A vehicle pull-over was conducted, and a search was conducted. Police located a loaded handgun, and the accused was charged with unlawful possession of a loaded firearm. The accused hired Daryl Royer, and he conducted the trial, including cross-examination of the police witnesses. Mr. Royer argued the vehicle pull-over and search were arbitrary and unlawful. The evidence was excluded.
The argument below succinctly summarizes how Mr. Royer was able to successfully have the firearm excluded from evidence. The witnesses’ names have been removed.
Vehicle Pull-Overs and Searches Section 9 and Section 8 of the Charter of Rights and Freedoms
Dedman, Hufsky, and Ladouceur provide the Court with guidance in regard to vehicle pull-overs, both in the case of random roaming vehicle pull-overs and check stops. Dedman predates the advent of the Charter. The case states that there does not have to be any articulable cause for a vehicle pull-over. The common law allows for such random police pullovers. The vehicle pull-over Dedman was part of was a well-publicized scheme involving the checking of driver sobriety at check stops.
Hufsky was a decision considering the legality of vehicle check stops for the purpose of checking driver sobriety, driver’s license, registration, and insurance, as well as mechanical fitness, after the advent of the Charter.
A vehicle pull-over is significantly different from a check-stop program. The Supreme Court of Canada dealt with the issue of a random vehicle pullover in Ladouceur. The Supreme Court of Canada found that the random pulling over of motor vehicles was arbitrary and a violation of a Canadian’s right to be free from arbitrary detention. The Court went on to find that although arbitrary and a violation under section 9 of the Charter, the legislative power was reasonably justified under s—1 of the Charter. The reasonableness of the limitation, however, only applies if the stop was for one of the reasons set out in Hufsky: (1) to check driver’s sobriety, (2) driver’s license, and (3) registration, or (4) mechanical fitness.
The only reason that a vehicle pull-over can occur where there is no violation of s. 9 of the Charter is if the vehicle is not arbitrarily detained. There will be no s. 9 violation if the detention of the vehicle is not part of a check stop, and the vehicle stop is not random but is, instead, a vehicle pull-over based on reasonable and probable grounds that a crime has occurred. The case of Simpson provides a legal analysis of when a vehicle pull-over will and will not be found to violate the Charter. The case uses the phrase “articulable cause” in terms of reasons for the vehicle pull-over.
Whether a vehicle pull-over, as alleged by the police, was for the purpose of checking mechanical fitness or otherwise, including for articulable grounds, is a fact-finding process.
An example of a case – Re: Charter Section 9 (Mechanical Fitness)
The Constable testified that he noted the Black Infiniti had some issues with it relating to Traffic Safety Act concerns. Specifically, a loud muffler and the front tires appeared to be in disrepair. That was the Constable’s evidence in the chief examination. [Transcript Page 11/ Lines 15-21] The Constable then approached the vehicle and asked for the “standard” information: driver’s license, registration, and insurance. He then returned to the police vehicle. [12/24-27] The Constable was consistent in this regard. He never testifies that he approaches the vehicle, looks at the tread to ensure mechanical fitness, or that he inspects the exhaust. The Constable consistently testifies that he approaches the driver of the vehicle, seeks the driver’s license, proof of insurance, and registration, then goes back to his police car. [91/15-92/1]
The officer did not issue a ticket for the muffler. The officer did not issue a ticket for the tires. The officer did not issue a rectification slip for the muffler or the tires. [25/24-27] The officer also did not inspect the exhaust at any time. [81/19-27]
The officer testified he did look at the depth of the tread on the tires, and he further testified, “There was nearly no depth left on the tread.” The reason for seizing the vehicle was consistently stated to be, “to do an inventory on the vehicle and continue to search incident to arrest.” [82/12-14] The vehicle was not seized because of mechanical fitness.
When it was pointed out to the officer that the tires were “G” or in good condition, he testified that that was contrary to what he suspected prior to pulling the vehicle over. The Constable that he had previously testified he inspected the tires then testified that, “yes, they were – they were bald completely bald.” [100/19-101/3] The Constable also testified that he “inspected the tires” at the detachment. [100/26] At absolutely no point is there any evidence that he ever discussed the exhaust of the vehicle with anyone, nor is there any evidence that he ever asked about the vehicle’s mechanical fitness.
His notes stated, “ Two black male occupants were observed as they passed the police vehicle. Member proceeded to follow the vehicle, and it was noted the vehicle had a very loud”. The Officer responded by stating, “The vehicle came out just as we were coming down the street. The vehicle turned, and as the vehicle was turning, that’s when we could hear the muffler.” The first thing he noted in his police summary was that it was a black Infiniti with two blacks in it. [66/8-25]
Conclusion Re: Traffic Safety Act Concerns
The officer did not testify that they pulled the motor vehicle for the purpose of checking for driver sobriety or to check on license registration or insurance as part of a roaming random stop patrol. Instead, he testified that they pulled over the motor vehicle as a result of mechanical fitness issues related to the Traffic Safety Act. That testimony would be presumed truthful. However, he never actually asked any questions or did anything at the scene related to the mechanical fitness of the vehicle. He did not check the tires nor examine the exhaust and never testified that they even mentioned any mechanical issues to the “suspects.”
Instead, the “suspects” were questioned about where they were going, what they were doing in town, and who they were there to see. The answers were “insufficient” and “vague.” One of the suspects failed to provide the last name of who they were in town to see. When did mechanical fitness ever have anything to do with this vehicle pull-over…?
The Constable testified that he “inspected the tires” at the detachment. [100/26] His evidence is inconsistent, and he testified that both “there was nearly no depth left on the tread” and “yes, they were – they were bald completely bald.” [100/19-101/3] [82/12-14] It is respectfully suggested the reason for this motor vehicle pull-over had nothing to do with mechanical fitness, and that is proven by the lack of any care or attention being paid to any issue involving mechanical fitness.
Testimony Re: Charter Section 9 (Articulable Cause)
This issue is aptly described by the Crown in examination in chief. The question was asked, “Was there anything else that caused you to be interested in this particular vehicle or these particular occupants?” The Constable’s answer was, “I did receive prior intelligence that they were involved in a drug – in the drug trade locally.” [14/21-14/26] The officer also testified that “Through known drug users in the community, advised they were in the community to distribute drugs.” [15/7-8]
However, the officer also testified that they were not looking for this vehicle and that it merely attracted their attention. [26/26-27] The Constable’s evidence then appears to vary to the point where it no longer includes individuals involved in the drug trade but a car involved in the drug trade. “Multiple investigators noted that a black Infiniti in town, which is fairly rare, is involved or has been involved in the drug trade.” [27/5-12] The Constable testified later that he had, “received intelligence that there was a black Infiniti but other than that, there could be several black Infiniti’s. Well, there couldn’t be several but – but there could be others”. [103/2-5]
The officer did not put anything about informants providing information in regards to a black Infiniti in the Prosecutor’s Information Sheet, in his notes, or in his police summary. [103/2-106/9] The officer does not suggest that there was subjective, nor was there objectively a ground for detention.
This case is significantly similar to the case of Simpson from the Ontario Court of Appeal. In the Simpson case, police, acting on information that a particular house may be a “crack house,” stopped a motor vehicle that left the house. The officer in the Simpson decision was forthright with the Court and testified that he was seeking confirmation of what he suspected. The stop and detention were not authorized by law because there was no Traffic Safety Act type of issue.
The vehicle stop was, therefore, only lawful if the Crown could prove an articulable cause for the vehicle pull-over. There must be a constellation of objectively discernible facts which give the officer grounds that the accused has committed a criminal offence. As the Court stated, “A hunch based entirely on intuition cannot suffice.” [Page 2 of 21, on QL]
Conclusion
Within the Charter application on the issue of whether the Accused was arbitrarily detained, it states:
It is respectfully submitted that these very young black Canadians were pulled over arbitrarily while driving a very expensive motor vehicle in a predominantly white and Aboriginal community.
As Professor Quigley points out in his text, “Procedure in Canadian Criminal Law”:
It is disappointing that our Supreme Court has bowed so much in the direction of expediency in law enforcement. It is true that impaired driving and other vehicle offences are serious problems. But so is the risk of discriminatory law enforcement, for it threatens the ethic of equality that underlies both the rule of law and the Charter protection of legal rights. The danger of these decisions is that police are permitted to stop whom they please, provided the stop is for one or more of the purposes set out in Hufsky and Ladouceur. There is nothing to prevent police from focusing their attention on, for example, young drivers, Aboriginal people, or other visible minorities. It is very simple to indicate one of the permissible reasons for the stop and very difficult to establish that the police officer used the personal attributes of the driver as a means of selecting vehicles to stop.
Professor T. Quigley, “Procedure in Canadian Criminal Law”: Page 116, Arbitrary detention.
Professor Quigley, it is respectfully submitted, accurately summarizes the concern expressed within the Charter Notice in this case. This concern is heightened by the fact that the first thing noted was that it was a black Infiniti with two blacks in it. [Transcript Page 66].
Professor Quigley’s concern may be somewhat misplaced, however, wherein he suggests that there is nothing to prevent the police from focusing their attention on, for example, young drivers, Aboriginal people, or other visible minorities. Certainly, the police must still establish, in fact, that they did pull a motor vehicle over for one of the enunciated reasons in Hufsky or based on reasonable cause. The burden to justify this warrantless detention as being based on either the Traffic Safety Act or the Common Law “articulable cause” remains with the Crown. It is not for the Defense to prove to the Court that the police lacked grounds, but rather for the Crown to show they had the grounds. As Professor Quigley states, “It is very simple to indicate one of the permissible reasons for the stop.” However, the facts must support the assertion. It is respectfully submitted that the facts, in this case, do not support the assertion, and the Applicant has established that his rights were violated pursuant to section 9 of the Charter.
Whether the “hunch” was based on race is something the Court should be concerned with. The Court acts as a safeguard against discriminatory behaviour, and it is not a burden for the Applicant to show actual discriminatory behaviour.
Unreasonable Search (Charter Section 8) – The Issue
The search of the vehicle was without a warrant and is, therefore, prima facie in violation of the Applicant’s right not to be subjected to any unreasonable search or seizure. The search was done without reasonable and probable grounds, and the search of the vehicle is not in any way related to the reasons for arrest. The search of the Applicant’s vehicle violated the Applicant’s right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter.
State Of The Law, Vehicle Search, And Section 8
Remarkably the officer never actually testified in a manner that would in any way justify the searching of a motor vehicle. The law is clear that if a vehicle pull-over is made for one of the purposes enunciated in Hufsky, it cannot then be “turned into a means of either conducting an unfounded general inquisition or an unreasonable search.” The officer never attempted to connect the search with the reasons for arrest, and instead, each testified that the search, although having nothing to do with the arrest, was both incident to arrest and incident to towing.
The Crown Prosecutor laughed out loud when it was suggested that inventorying motor vehicles to ensure no one gets accused of stealing anything creates a situation wherein someone might get accused of stealing something. The laughter itself shows the lack of common sense in the argument that one goes through a vehicle to make sure they are not accused of taking anything.
The questioning itself is a search. As stated in Mellenthin,
The unreasonable search carried out here is the very kind that the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver, and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol, or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted.
The fairness of the trial would be affected if check stops were accepted as a basis for warrantless searches and the evidence derived from them were automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out. At the same time, a motorist who was detained in a check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute.
Even absent bad faith on the part of the police, the breach was serious. The search, conducted as an adjunct to the check stop, was not grounded on any suspicion, let alone a reasonable and probable cause. It is the attempt to extend the random stop programs to include a [page 618] right to search without a warrant or without reasonable grounds that constitute a serious Charter violation.
The police officers each took turns suggesting they were inventorying the vehicle. It is completely unlawful for police to inventory a vehicle, and it has been held unlawful by the Supreme Court of Canada.
Searches and seizures must be authorized by law and can fail to meet this requirement if any one of three conditions is not met. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. Third, a search must not exceed its scope as to the area and as to the items for which the law has granted the authority to search.
If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest: the police must be able to explain, within the purposes recognized in the jurisprudence (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they conducted a search. They do not need reasonable and probable grounds. However, they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to an arrest, but they may cause the court to draw a negative inference. That inference may be rebutted by a proper explanation.
A police search of the car for the purpose of finding evidence that could be used at the accused’s trial on the charge of possessing marijuana for purposes of trafficking would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search. However, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. Agents of the state must act in accordance with the rule of law. Hence, they must not only objectively search within the permissible scope but also turn their mind to this scope before searching and satisfy themselves that there is a valid purpose for the search. Here, the purpose of the search was to inventory the contents of the vehicle, which falls outside the bounds of the legitimate purposes of the search incident to arrest.
The applicant recognizes that there are cases that have held the police are entitled to search vehicles incidental to arrest, and the cases attempt to follow Caslake in that regard. Here, however, the police have testified that the search of the vehicle is in no way related to the arrest. The police have also not suggested they have reasonable and probable grounds.
Conclusion
It is respectfully submitted that the police officers had no grounds to search the motor vehicle. It is further respectfully submitted that they do not even seriously suggest they did. Rather they just decided to search this vehicle. As the Constable testified, “it’s possible, yes,” that he was acting on a hunch.