for refusing to comply with a demand with which it was not actually possible to comply because of the absence of an ASD at the time the demand was made. Finally, the validity of a demand cannot be conditional on the time needed for an ASD to be delivered to the scene, because such an approach would create intolerable uncertainty for drivers. When a detained driver has to respond to a demand to provide a breath sample, the driver must be able to know whether the demand is valid and whether refusing will result in criminal liability. In a context where the driver is unable to retain and instruct counsel, it cannot be expected that the driver will agree in advance to comply and will then be capable of determining when the delay in the delivery of an ASD justifies a refusal.