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Pretext Stops
The “real” reason for the stop (pretext stops)
In Canada, Police are given generous police power when stopping motor vehicles. For example, they are allowed to conduct random stops to check that a driver is properly licensed and has his papers in order. However, Canadian law does draw a line. If it can be shown that that the sole purpose of the stop was to further the other criminal investigation and that there was no intention at all to investigate or pursue the other traffic infraction, the police action can be classified as a ruse or pretext (a pretext is a reason you give to hide the real reason you are doing something.)
The police stop – pretext stop
In R. v. Gayle 2015 ONCJ 575, Justice B. W. Duncan concluded that the a stop of a traffic infraction was nothing more than a ruse to investigate a subject about whether he was in fact following bail conditions (something that the police cannot stop a person for). In deciding whether a stop has been carried out for a legitimate purpose or as a mere ruse the following questions are useful:
· Did the traffic concerns continue to manifest themselves throughout the detention concurrently with the other investigation?
· Was the traffic investigation immediately non-existent or almost immediately abandoned?
· Was a ticket issued for the traffic violation or was it issued much later in the investigation?
· Was the stop valid absent the traffic violation i.e. were there grounds for stopping the vehicle absent a traffic violation?
The Supreme Court of Canada
The leading case from the Supreme Court of Canada on this issue is R. v. Nolet [2010] 1 SCR 851. At para 39 of that decision the Courts stated:
Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the “predominant purpose” test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.
In Nolet a regulatory search led to the discovery of drugs. Although the officer had suspicion that something was out of place, his reason for searching a bag which ultimately was found to have drug-money in it was to search for vehicle related documents.
Some may view Nolet as being a very pro-Crown friendly case, but I beg to differ. Nolet is very factual. In most cases I suspect the door will be left wide open for a trial judge to find that a police authority was using regulatory authority as a pretext for conducting a criminal search. In Nolet the following para (44) illustrate the point I am making:
The trial judge did not express any doubt about the officer’s evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he “pushed down on the duffel bag, [he] felt and heard paper products inside” (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search. The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants’ very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view.
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We aim to lead in each practice and area of law we work in. Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
As the business of our clients becomes more and more complex, it demands a proficient understanding of the global business environment.
Example of The International Private Law
Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
Note: Helping Bulgarian and foreign companies to fulfill their investment projects and commercial activity in Bulgaria has been our focus since the establishment of the law firm in 1996. When leading companies venture into the Bulgarian market, we help them understand what to expect and advise them on the best techniques to protect their interests. Our highest priority is to deliver the best of ANG boutique practice with every engagement.
Strong Local Capabilities and Experience
The 911 provider shall not impose, or fail to impose, on Company any requirement, service, feature, standard. Our lawyers will also represent you in civil litigation cases such as divorce, child and spouse maintenance. Our team leverages the robust legal expertise.
In conjunction with his vast know-how, our company leverages the robust legal expertise of working in different courts. Sometimes you may find yourself in difficult situations and not be able to defuse the situation without going to court.
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We aim to lead in each practice and area of law we work in. Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives. Ensuring the operational functioning of the organisation, the development of external relations, management of press relations and constant communication with the press. A wide range of legal services such as : Commercial litigation, banking litigations, financial and real-estate consultancy for development and investments.
We aim to lead in each practice and area of law we work in. Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
As the business of our clients becomes more and more complex, it demands a proficient understanding of the global business environment.
Example of The International Private Law
Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.
Note: Helping Bulgarian and foreign companies to fulfill their investment projects and commercial activity in Bulgaria has been our focus since the establishment of the law firm in 1996. When leading companies venture into the Bulgarian market, we help them understand what to expect and advise them on the best techniques to protect their interests. Our highest priority is to deliver the best of ANG boutique practice with every engagement.
Strong Local Capabilities and Experience
The 911 provider shall not impose, or fail to impose, on Company any requirement, service, feature, standard. Our lawyers will also represent you in civil litigation cases such as divorce, child and spouse maintenance. Our team leverages the robust legal expertise.
In conjunction with his vast know-how, our company leverages the robust legal expertise of working in different courts. Sometimes you may find yourself in difficult situations and not be able to defuse the situation without going to court.
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Detention
in detention
Psychological Detention
R. v. Wong 2015 OJ No 5049
The Canadian Charter of Rights and Freedoms says “everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right;”
The Decision
In a recent Ontario Court of Appeal decision, R. v. Wong [2015] ONCA 657 the Court reaffirmed the proposition that detention includes psychological detention and not only physical detention. In the Wong decision a fully dressed police officer entered into an apartment with the consent of the accused. He started noticing some drug related items but didn’t arrest or formally detain the accused.
The Court concluded that as the interaction between Ms. Wong and the officer continued, the officer’s conduct became “increasingly authoritative”. The detention in this case crystalized when the officer asked questions like “what’s going on here” “if the scale was for baking where are the baking supplies” “I could arrest you for being in possession of drug paraphernalia” .
The Court then also re-emphasized that “without delay” means “immediately” and therefore at the moment Ms. Wong was detained she was required to be informed of her right to counsel, immediately, and because this did not happen all subsequent evidence found (statements and drugs) were ruled inadmissible. The Court concluded:
Conclusion
As a criminal defence lawyer who often utilizes the Charter in defence of clients’ it is sometimes very difficult to analyze when a police interaction with a person has become a de facto detention of arrest. It is critical to know when this Rubicon has been reached because as Wong demonstrates, if evidence is gathered without proper Charter compliance then evidence could be excluded.
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Pat-Down Searches
Pat-Down Search
Until 2004 the scope of police powers regarding their authority to do pat-down searches was uncertain.
In fact, as a law student I particularly found this area of the law especially interesting. Since 2004, the contours and limits of pat-down law have been for the most part well defined. Some recent cases have re-ignited the scope of the pat-down search.
1993
Up until 1993, in Canada, a police officer had no power or authority to conduct a pat-down search on a person unless they had reasonable and probable grounds to arrest that person for an offence. I have no doubt that as a matter of routine, pat down searches were conducted all the time, under the genuine concern for officer safety or perhaps as a ruse or guise to search for evidence. In the latter case such a search would really have been conducted on nothing more than suspicion, an educated guess based on “officer experience”. In any, event prior to 1993 a bright line existed in the law: detention of a person and search was only permissible if a police officer had reasonable and probable grounds to arrest a person. In 1993 in a case called R. v. Simpson (1993) 12 O.R. (3d) 182 the Ontario Court of Appeal decided that the police did not have what they termed “articulable cause” a term borrowed from U.S. jurisprudence to stop and do a pat-down search on the individual they were stopping. In that case, police followed a suspect from a known drug house. They stopped his vehicle, and did a “pat-down” search located narcotics. The Court excluded the evidence and held that the police did not have articulable cause to stop and search for investigative purposes which they defined as:
. . . a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.
Although Mr. Simpson was acquitted, this decision ushered a new era in Canadian police enforcement. For the first time, a Canadian Court recognized a police power that fell below the status quo level “reasonable and probable grounds”.
2004
In 2004 the Supreme Court of Canada rule on a case R. v. Mann 2004 SCC 52 and endorsed the Simpson decision but replaced the terminology of articulable cause with “reasonable grounds”. The Court held that a pat-down search was permissible but only to the extent necessary to secure officer safety. A police first had to genuinely feel it necessary to conduct a pat-down search for his/her safety. Second, the search would not allow him to search pockets or objects on a person that were non-threatening. For example, a handbag may be searched or patted down but unless an hard object is felt inside the bag there would be no reason to open up the bag.
2015
Some recent cases have questioned the police practice of doing pat-down searches when investigation persons for impaired driving offences. See for example R. v. Schwab 2015 AJ No 903. Simply, if a motorist is transported to a police vehicle for a screening test (assuming that transport is valid), what gives a police officer the right to conduct a pat-down search on the person as a matter of practice?
Certainly, we have not heard the end of the pat-down search issue in relation to impaired driving cases. I will eagerly await an Appellate case and post if one becomes available.
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Defence of Intoxication
in Defences
The Defence of Intoxication
For most crimes, the fact that a person voluntarily consumed alcohol/drugs and became so drunk that they did not intend to commit the particular crime alleged of, would not absolve them of liability. There are however a specific set or subset of crimes where the defence of intoxication could in fact play a part in nullifying or reducing a person’s liability. These types of offences are known as specific intent offences and include offences like murder or theft.
From Murder to Manslaughter
A murder charge could be reduced to manslaughter, a lesser offence, if a jury was left in doubt as to whether the accused intended to cause death or cause bodily harm with the subjective foresight of death. In other words, if a person was so drunk that they did not intended to kill a person through his or her actions then intoxication could assist a person.
In R. v. Steinhauer 2015 ABCA 3 the Alberta Court of Appeal concluded that a new trial was necessary because the trial judge failed to instruct the jury that the defence of intoxication was a live issue and could reduce the charge from murder to manslaughter.
Theft and Intoxication
Reluctantly[1] judges have acquitted individuals who were so drunk that they did not form the requisite intent necessary to steal. However, I wouldn’t hold my breath on trying to run this type of defence too often. While the defence is available for theft type offence judges have also set the bar very high in applying the defence[2].
Conclusion
The defence of intoxication remains a viable defence in Canada and should not be discounted in certain circumstances.
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[1] A judge made these comments: “ I cannot leave this decision without expressing my feeling of dissatisfaction at the result. The accused has escaped conviction because the Crown has been unable to rely as it normally does upon certain presumptions for proof of an essential fact to each charge. It has been unable to do so because of diminished capacity self-induced by the accused. Society cannot protect itself against such anti-social activity with its present machinery. New procedures are apparently necessary to prevent individuals such as this accused from benefiting from their own wrongful acts.” see R. v. Bucci [1974] NSJ No. 211
[2] See R. v. Drader 2009 ABPC 360.
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Refusing to provide a breath sample
Refusing to Provide a Breath Sample
When stopped by police and asked to provide a breath sample into an approved screening device, should you comply?
As a general rule the answer to this question is “yes”. A police officer requires very little grounds to demand that you provide a sample of your breath into an approved screening device. The law currently in Canada states that all that is required for him/her to have grounds to demand a sample of your breath into an approved screening device is reasonable suspicion to believe there is alcohol in your blood.
How does the officer form this suspicion? There can be many different ways depending on the circumstances.
Admissions
Firstly, the officer may simply ask “have you had anything to drink”. If the answer is yes and this answer can be linked temporally to your driving then that would be enough grounds. In the leading case in Alberta R. v. Flight 2014 ABCA 185 at paras 58 and 61 the following law was pronounced:
In this way, Hnetka is distinguishable on its facts. The driver in Hnetka said that he had something to drink “a while ago.” Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R v Kimmel, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.
In summary, I conclude that in most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.
Indicia
If a motorist does not admit to drinking an officer may still be able to smell alcohol on a motorist’s breath. If the officer is able to convince the trial judge (and on this point he usually can, although, my office has had success in convincing a judge that the officer was mistaken on what he smelled) that he smelled alcohol then that would be enough. Other indicia would include and accident; slurred speech; blood shot eyes; poor balance and co-ordination etc. etc.
The bottom line
A peace officer needs very little to demand a sample of your breath into an approved instrument. Only unless you are convinced beyond certainty that the officer is simply on a pure fishing expedition without any grounds whatsoever can you refuse in law. This course of action is risky. A refusal conviction is akin to an impaired conviction.