Suspected Prowlers Pulled over on mere police suspicion
OFFENCE: Refusal to provide a breath sample
RESULT: Charge Dismissed
DEFENCE LAWYER: Sean Fagan
Regina v. K.D. – April 2018
Charges: Sections 254(2) Criminal Code of Canada
Two members of the Calgary Police Service (“CPS”) were on patrol in a family oriented suburb in South Calgary. During the course of their patrols, they observed a truck driven by K.D., which drew their attention and raised their suspicion; the Officers believed that it was too late in the evening for a truck to be driving in the neighbourhood and had recently dealt with prowlers in the neighbourhood. The CPS officers followed the truck, which immediately conducted a 3-point turn, a behaviour the CPS officers believed to be in active avoidance of their marked patrol car.
The officers ran the truck’s license plate through the police databases, and it informed them that the registered owner of the truck resided outside of Calgary, adding to the officers’ suspicion. The officers drove right up to the occupants of the vehicle, who had just gotten out of the truck and were walking across the street.
The officers began to question the two occupants of the truck regarding their suspicions: where are you coming from? where are you going? what are you doing in this neighbourhood? These are blanket statements aimed at eliciting incriminating evidence, which a person in most scenarios has NO obligation to answer.
K.D. answered the questions in an honest manner, truthfully explaining that she was on her way home and lived just across the street. The officers, possibly realizing that they had overstepped their lawful authority, attempted to justify the roadside detention by claiming that K.D. smelled of alcohol, and was demonstrating indicia of impairment. K.D. vehemently denied any alcohol consumption. Notwithstanding her denial, the officers demanded that K.D. provide a sample of her breath into an approved screening device. K.D., who had never been in trouble with the police before, had a myriad of questions for the officer, specifically with respect to their lawful authority to demand a the of her breath.
The officer repeatedly told K.D. that if she did not provide a sample of her breath, that she would be charged with refusal to provide a breath sample, and that it carried with it the same penalties as impaired driving. The officer was correct on this point. Ultimately, K.D. refused to provide a sample of her breath, claiming that she read on Facebook that she did not have to provide a sample of her breath. And, in the very particular circumstances of this case, she was correct.
At trial, the police officer steadfastly held that he never detained K.D. on mere suspicion, which is not allowed. Instead, the officer swore that he was just conducting a friendly interaction with a member of the public to see if she was satisfied with the safety of the community. Through cross-examination, Sean Fagan was successful at getting to the truth. The police officer simply conducted a random stop of a vehicle based on nothing more than a hunch; something that is not allowed and that citizens of Canada are protected from under the Canadian Charter of Rights and Freedoms.
After Sean Fagan’s cross-examination of the officer, the Crown prosecutor assessed its case, and determined that there was no reasonable likelihood of conviction, and asked the Court to dismiss all charges.