Interaction with police entails rights, responsibilities

Nathan Baker

Protecting public safety through highway traffic enforcement give police broad powers of detention and even search. A vehicle on a highway can be stopped to check the driver’s sobriety, licence, insurance, ownership or vehicle fitness. With reasonable suspicion the police can perform warrantless searches involving open alcohol, breath testing, open cannabis, vehicle fitness, and more. Driving is a privilege and part of that privilege is a reduced expectation to be free from stop or certain kinds of search. It is a highly regulated activity, especially when it is carried out on public roads where the safety of others may be affected.

In R. v. Crowe [2021] S.J. No. 180, the Saskatchewan Court of Appeal dealt with a situation involving a 911 call requesting the removal of intoxicated individuals from a residence. When police attended the scene, they noted a vehicle parked down a driveway to a nearby house. Since there did not appear to be any issue at the house they originally were called to, they decided to investigate to see if this parked running car was related to the 911 call. They attended and, by this time, the accused was “staggering” away from the vehicle with the keys to the vehicle clipped to a loop on his pants. The accused was arrested, taken to the police station and provided samples showing him to be over the legal limit.

The trial judge found that the police actions did not violate the rights of the accused and convicted the accused. The Court of Appeal upheld the conviction. Of particular interest is the court’s assessment of three issues. The first is whether the police officers were acting in compliance with their statutory or common-law duties. The court found that the officers were acting properly by approaching the accused in relation to the 911 call that they had received. The 911 call justified the interaction which led to the investigation and arrest.

The facts in this case can be contrasted with the recent case from the Ontario Court of Appeal in R. v. McColman 2021 ONCA 382 where police stopped an individual leaving their vehicle where no 911 call, grounds or decision to stop while on the roadway existed. While these two cases may initially seem at odds as they deal with similar fact scenarios, the important distinction of the 911 call changes the assessment which a court should undertake.

The second issue addressed was whether there was a violation of Albert Crowe’s s. 8 rights where police entered onto private property to speak to Crowe, engage him in conversation and essentially search him by observing him. Since Crowe did not have a privacy interest in the private property, as it was his uncle’s, no breach of s. 8 was found. Again, this is in contrast to McColman which involved a person in their own driveway.

Arbitrary detention and s. 9 rights is the third issue engaged. Crowe’s vehicle was not blocked. There was no physical detention. The officers approached to inquire about the 911 call. Up to the point where he was arrested, he was free to leave. The police did not detain him before having grounds to arrest. If Crowe had exercised his right to leave, then the case may have been very different but because he engaged the police rather than walk away, he became the author of his being charged.

Private property rights are considered in both Crowe and McColman. The results are opposite but the reasoning between them is in harmony. The distinguishing features of the facts of each case lead to the different results. A considered approach to the facts in each interaction between police and members of the public, especially on private property, is key to the proper application of the law to the case. These cases should serve to remind members of the public that their actions in the exercise of their rights matter.

While many interactions between police and the public are innocent interactions, individuals who wish to exercise their rights have a duty to do so. Police cannot be expected to ignore criminal actions they observe and there would be outrage if they did. However, if an individual exercises their rights properly then their desire to be left alone on private property will be respected. Rights come with responsibilities. The responsibility can be as simple as walking away or not inviting police into your house, but that responsibility still exists and must be exercised as much as the right itself.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.
 
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