Reasons for Interception and the Right to Remain Silent
As a heavy vehicle driver, it is common to be subject to roadside checks while traveling. Did you know that this power of interception has limits?
Articles 97, 102, and 636 of the Highway Safety Code (hereafter “HSC”) grant broad powers to peace officers, allowing them to require a motorist to stop and identify themselves for a reason provided in the HSC or the Act respecting owners, operators and drivers of heavy vehicles (hereafter “AODHV”). However, case law is clear: the interception must be related to driving a vehicle and not used as a pretext for other purposes.
Behind this broad power lies Article 73 of the Code of Penal Procedure (hereafter “CPP”), which states that a person may refuse to identify themselves “as long as they are not informed of the alleged offense against them.”
In a recent Municipal Court decision[1], a defendant was acquitted after allegedly refusing to provide ID to a peace officer. The facts: the driver was parked in a restaurant parking lot enjoying ice cream with a friend. When police arrived, they asked her to identify herself. She questioned the officers about the reason for the stop. The officers considered her questioning an obstruction under Article 638.1 HSC and issued a ticket. The judge disagreed, stating that the power of interception must be tied to an obligation or prohibition found in the HSC or AODHV. Since the defendant was parked, no valid reason under the HSC applied. Furthermore, Article 73 CPP granted her the right to question the officers without it being considered obstruction.
Often, after identifying oneself to a peace officer, the rights are read, including the right to consult a lawyer. This is more common in criminal matters. In statutory penal matters, such as HSC violations, jurisprudence[2] has recognized that the right to a lawyer is not mandatory in this context. Nevertheless, everyone retains the right to consult a lawyer after receiving a ticket.
Another fundamental right that must not be overlooked in road safety contexts is the right to remain silent. Aside from identification, a driver has the right to remain silent, which helps avoid self-incrimination during a stop.
Despite protections when a defendant is compelled to answer questions, it is better to disclose only the essentials to the officer. It is easier to explore and present defenses later than to be limited by incriminating statements made during the stop.
Remaining silent does not limit the defendant’s right to a full defense or the possibility of acquittal.
And while you have the right to know the reason for your stop before identifying yourself and the right to remain silent, it’s still wise to be courteous to the peace officer. Courtesy has never hurt when receiving a ticket.
Those who’ve had the misfortune of being stopped by a peace officer have likely heard the famous phrase: “Do you know why I’m stopping you?”
This is a prime moment to exercise your right to remain silent. Often, this question is a fishing expedition for information. If the driver responds, “I don’t know,” the officer is limited to the reason for the stop. Checkmate!
Moreover, although there are protections when a defendant is compelled to answer questions, it is preferable to disclose only the essentials to the police officer. In fact, it is easier to explore various defenses and present them to the prosecution later than to be limited in one’s defense by incriminating statements made to the officer during the stop.
Remaining silent therefore does not restrict the defendant’s right to a full and complete defense, nor does it reduce the possibility of being acquitted.
And while you have the right to know the reason for your interception before identifying yourself, and you also benefit from the right to remain silent, don’t forget that it is still important to be courteous with the peace officer during a stop. Good manners have never hurt when receiving a ticket.
[1] City of Montreal v. El Yakout Bousksou, 2023 QCCM 31
[2] R. v. Orbanski; R. v. Elias (Supreme Court of Canada, June 16, 2005), 2005 SCC 37, para. 33
This publication was featured in Transport Magazine.
