Police may take reasonable steps to ensure their safety during traffic stops, Ontario's top court held, including ordering a passenger to keep their hands in a fixed location.
In R. v. Johnson, 2013 ONCA 177, Toronto Anti-violence Initiative Strategy (TAVIS) officers, responsible for providing high-visibility uniform policing, saw a car stop partially in a traffic lane and partially on the boulevard in an area that regularly experienced spikes in violence during the summer. A backseat passenger yelled "Southside" as the car left.
The officers stopped the car. The driver did not have his G1 licence (graduated licence requiring the accompaniment of a fully licensed driver with at least four years driving experience) with him. A second front passenger wasn't fully licenced. While they were writing tickets for driver unaccompanied, failure to surrender a licence and having no current licence plate tag, a second officer directed Johnson, a rear passenger, to keep his hands on the back of the driver seat where he could see them. The officer was curious why Johnson had yelled "Southside" but did not ask him about it.
The conversation was cordial, polite and respectful. Johnson identified himself, provided his date of birth and gave his address. A CPIC query was inconsequential. Noticing the end of a gun sticking out from a backpack on the seat next to Johnson, the officer reached in, took the bag and found a loaded semi-automatic handgun. There were also items belonging to Johnson, including an inhaler with his name and date of birth on it. Johnson was arrested, given his rights to counsel and subsequently charged with several offences.
Johnson argued before the Ontario Superior Court of Justice that his rights under ss. 8, 9 and 10(b) of the Charter had been breached and the evidence was inadmissible under s. 24(2) but the judge disagreed. He found police lawfully stopped the car, even though they had two sets of interests: (1) Ontario Highway Traffic Act (HTA) offences and (2) curiosity as to why Johnson yelled out "Southside."
The judge proceeded on the basis that passengers are not automatically detained upon an HTA stop. The interaction between police and Johnson was cordial and brief. Johnson's temporarily restricted movements did not render the encounter a detention. The requirement that Johnson put his hands on the top of the car seat in front of him during this period was a routine act to protect the safety of officers. The judge stated:
This type of routine concern for police officer safety, objectively viewed, does not result in a finding of detention. A reasonable person informed of all the circumstances would understand that the officer is taking a routine safety precaution in an area of the city that, according to the evidence in this case, historically saw a spike in violence in the summer months.
Johnson was required to keep his hands in view for an extended period due to the time it took for the three HTA infractions to be documented. The judge found that checking Johnson on CPIC was an unlawful search, but since it did not turn the delay into a detention, result in any additional police interest or lead to finding the handgun, the pistol was admitted as evidence under s. 24(2).
Johnson was convicted of possessing a loaded prohibited or restricted firearm, possession of a loaded firearm knowing he wasn't licensed, three counts of possession of a firearm while prohibited by three separate s. 109 orders and breach of a probation order term prohibiting him from possessing a firearm. He was sentenced to nine years in prison.
Johnson challenged the trial judge's ruling before the Ontario Court of Appeal, submitting he was detained and that the evidence was inadmissible.
Was there a detention?
Justice Epstein, writing for himself and another judge, found Johnson was detained when he was asked to put his hands on the back of the seat in front of him.
"A person can be restrained physically or psychologically. Either amounts to detention," he said. "If a person obeys a police command on the basis that he or she believes there is no alternative, that person is detained for the purposes of ss. 9 and 10 of the Charter."
In assessing whether an individual was psychologically detained a court will look at the circumstances giving rise to the encounter, the nature of the police conduct and the particular characteristics of the individual. In this case, Epstein found it unnecessary to decide whether passengers are automatically detained upon an HTA stop. Instead, he concluded that Johnson was detained when he was directed to put his hands on the seat in front of him:
Significantly, Johnson wasn't merely asked to keep his hands visible; he was directed to put his hands on the seat in front him – in a fixed place. It was clear that (the accused) could not obey (the officer's) command to keep his hands on the seat and at the same time, open the car door, get out and walk away. Johnson was effectively instructed to stay put (para. 39).
(V)iewed objectively, Johnson would reasonably believe that he wasn't free to move his hands off the seat in front of him. Johnson would reasonably believe he wasn't free to get out of the car and walk away. Indeed, Johnson would almost undoubtedly have aroused the police officers' suspicions had he tried to leave, since that would necessarily involve disobeying (the officer's) direction to keep his hands on the seat. It follows that Johnson was under psychological restraint at least from the point when (the officer) ordered him to keep his hands on the car seat in front of him (para. 41).
Was the detention arbitrary?
Johnson's detention was not arbitrary. "Officer safety is a valid reason to take reasonable steps to control the vehicle," said Epstein. Furthermore, Johnson's s. 10(b) rights were not breached.
"It is well-established that lawful detention arising out of an HTA matter does not engage a person's rights set out in s. 10(b) of the Charter."
Assuming Johnson's s. 8 rights were breached when the officer, without lawful authority, asked him for information necessary to conduct a CPIC check while detained, the trial judge made no error in admitting the gun. Johnson's appeal against conviction was dismissed and his sentence upheld.
A slightly different view
Justice Doherty would also dismiss the appeal but saw no reason to review the trial judge's finding that Johnson was not detained. Even if he was, the detention wasn't arbitrary and did not engage s. 10(b) rights. As well, assuming that the police questioning was an unlawful search that violated <s. 8>, he agreed that the trial judge did not err in admitting the gun as evidence.