July 25, 2021 By Mike Novakowski
Just because a passenger comes to a stop when a vehicle is pulled over does not mean they are detained for Charter purposes. In R. v. Robinson, 2021 BCSC 899, a police officer driving a marked police vehicle was passed by a pickup truck just after midnight. The truck had a defective taillight and a defective licence plate light. The officer activated his emergency lights and pulled the truck over, approached it and spoke to the driver. The driver did not have his driver’s licence with him but provided his name and date of birth when asked. The accused, Robinson, was a passenger seated in the front. The officer asked Robinson for his name. Robinson replied, “James Budd”.
The officer returned to his police car and queried both names provided by the occupants on police databases. On searching the name “James Budd”, it was revealed to be an alias of “Jason Robinson” who had two outstanding warrants for his arrest. The query produced a mugshot photo of the wanted individual, which the officer recognized as the passenger. When a backup officer arrived, Robinson was arrested on the warrants. He was searched incidental to arrest and police found cocaine, meth and fentanyl.
At trial in the Supreme Court of British Columbia, Robinson argued his detention in the course of the traffic stop became unlawful and arbitrary when the officer asked him for his name. Moreover, Robinson contended that the officer’s request for his name was itself an unreasonable search. In his view, the police breached his rights under s. 8 (unreasonable search) and s. 9 (arbitrary detention) of the Charter and he sought the exclusion of the drugs as evidence against him.
Justice Saunders reviewed case law and rejected Robinson’s submissions.
“It is clear that a nuanced consideration of the circumstances when a vehicle has been lawfully subject to a traffic stop may lead to a finding that superficial interactions between a police officer and passengers in a vehicle do not amount to detention,” he said.
Saunders found Robinson was “simply a bystander, free to co-operate, to remain silent or to walk away.”
“In the present case, Mr. Robinson’s physical presence in the vehicle in and of itself did not equate to a detention,” said Saunders. “[Robinson] was not physically restrained. Further, nothing in the circumstances of the traffic stop created psychological restraint. There was only one officer present, and the officer’s physical position, at the driver’s door, did not hamper Mr. Robinson’s freedom of movement; Mr. Robinson was free to walk away. [The officer] had advised the driver of the vehicle that he had been pulled over because of the faulty tail light.”
Further, “Mr. Robinson’s identity was of no direct relevance, and objectively Mr. Robinson could not reasonably have perceived the officer’s act of asking for his name to be anything more than a casual inquiry. It was not coercive. It did not significantly interfere with Mr. Robinson’s liberty. It could not, in the surrounding circumstances, have created a reasonable apprehension on the part of Mr. Robinson that he had been singled out for focussed police investigation…There is no basis on the evidence to conclude that Mr. Robinson, through being asked his identity, was being detained.”
Nor did asking Robinson about his identity amount to a s. 8 Charter search. He was not detained and “asking his name was not an exercise of police power.” Robinson was free not to answer the question and no documents had been taken from him.
Since there were no ss. 8 or 9 Charter breaches, the evidence obtained from the search incidental to Robinson’s arrest on the outstanding warrants was admissible at trial.
Mike Novakowski is Blue Line’s case law columnist.
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