I don’t discuss law enforcement as a stand alone topic on this blog. But police conduct will come into play in search and seizure law. And that is what happened the day Alexander Harflett was travelling on Highway 401 in Ontario when he was stopped by Constable Robert Sinclair. Here’s the story.

Cst. Sinclair did a random computer check on Harflett’s Quebec licence plate and found that his Ontario driver’s licence was suspended for unpaid fines. Harflett produced a valid Quebec driver’s licence when he was pulled over. Cst. Sinclair arrested him for driving with the licence of another jurisdiction when his Ontario licence was suspended and charged him under s. 36 of the Highway Traffic Act, RSO 1990, c. H.8. Harflett couldn’t drive because his licence was suspended so Cst. Sinclair called a tow truck. The plan was to tow the car to a nearby hotel with Harflett travelling in the tow truck. He could pay his fines the next day and go on his way.

Cst. Sinclair then searched the car. He would later testify on an evidence exclusion motion that he did not search it – he did an inventory of the contents. When he opened the trunk he found a quantity of marihuana. He rearrested Harflett and charged him with possession for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. The trial judge ruled that the inventory search was reasonable and that, even if Harflett’s right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights was breached, the test for exclusion under s. 24(2) favoured admission of the marihuana. Harflett was convicted and sentenced to a year in jail. He appealed.

On April 6, 2016, the Ontario Court of Appeal released its unanimous ruling reported as R v Harflett, 2016 ONCA 248. Justice P.D. Lauwers, who wrote the opinion of the court, found a violation of Harflett’s Charter rights, excluded the evidence and entered an acquittal. The conduct of Cst. Sinclair in doing the inventory search was at the heart of the opinion. The ruling required the court to engage in the two step Charter analysis that I will condense as follows.

1. Breach

The inventory search was warrantless. It was not authorized by law. Cst. Sinclair had neither the statutory nor common law authority to search or impound the car. The search thus failed the first branch of the Collins test. Justice Lauwers analyzed the inventory search this way, at paras. 22, 25, 27 and 30:

“The officer explained that he searches ‘every vehicle’ for which he calls a tow truck. His view was that he was ‘totally responsible’ for the car. The search was to protect himself, the appellant, and the tow truck operator. The officer checked first for exterior damage to the car. He explained that in the interior search he looked for weapons, other dangerous items, and valuables. He was concerned about weapons that the appellant might use to harm the tow truck operator and wanted to protect the operator against any allegation that he had stolen valuable items from the car.

There was nothing in the interactions that developed between the officer and the appellant, assessed step-by-step as required by Nolet, that might have triggered the need to do the inventory search. I note that Constable Sinclair had no public safety concerns, since he was going to release the car to the appellant. In Waugh, Blair J.A. accepted, at para. 32, that ‘courts should be cautious in extending police power by resort to their common law ancillary powers, particularly in circumstances where the legislature has put in place an elaborate and comprehensive regulatory regime with carefully balanced powers and sanctions.’ This observation manifestly applies to this case.

…[T]he other reasons given by the officer for the inventory search do not hold up to scrutiny and pass constitutional muster. The owner was not going to be separated from the car, but was to ride with the tow operator to the hotel. There was accordingly no reason for the tow operator to access the interior of the car and the police officer had no cause to be concerned for the operator’s safety.

…[T]he officer’s common law authority was limited by the real exigencies of the situation: see Mellenthin. His duty obliged him to get the car off the highway for safety reasons. There was no reasonable basis for the officer to go on to undertake an inventory search of the car.” (See: R v Collins, [1987] 1 SCR 265 per Lamer J., at para. 23)

2. Exclusion

The backdrop to Harflett included the rulings of two other Ontario courts that had previously held that Cst. Sinclair abused his search powers in R v Rodrigue, 2012 ONSC 1739 and R v Nguyen, [2011] OJ No 6252. In the first case, Cst. Sinclair had no grounds to pull Rodrigue over and the trial judge found that his conduct was a “deliberate and flagrant” violation of the defendant’s rights. In the second case, Cst. Sinclair obtained consent for a vehicle search from Nguyen who was Vietnamese and didn’t speak English.

Justice Lauwers emphasized, at para. 54, that society’s interest in a trial on the merits, “,,,cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused’s Charter rights.” The seriousness of the offence and the reliability of the evidence cannot be allowed to overwhelm the analysis. The state conduct here was serious as Cst. Sinclair had, “no authority to conduct any type of search of the interior of the vehicle.” Judge Catherine Kehoe, the trial judge, was therefore wrong in characterizing the breach as technical. (See: R v Harrison, [2009] 2 SCR 494 per McLachlin C.J., at para. 40)

3. The Shakedown

In reviewing Cst. Sinclair’s conduct in Harflett, particularly in the context of his systematic search of vehicles at traffic stops, Justice Lauwers made these comments, at paras. 43-4:

“…Constable Sinclair testified that he always searches cars that he stops. He was an instructor in ‘pipeline techniques’ and taught police officers and others the skills to ‘recognize indicia of the criminal element in traffic enforcement’ during ‘traffic stops’. He testified that Highway 401 was a popular route for drug and weapons traffickers and that he was always alive to possible criminal activity when conducting traffic stops. He testified that, as a member of the East Region Highway Enforcement Team, he had been involved in over 100 investigations involving large quantities of marijuana. In his testimony Constable Sinclair agreed that he is ‘really good at finding ways to search motor vehicles’, adding, however, that he does so ‘lawfully’.

I do not doubt that Constable Sinclair believes that he is doing the right thing, and to that extent shows good faith. But, to borrow the words of MacPherson J.A. in R. v. MacDonald, 2012 ONCA 405, [2012] O.J. No. 3210, at para. 35, Constable Sinclair’s invariable practice of searching every car fits the description of an impermissible ‘fishing expedition conducted at a random highway stop’. As an instructor of other police officers, he ought to be fully conversant with his legal authority, but the evidence shows either that he was not or that he was prepared to search regardless. His attitude was exemplified by his testimony: he resisted the notion that what he did was a ‘search’: ‘I do an inventory sir, not a search’. This was plainly a search.”

When I read that, I thought: Oh, how Canadian. This was plainly a shakedown.