Section 9 of the Charter of Rights and Freedoms protects everyone’s right not to be arbitrarily detained or imprisoned. The police cannot randomly pull you over, for example. When it comes to driving, however, there are some important qualifications. Random traffic stops are permitted if they are for the purpose of enforcing highway safety laws. The infringement is seen as being justified because effective law enforcement is in the interests of public safety.
Police can get away with roadblocks, for example, for this reason. Although the police do not need a reasonable suspicion to stop drivers, the roadblocks are justified because they are specifically set up to enforce highway safety.
Nevertheless, charges for driving offences can be dropped altogether if it can be proved the evidence was obtained by means of an unconstitutional stop. Succeeding in a Charter application is no easy task, however, and you must make sure you cover all the issues.
Admissibility of evidence
In a recent case, a man named Jason Seman pled not guilty to driving while prohibited. He sought to have the police’s evidence excluded because it was obtained in a ‘random’ and unconstitutional stop.
A police officer was travelling behind a minivan Mr. Seman was driving. The officer queried the licence plate and the results returned that the registered owner was born in 1947. After observing that the driver appeared to be much younger than the registered owner, the officer decided to conduct a traffic stop to see if the driver had a valid driver’s licence.
After obtaining Mr Seman’s name and date of birth, he ran the name through the police dispatch which returned that Mr. Seman was prohibited from driving.
When questioned why he decided to query the minivan’s licence plate, the officer said it was “completely random”. When asked if he would have let the vehicle go if the driver looked like someone born in 1947, the officer replied, yes because he would have no reason for the stop.
What does ‘random’ mean in relation to traffic stops?
Mr Seman’s defence counsel said the stop amounted to an infringement of Charter rights. The case, therefore, centred around what is a random stop when it comes to highway safety.
The judicial justice said: “A police officer’s power to detain the driver of a motor vehicle, even where the officer has no reasonable basis for a belief that the driver has committed an offence, is subject to an important limit. The purpose of the stop must be related to highway safety…The question is not whether the stop was random, but rather whether it was initiated for a purpose other than highway safety.”
Weighing the arguments
Unfortunately for Mr. Seman, his argument to exclude the evidence ultimately failed because the cross-examination was not thorough enough. The defence did not ask the police officer if he had any other motive than to enforce traffic safety laws.
At no point was he presented with the fact that people lend their vehicles all the time and just because a driver does not look the age of the registered owner it doesn’t necessarily mean they were doing anything illegal.
If they had read my book, Cross-Examination: The Pinpoint Method, they might have earned a better outcome because then they would know how to question someone thoroughly.
By failing to give the officer opportunity to explain his reasoning for the stop, the defence could not prove that it was arbitrary. In Charter breach applications, the onus is on the defendant to prove, on the balance of probabilities, there was a breach.
The judicial justice ruled that while there might have been a potential breach, the public interest outweighed the possible infringement because of the seriousness of driving while prohibited.
The lesson here is: it is important to cover all the potential issues in a Charter application.