The alleged sale of two grams of cocaine to an undercover police officer prompted the police to initiate a motor vehicle stop for tinted windows contrary to Alberta’s traffic safety statute. But the officer who stopped the vehicle testified on an evidence exclusion motion that his real purpose was to identify the driver. Was the stop, then, for a valid regulatory purpose or a pretext to further the drug investigation? That was the question resolved in a recent ruling from the Alberta Court of King’s Bench that considers the thorny area of dual purpose motor vehicle stops.

1. Introduction

On February 2, 2022, the Royal Canadian Mounted Police issued a press release advising that, on January 25, 2022, officers with the Wood Buffalo detachment in Fort McMurray, Alberta, executed a search warrant as part of a multi-pronged investigation that resulted in the seizures of cocaine, firearms and cash. Seven people were charged with a variety of drug-related and other offences. (here) Zachary Gallant of Edmonton, Alberta, was charged with drug trafficking after an alleged cocaine sale with an undercover police officer. On June 14, 2024, Mr. Gallant brought a pre-trial motion in the Court of King’s Bench of Alberta, at Fort McMurrary, seeking the exclusion of evidence seized during a motor vehicle traffic stop following the undercover drug deal. He asserted that the police violated his rights under the Canadian Charter of Rights and Freedoms including the right not to be arbitrarily detained, the right to be secure against unreasonable search or seizure and the right to consult counsel on arrest or detention. On September 16, 2024, Justice Eleanor J. Funk granted the application and excluded the evidence seized during the traffic stop. (here)

2. Background

After the drug transaction with the undercover officer, the police maintained surveillance of Mr. Gallant’s vehicle. The traffic stop was initiated and a uniformed officer made the usual demand for his driver’s licence and vehicle information that were used to identify him. The police obtained a warrant months later for Mr. Gallant’s arrest in relation to the alleged drug transaction. On the pre-trial motion, Mr. Gallant asserted that the vehicle stop was a ruse and the true purpose was to identify him as the person involved in the undercover sale without a valid purpose under the provincial Traffic Safety Act. Hence, the traffic stop was an arbitrary detention contrary to s. 9 of the Charter. The police officer testified that he was assigned by the surveillance team to stop Mr. Gallant’s vehicle for having tinted windows. However, the officer did not issue a ticket for tinted windows or any other infraction under the statute. The issue on the motion, then, was whether the traffic stop was a true “dual purpose” stop or whether it was merely a pretext for the police to advance the drug investigation.

3. Dual Purpose Traffic Stops

A dual purpose traffic stop is one that has a regulatory purpose and a criminal law purpose. Writing for a unanimous Supreme Court of Canada in R. v. Nolet, Justice Ian Binnie said, “[a]s long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer’s search […] infringed the reasonable expectation of privacy of the appellants.” (here) The issue to be decided in these cases is, therefore, whether the police actually formed a legitimate intention to make the detention for traffic safety purposes. As long as the police subjectively have in mind a traffic safety purpose, they may also pursue another legitimate purpose such as the investigation of crime. If the police do not have a legitimate traffic safety purpose in mind and use traffic safety legislation as a ruse or pretext to stop a vehicle in order to investigate criminal activity, the detention will be arbitrary in violation of s 9 of the Charter. (here)

4. Tinted Windows: Purpose or Pretext?

In determining whether the police had a subjective traffic safety purpose, Justice Funk found that the officer did not make any notation of Mr. Gallant’s driver’s licence number and made no notes about which windows were tinted nor the degree of tint. The officer testified he had no intention of issuing a ticket. “To the extent there was a valid [traffic safety purpose] in stopping Mr. Gallant’s vehicle,” Justice Funk said, “the officer appeared to have immediately abandoned it upon receiving Mr. Gallant’s identification documents.” The officer further testified that his “real purpose” in initiating the stop was to identify the driver as part of the drug investigation. That testimony was critical to the finding that the focus of the detention did not change from regulatory to criminal as events unfolded. “Instead, from the outset, the police were interested in advancing their criminal investigation, without any regulatory purpose in mind,” Justice Funk concluded.

In adopting the argument of counsel in R v Humphrey, Justice Funk noted that a stop could be considered a pretext if it could be shown that “the sole purpose of the stop was to further the criminal investigation and that there was no intention at all to investigate or pursue the [traffic safety] offence.” (here) On the evidence in Gallant, the officer’s only purpose in conducting the traffic stop was to identify Mr. Gallant as part of the drug investigation. He had no intention  to investigate or pursue the purported traffic safety infraction related to tinted windows. Justice Funk was therefore satisfied that, “stopping the vehicle under the guise of window tinting was a pretext; the resulting detention was arbitrary, contrary to s 9 of the Charter.” The finding of arbitrary detention thus triggered cascading breaches of ss 8 and 10(b) of the Charter flowing from the seizure of Mr. Gallant’s licence and vehicle documents and the withholding of his right to counsel.

5. Conclusion

In considering whether the evidence should be excluded, Justice Funk considered the three-pronged test in R. v. Grant. (here) She found the Charter violations were not minor, technical or inadvertent. From the outset, the police engaged in a “deliberate course of conduct” that involved an unauthorized traffic stop, an unreasonable seizure of evidence and suspension of the right to counsel. While the impact of the ss 8 and 9 breaches on Mr. Gallant’s liberty and privacy interests were not egregious, they were nonetheless significant in the absence of lawful authority for the detention and search. The first two lines of inquiry in Grant therefore favoured exclusion. In considering the third inquiry involving the public interest in a trial on the merits, the evidence was undeniably reliable and critical to the Crown’s case. Although the offence was serious involving the alleged sale of cocaine to the undercover officer, it “only marginally” tipped the scale in favour of admitting the evidence. Justice Funk therefore concluded that the final balancing warranted exclusion in order to protect the long-term repute of the justice system.