Unlawful police traffic stops

Earlier this week, a video surfaced of a Kelowna RCMP officer stopping a vehicle because the passenger had made a frustrated gesture at the officer after some poor driving on his part. It is clear in watching the video that the officer's true purpose in stopping the vehicle was to berate the passenger for his gesture. When challenged on his decision to stop the vehicle, the officer told the driver that he had stopped her for a license and insurance check. It was obvious that the officer was retroactively trying to justify what was an arbitrary and unlawful traffic stop. The officer is now under investigation. 

This interaction got me thinking about lawful and unlawful police stops. As a driving and criminal lawyer, I receive many calls from clients who are concerned about the police and their traffic stops. Many people are concerned about the reason why the police pulled them over in the first place. This post will explain when the police are justified in stopping your vehicle.

Police Discretion for Traffic Stops
The police in Canada have a wide discretion to stop vehicles and conduct investigations. Although in some U.S. states, drivers are protected against random vehicle stops, including roadblocks, the Supreme Court of Canada has ruled that police have the authority to conduct random traffic stops in order to ensure drivers are validly licensed and insured, and to ensure that drivers are sober and fit to drive. This is consistent with the public good achieved by reducing the number of deaths and injuries on the roadway. There is also authority in the Motor Vehicle Act requiring a driver to produce a license on request by a peace officer, and requiring a driver to stop the vehicle and state his or her name and address to a police officer.

In the situation in the Kelowna video, the driver was required to stop the vehicle once signalled to do so by the officer. She was also required to produce her license. But the officer's true purpose in stopping her was not for any authorized purpose known to law. It was to pick a fight with her passenger. The driver was right to challenge the officer's conduct. He should never have stopped the vehicle in the first place.

The police also, of course, have the authority to stop anyone they observe committing a Motor Vehicle Act or Criminal Code violation, and if they have reasonable grounds to believe an offence has occurred. It is not uncommon for police to conduct what seems like a random traffic stop when they observe behaviour that is consistent with a dial-a-dope operation. So traffic stops that seems unjustified at first blush may well be justified in law.

What Happens When the Traffic Stop is Unlawful?
I've dealt with many scenarios in which the police unlawfully stop vehicles. What the result is will likely depend on what forum you are dealing with. For example, if you're charged with a criminal offence you are far more likely to receive a remedy than if you are charged with a Motor Vehicle Act offence.

Recently, I dealt with a criminal case in which the officer testified that he stopped my client's vehicle because he was, essentially, curious. He had not seen any offences being committed and he did not articulate that he was conducting a sobriety or license/insurance check. The Court concluded that this was an unlawful vehicle stop, and excluded all of the evidence that was obtained after the vehicle was stopped. Similarly, in the case of R. v. Harrison, the Supreme Court of Canada considered an unlawful stop of a driver who, it turned out, was transporting 35 kg of cocaine. The officer had pulled behind the vehicle intending to stop it for not having a front license plate. The vehicle was registered in Alberta, however, where front plates are not required. The officer didn't want to embarrass himself by not stopping the vehicle, so he stopped it anyway.

He was probably more embarrassed when all the cocaine was excluded from evidence on the basis of his serious Charter violation.

Because the police have such a wide discretion to conduct these stops, the courts treat it far more seriously when they abuse that power. There have been a recent line of cases from the BC Provincial Court in which drug squad members were conducting traffic stops as a pretense to detain and search drivers. The Courts didn't like that either. As Spiderman has taught us all, with great power comes great responsibility.

But what about in the administrative context? What if your vehicle was unlawfully stopped in an Immediate Roadside Prohibition case?

The sad thing is that the RoadSafetyBC tribunal does not seem to be so concerned about unlawful traffic stops. A good example is a client of mine who was stopped for driving the speed limit. The officer wrote in her report that she stopped my client for driving at the speed limit, which she found to be unusual. He was then asked to blow into a roadside breathalyzer and refused on the basis that being stopped for following the law was the dumbest thing he had ever heard. Rightly so. But the tribunal did not seem to care. Notwithstanding the Court's conclusion in the constitutional challenge to the second version of the scheme that Charter violations can and must be addressed, the prohibition was confirmed.

How Do I Know if My Vehicle Was Stopped Unlawfully?
You don't, really. These are questions that are more easily answered by the police report or by the testimony of the officer. Although you are detained within the meaning of the Charter, and your Section 10(a) rights are triggered, in my experience most police officers fail to advise drivers in traffic stops about the reason why they've been pulled over. Granted, in many cases it is obvious. But there are also plenty of cases in which it is not obvious why a driver has been stopped. If you're those people driving through Kelowna, you know that your vehicle has been unlawfully stopped. But if you're Mr. Harrison, you cannot really be certain.

Police vehicles are equipped with Automated License Plate Scanners, meaning that even if you are driving in a manner that would not draw anyone's attention, the police are still running your plates. If the registered owner of a vehicle is prohibited, you're likely to be stopped. Ditto if the registered owner is supposed to display an "N" sign and one is not displayed. The police will often then stop the vehicle to ensure compliance with the Motor Vehicle Act.

Often, I get calls from people who feel they have been targeted by police due to a poor driving history (multiple IRPs, for example) or the type of car they drive. In some circumstances, these stops can be unlawful. But in many, given the broad discretion police have to pull over drivers, this isn't the case.

The easiest thing to do is follow these simple guidelines: If you've been stopped leaving a bar, pub, or licensed establishment assume the traffic stop is justified. If you're prohibited or violating the Motor Vehicle Act in any way, assume the traffic stop is justified. If your driving is erratic, assume the stop is justified. If you pull up to a roadblock, assume the stop is justified. But if you throw up your hands in frustration at a police officer's inattentive driving, assume that there is no lawful basis to stop you.