In the case of R. v. Harris, (2008) 87 O.R. (3d) 214 the Ontario Court of Appeal had to wrestle with the issue of what Charter protections are engaged when the police investigate a passenger in a car.
Harris was a front seat passenger in a car that was stopped by the police because the driver made a left turn without signaling. At the time the vehicle was stopped, Harris was found not wearing his seatbelt. The occupants of the vehicle were investigated and the arresting officer, Lipkus, ran their names through the Canadian Police Information Centre (CPIC). The officer discovered that Harris was on bail and was under a curfew condition. Harris was out well past his curfew. The officer arrested Harris, handcuffed him, took him back to the cruiser, and searched him, at which time he found crack cocaine hidden in the waistband of Harriss underwear. The officer then charged Harris with possession of cocaine for the purposes of trafficking and read him his rights to counsel.
At trial Harris brought a Charter application, alleging various violations of his Charter Rights. Officer Lipkus testified that he asked Harris for identification not for any Highway Traffic Act purpose (such as for not wearing a seatbelt), but simply to run his name through CPIC to see if he was on bail or subject to any other court orders. The trial judge found that Harris had been arbitrarily detained (s.9 violation) and subject to an unconstitutional search (s.8 violation) when he was asked to identify himself while he was detained in the vehicle. The trial judge also found that Harris was denied his right to counsel (s.10(b) violation) while he was being arbitrarily detained. As a result of these constitutional violations, the cocaine was excluded as a remedy and Harris was acquitted.
The acquittal was appealed to the Ontario Court of Appeal.
The Court of Appeal found that Harris was indeed detained by the police officer. It held that the detention was lawful by virtue of the lawful stopping of the car, the ongoing investigation of the Highway Traffic Act violation, and Lipkuss lawful assuming control over the movements of the passengers in the vehicle. As the CPIC check of the driver was enmeshed in the check of Harris, he remained in the same position he would have been in had the officer questioned only the driver. Therefore, the improper demand for Harris to identify himself did not turn the lawful detention into an arbitrary one.
The Court of Appeal held, however, that though the detention was lawful this fact did not thereby render the request for identification legitimate. This is because there was no lawful authority (i.e. not for a Highway Traffic Act purpose) for Lipkus to question Harris as he did. The Court went on to hold the questioning of Harris was a violation of section 8 of the Charter and an unreasonable search and seizure. At page 227 it stated:
A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police. In the circumstances, Harriss identification in response to the officers question constitutes a seizure and attracts s.8 protection.
The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harriss identification. The purpose of the stop did not justify an at large inquiry into Harriss background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harriss identification of himself provided the entrée into that broader and unrelated inquiry.
Since the Appeal Court had determined that Harris was, indeed, lawfully detained as part of a Highway Traffic Act brief roadside detention, it found that consequently there was no breach of his right to counsel as s.10(b) of the Charter was not triggered in these circumstances.
In the final analysis, the Court determined that there was only one Charter breach (s. 8) and that its seriousness was diminished by the fact that Lipkus did actually have a lawful basis to request Harriss identification (for the seat belt infraction). He simply sought the identification for the wrong reason. The Court concluded that since the cocaine was real evidence, the fairness of Harriss trial would not be compromised by its admission. Further, the breach was not sufficiently serious to justify the exclusion of such evidence. Finally, the Court held that the admission of the evidence would not bring the administration of evidence into disrepute and therefore the cocaine should not have been excluded at trial.
A new trial was ordered.