Manner of detention matters
December 23, 2016
By Mike Novakowski
Harbouring a suspicion of illegal activity did not render a legitimate traffic stop unlawful, Alberta’s highest court found.
In R. v Ali, 2016 ABCA 261 a police officer engaged in proactive policing saw Ali driving a Chrysler Cirrus. Although the officer did not know him, he recognized the passenger Fearon as someone who had “been involved in a variety of criminal activity… within that area.”
The officer also knew from his experience that a Cirrus could be stolen very easily and that stolen vehicles do not always show up on CPIC. Ali’s driving pattern was unremarkable and a CPIC search of the vehicle disclosed nothing of concern. The officer then decided to stop the vehicle to “see what Mr. Fearon was up to” and to check if the vehicle was stolen.
The officer smelled fresh marijuana when Ali rolled down the window and arrested him for possessing a controlled substance. He asked Ali to step out and another officer saw what appeared to be a spitball of cocaine on the driver’s seat. Ali was also arrested for that and searched. Marijuana was found in his left sock and crack cocaine in his right sock.
At the police station, immediately prior to a strip search, Ali stated “I will make your job easier” and handed the officer a large plastic bag filled with smaller bags. A similar bag was found in his anus during the strip search and Ali was charged with possessing cocaine for the purpose of trafficking, possessing proceeds of crime and possessing marijuana.
An Alberta Court of Queen’s Bench judge found the vehicle stop lawful. Although one reason for it was to check up on Fearon, the officer also wanted to see if the vehicle was stolen. In the judge’s view, checking for ownership documents was a legitimate and lawful stop under ss. 166 and 167 of Alberta’s Traffic Safety Act (TSA) and not a ruse to carry out a criminal investigation without reasonable suspicion. Ali was convicted on all three counts.
In the Alberta Court of Appeal, Ali argued that the stop was a disguised criminal investigation, unsupported by reasonable suspicion, and not for valid traffic related concerns.
The court found there was evidence showing a dual purpose (to check ownership and to check on Fearon) and the trial judge was entitled to accept these motivations for the stop. The trial judge also did not err in concluding that an officer can stop a vehicle so long as it engages an objective of the TSA, without the need for any further analysis.
“Section 166(1) of the Act allows a police officer to stop a vehicle and check documents ‘for the purposes of administering and enforcing this Act,’ without any further requirement of suspicion about illegal activity,” the court said.
“The most the law requires is that the grounds for stopping a motorist are rooted in the statute and are ‘reasonable and can be clearly expressed.’”
Stopping the vehicle to check ownership documents was authorized by law and police can randomly stop persons for traffic safety reasons where that is authorized by statute. There is no further requirement for reasonable suspicion of unlawful activity.
When the “stop and search are authorized, it is not objectionable that unrelated criminal activity is discovered.” The chain of investigative activity did not offend the Charter.
In this case, the initial stop to check for ownership documents, and the initial interaction between the [accused] and [the officer] at the driver’s door, were authorized by statute and lawful. At that point, the smell of fresh marijuana created reasonable grounds to arrest the [accused] for possession of a controlled substance, and it was the subsequent searches incidental to that arrest which uncovered the drugs [para. 8].
Ali’s appeal was dismissed.
Mike Novakowski is Blue Line’s case law columnist. He can be reached at email@example.com.