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.

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