In this case, the Nova Scotia Court of Appeal considered the scope of s. 8 of the Canadian Charter of Rights and Freedoms in relation to police officer investigations under the Motor Vehicle Act 1989 (MVA). Hamilton J.A., writing for the majority, held that it is not unreasonable for an officer to administer a pat down search after giving a ticket under the MVA if the officer believes it is necessary to have the accused sit in the police car while the officer writes the ticket. Beveridge J.A., writing in dissent, held that an investigative detention incidental to a summary offence ticket under the MVA is not lawful unless there are reasonable grounds to believe that the accused poses a flight risk.
The issue arose when the appellant was found in breach of s. 100A(1) of the MVA for having a blood alcohol content greater than zero. He was not above the legal limit for drivers, but as a newly licensed driver he was not permitted to be above zero. The officer was alone and it was dark, leaving him no place to write the ticket except in the police car. The appellant was barred by the MVA from returning to his own vehicle, so to prevent him from being able to walk away, the officer asked him to sit in the back of the police car and conducted a pat down search first.
The majority found that an investigate detention pursuant to the MVA was reasonable under the circumstances. Hamilton J.A. held that the incidental pat down search was therefore reasonable under the test from R. v. Collins and did not breach the appellant’s s. 8 rights. In dissent, Beveridge J.A. noted that any person waiting for a ticket can possibly drive or walk away. He argued that there must be reasonable grounds in the mind of the arresting offer - a more objective standard than that employed by the majority - to suspect a flight risk or an investigative detention will not be justified. Beveridge J.A. found that such grounds did not exist in this case and therefore found a breach of s. 8. He would have excluded the results of the search from evidence pursuant to s. 24(2) of the Charter.
July 13, 2011
Link to Decision
Marc Gibson, Jen-Yii Liew & Minsuk Kim
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