A Supreme Court of British Columbia ruling has affirmed limitations placed on questioning by police during vehicle stops. The decision upholds previous case law that the scope of an officer’s questioning at the roadside must comply with the purpose of pulling someone over. That means evidence gathered during a stop for a traffic violation has to relate to the investigation into the traffic violation itself. Police officers cannot simply pull you over under the pretence of a routine traffic stop in order to conduct an investigation into a separate, more serious criminal matter without your knowing.
Every Canadian has the right not to be arbitrarily detained or imprisoned as well as various rights while they are arrested or detained. These rights are protected by the Charter. When a person is detained or questioned at the roadside this is an infringement of those rights. Infringements of rights are constitutionally valid so long as there is a valid reason and that reason can be justified under specific legislation. The enforcement of traffic laws is seen as a reasonable limit on motorist’s liberty.
What was the case before the BC Supreme Court?
The issue of the scope of police investigative powers during a vehicle stop recently came before the Supreme Court of BC in a case involving a man charged with first-degree murder. The accused was pulled over by an officer just after 3 am on a highway in Nanaimo. The officer testified that the accused’s tail lights were off and he was driving “well over the speed limit”. The officer pulled the accused over and when asked about his legal authority to stop the vehicle, the
constable replied he was enforcing traffic laws. The accused asked if he had any particular concerns and the officer explained that he noticed the tail lights were out and he believed the car was speeding.
The officer testified that he also had suspicions the car could be involved in drug trafficking activity. During cross-examination, the officer admitted his initial thoughts about the investigation shifted from a vehicle offence to a predominantly a drug offence. The officer decided to approach the vehicle sooner than normal because he did not want the driver to have an opportunity to dispose of evidence. The officer then asked where the accused was coming from, explaining in his testimony that “if I am dealing with a dial-a-dope, I want to get a story started”.
After about a minute, the officer received a signal on his radio about a high priority call and he let the accused go. After listening to the report of the shooting, the police officer developed a suspicion that the man he had let go was involved. He informed his fellow officers of this and the accused was later stopped by another car and arrested.
The issue before the Supreme Court was not the basis of the officer’s suspicion that the driver was involved in the shooting but rather the constitutionality of the initial traffic stop. The accused alleged that his s. 10 Charter rights upon detention had been because the initial vehicle was to investigate potential drug trafficking and not for any motor vehicle offence. The accused said the second time he was pulled over amounted to arbitrary because police did not have objectively reasonable grounds to arrest him for murder. If the arrest was unlawful, the seizure of his clothes and tests of gunshot residue testing of his hands and face would infringe his Charter rights and therefore its use in Court as evidence could be challenged.
What limits on questioning do officers have during vehicle stops?
The question that arose out of this case was whether the accused’s rights during the initial traffic stop had been denied by the police officer’s intention to investigate a potential drug offence after pulling him over for a suspected traffic offence. According to the Supreme Court ruling, if the reason for stopping a vehicle does not relate to enforcement of traffic or vehicle safety laws, but rather a separate criminal matter, then the authority for the detention changes. While detaining someone for a suspected traffic offence, the police’s questioning must remain within the scope of the Motor Vehicle Act.
Police may become suspicious of some other criminal activity during the course of a traffic stop. But when it happens, their legal grounds for detaining someone must be justified by different legislation with different provisions. They cannot detain a driver under the pretext of a traffic stop while surreptitiously investigating something else. If the reasons for the detention change police are required to advise the suspect of the reason for the detention as well as their right to call a lawyer.
The Supreme Court identified the “challenge” of drawing the line between stops based upon traffic laws and those based upon criminal investigation. The judge said: “Sometimes the stop is initiated to address compliance with the Motor Vehicle Act, but then evolves into a criminal investigation.” However the judge also highlighted risk that police might misuse Motor Vehicle Act powers to conduct unfounded general inquisitions into criminal activity.
While the officer in this case first noticed the car because of motor vehicle concerns, his predominant purpose for the vehicle stop was to conduct a drug investigation. In the context of a criminal investigation, the accused was “asked questions that had the effect of conscripting him in the investigation against himself”, according to the court’s ruling.
The Crown argued that the questions the officer asked during the initial stop, including “where are you coming from” would have fallen within the possible scope of a Motor Vehicle Act investigation and therefore would have been constitutionally permissible. However, since the police officer’s testimony acknowledged his main aim was to conduct drug-related investigations, this constitutional protection was lost. The judge duly ruled that the police officer’s conduct infringed upon the accused’s s. 10 rights.
This case is interesting because it affirms the limitations and guidelines officers must follow if their questioning of drivers during a vehicle stop are to be found constitutionally valid. While investigations are often fluid and something that starts out as a traffic stop might evolve into something else, the police need to be careful to ensure they do not overstep the mark by unfairly denying someone their rights.
Very interesting story regarding the lawful scope of police questioning of motorists during motor vehicle stops.
In Newfoundland & Labrador, the Highway Traffic Act ( s. 201.1 ) authorizes police to stop any motor vehicle and require any passenger in the stopped vehicle to provide his / her name, address and date of birth to the police officer.
This section of the Act states that the police officer is not required to advise the passenger of his / her Charter right to retain and instruct counsel while being detained at the roadside; in addition, the passenger does not have the right to retain and instruct legal counsel, notwithstanding the fact that the passenger is clearly subjected to detention under the provisions of the Act.
This provincial legislation violates the constitutional right to not be arbitrarily detained or imprisoned and the constitutional right to retain and instruct legal counsel upon arrest or detention, as enshrined in s.9 and s.10 of the Charter of Rights and Freedoms.