A Hot Target Vehicle
- July 30, 2019
- Clayton Rice, Q.C.
On January 16, 2018, the police were on proactive patrol in an area of Edmonton, Alberta, riddled with property crime. They were on the lookout for stolen vehicles. Ford trucks were on the priority list. Then, along came Illay Mohamed in an F-150 registered to a woman. Here’s the story.
1. The Traffic Stop
The purpose of the patrol was “to ensure that vehicles were not stolen without the owner’s knowledge”. The arresting police officer testified at Mohamed’s trial that licence plates were being queried and if there was a “mismatch” a traffic stop would be initiated. A mismatch came up when a query returned the name of a woman as the registered owner of the F-150 Mohamed was driving. The traffic stop was conducted to ensure that he had “all of his documents in proper order” and to find out whether he was “wanted on any outstanding warrants” and whether he was “abiding by any release conditions”. The officer went on to say that the Ford was “kind of a hot target vehicle”.
The officer ran checks on the information Mohamed provided including a query on the Canadian Police Information Centre database (CPIC). He had a previous conviction for a driving offence, was prohibited from driving and on probation. He was arrested and charged with driving while prohibited and breach of probation.
2. The Trial
On January 17, 2019, Judge Shelagh Creagh of the Provincial Court of Alberta convicted Mohamed of both offences without “any particular findings of facts”. It appears from the unreported reasons that she accepted the officer’s testimony in its entirety and found that the traffic stop was authorized under ss 166 and 167 of the Traffic Safety Act, RSA 2000, c T-6. The statute authorizes the police to stop vehicles to examine the operator’s licence, and the vehicle registration and insurance documents. It was immaterial whether the police were also using the stop as a ruse to poke around for criminal activity. Mohamed was sentenced to thirty days incarceration and prohibited from driving for a year. (See: R v Illay Mohamed, January 17, 2019; Docket Nos.: 180065187P1 and 180159337P1; and, R v Ng, 2014 ABPC 62)
3. The Appeal
On July 4, 2019, Justice V.O. Ouellette of the Court of Queen’s Bench of Alberta allowed Mohamed’s summary conviction appeal in a ruling reported as R v Mohamed, 2019 ABQB 499. Justice Ouellette concluded that the traffic stop was arbitrary and thus violated s 9 of the Charter of Rights. The evidence gathered during the stop was excluded and acquittals entered. The case is yet another example of the valid use of traffic stops by the police for simultaneous unconstitutional purposes.
Justice Ouellette summarized Mohamed’s argument this way, at para 28: “[T]he totality of the police officer’s evidence shows that the officer had a policy of targeting drivers who look different from the registered owners in order to go on a fishing expedition hoping to find stolen vehicles or people with release conditions or outstanding warrants, none of which are valid purposes under the Traffic Safety Act or proper grounds under common law to stop an individual.” The Crown conceded that “authority to detain pursuant to traffic legislation does not extend beyond enforcing traffic laws.”
Justice Ouellette therefore framed the “core issue” on appeal, at para 3, as: “Can an otherwise authorized legal stop and detention of the driver of a motor vehicle, for the purposes of administration and enforcement of the Traffic Safety Act […] become an unauthorized arbitrary detention, if the other stated purpose for the stop is the investigation and discovery of criminal activity?”
The issue, then, takes us back to the leading case of R v Ladouceur, 2002 SKCA 73 where the police set up a random stop program called “Operation Recovery” specifically to detect highway traffic violations and to “locate contraband being transported on our highways”. In concurring reasons, Chief Justice Edward Bayda put the problem this way, at para 65: “If both of these aims are combined in one check-stop, does the ‘highway safety’ aim (lawful) cleanse the ‘general detection’ aim (unlawful) to make the check-stop lawful or does the latter contaminate the former to make the check-stop unlawful?”
Chief Justice Bayda concluded, at paras 65-6, that both aims cannot co-exist in the same check-stop. The lawful aim cannot be “neatly compartmentalized” from the unlawful one and “it is important not to encourage the establishment of check-stops where a nominally lawful aim is but a plausible facade for an unlawful aim.” As Justice Ian Binnie of the Supreme Court of Canada said in R v Nolet, 2010 SCC 24, at para 25, the random stop program in Ladouceur was designed as a “comprehensive check for criminal activity” and was therefore “fatally flawed from the outset.”
So, too, in Mohamed. As Justice Ouellette held, at para 34-8, this was a targeted stop to see if Mohamed had the registered owner’s consent and whether he was the subject of outstanding warrants or was bound by bail conditions. A lawful traffic stop could not be conducted for the purpose of a “generalized and speculative criminal investigation” by the proactive patrol. The purpose, to gain information about warrants or bail conditions, had nothing to do with the administration and enforcement of the statute. Justice Ouellette concluded, at paras 50-3, that the evidence should be excluded to protect the long-term repute of the justice system. The law on traffic safety enforcement is well settled. And although the officer understood the limitations on his authority he nevertheless went on a fishing expedition.
The evidence against Mohamed of disqualified driving and breach of probation was likely discoverable in any event. If he was randomly stopped for the purpose of enforcement of the statute – to check for licence, registration and insurance – it would have been authorized by law and not in violation of s 9 of the Charter. This point was not lost on Justice Ouellette where he said this, at para 43:
“Ironically, if the proper, limited purpose for the stop was the enforcement of the Traffic Safety Act, and more particularly the check for documentation of a valid driver’s licence, it in itself would have revealed that Mr Mohamed was disqualified from operating a motor vehicle, and in that situation, there would not have been any s 9 Charter breach: R v Zolmer, 2019 ABCA 93 at paras 6-9, 83 Alta LR (6th) 1; R v Dhuna, [2009 ABCA 103] at paras 22-25.”
But, that’s not what happened, is it?