This article originally appeared in the Saskatchewan Trial Lawyers’ Association “The Advocate” and is reprinted with their kind permission. The article is for general reference only and should not be relied upon for advice or application to specific circumstances without consulting a lawyer.
The road side detention of motorists by police remains an abundant source of Saskatchewan jurisprudence around section 9 of the Charter, which enshrines “…the right not to be arbitrarily detained or imprisoned.” While this individual liberty interest is fundamental to the Canadian constitutional order, a reading of the recent Saskatchewan case law suggests this Charter guarantee is becoming tenuous at the roadside.
This article will highlight some of the policy issues at play which appear to drive the ratios of recent Saskatchewan decisions, and outline as well the arguments marshaled by both Crown and defence around this “hot button” issue. In this regard, the writer must acknowledge the significant contributions of Crown counsel Brent Klause and Marilyn Gray, whose very capable briefs and oral argument on recent cases opposite the writer have been exploited for selfish purposes. Similarly, College of Law Professor Glen Luther’s considerable expertise and excellent authorship has enhanced this article, and propped up the author generally.
A new term of art has been cropping up in our criminal courts of late, namely, “preventative policing”. In the writer’s (defence-oriented) experience, this term is disingenuously offered up by the Crown or police officers as an unconstitutional substitute for “articulable cause” or for some specific, lawful, statutory power to detain.
Let us examine for a moment, in the context of roadside detention, the extent of police duties and powers to detain. The relevant statutory powers are as follows.
Section 36(2) of the Police Act for Saskatchewan says:
Unless otherwise indicated in his or her appointment, a member has the power and responsibility to:
a) Perform all duties that are assigned to constables or peace officers in relation to:
- The preservation of peace;
- The prevention of crime and offences against the laws in force in the municipality; and
- The apprehension of criminals, offenders and others who may lawfully be taken into custody.
More specifically, the ubiquitously relied-upon Section 40(8) of the Highway Traffic Act for Saskatchewan provides:
A peace officer who:
a) Is readily identifiable as a peace officer; and
b) Is in the lawful execution of his or her duties and responsibilities;
may require the person in charge of or operating a motor vehicle to stop that vehicle.
These statutory powers are additional to the common law powers and duties of police, which were the subject of useful comment in the House of Lords decision of Rice v. Connolly, 1966 All E.R. 649, where Lord Parker held at p. 650:
It is also in my judgement clear that it is part of the obligations and duties of a police constable to take all steps which appear to him to be necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.
This decision and others like it give rise to the notion of preventative policing, a general term which lately seems in vogue in our courts, but, in the opinion of the writer, is ultimately a term without meaning in the context of Charter analysis.
The social utility of crime prevention need not be disparaged here. Despite the recent bruising suffered by certain members of the Saskatoon Police Services in connection with the Darrell Night case, and as a result of regrettable instances of police misconduct unearthed in the Stonechild Inquiry, most citizens continue to heavily rely on the local constabulary to deter and prevent crime in addition to merely investigating criminal occurrences after the fact.
But the duty to detect crime, or carry out preventative policing, must be circumscribed by the individual’s freedom from arbitrary detention. Any other approach would undermine the balance struck by the Charter between state powers and individual rights.
The recent Provincial Court decision of R. v. Houben, 2004 SKPC 26, involved an instance of preventative policing which resulted in a vehicle stomp that was found to be unconstitutional. In Houben, the accused was observed driving his vehicle at a slow rate of speed on a meandering crescent in a residential neighborhood of Saskatoon at 2:45 a.m. The officers testified that they believed they had seen the accused’s vehicle “hanging around” earlier that night, in that same neighborhood.
The investigating officer testified that he decided to stop the accused’s vehicle simply to satisfy his curiosity as to whether or not there might have been a criminal purpose, although there were no indications of erratic or unusual driving, the neighborhood was not associated with criminal activity, and no specific criminal investigation was underway when the accused was detained.
To the court’s chagrin the officer testified that in the regular course of duty at least half of vehicle stops are random, prompting the court to find that “the police seek to rule out suspicious behaviour by randomly checking out drivers based on their intuition.” As is often the case, the officers in Houben initiated their contact with the accused with the familiar request to inspect his license and registration, although in cross-examination frankly admitted no Highway Traffic Act concerns were apparent. The court ultimately found that the police stop was made in the pursuit of preventative policing and that there was no other basis for the detention. As a result, the evidence obtained by police was excluded, and the accused acquitted.
When is Detention Arbitrary?
In practice, the short answer seems to be “rarely”. Following is a review (by no means complete) of the leading and recent cases in the area. For starters, it is axiomatic that there can be no violation of Section 9 of the Charter unless there is a detention which is arbitrary.
In R. v. Hufsky  1 S.C.R. 621, LeDain J. defined the meaning of “arbitrary” at p. 633:
The selection was in the absolute discretion of the police officer. A discretion is arbitrary if there is no criteria, express or implied, which governs its exercise.
There the Supreme Court of Canada held that random stops constitute an arbitrary detention but found that such stops fell within the protection of Section 1 of the Charter where they were part of a program of roadside stop checks.
This rule was relaxed in Regina v. Ladouceur,  1 S.C.R. 1257, where the high court held that random stops that are not part of a specific program and organized roadside stop check program may also be accorded protection under Section 1. But this does not mean that no limits are imposed. At page 1287, Cory J. said:
Finally, it must be shown that the routine check does not so severely trench upon the Section 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probably grounds. When a stop is found to be unlawful, the evidence from the stop could well be excluded under Section 24(2) of the Charter.
In R. v. Mellenthin,  3 S.C.R. 615, the Supreme Court narrowed their ruling such that only random stops made for purposes related to highway safety, such as curbing drinking and driving, checking licenses, ownership or insurance, or checking for unsafe vehicles, are saved by Section 1 of the Charter, In subsequent cases Courts in this province (and others) have largely interpreted the law as set out in the S.C.C. trilogy of Hufsky, Ladouceur and Mellenthin.
Defence counsel experienced in this area will doubtless be familiar with the scenario where police stop a vehicle ostensibly for a Highway Traffic Act purpose while their real purpose is altogether quite different. In these instances, police may offer Section 40(8) of the HTA as a pretext for their real reasons for making the stop.
Articulable Cause and the Subterfuge of Section 40(8) of the Highway Traffic Act
In 1991 our Court of Appeal rendered the decision of R. v. Duncason, S.J. No. 373, which held that section 40(8) of the Highway Traffic Act empowered a police officer for any purpose connected with a lawful execution of his duties and responsibilities to randomly stop a vehicle and ask for the driver’s license. In other words, in Saskatchewan, police do not need articulable cause to make a vehicle stop where a motorist is detained for the purpose of ensuring highway safety – but the law requires that an officer detaining a motorist for this purpose to be acting specifically to that end. In consequence, where there is no real Highway Traffic Act concern apparent, there must be articulable cause on the part of police to make the stop.
In the writer’s view, articulable cause should be more than a dressed up ex post facto articulation by police of a hunch or mere suspicion leading to a vehicle stop. Certainly detaining motorists in the course of racial profiling, for example, would not yield articulable cause. Likewise, “I didn’t like the look of him,” would not be expected to pass muster. Evidence of an improper purpose for making the stop should not be white-washed by an accompanying intention to check license and registration.
Here are some cases where articulable cause was likewise found lacking.
In R. v. Rost (1999), 176 Sask. R. 260 (Q.B.) the accused was pulled over after he was observed by police to be accelerating more quickly than normal and flashing his vehicle’s high beams on and off. The Court ruled that the detention was arbitrary since the accused had done nothing illegal. Hence the officer was unable to show articulable cause for detention.
In R. v. Waskewitch, [2001} S.J. 318 (QB), a police officer observed a car his cruiser was following to be hugging the centre line of the road. It turned off the road. When the officer encountered the same vehicle a short time afterwards, he stopped it. As in Rost, the Court held that the officer was unable to show that the Accused had behaved in such a manner as to justify her detention and found her section 9 Charter Rights infringed.
Presumably in these cases the investigating officer requested the driver’s license and registration, in order to put the detention on a statutorily-approved footing under the Highway Traffic Act. The Courts’ refusal to condone these detentions may be seen as giving shape to a critical but occasionally ethereal aspect of the analysis required in this area, namely, that lip service by police in the course of making a detention to their duties and powers under Highway Traffic Act is not always sufficient. Lip service to a statutory duty should not become a substitute for articulable cause – nor should it cure the defect caused by an improper purpose for making the stop.
R. v. Dedman,  S.C.R. 2 was the first in a series of Supreme Court of Canada cases to deal with police powers to stop for impaired driving. LeDain J., for the majority, stated that the Highway Traffic Act police powers must not be allowed to be used as a “subterfuge or pretext” (para. 62)
Our Court of Appeal recognized this in R. v. Emke (1989), S.J. No. 274, where it held;
Any police officer could convert an unlawful stop into a lawful one by saying to himself before he made the stop that he was checking for impaired driving.
Clearly this is an unacceptable result, but an improper purpose is difficult to detect and establish on the evidence in a given case. Examples of improper purposes, and their effect on detention, follow.
More recently, on R. v. Lott (1998), S.J. No. 678 (Sask Q.B.), Chief Justice Gerein for the Court found that the true intentions of the detaining officer was that he simply wanted to “check him out” (para. 5) and find out what he might be doing in the area at that time of night (para. 21). The Court found no basis to conclude that the police were in lawful execution of their duty:
There was no crime being committed, there were no prostitutes about, the accused was not engaged in some activity which might suggest illegal conduct.
R. v. Green (1995), 132 Sask. R. 192 (Q.B.) is similar to Lott in its fact pattern – and in the result. Currently, the Saskatchewan Court of Appeal has held in R. v. Ladouceur (2002) at para. 65:
A lawful aim and an unlawful aim for an arbitrary stop cannot co-exist. The unlawful aim contaminates the lawful aim.
R. v. Houben, supra, followed both of the two decisions above, as well as R. v. Emke, among others. Should Houben flounder on appeal, it will most likely involve a different view of whether there was articulable cause by the Court above. Otherwise, the authorities and reasoning in Houben appear unassailable.
The decision of Mr. Justice Laing in R. v. Schaeffer 2003 SKQB 538 is also instructive. At para.s 8-9 the Court held:
8. The Crown’s argument in this case appears to ignore that all provincial legislation is subject to the provisions of the Charter, and that the case law states that random (as opposed to stops for articulable cause whether related to highway safety concerns or other police investigation concerns) stopping of motor vehicle amounts to an arbitrary detention of the person stopped, and that random stopping for highway safety concerns is saved by s. 1 of the Charter, but that other random stopping of motorists is not.
9. On the facts in this case as found by the trial judge, and as amply supported by the transcript of evidence, the police officers who randomly stopped the respondent in this matter did not have a highway traffic purpose. They had another purpose. That purpose was preventative policing related to discouraging traffic in the regional park after 11:00 p.m. The police officers in pursuit of this purpose conducted a general inquisition of the stopped motorists unrelated to highway safety concerns. As a result, the random stopping of the vehicle, including the respondent’s vehicle, is not saved by s. 1 of the Charter.
Searching out Articulable Cause
We have touched on what is not articulable cause. While the police do not have an unfettered discretion to detain citizens at random merely to rule out suspicious behaviour, public policy (and the law) requires that police need not wait for proof of the commission of a criminal offence by a motorist before instigate a detention. Police need not have reasonable and probable grounds to make a detention. Articulable cause will do.
Principles for identifying valid articulable cause in an investigative detention scenario may be found in the current Supreme Court of Canada in R. v. Mann, 2004 S.C.C. 52, where the Court upheld the power in appropriate circumstances:
34…The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The over-all reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
R. v. Mann involved a police detention of an individual suspect, as opposed to a random roadway encounter with a motorist, but the rationale for legitimate detention should apply. Outside of a detention under the Highway Traffic Act for a proper purpose, the law requires that police identify circumstances which rationally trigger their investigative duties and powers to detain before making a vehicle stop. That is to say, they need more than just a hunch.