The powers of a police officer during an interception under the Highway Safety Code

More and more clients are asking me what powers the police have when they are stopped. Can they search me? Search my car? Seize my cell phone? Stop me for no reason?

In this article, I will try to clarify the police powers regarding these issues.

Article 636 C.s.r.
First of all, several people ask me if the police have the right to stop them for no reason, and to ask them for their papers, when they have not done anything.

To properly answer this question, I must refer you to section 636 of the Highway Safety Code:

1. A peace officer, prima facie identifiable as such, may, in the performance of his or her duties under this code, agreements entered into under section 519.65 and the Act respecting owners, operators and drivers of heavy vehicles (chapter P-30.3), require the driver of a road vehicle to stop the vehicle. The driver shall comply with such requirement without delay.

This section gives the police the power to stop you for no other reason than to identify you by asking for your license, registration and proof of insurance. This is true whether or not you have committed an offence.

Raids : definition and framework (Code of Criminal Procedure)
Définition :

1. A search is a search of a place in order to seize an animate or inanimate thing:

1° likely to prove the commission of an offence;

2° possession of which constitutes an offence;

3° that was obtained, directly or indirectly, through the commission of an offence.

1987, c. 96, a. 95.

Framing:

1. A search shall be authorized by warrant. A search may be authorized by telewarrant if the circumstances, including the time required or the distance to obtain a warrant, would prevent the search from being conducted. A search may be conducted without a warrant or telewarrant only if the person in charge of the premises consents to the search or if there is an emergency.

An emergency exists when the delay in obtaining a warrant or even a telewarrant could endanger the health or safety of persons or property or result in the concealment, destruction or loss of the thing sought. However, a search without a warrant or telewarrant may only be conducted on an emergency basis in a residence if the person conducting the search has reasonable grounds to believe that the health or safety of a person is in danger.

However, the police will be able to search and search things that are in plain view. This is the plain view rule.

Seizure for verification :
Cell phone seizure is a "hot" issue. There has been a spate of "cell phone seizures" in the context of cell phone driving stops. Many people are wondering whether or not they should let a police officer inspect and even search their cell phone.

First of all, the police officers who stop you must have witnessed the infraction! It should not be a "fishing expedition"! This is why they should not need to see your phone to see that you were using it, according to them. Especially since by allowing them to inspect your cell phone, you are only incriminating yourself.

In addition, several decisions have been rendered concerning this police power. Here are the main points.

The basic principle is that the police cannot seize your cell phone. Now, there may be exceptions, especially in the case of a criminal arrest.
The Supreme Court of Canada addressed this issue in 2014 in "Kevin Fearon v. The Queen".

"To comply with section 8 of the Canadian Charter of Rights and Freedoms, which protects citizens from unreasonable searches, an incidental search of a cell phone must follow a lawful arrest, and have objectives of protecting police officers, the public or the suspect, preserving or discovering evidence or identifying other suspects."

A police officer cannot seize a motorist's phone for a traffic violation because the motorist is not under arrest. The motorist is therefore protected from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.

Police officers blamed
In fact, a police officer was suspended by the police ethics committee in 2016 for seizing and consulting a motorist's cell phone to confirm whether he had used it while driving. The ethics commissioner had expressed himself thus:

"Officer Baril had no justification for acting in this manner. Adds the fact that for a police officer to disregard the limits of the powers granted to him and to disregard the rights and freedoms of citizens is not without gravity.

"The seizure and examination of the phone in the circumstances constituted an unreasonable search, and violated the rights and freedoms guaranteed by the Charter."

For any questions, we will refer you to our expert Me Eric Lamontagne:
E.Lamontagne@contraventionexperts.ca | http://www.contraventionexperts.ca
(514) 578-2982