[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]

The Exercise of a Power under the HTA must be for a Road Safety Purpose

 Under Ontario’s Highway Traffic Act (HTA), the police broad powers to stop motor vehicles for highway regulation and safety purposes, and, in some circumstances, to arrest drivers of motor vehicles.  [FN1] The Legislature granted the police these powers for the purpose of ensuring road safety.  The police are not free to use these powers for purposes other than highway regulation and safety.

Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA);

R. v. Mayor, 2019 ONCA 578, at para. 6.

If the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the vehicle stop.  If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s.9 of the Charter. 

R. v. Brown, supra;

R. v. Nolet2010 SCC 24 (CanLII)[2010] 1 S.C.R. 851, at para. 36;

R. v. Humphrey2011 ONSC 3024 (CanLII)237 C.R.R. (2d) 109.

Dual Purpose Stops OK

As long as the police have a road safety purpose subjectively in mind, they may also have other legitimate purposes in mind, such as the investigation of criminal activity. What is important is that the use of the Highway Traffic Act power not be a mere ruse or pretext to stop a vehicle in order to investigate a crime.

Determining the True Purpose for the Vehicle Stop

When an accused challenges an officer’s invocation of the detention powers under the HTA, it is incumbent upon the court to make a factual determination as to whether the officer actually formed a “legitimate intention” to make the detention or arrest for road safety purposes; or whether the officer was using the Highway Traffic Act as a pretext to stop a vehicle for some other purpose, such as to investigate a crime. 

To do this the court must consider all the circumstances, including the following: the evidence of the officers, the evidence of the detained person, the circumstances of the stop, and the police conduct during the stop.

Brown, at p. 238; 

Gonzales, 2017 ONCA 543 (CanLII), at para. 67. 

Can does not mean Did

That the police, in the circumstances, can exercise a power under the HTA is not dispositive of the issue of whether the police had formed a legitimate intention to exercise the HTA power for a road safety purpose.

See for instance R. v. Mayor, 2019 ONCA 578.

In R. v. Major, the accused’s driver’s licence had been suspended.  The police knew this, and that the accused continued, nevertheless, to operate a motor vehicle.  Police stopped the appellant’s vehicle and arrested the appellant, purportedly under the HTA for the offence of driving while suspended. [FN1]   The appellant had been the target of a fruitless drug investigation by the police.  The Court of Appeal for Ontario overturned the appellant’s conviction and granted a new trial, holding that the trial judge had erred in failing to determine whether the officers subjectively formed an intention to arrest the appellant for a road safety purpose, notwithstanding the fact that the officers had the lawful ability to arrest the appellant under the HTA for a road safety/highway regulation purpose.

[FN1] For instance, section 216(1) of the Highway Traffic Act gives an officer the power to stop a vehicle, even if the stop is random and the officer lacks reasonable and probable grounds or even reasonable suspicion: R. v. Gonzales2017 ONCA 543 (CanLII), at para. 55.

[FN2] Section 217(2) of the Highway Traffic Act authorizes an officer to make a warrantless arrest of a person who the officer believes on reasonable and probable grounds to be driving while suspended. If the officer is satisfied that a person is driving while suspended, the officer also has the duty to detain and impound the vehicle: Highway Traffic Act, s. 55.2(1).