He fought the law and the law won

Russell Wangersky
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There was an interesting little test last month of changes to the Highway Traffic Act — and in this case, the act won.

In 2010, the province changed the act to let police officers pull cars over for no reason and ask drivers if they had been drinking — it was a change aimed at cases where drunk drivers escaped conviction, arguing they were being unreasonably detained if they were stopped without some clear cause. Before the change, lots of drivers who bothered to fight their way through court on drunk-driving charges won their cases exactly that way — evidence like breathalyzer readings was thrown out of court by judges who said the police had no right to have stopped cars in the first place.

Now, in Bonavista, there’s a clear case of a judge accepting a police stop for no other reason than to see if the driver was drinking. In the case of Her Majesty vs. Eugene Wilson Gibbs, there was an application by Gibbs to toss out evidence gathered after a traffic stop.

 Here’s how Judge Harold Porter characterized the case: “Const. Pulsifer was quite candid when he said that the vehicle was stopped as part of a traffic stop. There was nothing unusual about the vehicle, or the operation of the vehicle, prior to the stop. Specifically, there was no reason to believe that any part of the Highway Traffic Act had been breached.”

The background? The police had received a number of complaints about drinking — and subsequent driving — from an area known as Mockbeggar in Bonavista. The police staked out a parked car, and when its driver showed up and drove away, they pulled it over.

No broken taillight. No bad driving. No speeding.

“On Feb. 8, 2014, at 8:31 p.m., a complaint was received which alleged that the accused was drinking and driving. A vehicle which was believed to be his was seen parked at the Mockbeggar place. The police began surveillance. An unidentified man came out, got into a vehicle, and drove away. At 12:33 a.m., the police stopped the vehicle,” the judge wrote.

Until recently, it would have been a case begging to be tossed out on the usual technicalities.

But as Judge Porter put it, “The law in this province in relation to random traffic stops has evolved.”

In his verdict, Porter went through a series of cases from across the country, all of which touched on one aspect or another of random police stops — each had its own analysis of the problems raised by having police officers stop a vehicle under the Highway Traffic Act and then lay charges for something else under the Criminal Code.

Porter’s take on the new legislation is bound to be repeated by other judges as they decide whether or not to allow evidence gained after a traffic stop: “In the realm of traffic safety there is no requirement that a police officer have a ‘rational basis’ for believing an offence has been committed before stopping a vehicle. Such a stop may be random. Because of that, it may be arbitrary. An arbitrary stop is a violation of the mobility right of the motorist.

However, it is a reasonable limit on the right of the motorist, because it is done with the larger public safety interest in mind.”

There’s always room for slippage when you weigh something as nebulous as the greater good against the more particular world of an individual’s human rights. But as the judge pointed out, the arbitrary traffic stop would have been a short and minor inconvenience if there weren’t subsequently grounds for a criminal charge.

The case will now go ahead.

When the change in the Highway Traffic Act was announced back in 2010, there was considerable discussion about whether it could stand up to a challenge in court. Well, you can’t get a much plainer case than this one.

Legislation 1, legal technicality escape hatch 0.


Russell Wangersky is The Telegram’s news

editor. He can be reached by email at rwanger@thetelegram.com.

Geographic location: Bonavista

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Recent comments

  • Hawk
    August 24, 2014 - 11:53

    We are brain washed in thinking we live in a democracy.

  • Jay
    August 21, 2014 - 14:38

    "A minor inconvenience for the driver"?! This is totally unacceptable! This is much much more than a minor inconveninece. You cause stress and discomfort when police pull people over. Unbelievable how ignorant to basic human emotions these politicians and legal workers are. A true Cost benefit analysis will tell you it is not ok to pull someone over unless you have some real evidence. Screw Canada.

  • Ant'ony Wiggletarian
    August 21, 2014 - 09:41

    What a pullover Russell has knitted here for the hypothetical police state's pet poodle-tactic. I'd like to suggest an emp unit in every cruiser, just stop them dead electrically on the road because they could try to speed away, being arbitrarily drunk an'all. Gleichshaltung Baby!

  • 1inOntario
    August 20, 2014 - 23:04

    Random traffic stops for no reason? I suppose we should bring communism into Canada too? Well at least under communism we will be paid to "inform" on other people, rather than ratting on everyone for free as we do it now.

  • James C. Walker
    August 20, 2014 - 21:17

    Allowing traffic stops with NO probable cause means police can profile with illegal purposes such as racial or ethnic discrimination and no one can object. It puts society one step closer to the dictatorship style of controlling all citizens by giving police virtually unrestricted authority to declare "PAPERS PLEASE" to anyone they want. Any person who ever spent time in such a society should be horrified that Canada is going this way. Anyone with the slightest wish to protect personal freedoms and the right to go about your own private business without arbitrary police intervention without cause should be appalled and terrified at this case. James C. Walker, Life Member - National Motorists Association

    August 19, 2014 - 23:54

    As I recall Russell you were from the outset a strong proponent of giving police the authority to stop motorists without cause. I'm guessing you haven't changed your mind - although its difficult to divine your intent in this particular piece. Personally I prefer it when you take a stand - even a wrong headed one - than when you sit atop a picket fence. I'm not familiar with this case and have not read the decision, so it might be premature to comment. But I am curious why a complaint that the accused was drinking and driving - assuming it was authentic - would not by itself have met the threshold for reasonable grounds. Was it necessary to resort to the still constitutionally dodgy powers of the Highway Traffic Act. In dismissing the Ladouceur appeal (20408), five of nine SCOC justices upheld police authority for random stops. The other four viewed it as an unnecessary over-reach of the law. They offered what I believe was an important distinction - that stopping cars without cause might be defensible if it was part of a truly random process taking place at a predetermined time in a predetermined location. But they disliked the subjectivity associated with one-off stoppages where there was no discernible reason. It opens the process to abuse and increases the potential for tragic unintended consequences.

  • Interesting
    August 19, 2014 - 13:21

    I believe that in such instances people are not obligated to answer any questions and only need to provide their license, registration and insurance. However, being uncooperative could lead to a road side test or other delays.

    • Pee Wee
      August 19, 2014 - 13:55


    • Pee Wee
      August 19, 2014 - 14:10


  • J
    August 19, 2014 - 10:34

    Bad Call. I don't drink and drive but I don't think the police should have the ability to stop me for anything if I am not breaking the law. Think about this sentence: In the realm of 'public safety' there is no reason why anyone walking down a sidewalk should not be stopped... He should win if he takes it to a higher court.

    • Colin Burke
      August 19, 2014 - 12:00

      A person walking down a sidewalk is exercising a right. People driving cars on the highway are indulging a privilege, which has to be licensed. That means driving licenses ought not to be issued to all and sundry, since we ought not to obliged to get a licence to do things for ourselves, but only professional drivers, of buses or taxis, should be licensed; motor car manufacturers perhaps have too much influence over public policy in this area, or maybe the wealthy who first bought motor cars had too much influence of that kind.

    • J
      August 19, 2014 - 14:07

      I'm not referring to Rights and Privileges. I am referring to Section 9 of the Charter of Rights and Freedoms. A Police Officer cannot stop you without a reason. Now, obviously they wouldn't want you exercising your right to tell them to sod off so they make stuff up. Disclaimer: I have had no arrests or traffic violations outside a speeding ticket (that I deserved).

    • Robert Hiscock
      August 20, 2014 - 14:08

      Colin, driving is not a privilege. Driving is a luxury. There are no privileges in democratic society because the people who govern are the people we elect. They are not autocrats, technocrats, or aristocrats. They are, supposedly, us. Therefore, what you say "driving is a privilege" is not true. It is false. Anyone who says different do not understand how society works in a democracy or have a streak of authoritarianism in their bones.

    • Colin Burke
      August 21, 2014 - 09:06

      Robert, eating chocolate is a luxury I much enjoy. I don't need to apply for a licence in order to enjoy it. If you have a better word than "privilege" for luxuries which have to be licensed by government, I will use that word from now on. Anyway, my original point, J, was that we can reasonably expect restrictions on a privilege which we ought to resist if they were imposed on our rights. That is why the Charter is not a Charter of Privileges. However, Mr. Walker makes an excellent point about enabling discrimination by police. I could imagine police elsewhere in Canada stopping without reasonable cause any car with Newfoundland licence plates.

  • Barrelman
    August 19, 2014 - 10:03

    Good call by Judge Porter. Get and keep people who drink and drive off the road!!

    • Dolf
      August 19, 2014 - 11:09

      Barrelman, you can also include driving without a license, no insurance, and prohibited from driving. People like J wouldn't agree with that either. Poor misguided soul.

    • Harry
      August 19, 2014 - 11:21

      Try giving the police in Ferguson the power to detain people for no reason.