Targeted police stop attracting attention from criminal bar
By Jennifer Brown, AdvocateDaily.com Senior Editor
When it comes to police demanding roadside breath tests, there is a fine line between random stops, targeted stops, and those based on reasonable suspicion, says Kamloops criminal lawyer Lisa Mae Scruton.
A recent case in Victoria B.C. is attracting attention from the criminal bar as it seems to suggest police are using new powers to target drivers without any real suspicion that they are impaired.
As reported in the National Post, a 76-year-old woman in British Columbia has launched a Charter challenge because she believes police targeted her as she left a liquor store parking lot one morning in February. Police demanded that she provide a breath sample, and when she could not perform the test adequately due to an implant in her mouth, the officer deemed it a refused breath sample.
Under B.C.’s impaired driving rules, the woman’s licence was suspended immediately for 90 days, and her car was impounded for 30 days.
“I’m very excited to hear the results of this case,” says Scruton, principal of LMS Litigation, who has done a number of Charter challenges in this area of law. “I have all sorts of concerns with the Immediate Roadside Prohibition Program, in general. In my opinion, it really goes against the presumption of innocence, which is a fundamental pillar of the Canadian justice system.”
Scruton says that while there are scenarios where an arbitrary stop is accepted in Canada, such as the RIDE checks conducted by police in Ontario, this case appears to not fit that definition.
“One of the things I find interesting is that there is an extremely fine line between random vehicle stops, targeted vehicle stops, and vehicle stops based on reasonable suspicion. They’re all very similar but different,” Scruton tells AdvocateDaily.com. “This case has to do with a targeted stop, which means it was arbitrary and not sanctioned by law, and that’s what they are alleging is unconstitutional. I hope they are successful in this challenge.”
Scruton notes that the Supreme Court of Canada (SCC) has ruled that random vehicle stops are also arbitrary but allowed in Canada in certain circumstances.
“A random vehicle stop is like those you find driving through a checkpoint during the holidays checking for sobriety. The SCC has said that those kinds of stops, although arbitrary, are justified in a free and democratic society,” she says. “A targeted stop has that element of randomness, but it is not random about the person — it is random about the cause for the stop.”
Scruton says success in a case such as the one involving the woman from Victoria really depends on the facts found by the judge such as if the police officer had reasonable suspicion — that he observed some sort of conduct that suggested impairment.
Another possible avenue the police could use is the provincial Motor Vehicle Act, she says.
“The officer could also say he was stopping the vehicle based on the Act, which allows police to stop any motor vehicle to see if the driver is licensed,” Scruton says.