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Police Powers Newsletter | Pulled over

Motor vehicle passenger not arbitrarily detained where vehicle pulled over by police

Police Powers Newsletter

By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

4. Passenger in Motor Vehicle Not Detained during HTA Stop

Facts: The accused was a passenger in a motor vehicle pulled over for a Highway Traffic Act violation. The licence plate on the vehicle did not match the car. Both the driver and passenger were asked for identification.

After conducting a record check, the police discovered that the passenger was bound by a youth probation order that he was breaching. He was arrested, patted down, and then taken into custody. The pat down search revealed a hard object in the area of his scrotum. The police opted to leave the object in place until they arrived at the police station, at which time the accused was strip searched. A sock containing drugs fell from the area.

The accused argued that he was arbitrarily detained at the roadside when the vehicle was first pulled over. As the search of his identification was unrelated to the HTA purpose for the stop, he also claimed that his s. 8 rights were breached. He also argued that his s. 8 rights were breached by virtue of the strip search.

Held: The Charter applications were dismissed.

The accused was not detained. While he was necessarily stopped at the side of the 401 and unable to walk away from the vehicle because of the positioning of the car, this did not mean that he was detained within the meaning of s. 9 of the Charter. The trial judge found, as a fact, that the police did not make any demands of him or give him any directions. While they did not tell him that he did not have to speak to them, or provide them with information, nor did they tell him that he had to do so.

Unlike R. v. Harris (2007), 228 O.A.C. 241, he was not told that he had to keep his hands where the officers could see them. As highlighted by Doherty J.A. in Harris, the determination as to whether an individual is detained requires a fact-specific inquiry. The inquiry here revealed that while the passenger was kept waiting, he was not detained within the meaning of s. 9 of the Charter. As such, he was not arbitrarily detained and there was no s. 9 breach.

As for the s. 8 Charter complaint, the passenger was merely asked for his identification. He was not told that he had to provide it. There was nothing wrong with the police asking for the identification in the circumstances. The accused chose to hand it over. In the circumstances, there was no s. 8 breach.

The strip search complaint was summarily dismissed. The hard object located within the accused’s scrotal area justified the search. It was done once a private custodial area had been reached. The s. 8 motion in respect to this search was also dismissed.

Commentary: This case demonstrates the effect of R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33 and R. v. Mann, 2004 SCC 52. This trilogy of cases underscores the fact that “detention” within the meaning of s. 9 of the Charter means much more than simply kept waiting.

As Iacobucci J. first held in Mann, “the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stopped for purposes of identification, or even interview.” The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. It is only detentions that involve “significant physical or psychological restraint” that trigger s. 9 concerns. While a passenger in a vehicle is undoubtedly kept waiting, he or she is not necessarily under physical or psychological restraint, even when on the side of a road, with few places to go. See also: R. v. Humphrey, 2011 ONSC 3024; R. v. Frank, 2012 ONSC 6274.

R. v. Thomas (2015), 2015 ONSC 7299, 2015 CarswellOnt 18047 (Ont. S.C.J.)

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