Does the act of a police officer opening a vehicle door amount to a search within section 8 of the Charter?

R. v. Thomas 2014 ABPC 172 – although this is a Provincial Court decision, I found it important to post as it again addresses the confusion of the “safety search” and the threshold to conduct one.  On the early morning of October 4th, 2013, a female R.C.M.P. officer was on patrol in the Village of Forestburg, Alberta. Police had received 911 calls before midnight complaining of trucks and motorcycles speeding there. The early morning hours also tended to be a busy time as there is a bar in Forestburg. At 12:55 a.m., the officer heard the sound of a truck accelerating and saw it pass her police vehicle “quite quickly”. She formed the opinion that it was travelling at a high rate of speed and elected to undertake a traffic stop. The truck had two occupants, neither of whom was known to the officer. Thomas was in the driver’s seat and a female occupied the passenger seat. The officer directed Thomas to produce his operator’s licence. He did not do so, advising the officer that he had left it at a gas station. Both Thomas and his passenger were questioned about the consumption of alcohol and both denied having consumed any liquor. However, the officer could detect an odour of alcohol from within the vehicle. Given the officer’s height (just under 5’3″) and the height of the truck, she could not see the occupants’ hands unless they were on the dash or steering wheel.

The officer testified that Thomas was looking through his papers and what not, kind of leaning farther away and low down, and with it being dark, not very well lit, with no street lights, she could not see very well into the truck, so she opened the door of the truck. At this time, the officer saw a beer can and smelled alcohol on the driver’s breath. Thereafter, she demanded that Thomas provide a breath sample suitable for analysis by an approved screening device and Thomas refused.

“I needed the door open to see hands, to see if there was any – – if they were doing something different, you know, than what I asked them to be doing. If they [sic] was any knives, if there was any – – anything that could hurt myself or, you know, bystanders, guns, anything like that.”

And further, in cross-examination:

Q.  … Tell us why you could not have focused your flashlight on those three areas [the glove compartment, console and wallet] without opening up the door?

A.  When looking into the vehicle, it’s hard to see in and over and to what’s going on. It’s much easier to be able to see what’s happening in people’s hands to open the door.

Q.  So it was easier for you just to do it that way?

A.  To see what — what’s in somebody’s hands, you know, maybe it’s my height, maybe I’m, you know, too small, but you just can’t see in properly being my height in a big vehicle.

It was the officer’s policy to always maintain visibility of a detained motorist’s hands. On some occasions, this necessitated opening of the vehicle’s door. When asked what were the grounds for making the demand, the officer testified that she could smell alcohol coming from his breath when he was in this vehicle, so she suspected that he had alcohol in his body and he was operating a motor vehicle.

The issue was whether the act of opening the driver’s door of Thomas’ truck constituted an unreasonable search or seizure? The court said that officer safety during a roadside traffic stop involves different considerations than officer safety in other circumstances, including those described by the SCC in R. v. MacDonald, 2014 SCC 3 . Officer safety needs may also differ from one traffic stop to the next. In this case, the officer was a shorter individual, acting alone, who had stopped a truck on a rural highway late at night. She was dealing with a complete stranger. Moreover, she could not see into the truck and had lost sight of Thomas’ hands. These circumstances required the opening of the truck door for officer safety reasons. The extent of any safety search needed to ensure the safety of an investigating officer will also vary, depending on the circumstances of each case, said the court. Here, the safety search involved only the opening of a truck door and the truck itself was parked on a public highway.

The Respondent took no issue with the submission that the officer’s opening of the truck door was a search, but argued it was authorized by law on the pretext that safety searches are authorized on a threshold of ‘reasonable suspicion’ (R. v. Mann, 2004 SCC 52); a reasonable possibility of an imminent threat to the public or the investigating officer, and there is support for that view (see my earlier post on this issue: R. v. Le, 2014 ONSC 2033). Thomas argued that was not the interpretation adopted by the Supreme Court itself. In the minority, concurring judgment authored by Moldaver J., the court expressed the view that Lebel J.’s use of the phrase “reasonable grounds to believe” imported the standard required for a lawful arrest or making of the demand authorized by s.254(3) C.C. (MacDonald, at para.91). At least one provincial superior court has recognized its obligation to follow the express words of the majority decision (see my earlier post on this issue: R. v. Green, 2014 ONSC 1470).

The court in Thomas said that the judgment of the court in MacDonald is not ambiguous or unclear. Its wording has been considered by three members of the Supreme Court and interpreted to mean what it clearly states. If that meaning works a profound change in the law, it is for trial courts to embrace and apply that change; not ignore it, said the judge. The judge was satisfied that a safety search can only be justified where a police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. A ‘reasonable suspicion’ will not suffice.

Provincial Court Judge B.D. Rosborough had no hesitation in concluding that the officer honestly believed that it was necessary to open the driver’s door of Thomas’ truck in order to see his hands and thereby ensure both her safety and the safety of the public.  However, there was no evidence whatsoever available to the officer to enable her to fear the presence of weapons, and there was nothing else, other than the speeding, about the manner in which Thomas operated his vehicle that would have raised safety concerns.

Judge B.D. Rosborough:

Was it ‘reasonably necessary’ for [the officer] to open the driver’s door of Thomas’ truck? Were there other reasonable means to ensure officer safety without (or before) opening the truck door?

I am loathe to second-guess the actions of the police and I recognize that they are often required to make split-second decisions in fluid and potentially dangerous situations.


the Respondent has not proven that [the officer] had reasonable grounds to believe that there was an imminent risk to her safety or the safety of the public when she opened the driver’s door of Thomas’ truck.

Accordingly, Judge Rosborough found that the officer’s search of Thomas’ truck by opening the driver’s door constituted an unreasonable search in violation of the Charter, s.8. However, given the particular facts of this case, it was Judge Rosborough’s view, after the three-prong Grant analysis, that the breach in this case was not serious, the judge was not satisfied that Thomas had proven on a balance of probabilities that admission of the officer’s ‘post-search’ evidence would bring the administration of justice into disrepute, so Thomas’ application was dismissed.

1 Comment

Filed under Impaired Driving, Safety Search

One response to “Does the act of a police officer opening a vehicle door amount to a search within section 8 of the Charter?

  1. Ugh! Thankfully, there’s the Grant Test.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s