What are my rights during a police stop?

By Vince Semenuk

Police have broad powers when it comes to enforcing the law in Canada. However, citizens also have extensive protection when it comes to their dealings with law enforcement agencies, thanks to the Canadian Charter of Rights and Freedoms.

Every driver should know their rights, especially when it comes to interacting with officers during a roadside stop, which can be a stressful ordeal at the best of times.

Reasons for a traffic stop

Police are allowed to execute a traffic stop for various reasons, including:

• To check for proper documentation.
• To confirm the mechanical soundness of a vehicle.
• To check on the driver’s sobriety.
• If they have grounds to believe someone in the car has committed a criminal offence.

According to the Edmonton Police Service, officers who pull over vehicles must:

• Identify themselves.
• Tell you why you have been stopped or why they want to talk to you.
• Act reasonably and respectfully during any search.
• Return any seized property within three months if you have not been charged. After that period, investigators need permission from a judge to hold your property.

You have a right to know a police officer’s name or badge number.

Always stay calm and polite during a traffic stop. Stay in the car and lower your window when the officer approaches.

Make sure your hands are visible. If you suddenly reach into your pocket the officer may fear you are drawing a weapon, provoking a possibly serious reaction.

The right to stay silent

After police pull you over, officers will invariably ask for your name, address and date of birth, which you must provide. You must also show your driver’s licence, vehicle registration and proof of insurance when requested. However, after that information is given, you do not have to answer any more questions unless an officer asks you to provide a sample of your breath into a screening device.

As of December 2020, all officers in Alberta are permitted to require you to provide a sample of your breath regardless of whether they have grounds to demand a sample or not. If an officer demands that you provide a sample of your breath you are required by Alberta law to immediately comply with the demand and provide the sample of your breath. Failure to do so will result in being issued an Administrative Sanction for refusing to comply with a demand which means you will lose your licence for 15 months and will be subject to other fines and penalties.

You are not required to answer questions about where you were coming from or where you are going or whether you consumed any alcohol or drugs that evening.

However, if you choose to answer their questions, keep your statements to a minimum and be honest. If you give false information you could be charged with obstructing justice.

The right to remain silent is guaranteed by s. 7 of the Charter. It states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Charter also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, their liberty will be lost.

The right to know why you were stopped

Since driving in Canada is a privilege, not a right, Alberta’s Traffic Safety Act grants police the power to pull over vehicles with minimal or no grounds to do so. This means that an officer can pull you over if:

• An officer witnessed you violating traffic laws, such as speeding, running a red light or failing to signal a turn.
• If there are visible mechanical issues with your vehicle, such as a broken taillight.
• If your driving behaviour arouses suspicion, such as weaving between lanes or aggressive behaviour toward other drivers.
• Investigators have credible information that someone in your vehicle was involved in criminal activity.
• There was a 911 call in relation to your vehicle as being a suspected impaired driver

Police in Alberta are permitted to conduct sobriety checks at random on any vehicle they see fit at any point in time.

Police can demand an alcohol or drug test

Since the inception of the SafeRoads Alberta regime in December 2020, police in Alberta have the power to demand that any driver submit a breath sample, even if they are not showing signs of impairment.

You are legally obliged to comply with a breath test demand immediately upon the demand being made. Failure to do so will result in a charge that carries the same penalties as if you are impaired, with fewer defences.

Even if you realize that you are impaired, you are far better off blowing and getting a “fail” reading than refusing to blow outright. That is because the defences for refusal under the SafeRoads Alberta legislation are exceptionally limited compared to the defences available should you blow a “fail” reading.

As I wrote in a December 2023 post, What to Do if You are Caught in a Checkstop, you do not have the right to speak with a lawyer before providing a roadside breath sample. However, if you are arrested, the officer must inform you of your legal right to speak with counsel and you are to be provided a reasonable opportunity to do so. If during the course of the investigation the officer decides to abandon the criminal investigation in favour of a provincial investigation, the officer must inform you that you are no longer under arrest and that your right to counsel is being suspended for the purposes of either a roadside screening test or the roadside appeal of that initial screening test.

Unfortunately, during most impaired driving investigations in Alberta, the police may ignore your right to counsel because they are proceeding with a Traffic Safety Act investigation rather than a Criminal Code investigation. Police may or may not inform you of this difference, however they are obligated to do so and a failure to do so may afford you a defence.

That means that although you may be arrested for impaired driving and told that you have a right to counsel, you will probably not be given the opportunity to contact a lawyer prior to being asked if you want to provide further samples of your breath.

Vehicle searches

Police need your permission to search your vehicle unless they have reasonable grounds that it contains evidence of a crime. They can peer into the windows and may use a flashlight at night. If they see an illegal substance in plain view in your vehicle, they can arrest you and they will have the grounds to search your vehicle.

Keep in mind that while cannabis is legal in Canada, it is illegal to have it readily accessible to anyone in the vehicle. If drug paraphernalia is in plain view, such as hash pipes or roach clips, officers may have reasonable grounds to believe there are illegal drugs in your possession. They can then demand to search your car as it is probable that evidence would be removed if they first had to obtain a warrant.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that "Everyone has the right to be secure against unreasonable search or seizure." This fundamental right ensures that law enforcement officers cannot conduct searches or seizures without proper justification.

Contact us for assistance

Thousands of Albertans are pulled over each year by police, often on the suspicion that they are under the influence of drugs or alcohol. It is important to note that while these driving offences are one the most heavily litigated areas of criminal law, they are also one of the most defensible. This is due to the often technical and precise nature of the law and instrumentation involved. If you are facing criminal charges, contact the team at Dunn & Associates for a free consultation.