I was recently pulled over by an OPP police officer on my way home from Gananoque to Kingston when I was about to enter the 401. He asked me if I had anything to drink and I told him I didnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t. After that things went for the worse. He then told me to open my car door, which surprised me because he had absolutely no reason to search my vehicle since I wasn't suspected of committing any crime. I decided to do so because he was visibly angry and intimidating and did not want to have an altercation with him. When I opened the door he saw my brother and father sitting on the back seats without their seatbelts and proceeded to confiscate their driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s license and write them a ticket. I told him later on that I knew he had violated my rights to unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. From what I understand, a police officer cannot stop you and search your vehicle unless he has reasonable suspicion that you committed a crime, which he certainly did not. I also am aware that you cannot stop a motorist to check if they are wearing their seatbelt because that is a violation of the purpose of the Highway Traffic Act. He also misrepresented the reason for stopping me by first claiming it was for a DUI check-up and then proceeding to search my car as if I was a criminal without reasonable cause to do so. In the end, he wrote a ticket under the Highway Traffic Act for driving without a seatbelt even though he had no evidence since he never caught us in the act and ordered us against our will to open the car door without reasonable cause. My brother and father had their seatbelts off AFTER he stopped the car and told them to open the door so he never could prove that they were without their seatbelts while driving. I did not want to comply with his unlawful order but felt that it could have escalated into something worse. I just wanted to know if anyone could tell me whether I could potentially have a case to defend my family in court and waive the penalty fee. I could use some advice on this.
Having someone open their car door is acceptable to facilitate an interaction with them. It happens all the time at ride checks because windows wont lower.
I would suggest that your passengers contact legal representation if they choose to fight the charges.
Personally I think the simplest defence would be to argue that the officerÃƒÂ¢Ã‚â‚¬Ã‚â„¢s observations were made at a time when your vehicle was parked. There would need to be some evidence supporting your passengers being unbelted at a time when the vehicle was in motion or operation.
A Charter defence is a bit more of an arduous undertaking, and IÃƒÂ¢Ã‚â‚¬Ã‚â„¢m not sure if you have enough for one. Random stops are allowed under the Highway Traffic Act, something the Supreme Court has upheld (barely). While random stops may be a charter violation, itÃƒÂ¢Ã‚â‚¬Ã‚â„¢s considered brief and minor and allowed under section 1 of the Charter which allows for ÃƒÂ¢Ã‚â‚¬Ã‚Å“reasonable limitsÃƒÂ¢Ã‚â‚¬Ã‚Â to any rights in a free and democratic society.
So the question is does asking someone step out of the vehicle overstep these limits? That IÃƒÂ¢Ã‚â‚¬Ã‚â„¢m not sure of. IÃƒÂ¢Ã‚â‚¬Ã‚â„¢d think simply asking someone to step out of their vehicle does not necessarily qualify as a search in itself. There are valid reasons in my opinion why an officer could do so without triggering a charter violation.
Again though IÃƒÂ¢Ã‚â‚¬Ã‚â„¢d stress that Charter arguments are not straightforward and legal representation might be a good idea if thatÃƒÂ¢Ã‚â‚¬Ã‚â„¢s how you (or your passengers) want to proceed. ThatÃƒÂ¢Ã‚â‚¬Ã‚â„¢s why IÃƒÂ¢Ã‚â‚¬Ã‚â„¢d try and proceed on what I think would be a simpler defence strategy (no evidence to support the offence) versus a Charter argument.
As has been said, the stop is probably not the problem here, because of the general HTA authority & supporting case law which approves this as a limited and acceptable detention.
The issue seems to be a s. 8 one - that the officer conducted a warrantless (visual) search of the vehicle after telling you to open the door. This could be distinguished from looking through open or clear windows if he couldn't see in the back without opening the door. It could also be distinguished from the situation of needing to open the door to conduct the sobriety check because the windows won't open.
That being said there are cases I am aware of that go the other way and say that the opening of the door is not a s. 8 breach.
And then you have to consider what remedy you would be asking for under 24(2). What evidence is it that you want excluded?
This is why, as people have said, Charter arguments are not simple.
NOTHING I SAY ON HERE IS LEGAL ADVICE.
NOTHING I SAY ON HERE IS LEGAL ADVICE.
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