Ontario’s HTA Vehicle Stop Power must not be Used as a Pretext to Investigate a Crime
The Exercise of a Power under the HTA must be for a Road Safety Purpose
Under
Ontario’s Highway Traffic Act (HTA), the police broad powers to stop motor
vehicles for highway regulation and safety purposes, and, in some
circumstances, to arrest drivers of motor vehicles. [FN1] The
Legislature granted the police these powers for the purpose of ensuring road
safety. The police are not free
to use these powers for purposes other than highway regulation and safety.
Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198
(ON CA);
R. v. Mayor, 2019 ONCA 578,
at para. 6.
If the police do not have road
safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the vehicle stop. If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s.9 of the Charter.
R. v. Brown,
supra;
R. v. Humphrey, 2011
ONSC 3024 (CanLII), 237 C.R.R. (2d) 109.
Dual Purpose Stops OK
As long as the police have a road safety purpose
subjectively in mind, they may also have other legitimate purposes in mind,
such as the investigation of criminal activity. What
is important is that the use of the Highway
Traffic Act power not be a mere ruse or pretext to stop a vehicle in
order to investigate a crime.
Determining the True Purpose for the
Vehicle Stop
When an accused challenges an officer’s invocation of
the detention powers under the HTA, it is incumbent upon the court to make a factual determination as to whether the officer actually formed a "legitimate intention" to make the detention or arrest for road safety purposes; or whether the officer was using the Highway Traffic Act as a pretext to stop a vehicle for some other purpose, such as to investigate a crime.
To do this the court must consider all the
circumstances, including the following: the evidence of the officers, the evidence of the detained person, the
circumstances of the stop, and the police conduct during the stop.
Brown, at p. 238;
Gonzales, 2017 ONCA 543 (CanLII), at para. 67.
Can does not mean Did
That the police, in the circumstances, can exercise a
power under the HTA is not dispositive of the issue of whether the police had
formed a legitimate intention to exercise the HTA power for a road safety
purpose.
See
for instance R. v. Mayor, 2019 ONCA 578.
In R. v. Major, the accused’s driver’s licence
had been suspended. The police knew
this, and that the accused continued, nevertheless, to operate a motor vehicle.
Police stopped the appellant’s vehicle
and arrested the appellant, purportedly under the HTA for the offence of driving
while suspended. [FN1] The appellant had been the target of a
fruitless drug investigation by the police.
The Court of Appeal for Ontario overturned the appellant’s conviction
and granted a new trial, holding that the trial judge had erred in failing to
determine whether the officers subjectively
formed an intention to arrest the appellant for a road safety purpose,
notwithstanding the fact that the officers had the lawful ability to arrest the
appellant under the HTA for a road safety/highway regulation purpose.
[FN1] For instance, section 216(1) of the Highway Traffic Act gives an
officer the power to stop a vehicle, even if the stop is random and the officer
lacks reasonable and probable grounds or even reasonable suspicion: R. v. Gonzales, 2017 ONCA 543 (CanLII), at para. 55.
[FN2]
Section
217(2) of the Highway Traffic Act authorizes
an officer to make a warrantless arrest of a person who the officer believes on
reasonable and probable grounds to be driving while suspended. If the officer
is satisfied that a person is driving while suspended, the officer also has the
duty to detain and impound the vehicle: Highway Traffic Act,
s. 55.2(1).
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