Can the police question drivers about other matters when they are stopped for the purpose of a road side check and where the police do not have reasonable grounds to do so?

The short answer is no.  As Justice Cory explained in R. v. Mellenthin, [1992] 3 S.C.R. 615 at p. 624:

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

Of course, all kinds of issues can come into play (such as informed consent as discussed in R. v. Wills, [1992] O.J. No. 294, 70 C.C.C. (3d) 529 (Ont. C.A.)), but that is not the reason for this post. So, you may ask why I’m citing the SCC case of Mellenthin from 1992 on my blog? Well, this same issue has come up again in a 2014 case named R. v. Koczab 2014 SCC 9.

In Koczab, the accused, while driving his vehicle from British Columbia to Ontario, was pulled over for speeding in Manitoba. The police officer requested his driver’s licence and registration. He noticed that the vehicle was registered to the accused in British Columbia and that his driver’s licence was issued in Ontario. The officer questioned the accused as to why he had different addresses on his licence and registration. The accused answered that he worked in the movie industry and lived at both places. The driver, the vehicle, and the explanation for the different addresses seemed very familiar to the police officer. He returned to his cruiser to conduct the routine police checks relating to the documentation. They revealed that the accused had been fingerprinted in the past for theft and drug charges. His record showed only one criminal conviction for theft. The officer testified that he did not feel that these entries were of any concern. He went back to the accused’s vehicle, returned his documents, gave him a verbal warning for his speeding and told him that he was free to go. Ten minutes had elapsed since the beginning of the traffic stop.

The police officer, believing he may have stopped the accused on a prior occasion, asked him if he would mind answering a few questions. The accused replied, “Yeah go ahead.” This led to a series of questions about the movie industry and the Ontario licence plate. The answers to these questions evoked memories which caused the officer to conclude that he had stopped this accused in the past and had been provided with the same story, which he felt was rehearsed. He then asked the accused whether he had been stopped before. The accused replied “No.” He asked him whether he had any convictions. The accused replied that he had been caught with a couple of grams of cocaine. This answer again evoked memories and the officer was now positive that he had stopped the accused previously.

The officer then asked the accused what he had in his back seat. The accused replied that he had a couple of suitcases. He asked whether he had any liquor, drugs, or large amounts of cash in the vehicle. The accused answered no to all three questions. The officer asked “So what’s in the suitcases?” The accused responded “Clothes, do you want to see?” The officer said “Sure.” Immediately before the accused opened the back door, the officer asked the accused again, “You sure you don’t have any drugs in the vehicle?” The accused replied “Yeah.” The officer asked “You are letting me look?” and the accused said “Yes.” The officer told the accused that, if he found drugs, he may be charged. The accused replied that he had learnt his lesson and would not be doing that again.

Without being prompted, the accused then proceeded to open the back door and, again unprompted, opened the suitcases. The officer did not search the suitcases, but observed clothes in them. At that point, the officer noticed that the carpet had been altered near the back seats. This fact caused the officer to think that there might be a hidden compartment located there. The officer had considerable experience in detecting and locating such compartments, as he had personally investigated and discovered hidden compartments in approximately 50 other cases. As the officer was now thinking that he might detain the accused for a further criminal investigation, he thought it prudent to call for back up for officer safety. He told the accused “I just have to go to my car for a minute.” He then went to his car and called for back-up.

At that point, the officer’s non-communicated intention was that he would be arresting the accused. However, before doing so, he decided he would give the accused an opportunity to provide an innocent explanation for the altered carpet. He went back to the accused and, prior to any back-up attending, proceeded to ask him the following three questions:

1) Have you had any bodywork done to the vehicle? Answer: No

2) Have you had any panels removed? Answer: No

3) Do the back seats fold down? Answer: Yeah, I’ll show you.

Again, without being asked, the accused proceeded to fold the back seats forward. Once folded, the officer noticed more damage to the carpet and smelt the strong odour of fresh silicone. As the officer knew that silicone is not used in factory installations in vehicles, he believed that the fresh smell of silicone could only be explained by a recent use to create a sealed hidden compartment that may contain drugs. The officer then arrested the accused for drug possession and advised him of his right to counsel. He declined to contact counsel. Back-up arrived at that point. The vehicle was searched incidental to arrest and 17 one-kilogram bricks of cocaine were found in a silicone-sealed hidden compartment underneath the backseat. Having discovered the cocaine, the officer returned to the accused to advise him that he was now under arrest for trafficking in cocaine. He was again given his right to counsel and again the accused declined to contact anyone.

At trial, the validity of the traffic stop and the questions related to the traffic matters were not challenged at trial. Moreover, the trial judge concluded that, as the officer had reasonable grounds to suspect the accused was a drug courier before he called for back-up, his detention was not arbitrary within the meaning of s. 9 of the Charter. However, the trial judge found that the accused was detained when the officer asked him the last three questions. He concluded that the accused’s rights under s. 10 of the Charter had been violated because he had neither been advised of the reason for his detention, nor of his right to counsel before answering the questions. Finally, the trial judge excluded the evidence following a s. 24(2) analysis.

The Crown appealed to the Manitoba Court of Appeal, which ruled that the trial judge applied an analysis that focussed on the officer’s non-communicated thoughts and intentions. As a result of this misapplication of the law, the trial judge overemphasized the officer’s intentions to call for backup and to arrest Koczab. This resulted in a finding there had been a detention that was unreasonable and not supported by the evidence. There was a nexus between this legal error and the verdict. Even if there had been a Charter breach, the evidence would not have been excluded pursuant to s. 24(2). A new trial was ordered by the Court.

The accused appealed to the SCC.  The SCC, in reaching it’s decision, adopted the dissenting opinion of Justice M.M. Monnin J.A in the Manitoba Court of Appeal decision, thereby allowing the accused’s appeal and excluded the evidence, restoring the acquittals for trafficking and possession for the purpose of trafficking.

A Charter detention has been defined by the Supreme Court of Canada as being “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (see R. v. Grant, 2009 SCC 32 at para. 44). The majority in Grant also held that the test to determine whether the accused has demonstrated “significant” psychological restraint is whether the police conduct would cause a reasonable person in the accused’s circumstances to conclude that he/she was not free to go and had to comply with the police direction or demand (see Grant at paras. 31 and 44). This approach to the determination of detention has been described as the “claimant” or “detainee” centered approach involving a “detainee-centered objective analysis.”

The Supreme Court of Canada in Grant provided a non-exhaustive list of factors to assist a trial court in its detainee-centered objective analysis of whether a psychological detention was sufficiently significant so as to trigger Charter rights. Trial courts consider the following factors (Grant at para. 44):

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

The SCC agreed that the trial judge made a finding that the police officer made a decision to detain the accused on his second trip to the cruiser car. By that time, the officer was of the view that the accused was a drug courier and that he would be conducting a drug investigation. While the officer, at trial, attempted to put that decision at a later time, in cross-examination he eventually admitted that his answer at the preliminary hearing was truthful. At that time, he had said as follows:

Q Okay. Now, page 25 of the preliminary hearing, I’m going to put the following to you, line 9 again:

After that point in time, I figured that [the accused] was a drug courier, from what I observed. I went and told [the accused] I’d be back. I walked back to my police car. I radioed for a second car to attend.

… why was that?

For backup. I believed that I was going to do a drug investigation.

Q Do you recall that answer —

A Yes.

Q — and do you recall that question?

A Yes.

Q Was that answer the truth?

A Yes.

Q Now, I’m then going to suggest to you that you, that prior, prior to [another officer] attending, that you also, in your mind, concluded that [the accused], in fact, was detained and not free to leave?

A Prior to [another officer] attending?

Q Yes.

A I was getting real close, yeah.

Q Not —

THE COURT: You, you were what?

THE WITNESS: Getting real close to if he said no, I’m leaving, no I probably wouldn’t have let, let him leave, yeah.

Q So as far as you were concerned, he was detained?

A At that point in time, if he said I’m leaving, yes, I would have stopped him from leaving.

At the time of the trial, the officer had been a police officer for 21 years. He was an instructor with respect to various techniques of police investigations, particularly on highway traffic stops, and had considerable experience in that area. He acknowledged the importance of providing people with their rights, understood the application of the Charter and was aware of the duty to inform individuals of their right to silence under s. 7 of the Charter. Under cross-examination, he said as follows:

Q You decided he wasn’t free to go, but you never told him that; is that correct?

A That’s correct.

Q You had decided, in your mind, he was detained, but you never told him that; is that correct?

A Correct.

Q You, in your mind, after deciding in your mind that he was detained and not free to do, go, didn’t provide him with his legal rights; is that correct?

A Correct.

Q Right to counsel or right to silence?

A Correct.

Q And I’m sure you’re well aware, either on a detention or an arrest, that, that if a person is given their legal rights, you’re not to continue questioning until they’ve had an opportunity to exercise them; is that correct?

A If they wish to execute (sic) yes.

Q Correct. So you have to hold off questioning until they’ve been given at least an opportunity to see if they wish to contact counsel?

A Correct.

Q And you’re well aware of that principle; is that correct?

A Correct.

The trial judge then explained that, while he took into account the fact that, while on his way back to his car, the officer had made a decision to detain the accused, that decision by itself did not mean a detention had occurred. However, he then found that the statement of the officer “I just have to go to my car for a minute” was an implied direction not to leave. The trial judge then commented on the fact that, upon his return to the accused’s vehicle, the officer asked a lengthy series of questions of approximately five minutes’ duration before another officer arrived, which questions focused on the physical state of the vehicle:

“In the totality of the circumstances, [the accused] was detained when [the officer] formulated the intention to detain, said he would be right back, returned to his car, telephoned for a back-up, and came back to the SUV to ask the first question. Before being asked the question, [the accused] had the right under subss. 10(a) and 10(b) to be advised that he was being detained, the reason for it, and of his right to counsel.” ….

In Justice Monnin’s view, a reasonable person, having been questioned aggressively on issues relating to drug convictions and whether he was currently involved in drug trafficking, having previously been told he was free to go, but then indirectly told to stay where he was, would likely conclude that he was not free to go and had to comply with that directive. “It would take a brave soul in the circumstances to defy the state actor and go merrily on his way. He would, no doubt, soon be involved in a police chase,” said the Justice.

Applying the criteria in Grant, the circumstances giving rise to the encounter had clearly moved to the singling out of the individual for focused investigation. The fact that the accused was in potential jeopardy was confirmed by the police officer’s own evidence that he was conducting a drug investigation. That the accused was in jeopardy is not determinative of the issue (see Grant at para. 41). However, as in this case, jeopardy can be a factor supporting a finding that a detention has occurred, especially in a situation where a person is the subject of a criminal investigation, a time when the availability of his s. 10 rights are important.

While, in the case at hand, the highway traffic stop had ended, as found by the trial judge, detention had occurred when the accused was indirectly told by the officer not to leave. This triggered his s. 10 rights. The MBCA referred to the words used by the police in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 as being of a like nature to those used by the officer in this case, (in Suberu, the words used were “Wait a minute. I want to talk to you before you go anywhere” (at para. 9)). They were not found to amount to an implied direction. However, the difference is in the timing. In Suberu, the trial judge, [2006] O.J. No. 1958, found the comments to have been made as part of an exploratory investigation at a time when the police officer was merely attempting to determine if there was any involvement by Mr. Suberu. As explained by the majority decision of the Supreme Court of Canada in Suberu (at paras. 29, 31):

The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. While the trial judge in this case did not have the benefit of the test refined in Grant, his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention.

The trial judge’s finding that the initial part of the encounter was of a preliminary or exploratory nature on its face does not support the contention that Mr. Suberu was under detention within the meaning of the Charter at this point. It suggests rather that Constable Roughley’s conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled. Looking at the matter through the lens of the detention analysis proposed in Grant, the trial judge’s conclusion that the circumstances did not trigger the right to counsel cannot be said to be in error. There was no right to counsel because there was no detention.

However, in this case, by his own admission, the officer’s investigation had reached a stage where the movements of the accused were to be controlled. Justice Monnin made a more apt comparison to Grant, where the comments of the officer to the appellant to “keep his hands in front of him” (at para. 6) were insufficient by themselves to indicate detention, but crystallized into a detention when other police officers approached. The majority stated as follows (at para. 49):

Two other officers approached, flashing their badges and taking tactical adversarial positions behind Cst. Gomes. The encounter developed into one where Mr. Grant was singled out as the object of particularized suspicion, as evidenced by the conduct of the officers. The nature of the questioning changed from ascertaining the appellant’s identity to determining whether he “had anything that he should not”. At this point the encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the appellant and were attempting to elicit incriminating information.

In the case at hand, Justice Monnin said the implied direction not to leave after questioning upon potential drug trafficking would have given a reasonable person cause to believe that he was not free to leave. The questioning upon return to the vehicle turned to whether modifications had been done to the vehicle. While stated by the officer as being for the purpose of allowing the accused to give an innocent explanation for the suspected modifications to the vehicle, it was, nevertheless, part of the officer’s criminal investigation and was for the purpose of eliciting information which could be incriminating. Further, said Justice Monnin, while there was no physical contact and the discussions were polite and cordial, the accused was never directly told that he had a choice not to answer. He was asked if he would mind answering a few questions, but at no time was he advised that he need not and that no consequences would follow. The conduct which was of concern to the trial judge and which he considered in the assessment of the s. 24(2) application was that the officer was aware that he would be detaining the accused based upon a hunch that he was an individual that he had stopped previously.

The trial judge concluded that the officer’s conduct was “neither inadvertent nor minor. It was wilful and egregious” (at para. 36). He then commented on the fact that, in his cross-examination, the officer was evasive and he found that the breach was not made in good faith.

So, where does this leave us?  I think Justice Moldaver J. in R. v. Aucoin, 2012 SCC 66, phrased it best at para. 50:

“the law surrounding police powers in the detention context is still evolving”

Deciding when a detention triggers Charter rights requires a balancing between an individual’s rights and the collective interest in ensuring that the police are able to investigate and prevent crime (see Grant, and Suberu, 2009 SCC 33 at para. 24, [2009] 2 S.C.R. 460).

2 Comments

Filed under Recent Case Law, Section 10 Charter

2 responses to “Can the police question drivers about other matters when they are stopped for the purpose of a road side check and where the police do not have reasonable grounds to do so?

  1. Maj GRC Moore, Canadian Forces Provost Marshal Legal Advisor

    Hello,

    Could you please add me to your email distribution list?
    Many thanks, and kind regards.

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