Imagine a situation where police stop a car, and things escalate from there, leading to a big legal battle over whether the evidence they found can even be used in court. That’s essentially what happened in the case of R. v. Anwyll, a case that highlights how important it is for the police to follow the rules under the Charter.
This case demonstrates the intersection of driving law and Charter rights, specifically concerning the legality of vehicle stops for prohibited driving and subsequent police actions.
This case is particularly relevant for driving law, as it highlights the limitations of police authority under the Motor Vehicle Act (MVA) and the consequences of exceeding those limits.
The case revolves around the events of November 5, 2022, when Constable Verot of the Saanich Police Department, while on patrol, observed a grey Hyundai Elantra parked at a 7-Eleven gas station and carwash.
At first, the officer noticed a man wiping the car, but could not see whether anyone was in the driver’s seat. Subsequently, Constable Verot entered the parking lot and noticed a woman in the driver’s seat. The driver’s side door was closed.
Constable Verot queried the vehicle’s plate and discovered that the car was a rental, associated with a person who was an alleged high-level drug trafficker. This information prompted the officer to conduct a traffic stop to determine if the woman had a valid driver’s license and was on the rental agreement.
The officer approached the vehicle, and after a brief interaction, he learned that the woman did not have a driver’s license on her. The officer then requested her name and date of birth, which she provided. After checking with dispatch, the officer discovered that the woman was a prohibited driver. He arrested her.
During a search of the vehicle incident to arrest, Constable Verot discovered a bag of methamphetamine in the centre console. Later, after discovering another man had also been in the vehicle via CCTV, that man was also arrested and searched, and police found money and ammunition.
A subsequent search of the vehicle after it was towed to the Saanich Police Station resulted in the discovery of a handgun, ammunition, and further quantities of drugs.
The Illegality of the Traffic Stop
The central issue in the case was the legality of the initial traffic stop and subsequent actions, which were challenged by the two accused as violations of their Charter rights.
The Crown conceded that the initial detention and first arrest of the woman breached her s. 9 Charter rights. The Court found that the traffic stop was unlawful due to the interpretation of section 73(1) of the MVA, which allows a police officer to require “the driver of a motor vehicle to stop.” The Court, drawing on precedent from R. v. Johnstone, determined that “driver” applies only to individuals actively “driving” a motor vehicle. This requires both movement and control. Because the woman was sitting in a parked vehicle and not operating it, Constable Verot had no lawful authority under the Motor Vehicle Act to detain her for the purpose of asking for her driver’s license.
The Court also noted that while random traffic stops are permissible under the Motor Vehicle Act for traffic safety, they are an arbitrary detention under the Charter. In this case the Crown conceded there was no criminal law basis to detain the woman which made it a breach of her s.9 Charter rights.
While the defence lawyers argued that Constable Verot’s true purpose was to search for drugs, the Court was not convinced of this theory. The judge accepted Constable Verot’s testimony that he was trying to confirm that the person in the vehicle was permitted to drive it, given that it was a rental car.
Unlawful Arrest and Search Incident to Arrest
The Court further determined that the woman’s arrest for driving while prohibited was unlawful under s. 79(a) of the MVA. This section only allows for a warrantless arrest of a person the officer “finds driving a motor vehicle.” The Court, citing R. v. Pelgrom, stated that this means the person must be “in the very act of committing an offence” or, “caught red-handed.”
Constable Verot did not witness the woman driving the vehicle; therefore, her arrest was also in violation of section 9 of the Charter.
This unlawful arrest consequently meant the subsequent search of the vehicle incident to arrest was also illegal. The Court stated that in order for a search incident to arrest to be legal it must meet three conditions: that the person was lawfully arrested, the search was truly incidental to arrest, and the search was conducted reasonably. Because the arrest was unlawful, the search breached s. 8 Charter rights.
The Crown argued that even if the arrest was unlawful, the search was justified because the officer was looking for identification and insurance documents. The Court found that there was a reasonable basis to search for identification in this case, given it was a case of driving while prohibited. The Court ultimately found that the search was unlawful as the arrest itself was unlawful.
Arrest of The Other Man
The other man’s arrest was also found to be unlawful and a breach of his s. 9 Charter rights. The Court concluded that there were no reasonable grounds to arrest the man because his mere presence in the vehicle was not sufficient to justify his arrest for possession of a controlled substance.
The Court emphasized that the police cannot arrest someone based on speculation or association, and there must be an objective basis for believing that individual is connected to the offence.
The Court found that the police also lacked information about the man’s access to the centre console or other closed off areas of the car. The Court also noted that the man did not act suspiciously during the encounter with the police. Additionally, the Court stated that the police did not have information that that individual had a history with drugs or trafficking.
Section 24(2) of the Charter and Exclusion of Evidence
The Court then proceeded to analyze the case under section 24(2) of the Charter, which addresses the exclusion of evidence obtained in a manner that infringes upon Charter rights. This analysis involves balancing three factors: the seriousness of the Charter-infringing conduct, the impact of the breach on the accused’s Charter-protected interests, and society’s interest in an adjudication of the case on its merits.
Seriousness of the Breaches
The Court determined that while Constable Verot did not act with malice or bad faith, the breaches were not technical or minor either. The Justice noted that police officers are expected to know the laws that they enforce and that the legal principles were clear in previous cases such as Johnstone and Pelgrom. The Court emphasized that Constable Verot had several other options available to him, such as waiting for the Elantra to start moving to conduct a legal traffic stop. The Court also found that Constable Verot’s arrest of the other man without the requisite reasonable grounds was also concerning. The fact that Constable Verot infringed the Charter in three separate ways for two different people in the span of minutes was also a factor.
Impact on Protected Rights
The Court recognized that the cumulative impact of the breaches on the woman and the man’s Charter rights was substantial. Both were unlawfully detained, handcuffed, and searched, which significantly impacted their liberty and privacy rights. The Court also recognized the significant and negative effect on the man’s dignity while he was receiving medical treatment. Though the vehicle has a reduced expectation of privacy, the Court also noted that the Crown did not try to argue that the individuals had no expectation of privacy.
Interest in a Fair Trial on the Merits
The Court acknowledged that while the seized evidence was reliable and critical to the Crown’s case, and that the charges were serious, this factor alone was not sufficient to overcome the negative impact on Charter rights. The Justice stated that though the public has an interest in seeing the case heard, the public also has a vital interest in a criminal justice system that is beyond reproach.
Conclusion
Based on a comprehensive balancing of the factors, the Court concluded that the administration of justice would be brought into disrepute if the evidence was admitted. The combined seriousness of the state misconduct, and the substantial impact of the breaches on the woman and the man’s Charter rights, outweighed society’s interest in proceeding with the case. All evidence obtained from the vehicle and from the man was excluded.
Implications for Driving Law Practitioners
This case is an important reminder of the strict limitations placed on police powers during traffic stops.
It emphasizes the importance of understanding the specifics of the Motor Vehicle Act and how police must act in accordance with those specifics. Police must be well-versed in the nuances of the Motor Vehicle Act, especially sections pertaining to traffic stops and arrests. It is important to recognize that “driver” has a specific meaning and that a person sitting in a parked vehicle is not necessarily a driver within the meaning of the Motor Vehicle Act.
Police actions must always respect Charter rights against arbitrary detention (s. 9) and unreasonable search and seizure (s. 8). Any deviation can lead to the exclusion of critical evidence. The seriousness of an offence cannot justify running roughshod over individual rights.
Police need objectively reasonable grounds for an arrest, which is a higher standard than reasonable suspicion. Association with a location or a person is not enough to justify arrest.
A driving lawyer well-versed in the Motor Vehicle Act should carefully assess the sequence of events leading to a vehicle stop and the justifications given by police officers. They should also assess whether a search incident to arrest was truly for a valid objective.
This case also highlights the concept of consequential breaches, or breaches that occurred as a consequence of an earlier breach of rights. While they are included in the first stage of the 24(2) analysis, they do not usually add meaningfully to the seriousness of the state conduct. However, at the second stage of the analysis, they are fully considered.
It is yet another authority that constrains the powers of police to just randomly “stop” people who are sitting in parked vehicles and committing no offences.
