Intent matters: Private property pull-over lawful
By Mike Novakowski
By Mike Novakowski
A random vehicle stop on private property was lawful because the officer formed the intention to pull it over while it was driving on a public roadway.
In <R. v. Anderson, 2014 SKCA 32> a police officer followed the accused’s vehicle in the early morning hours with the intention to stop it and check for licence, registration and driver sobriety. The vehicle turned into a private yard where Anderson lived. The police officer followed, drove onto the private yard and turned on his lights to stop the vehicle.
The vehicle continued in the private yard and eventually came to a stop in front of a large building at 12:47 am.
Up to this time, the police officer had observed no driving infractions or any other offences being committed. The officer approached Anderson, who complied with a request to produce his driver’s licence and vehicle registration. He said he had “a couple of beers” when asked about drinking.
The officer formed a reasonable suspicion that Anderson had alcohol in his body and demanded a breath sample into an approved screening device (ASD) at 1:02 am. The officer turned on the ASD, explained the procedure while the ASD warmed up and obtained a sample at 1:18 am, which registered a fail.
Immediately thereafter the officer made a breath test demand under <s. 254(3)> of the Criminal Code, gave the police warning and advised Anderson of his right to counsel, which was declined. He was taken to a police detachment and subsequently provided two breath samples at 2:31 am and 2:49 am, registering readings of 170 mg% and 160 mg%.
Anderson was charged with operating a motor vehicle while his blood alcohol level exceeded 80 mg%.
A Saskatchewan Provincial Court judge found the traffic stop unlawful. Since the officer did not attempt to stop Anderson until he left the public highway and entered onto private property, police lacked the authority to stop under Saskatchewan’s Traffic Safety Act. Thus Anderson’s detention breached <s. 9> of the Charter.
Furthermore, because 31 minutes elapsed from the time of the stop until the ASD demand was made, the judge concluded it wasn’t made “forthwith” as required by <s. 254(2)> of the Criminal Code. That meant the officer was required to advise Anderson of his right to counsel under <s. 10(b)>. The Certificate of Analyses was excluded from evidence and Anderson was found not guilty of driving over 80 mg%.
The Crown’s appeal to the Saskatchewan Court of Queen’s Bench was successful. The judge ruled that Saskatchewan’s Traffic Safety Act permitted a police officer to follow a vehicle from a public highway onto private property and stop it to perform a random vehicle check, provided the officer had formed the intention to stop while it was on a public highway. Anderson had not been arbitrarily detained and his rights under <s. 9> had not been violated.
In addition, the appeal judge also found that the trial judge erred in law in determining that the ASD demand wasn’t made “forthwith.” In his view, “forthwith” did not mean “immediately.” The Certificate of Analyses was admitted and a conviction was entered.
Anderson appealed his conviction to Saskatchewan’s highest court, arguing that the stop breached <s. 9> because police lacked the requisite authority and that the trial judge was correct to conclude that the ASD sample wasn’t taken forthwith.
Anderson suggested that Saskatchewan’s Traffic Safety Act does not provide statutory authority for police to make random stops on private property, regardless of whether the officer had formed the intention to check while he was on a public highway. The Crown, on the other hand, submitted that the officer was entitled to pursue Anderson’s vehicle because he was already in the process of exercising an important and legitimate policing function.
In the Crown’s view, the critical point in time to consider was when the officer formed the intention to stop the accused’s vehicle, not when he first expressed that intention by activating his emergency flashers.
Although the officer did not actually activate his emergency lights or otherwise express his intention to stop until Anderson entered onto private property, he was driving on a public highway when the officer formed the intention to stop. This was to be distinguished from the random stop of a driver who was and always remained on private property when observed by the officer. Justice Whitmore, speaking for the court, put it this way:
<It is a fact found by the trial judge that the police officer formed the intention to stop the (accused) prior to the (accused) turning onto private property. In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete that lawful activity. Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, was reasonably necessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference.
To decide otherwise would encourage drivers to seek the sanctuary of private roadways if they suspected they were about to be stopped by police. In the circumstances of this case, where a police officer has formed the intention to stop a driver on a public highway pursuant to s. 209.1 of The Traffic Safety Act, the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation> (paras. 24-25).
Anderson contended that “forthwith” in <s. 254(2)> meant “immediately” and the entire period from the initial pull over until he was read his right to counsel was relevant when determining whether the breath sample had been taken forthwith. As a result, he suggested that his right to counsel under <s. 10(b)> had been violated.
The Crown argued that “forthwith” does not mean “immediately” and that the circumstances of the case must be considered when determining whether the forthwith requirement had been complied with. The Crown also submitted that the delay under <s. 254(2)> starts when the officer formed the reasonable suspicion that the driver had alcohol in his body, not necessarily when the vehicle is stopped.
Justice Whitmore, speaking for the unanimous Saskatchewan Court of Appeal, noted that the Supreme Court of Canada has held that “forthwith” means “immediately” (<R. v. Woods, 2005 SCC 42>), which has further been articulated to mean “without unreasonable or unjustified delay.” He found the appropriate time frame to consider whether a demand was made forthwith and whether <s. 10(b)> had been breached was the time commencing when the officer formed the requisite reasonable suspicion.
Anderson’s admission to having consumed alcohol came shortly before the ASD demand was made, not immediately after the stop. Thus, the reasonableness of the delay to assess wasn’t 31 minutes, as found by the trial judge, but rather 16 minutes. In this case, the 16 minute delay was attributed to the operational requirements of the ASD testing – readying the equipment.
<(T)he police officer is to be afforded reasonable time to ready the ASD. There is no evidence before the court of how much time is usually required for an ASD to warm up and become operational. However, the trial judge found no fault in the ASD taking 16 minutes to warm up…
In my view, the 16 minutes it took for the ASD to warm up and become operational was reasonable and did not offend the “forthwith” requirement in s. 254(2) of the Code> (paras. 39-40).
Anderson’s appeal was dismissed.