Proactive patrol is a commonly used policing tactic where officers patrol an area looking for suspicious activity. While on proactive patrol officers will often use the very broad authority granted to them under the Traffic Safety Act (TSA) to stop vehicles for minor traffic, or vehicle equipment, violations to then attempt to discover evidence of criminal wrong doing.
In the recent case of R. v. Mohamed, 2019 ABQB 499, Mr. Justice Ouellette of the Alberta Court of Queen’s Bench addressed one such stop. Justice Ouellette concluded that while the officer in question used the guise of the TSA to stop Mr. Mohamed, the stop was a targeted stop aimed at investigating suspected criminal activity. As the office overstepped the authority granted by the TSA, Justice Ouellette found the detention of Mr. Mohamed was unlawful and arbitrary and that any evidence obtained by that dentation ought to be excluded.
Section 9 of the Canadian Charter of Rights and Freedoms (Charter) reads:
Everyone has the right not to be arbitrarily detained or imprisoned
While the definition of “detention” is broad, this case focused on the power to detain an individual pursuant to a law passed by Parliament or a provincial legislature. In this context the Supreme Court of Canada has determined a detention is not arbitrary where the law permitting the detention is not itself arbitrary (R. v. Grant, 2009 SCC 32, at para 54). Specifically in relation to traffic stops, traffic safety legislation in Canada allows for random stops for reasons related to driving a car so long as those stops are not for alternate purposes (R. v. Nolet, 2010 SCC 24, at paras 22-25).
In Mohamed the Court determined that proactive patrol, which is designed to address crime and disorder, does not fall within the scope of random stops permitted by the TSA. While the stop “had a nominally lawful aim…it effectively was a plausible façade for an unlawful aim…and the lawful traffic safety aim cannot cleanse a general detection of crime aim, which is unlawful” (Mohamed, supra, at pap 39).
Mohamed, and the reasoning contained within it, will certainly be discussed and litigated further. While the practice of proactive policing is often discussed and maligned in the public press, its practice does not appear to be decreasing. As police continue to use traffic legislation to target individuals for investigation of suspected criminal activity courts in Canada will be forced to address the validity of traffic stops that nominally exist for one purpose but are actually being used for another.
Lance McClean, Partner