Police Obligations Upon Arrest or Detention: The Driver of a Motor Vehicle

In the prior blog entries, you may have read information concerning the powers of the
police upon arrest or detention. You may have also noticed the caveat at the end of these
posts that the same rules do not apply to the operator’s of motor vehicles. This post is
meant to inform upon police powers in reference to the everyday driver.

Do the Police need a reason to pull me over?

The answer to this question is more complicated than it seems. The Supreme Court of
Canada has long recognized that the police can stop the operator of a motor vehicle to
check on insurance, licensing , mechanical fitness of the vehicle, and the sobriety of the
driver. If the police have one of these things in mind, then they can pull the operator of a
motor vehicle over at anytime.

If you are under the belief that the police need to see you do something wrong to pull
you over, you are mistaken. Think of a Checkstop operation; when you go through a
Checkstop, you have done nothing wrong, but the police still have the lawful authority
to pull you over to assess your sobriety. This is because while the Charter of Rights and
Freedoms protects against arbitrary detention, driving is considered to be a privilege and
not a right, and it is considered to be a reasonable limit on our protected rights to allow
police to detain motorists to check on things such as insurance and sobriety.

This does not give the police an unfettered right to detain. The Supreme Court of
Canada has recently again recognized that police stops have to be connected to a valid
purpose, R. v . Nolet, 2010. In 1992, the Supreme Court recognized in R. v. Mellenthin
that authorized random roadside stops must not be turned into an unfounded general
inquisition to investigate potential crime or unreasonably search a motor vehicle.

The practical reality is that an officer simply has to state that he pulled a motor vehicle
over to assess sobriety, or inquire about licensing, insurance, or to inspect the mechanical
fitness of the vehicle. Experience has dictated that Courts are reluctant to invalidate a
random stop, even in situations where officer evidence as to the reason for the stop is
suspect.

It is always open for any individual to enforce their own rights. Police are supposed to
inform as to the reason for the stop, but if they do not do so, it is open for the person to
enquire why they were stopped. An individual is only obligated to provide evidence of
licensing and insurance to an officer, not to answer questions, or step from the vehicle,
absent a lawful demand. The right to silence enshrined in the Charter also protects the
right not to participate in any process, absent a lawful demand. Police are entitled to ask
a person from the vehicle, or question about alcohol consumption, but the individual has
the right to refuse participation, unless the police are asking them to do these things as
connected to roadside sobriety tests as authorized under legislation.

How do you know whether this is happening or not? Any valid sobriety tests conducted
under the authority of the Criminal Code or other authorizing legislation should be
accompanied by a fairly formal demand, usually read from a card in the officer’s
possession. As well, you can always ask why you are being asked to do something, and if
an officer is not forthcoming as to why, you have a right not to participate.

Understand that the police can get frustrated and perhaps even angry at a person that
enforces their rights. This is not a reason to give up your rights and do whatever the
police ask of you. Experienced and level-headed police officers will respect that there is
limits to their authority, and behave appropriately. Those that do not behave appropriately
can become the subjects of complaints, and possible litigation. Inappropriate police
action that brings their actions outside of lawful authority cannot be condoned, and it is
up to the public to constrain police authority through the proper exercising of protected
rights.

What should I do when pulled over or stopped by the police? Read the next entry to
understand what you can do to protect your rights.

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms