Motor Vehicle Law at the Roadside (13:III)

Most motor vehicle law issues begin at the roadside, in an interaction with a police officer, or other peace officers. This section discusses common issues encountered at the roadside, and provides an outline of your rights when you are stopped by a peace officer.

A. Powers of Peace Officers

Police officers have the power to stop drivers to check for the fitness of the motor vehicle, possession of a valid driver’s license, proper insurance, and sobriety of the driver. Police officers do not need a warrant, or even reasonable and probable grounds to perform such stops. The fact that you are driving on a public highway is enough to justify a vehicle stop.

According to the Supreme Court of Canada in R v Ladouceur, [1990] 1 SCR 1257, 56 CCC (3d) 22, random checks by the police for motor vehicle fitness, possession of valid driver’s license and proper insurance, as well as sobriety of driver constitute arbitrary detention contrary to s. 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. However, these checks are considered reasonable limits under s 1 of the Charter so long as they are “truly random routine checks”: R v McGlashen, [2004] OJ No 468, 115 CRR (2d) 359. The Ladouceur decision was affirmed in R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3.

Pursuant to Motor Vehicle Act s 79 a peace officer may arrest without warrant any person:

a) whom the officer finds driving a motor vehicle, and who the officer or constable has reasonable and probable grounds to believe was driving in contravention of Motor Vehicle Act ss 95 or 102 (driving while prohibited) (s 79(a)); or

b) whom the officer has reasonable and probable grounds to believe is not insured or who is driving without a valid and subsisting motor vehicle liability insurance card or financial responsibility card (s 79(b)); or

c) whom the officer has reasonable and probable cause to believe has contravened Motor Vehicle Act s 68 (leaving the scene of an accident) (s 79(c))

and may detain the person until he or she can be brought before a justice.

B. Your Obligations

When stopped by a peace officer while driving, you must, upon request, provide your driver’s license, vehicle registration, and proof of insurance. If these items are located in the glove compartment or other out-of-sight location, it may be advisable to ask the officer for permission to retrieve them before reaching for them, so that the officer does not think that you are reaching for a weapon.

When a legal breath sample is demanded by a peace officer, a driver must forthwith provide a sample of breath to determine the concentration of alcohol in the driver's body. See s. 254(2) of the Criminal Code. More information on breath samples is available in section IX of this chapter.

Additionally, if a police officer has reasonable suspicion that a driver is impaired by a drug other than alcohol they must submit to a Standardized Field Sobriety Test ("SFST"). More information on SFST is available in section IX of this Chapter.

You have specific obligations at the scene of a collision. They are outlined in the next section of this chapter: Duties After a Collision

C. The Right to Silence

The right, under sections 7 and 11(c) of the Charter of Rights and Freedoms, to remain silent and not be required to make self-incriminating statements, generally applies in the motor vehicle context.

With the exception of providing license, registration, and insurance, providing a sample of breath, and providing a statement at the scene of a collision in which you were involved, you are not obligated to make a statement to the police, or to answer their questions.

You also have the right to contact a lawyer before you make any statement. In R v Suberu, 2009 SCC 33, the Supreme Court of Canada found that the right to speak to a lawyer arises as soon as a person is detained, even though they have not been formally arrested yet. In R v Grant, 2009 SCC 32, the court found that “detention” begins as soon as there is physical or psychological restraint imposed by the police that prevents a person from leaving.

In summary, your right to silence continues to operate when you are stopped in a vehicle by the police. If the response to you (politely) asking whether you are free to go is anything other than an unqualified “yes”, you should assume you are being detained, and may wish to exercise your right to remain silent so as to avoid making statements that may incriminate you. Any admissions that you make at the roadside can be, and most likely will be, used against you in court. Remember that police officers are collecting evidence at the roadside. If you are arrested, you should ask to speak to a lawyer as soon as possible, and avoid making any statements or admissions until you have had an opportunity to speak to a lawyer.

D. Vehicle Standards

1. Equipment Standards in General

The general rule is that a “person must not drive or operate a motor vehicle or trailer on a highway or rent a motor vehicle or trailer unless it is equipped in all respects in compliance with this Act and of the regulations” (Motor Vehicle Act s 219(1)). Section 219(2) permits a peace officer to require the inspection of a registered owner’s motor vehicle and motor vehicles at a rental firm.

Under Motor Vehicle Regulations s 25.30, where a police officer has reasonable and probable grounds to believe that a vehicle is unsafe for use on a highway, regardless of whether or not the vehicle actually meets the standards prescribed under the Motor Vehicle Act, the officer may:

a) order the vehicle removed from the highway until repairs as ordered by the officer are completed or the peace officer revokes the order; and/or

b) order the surrender of the vehicle license and/or number plates.

Seat belt issues, discussed below, are the most common source of equipment standards issues, but for a complete list of required standards, please consult the Motor Vehicle Act and Regulations.

2. Seat Belt Assembly

Section 220 of the Motor Vehicle Act requires that any motor vehicle manufactured after December 1, 1963 must be equipped with at least two front seat belt assemblies before it is sold or operated.

Section 220(4) requires that when the motor vehicle is operated, these assemblies must be properly fastened except as per s 220(5):

a) when a person is driving in reverse, or

b) (Repealed)

c) in the case of a person engaged in work which requires frequent alighting and in which the maximum vehicle speed is 40 km per hour, or;in the case of a person engaged in work which requires frequent alighting and in which the maximum vehicle speed is 40 km per hour.

d) the person is under the age of 16

Courts have upheld the rules enforcing mandatory seat belt use as they are held not to be an infringement of an individual’s Charter rights. The provisions are integral to the broad legislative scheme promoting highway safety and minimizing the overall human and economic cost of accidents. The alleged infringement of a person’s right to free choice is so insignificant that it cannot be considered a measurable breach of Charter rights: R v Kennedy, [1987] BCJ No 2028, 18 BCLR (2d) 321 (CA).