legally speaking - Justice Institute of British Columbia

arresting officer’s shoes, including a consideration of
their experience and training. The accused’s appeal
was dismissed.
Complete case available at www.courts.gov.bc.ca
MOTORIST NOT ARBITRARILY
DETAINED IF GROUNDS CAN BE
CLEARLY EXPRESSED
R. v. Adams, 2011 NLCA 3
As drinking establishments were
closing at about 3:30 a.m on a
Saturday a police officer drove onto
the parking lot of a shopping plaza
which contained restaurants and a
bar. He saw the accused’s vehicle pull out of a
parking stall near the bar, drive slowly along the
parking lot, and turn onto the street. There was no
traffic coming but the vehicle turned very slowly and
awkwardly. Although no offences were committed
under Newfoundland’s Highway Traffic Act, given
the hour of the night, the proximity to the bar, the
officer’s experience, and observing a slow and
awkward turn, the officer decided to pull the vehicle
over to “check the situation out." After the stop the
accused subsequently provided breathalyzer
readings of 110mg% and 130mg%.
At trial in Newfoundland Provincial Court the judge
found the stop was not arbitrary. He held the police
officer “had a good reason for wanting to see what
was going on.” There was no s. 9 Charter breach, the
breathalyzer evidence was admitted, and the
accused was convicted of operating a motor vehicle
while his blood alcohol content exceeded 80 mg%.
On appeal to the Newfoundland Supreme Court the
breathalyzer evidence was excluded, the accused’s
conviction was set aside, and an acquittal was
entered. The appeal judge concluded the accused’s
detention was based on nothing more than a hunch
and was therefore arbitrary, breaching s. 9 of the
Volume 11 Issue 1 - January/February 2011
PAGE 9
Charter. As well, relying on R. v. Mann, the appeal
judge ruled that there was no nexus between the
accused’s driving and a criminal offence. The Crown
then appealed to the Newfoundland Court of
Appeal.
A breach of s. 9 of the Charter requires a detention
to be “arbitrary”. The threshold for stopping a
motorist, however, is relatively low and a motorist
will not be arbitrarily detained if the officer has
reasonable grounds that can be clearly expressed for
stopping a particular, as opposed to any, vehicle. It
must also be recognized that stopping motorists
occurs in a different context than the investigative
detention doctrine outlined in Mann, where the
Supreme Court of Canada was dealing with police
stopping an individual walking down a street, not
driving a car. Justice Welsh, speaking for the New
Brunswick Court of Appeal stated:
[W]hen balancing the interests between the
individual's right to privacy and legitimate police
functions, the factors to be considered are
different when the detention involves an
individual walking down the street in an area
where the police are searching for the
perpetrator of an offence from when the driver of
a motor vehicle is stopped for highway safety
reasons such as impairment by alcohol. The
concept of the nexus described in Mann has no
practical application to the stopping and
detention of a motorist as occurred in this case.
[para. 16]
Other Courts have recognized a distinction between
a pedestrian and a motorist when balancing the
competing interests of individual liberties and
legitimate police functions, such as:
• Motorists have a lower expectation of privacy
in their vehicles than they do in their home;
• Driving is highly regulated. Drivers know that
they may be stopped for reasons pertaining to
highway safety—as in a drinking-and-driving
roadblock;
“Given the social policy considerations associated with drinking and driving offences ... the
courts have adopted a relatively low threshold for determining what constitutes reasonable
grounds for stopping a motorist for highway safety reasons such as impairment by alcohol.”