Monthly Archives: May 2019

Vehicle Stops – Law and Analysis

This post is not conclusive but meant to provide some guidance to officers conducting vehicle stops.

A motorist in Canada is legally obligated to stop their vehicle when directed to do so by a police officer: see, for example, Highway Traffic Act s. 253(2) PE; Motor Vehicle Act s. 83(1) NS; Motor Vehicle Act s. 105 NB,  Highway Traffic Act s. 201.1(1) NL; Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 216(1)-(2), etc.

A driver has no choice but to comply with such a direction. When a motorist does so, they are “detained” from a Charter standpoint: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31; R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 631-632; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-644, but that detention is justifiable under s. 1 of the Charter provided that the stopping of the motorist is for reasons related to traffic safety, this includes things, “such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1287. See also, Hufsky. It also includes the authority to detain a motorist whom a police officer observes or reasonably suspects of committing an offence: R. v. Wilson, [1990] 1 S.C.R. 1291, at p. 1297 (a.k.a. articulable cause).

The Supreme Court of Canada has held that a police officer who lawfully detains a motorist for traffic safety reasons may also harbour ulterior criminal investigative purposes for the detention. Provided that traffic safety remains a motivation for the detention, the fact that the officer is also interested in discovering evidence of another offence does not in itself invalidate the detention. That said, in such cases, a police officer must be careful not to exceed the limits of his or her traffic-safety powers. If they do so, they violate the Charter: see R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

A police officer’s authority, “must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised.” R. v. Stevenson, 2014 ONCA 842, at para. 56, leave to appeal refused [2015] S.C.C.A. No. 37.

A police officer is empowered to briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. The power to detain is not confined to crimes known to the police but includes crimes that are reasonably suspected: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35; R. v. Nesbeth, 2008 ONCA 579, at para. 18, leave to appeal refused [2009] S.C.C.A. No. 10.

Section 10(a) of the Charter guarantees everyone the right “on arrest or detention” to be “informed promptly of the reasons therefor”. This constitutional right imposes an informational duty on police that they can discharge with relative ease. It merely requires a police officer on detaining a person to tell them in “clear and simple language” the reason(s) why: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at p. 888.

This obligation applies whether a police officer is detaining a pedestrian or a motorist: Orbanski & Elias, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel does not apply during motor vehicle stops motivated by traffic safety concerns: Orbanski & Elias, at para. 60. As a result, a detained motorist is often, “wholly reliant on the police to provide him with the information he requires to be able to make informed choices.”: R. v. Mueller, 2018 ONSC 2734, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is especially important during traffic safety stops.

In terms of when the person detained must be told of the reason(s) for their detention, the text of s. 10(a) instructs that this take place “promptly.” The case law makes clear that this means immediately: R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. The only justification for delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: R. v. Boliver, 2014 NSCA 99, at paras. 15-20.

Driving is a licensed activity that is subject to regulation and control in the interests of public safety. The Supreme Court of Canada has upheld a variety of police powers meant to combat the threat posed by impaired, unlicensed and uninsured drivers, as reasonable limits on the constitutional rights of motorists under s. 1 of the CharterOrbanski & Elias, at paras. 54-60; Hufsky, at pp. 636-637; Ladouceur, at pp. 1279-1288; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 653-656.

Nevertheless, a person who is lawfully entitled to operate a motor vehicle has a reasonable expectation of privacy in their vehicle, albeit of a diminished nature as compared to a dwelling or a private office. Given this, under s. 8 of the Charter, they enjoy the right to be secure against unreasonable search or seizure in their vehicle: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19; R. v. Grant, [1993] 3 S.C.R. 223, at p. 242; R. v. Mooiman and Zahar, 2016 SKCA 43, at para. 39. In assessing what is constitutionality permissible during the detention of a motorist, much depends on a police officer’s purpose and actions.

If traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take a variety of steps without engaging the driver’s s. 8 Charter right. For example, a police officer may visually inspect the passenger compartment of the vehicle, including with the aid of a flashlight, require the driver to produce their license, car registration and proof of insurance, and also inspect the vehicle to assess its mechanical fitness. Such measures do not encroach upon a motorist’s reasonable expectation of privacy during a lawful traffic stop: Hufsky, at p. 638; Belnavis, at para. 28; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-625. These steps do not engage s. 8 even when a police officer also harbours an ulterior criminal investigative purpose for the detention, provided the officer’s traffic safety motivation for the detention persists, and they do not act in excess of the limits on their associated powers: Nolet, at paras. 32-41.

If during the lawful detention of a motorist for traffic safety purposes a police officer happens to observe an item that is immediately recognizable as evidence of a crime or illicit contraband, the plain view doctrine provides the officer with authority to seize the item: Criminal CodeR.S.C., 1985, c. C-46, s. 489(1)Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(8); R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27. Alternatively, if while operating within the parameters of their traffic safety powers, a police officer acquires the grounds necessary to undertake more invasive investigative steps, then they are entitled to act on such grounds: Nolet, at para. 28.

Once a police officer’s interest in traffic safety ends, however, any intrusion on a motorist’s reasonable expectations of privacy must comply with s. 8 of the Charter. Ordinarily, this means that the police officer will require reasonable grounds to search the vehicle for evidence of a crime: Mellenthin, at pp. 624-625; Nolet, at paras. 28, 39, 43. Alternatively, if the motorist is lawfully arrested, the vehicle may be searched for evidence or weapons incidental to that arrest, provided the vehicle is connected to the reason for arrest and there is a reasonable prospect that evidence will be located in the vehicle: see, generally, R. v. Caslake, [1998] 1 S.C.R. 51. Short of this, a protective weapons search could potentially be justified, but only if the police officer believes on reasonable grounds that his or her safety is at stake and that such a search is necessary: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. Depending on the circumstances, this may justify searching a motorist’s vehicle for weapons: see, e.g.R. v. Plummer, 2011 ONCA 350, at para. 65; R. v. Lee 2017 ONCA 654 at para. 43.

Entirely different considerations apply if traffic safety does not truly factor into the officer’s decision to detain and is merely offered as a pretext (a false justification) to detain a motorist and look for evidence of a crime. Without any traffic safety justification, not only will the pretextual detention result in a violation of the motorist’s s. 9 Charter right from the outset, any resulting intrusion on the motorist’s reasonable privacy expectations will also be unlawful and violate s. 8 of the Charter: see, e.g.R. v. Ladouceur, 2002 SKCA 73, described as “fatally flawed from the outset” in Nolet, at para. 25. Where traffic safety is not the reason to conduct the stop, the officer must have at least articulable cause to stop the vehicle, meaning… “A constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: Simpson. The threshold is lower than the threshold for an arrest, which is reasonable grounds, but it is something more than an officer’s hunch based on intuition gained by experience.

Leave a comment

Filed under Interesting Read, Worthy of a Review

Detention of Passengers in Vehicles

With the force of the winter season behind us (hope I didn’t just jinx it), more people will be out-and-about, traveling the roadways, which will likely result in increased police-citizen interactions on those roadways.  I thought it fitting to post something on that topic, but not in terms of the driver, but in terms of passengers in those vehicles.

Remember, driving is a highly regulated activity, so although drivers are statutorily compelled to produce identification (i.e. valid driver’s licence) and vehicle documents (i.e. registration and proof of liability-insurance) upon request/demand of a peace officer or face charges under the various Motor Vehicle (Highway Traffic) Acts, the same cannot be said of a vehicle passenger where that passenger is not committing an offence (e.g. wearing a seatbelt, does not have open liquor in the vehicle, is not consuming cannabis, etc.).  In such cases, whether an officer’s request of the passenger’s identification (name, date-of-birth, address) will amount to a detention or unreasonable “search”, or further still whether querying this information on CPIC for outstanding warrants, BOLOs, current court orders or charges, will be reasonable will all turn on the facts of each case, as I will highlight.

First, let me premise this by saying that the law on this issue is still open. The SCC has not yet expressed its view, so decisions of the various appellant courts (and lower courts) across this country are mixed, at best:

As Doherty JA stated in Brown v. Durham (Regional Municipality) Police Force (1998), 43 OR(3d) 223 at para 31 (CA), leave to appeal to the SCC granted, but appeal discontinued, [1999] SCCA No 87:

“The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating section 216(1) of the [Highway Traffic Act], I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.”

Likewise, in R. v. Harris 2007 ONCA 574, the Ontario Court of Appeal stated the following on this issue (at para 26):

“I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Actviolation, and Lipkus’s [the police officer’s] lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge’s factual findings, Lipkus’s request for identification did not prolong or alter the nature of Harris’s detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.”

In R. v. Coady, 2012 ABPC 194, after a vehicle had been stopped for legitimate reasons, an officer prevented a passenger who had exited the vehicle from leaving the scene and made persistent efforts to have him identify himself. In that case, there was no connection between the detention of the vehicle for traffic safety reasons and the subsequent detention of the passenger who tried to leave the scene; the court concluded that the detention was arbitrary and the arrest and search occasioned by the improperly compelled identification, unreasonable.

The officer’s request for R. v. Loewen’s (2018 SKCA 69) identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job” (an earlier post of mine on this issue). This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.

I could go on to highlight other cases, but hopefully these will address the issue.  What is interesting is that many courts do not seem overly critical of officers running this information on databases (e.g. CPIC), but they are with the act of detaining the person to do so:

[an individual] does not have a reasonable expectation of privacy with respect to information in CPIC, at least insofar as police officers are concerned. A reasonable and prudent individual would assume that information about him or her emanating from a public court process will be available to police officers through an information data system such as CPIC.

…Absent a ‘detention’, merely asking for identification does not constitute a s. 8 ‘search or seizure’.

In R. v. Mooiman and Zahar, 2016 SKCA 43, 476 Sask R 216 the Court stated at paragraph 22:

True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but – all other things being neutral– nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance…

So, the takeway: Section 10 of the Charter provides that individuals who are arrested or detained have the right (a) to be promptly informed of the reasons for the arrest or detention, and (b) to retain and instruct counsel without delay and to be informed of that right. The duty of the police to inform a detained person of his or her s. 10 rights “is triggered at the outset of an investigative detention”: R. v. Suberu [2009] 2 SCR 460 at para 2. A police request for identification does not necessarily amount to detention, but “delays that involve significant physical or psychological restraint” will necessarily trigger ss. 9 and 10 of the Charter.

Leave a comment

Filed under Recent Case Law