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Roadside Assistance

Friday May 30, 2014

We’ve all been there before.

Cruising down the road, wind in our hair and sun on our face, pulling 120 with Grandma’s medicinal marijuana stashed in the glove box. Well, maybe not that last part.

But however it happens, when your rearview mirror is suddenly emblazoned with flashing red and blue lights, Canadian law – with all its rights, duties, and uncertainties, is suddenly much closer and more important than it usually appears. Get ready for the crash course.

All of us, under the Canadian Charter of Rights and Freedoms, have the right not to be subject to unreasonable search or seizure, and not to be arbitrarily arrested or detained. The key words here are ‘unreasonable’ and ‘arbitrary’, and our courts have had much to say about how such subjective assessments apply when someone is pulled over and questioned by the police.

First, if a driver is being stopped for a reason that would normally attract only a ticket, police cannot, without more ‘reasonable grounds’, snoop through a vehicle looking for evidence of a separate offence.

But in some circumstances (such as stunt driving or operating an unregistered vehicle), the Ontario Highway Traffic Act gives police the right to impound a car or arrest the driver, and in these instances reasonable ‘pat down’ searches and ‘inventory’ searches of vehicles is legally authorized. The purpose for such searches cannot be to look for evidence of an offence for which a person was not arrested, but simply to protect the safety of people and property.
But if these kind of searches turn up illegal items (like drugs or weapons), the driver will very likely be charged and convicted of these more serious crimes.

To help explain the foggy issue of what’s allowed and what is not when it comes to vehicle stops, let’s get back to the fast car, the hot day, and the roadside conversation you probably wish you weren’t having. Officer Booker is firm and polite as he asks for your license, insurance, and registration. So far, so good – it’s Kookum’s car, but the officer accepts that you are using it with her permission, and all the papers are up to date. Maybe a speeding ticket isn’t the worst thing in the world – and while driving 30 clicks over the limit might land you a hefty fine, it doesn’t allow the police to arrest you or search your car. But Officer Booker scratched his nose when you pulled out those insurance papers, and you also notice that it suddenly smells a bit like a skunk has wandered onto the scene. Truth be told, you don’t really know what’s inside that tin container – Grandma has a habit of leaving her things in odd places, and it isn’t polite to ask too many questions. So you can’t really answer Officer Booker’s either – and you don’t have to.

In Canadian law, we all have the right to remain silent when being questioned about a potential crime. While no one wants to unduly annoy the person with a holster and handcuffs on their belt, politely declining to answer investigative questions isn’t wrong, and it should never (at least in theory) be the basis for any further police investigation to suddenly be considered reasonable, when it wouldn’t have been before.

Still, no wonder you’re nervous – what if he thinks you’re a drug trafficker or something? At this point, even though Officer Booker reeeaally wants to detain you and start searching the car for the source of that smell, he has to ask himself some tough questions.

Does the evidence – a smell, your silence, your nervousness – give him reasonable grounds to ask you to step out of the car, read you your rights, and start a drug investigation? Does he see anything objectively suspicious, or is he just acting from a hunch, a guess, a profile?

Prejudging a judge can be a fool’s game – similar cases can, in our system, validly be decided differently by different judges, as long as the right legal principles are fairly applied.

On these facts alone, however, I would suggest that for this officer to proceed further, he would have to have more grounds to make any decision to detain you and search your car ‘reasonable’, in the eyes of the law. Gut feelings aside, being a good police officer sometimes means simply scratching one’s nose again, getting back on the road, and keeping our communities safe.

Have a question for our columnist related to law issues in northern Ontario? E-mail him at: smowen@tbaytel.net

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives.

These columns represent the personal views of the author alone, and not of any organization that he may be associated with.

Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have.


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