He fought the law and the law won

Russell Wangersky rwanger@thetelegram.com
Published on August 19, 2014

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.