How to identify genuine traffic stops against opportunities for criminal investigation.

The use of the power to stop motor vehicles based on highway traffic laws is controversial when the traffic safety stop is really a pretext to investigate for criminal activity. It is particularly controversial when it is alleged that the driver of the vehicle is being subject to racial profiling. In the United States one of the key decisions was Whren v. United States 517 U.S. 806. In that case the Court found that it did not matter if the police were using a traffic stop to investigate for drugs provided that the police had a reasonable suspicion that a traffic stop had occurred. This decision made it hard to challenge vehicle stops based on allegations of being pretext stops or stops involving racial profiling. In Canada, courts have allowed police to have dual purposes for stops, such as traffic violations and possible criminal violations. However, the courts in Canada have not necessarily condoned a stop that is purely a ruse or a pretext to investigate for criminal activity without any basis to believe that a crime has occurred. A recent example of this approach can be found in the decision of the Ontario Court of Appeal in R. v. Major 2019 ONCA 578.

It can be difficult to establish that a vehicle stop is a pure ruse or pretext to investigated for criminal activity. It is necessary, in such case, to conduct a detailed cross-examination at the trials. In these types of proceedings, it has been useful to ask cross-examination questions that scrutinize the following areas of the police evidence:

• The decision to stop the vehicle
• The manner of stopping the vehicle
• The consequences/charges that resulted
• Any inconsistent statements
• Inconsistent physical evidence/ video evidence
• Prior cases involving the same officer

Decision to Stop

• absence of observed criminal activity
• original purpose of police activity
• Are police on duty investigating criminal activity or traffic enforcement
• Are they a specialized unit (ie – drug investigators)
• Did they have specialized training in drug enforcement/ interdiction
• Was the accused under surveillance for criminal activity
• Did the police officer know the accused, from a criminal investigation, prior to the stop
• Is the traffic or regulatory matter of a very minor nature or not even an offence
• Did the police quickly abandon the traffic or regulatory investigation
• Was the stop a targeted stop as opposed to a random one
• Is the traffic matter not a legitimate concern but only a pretext to stop the accused and investigate for criminal matters
• Was a computer check done to verify outstanding charges, and identity of the owner (to investigate if the vehicle was stolen)
• Did the police only react when they became aware that the accused had outstanding charges
• Did the police only obtain, through computer access, information in relation to criminal history of the driver
• Plausibility of stopping vehicle for minor infraction during surveillance of more serious criminal matters

How Vehicle Stopped

• Did the police quickly abandon the traffic or regulatory investigation
• Was the drive questioned about criminal matters as opposed to traffic matters
• Did the questions of the police extend to passengers as well and were there attempts to identify the passengers
• Was the degree of force and number of officers more consistent with a criminal investigation

Consequences of Stop

• Was the accused charged with the traffic or regulatory matter
• Did the police follow up and investigate the traffic or regulatory matter (ask for insurance, registration etc.)

Inconsistent Statements

• Police notes
• Police radio communications and computer communications

Inconsistent Evidence

• Video tape evidence of scene
• View scene

Prior Conduct

• Similar stops by same officers in past

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