Multiple reasons do not make stop arbitrary

Mike Novakowski
June 23, 2009
By Mike Novakowski
A lawful and reasonable stop of a motor vehicle is not transformed into an arbitrary detention because there are additional reasons for conducting it, British Columbia’s highest court has held.

A lawful and reasonable stop of a motor vehicle is not transformed into an arbitrary detention because there are additional reasons for conducting it, British Columbia’s highest court has held.

In R. v. Kaddoura, 2009 BCCA 113, a police officer arranged, as part of an undercover operation, to meet with an individual to buy cocaine in a park parking lot. The transaction took place with the front passenger of the vehicle. Kaddoura was the driver. Following the purchase, the officer watched the car leave and radioed its description and licence plate number to other officers in the area, asking them to stop it to identify the occupants.

An officer on general patrol spotted the vehicle and assumed it was to be stopped in relation to a drug investigation, but wasn’t given any information justifying a stop. However, the officer noticed that the left taillight was damaged – the lens was cracked and white light was visible when it braked – a violation of s. 4.17(3)(a) of the BC Motor Vehicle Act Regulations (MVAR). He pulled over the vehicle because of the problem.

The officer asked the driver to step to the rear of the vehicle, where he pointed out the damage to the brake light and warned him that it was unlawful to drive it in that condition. He then asked for the vehicle registration and his driver’s licence – the officer’s invariable practice for a stop. The driver’s name and birth date were recorded – he wasn’t the owner. The officer also requested the two other occupants provide ID. After identifying them all, the officer allowed the vehicle to depart, making no arrests and issuing no violation notices.

At trial the officer testified he would not have pulled the vehicle over if he had not noticed the defect. He said he didn’t feel comfortable with the request and would have asked for more information about the reason for the stop.

The trial judge found the officer’s motivation for stopping the car was to identify the occupants, even though he felt he could stop it for the broken light. Since his aim or purpose was to identify its occupants, the stop was an arbitrary detention and resulted in a s.9 Charter violation.

In obtaining Kaddoura’s identification, the officer obtained “conscriptive” evidence, the admission of which would render the trial unfair. The evidence identifying Kaddoura as the driver and therefore as a person possibly involved in the earlier drug transaction, was obtained through the arbitrary vehicle stop and was excluded pursuant to s. 24(2) of the Charter. Kaddoura was acquitted of unlawfully trafficking in cocaine.

The Crown appealed to the BC Court of Appeal, arguing the trial judge erred in holding the vehicle stop a s.9 breach. Kaddoura, on the other hand, contended that the “dual purpose” in this case spoiled the stop and thus constituted an arbitrary detention. In other words, he suggested that the legitimate purpose (traffic safety) was tainted by the ulterior purpose (a criminal drug investigation).

Justice Groberman, authoring the unanimous decision, agreed with the Crown, finding the officer had proper grounds for stopping the vehicle because he had observed a MVAR violation.

“He was fully entitled to stop the vehicle under that statute and to request that the driver produce his licence and vehicle registration documents,” said Groberman. “The fact that the officer had other reasons to want to identify the driver does not transform a lawful stop into an unlawful one.”

He continued:

bq. The accused’s constitutional right is a right not to be arbitrarily detained. A roadside stop of a vehicle with a defective taillight is not an arbitrary detention. The accused did not have a Charter right not to be identified by the police – in requesting his driver’s licence and recording the details of it, the police acted under statutory authority and committed no unlawful act (para. 13).

There was no improper search nor inappropriate questioning which followed the stop, as has been a concern in other cases where evidence obtained in vehicle stops was ruled inadmissible. Nor was it a case where police were relying on a check-stop program authorizing arbitrary detentions, where there was a prima facie infringement of s.9 justifiable under s.1.

In arbitrary stop cases the s.1 analysis is altered when a random check-stop is used to conduct criminal investigations as well as motor vehicle checks – the stop becomes a more invasive one and the pressing and substantial objective of promoting traffic safety is diluted.

In this case, the stop wasn’t arbitrary because an MVAR violation was observed. It did not constitute a prima facie infringement of s.9 and therefore there was no need to consider the affect of other motivations for the stop on a s.1 analysis. Whatever concurrent motivations the officer may have had for the stop, one such purpose was to deal with a MVAR violation. Where a police officer has a lawful and reasonable basis to stop a motor vehicle, the presence of additional reasons to effect a stop does not transform it into an arbitrary detention:

bq. In summary, (the officer’s) decision to stop the accused’s vehicle wasn’t an arbitrary one; he had witnessed a violation of the Motor Vehicle Act and was entitled to stop the vehicle and obtain the driver’s identification. The fact that he also wished to know who was driving for the purposes of a drug investigation did not transform the lawful detention into an arbitrary one. There is no suggestion that (the officer) performed an unlawful search or otherwise violated (the accused’s) Charter rights after stopping him (para. 24).

The trial judge erred in finding that evidence identifying Kaddoura as the driver of the vehicle was obtained in violation of his rights under the Charter. The Crown’s appeal was allowed and a new trial ordered.

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