“Dual Purpose” Traffic Stops in Alberta – R. v. Gallant, 2024 ABKB 541
Many drug trafficking charges are laid as a result of police carrying out a traffic stop pursuant to provincial traffic safety legislation, which then morph into a drug investigation leading to an arrest.
If the police had a valid reason to engage in a traffic stop, and that was the true underlying reason for the stop, the police can rely on the doctrine of “dual purpose” traffic stop to engage in unrelated criminal investigations, such as drug trafficking. However, where the police cannot ground their initial stop in a valid traffic safety violation, then the stop will likely infringe section 9 of the Charter and be “arbitrary” and unconstitutional. A recent Court of King’s Bench decision in R. v. Gallant, exemplifies this scenario where the court did not accept the police argument that their stop of the vehicle was done for a “dual purpose”.
Mr. Gallant met with an undercover officer and made a drug sale. The undercover officer did not know his name. The police then conducted surveillance of Mr. Gallant’s vehicle. A uniformed officer conducted a traffic stop, purportedly for tinted windows. Mr. Gallant was asked and provided his driver’s license and vehicle information to the officer. The officer continued to have a general conversation before releasing Mr. Gallant without issuing a ticket for tinted windows. Months later, the police applied for, and were granted, a warrant for Mr. Gallant’s arrest in relation to the drug transaction with the undercover officer. Mr. Gallant brought a Charter challenge alleging that his section 8, section 9, and section 10 rights were violated.
The primary issue for the Court was whether the police engaged in a true “dual purpose” traffic stop. If it was a “dual purpose” stop then the identity information collected from Mr. Gallant was Charter compliant. However, if the Court found this was not a “dual purpose stop” but merely a ruse to further their drug trafficking investigation, then several of Mr. Gallant’s Charter rights would have been violated.
The court was quick to identify the police were clearly engaged in a search, seeking the identity of Mr. Gallant when the traffic stop occurred. Since it was a warrantless search, the burden of proof shifted to the Crown to establish the search was authorized by law.
In addition, the court identified that Mr. Gallant was also detained when the traffic stop occurred given the psychological and physical restraint placed on Mr. Gallant. When detention occurs, the burden shifts to the applicant (the detainee) to establish on the balance of probabilities that the detention was unlawful. However, regardless of whether the detention is lawful or not, the police have an obligation to articulate to the detainee the reason for the detention and advise the detainee of their right to speak to a lawyer. Further, the police must refrain from collecting any further evidence until such time the detainee has had a reasonable opportunity to speak with counsel. This is irrespective of whether the detention was lawful or not. Failing to do this, creates separate constitutional breaches by the police.
The jurisprudence regarding the above parameters is trite law based on various Supreme Court of Canada decisions and are not the subject matter of this article.
The central question in this case was whether there was a valid “dual purpose” traffic stop. The court referred to the Supreme Court of Canada decision in R. v. Nolet, as well as several subsequent Court of Appeal decisions, which discussed “dual purpose” traffic stops noting the following key points:
- “Dual purpose” traffic stops are stops that have, as their purpose, both regulatory and criminal elements.
- It is not a question of which purpose is dominant. Rather, if there is a continuing regulatory purpose on which to ground the exercise of a regulatory power, then the question is whether the search at issue infringed the claimant’s reasonable expectation of privacy. In other words, if there was a valid traffic safety legislation reason for the stop (e.g. speeding, missing a stop sign, etc.), then the police have the necessary grounding to contemporaneously conduct a criminal investigation as part of their stop.
- The existence of police powers to stop vehicles and demand production of driver and vehicle documents under provincial traffic safety legislation does not confer unfettered police powers to detain drivers. If the police do not have a legitimate traffic safety purpose in mind, they cannot rely on traffic safety legislation powers to authorize stops.
- The task of the court is to determine whether the police actually formed a “legitimate intention” to make the detention for traffic safety purposes. If the police had that “legitimate intention”, then the police may also pursue another legitimate purpose, including investigating criminal activity.
- Where there is no true “legitimate intention” to investigate a traffic safety violation, the stop is unlawful and in violation of section 9 of the Charter.
On the facts of this case, it was clear the police did not have a “legitimate intention” to stop the vehicle for the stated “tinted windows” violation. The officer did not give a ticket for the tinted windows. Further, the officer could not even recall if he told Mr. Gallant to remove the tinting. The stop was motivated exclusively for continuing a drug investigation to learn Mr. Gallant’s identity. There was no “dual purpose” to the stop. The Court further noted the evidence was not clear Mr. Gallant’s windows were even tinted to start with. The two officers involved with the stop did not make any notes regarding the tinted windows. The officer who spoke with Mr. Gallant was not certain in his oral evidence if the passenger windows were at all darker than the windshield.
The court went on to decide since there was no “legitimate intention” to stop the vehicle for tinted windows, they did not have a valid authority to stop the vehicle at all. The search for Mr. Gallant’s driver’s licence and vehicle documents was not authorized by law. The seizure of the driver’s license and vehicle documents were contrary to section 8 of the Charter. The court further noted Mr. Gallant was not advised his detention was for a drug investigation and was not given his rights to counsel. As a result, further and separate section 10(a) and (b) breaches were found. The court went on to exclude the evidence after completing a section 24(2) analysis. The first two branches of the Grant test favoured exclusion and the third branch only somewhat favoured inclusion.
This case demonstrates a straightforward application of the law with respect to vehicle stops that are not grounded in true traffic safety violations. Most times the true purpose of the stop can be easily ascertained from the disclosure. However, this case also shows that effective cross-examination of police officers can also uncover other admissions that can make the state infringing conduct far more egregious. This can further tip the scale in the applicant’s favour at the section 24 analysis phase of the analysis.
Contact the Hoare Claxton team of highly skilled Calgary criminal lawyers for a strategic defence to your charges.
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