Court of Queen’s Bench of Alberta Citation: R v Mohamed, 2019 ABQB 499 Date: 20190704 Docket: 180065187S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Illay Mohamed Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ Summary Conviction Appeal From the Oral Reasons for Judgment by The Honourable Judge S.R. Creagh Delivered on January 17, 2019 I. Introduction [1] At 1:30 a.m. on January 16, 2018, the police were on proactive patrol in southeast Edmonton, a high property crime area. Part of the proactive patrol was the detection of stolen vehicles and in particular, Ford trucks were targeted. Further, the proactive stops were done in order to ensure that the vehicles were not in fact stolen without the owner’s knowledge. If the Page: 2 police officer saw such a truck, his policy was to query the license plate. If the query revealed that the registered owner was of a different gender than the driver, he would stop the truck to see if the driver had the consent of the registered owner to drive the vehicle. Mr. Mohamed was stopped while driving a Ford F150 truck, which was registered to a female. He was detained, arrested and eventually charged with driving while disqualified and a breach of probation, both offences under the Criminal Code of Canada. He was convicted of those offences at trial and this is his appeal of those convictions. II. Ground of Appeal/Issue [2] The Appellant’s ground of appeal is that: “The trial judge erred in [the] legal test employed in determining that the police conduct did not breach the accused’s [Canadian Charter of Rights and Freedoms] rights.” [3] Based on written and oral submissions on appeal, I have reframed the core issue as: Can an otherwise authorized legal stop and detention of the driver of a motor vehicle, for the purposes of administration and enforcement of the Traffic Safety Act, RSA 2000, c T-6 become an unauthorized arbitrary detention, if the other stated purpose for the stop is the investigation and discovery of criminal activity? III. Standard of Review [4] In order to determine the standard of review applicable to this appeal, the recent comments of the majority of the Supreme Court of Canada, in R v Le, 2019 SCC 34 at paras 23- 24, are pertinent. [5] The Court stated, inter alia: [23] ...Questions of law on an appeal attract a standard of correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18). Questions of fact attract a palpable and overriding error standard (para. 18). The application of the law to a given factual matrix, that is, whether a legal standard is met, amounts to a question of law and attracts a correctness standard (Shepherd, at para. 20; [R v Grant, 2009 SCC 32, [2009] 2 SCR 353], at para. 43). [24] In this judgment, we have respected, and used, the trial judge’s findings of fact to assess whether the lower courts were correct in their assessment of when a detention occurred. [...] An appeals court is entitled to have a different view of the impact that police conduct would have on a reasonable person in the shoes of the accused. [Emphasis added]. [6] In the present appeal, and as identified earlier, the issue involved is whether an authorized legal stop and detention can morph into an unauthorized arbitrary detention in the context of the Traffic Safety Act and the Charter. That question invites an “application of the law to a given factual matrix, that is, whether a legal standard is met,” and as such amounts to a question of law. [7] Consequently, I conclude that the applicable standard in this appeal is correctness: R v Le at paras 23-24; Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. Page: 3 IV. Overview of Facts [8] Although the trial judge never made any particular findings of facts, nor did she state that she was accepting the entirety of the police officer’s testimony, it is reasonable to conclude that she in fact accepted the entirety of the police officer’s testimony as becomes clear from the Reasons for Judgment. With that in mind, I will review the facts as testified to by the police officer. [9] On January 16, 2018, the police officer was conducting proactive patrol at approximately 1:30 a.m. (Trial Transcript [TT], July 26, 2018, at 2/36). The purpose of the proactive patrol was to ensure that vehicles were not stolen without the owner’s knowledge (TT at 17/30-31). The police officer observed a Ford F150 truck, which is commonly on their list for stolen vehicles (TT at 3/13). The police officer then queried the license plate on this vehicle and found that the registered owner was listed as a female – and he observed that a male driver was operating the truck (TT at 2/39-40). He went on to state that it is his particular practice to query license plates, and if there is a mismatch – that is, a male driver is operating the vehicle and the truck is registered to a female, he will conduct a traffic stop in order to ensure that the male driver has all of his documents in proper order and whether he is wanted on any outstanding warrants, or that the driver is abiding by any release conditions (TT at 2/41; 3/1, 30-39; 8/7-8). [10] The police officer went on to state that there is a lot of property crime in his southeast division and in particular, Ford trucks are commonly stolen. He further went on to state that the Ford truck is “kind of a hot target vehicle that we target” (TT at 4/ 13-16). [11] In the report that the police officer created in relation to this stop, it stated that the reason for conducting the traffic stop was simply that the registered owner was a female and the driver was a male (TT at 9/18-19; 10/31-33). He went on to state that he has a standard policy that in any case where the gender of the driver does not match the gender of the registered owner, he will conduct a vehicle stop (TT at 10/8-11). His standard policy also is applied if there is a significant age differential between the driver and registered owner (TT at 10/11-14). [12] The officer further went on to state that, whether it be a gender mismatch or age difference, the reason for the stop was in order to ensure that the registered owner was in fact operating the motor vehicle (TT at 10/14-15). And that the reason he needed to identify the driver was to ensure that he had all the proper documentation and whether or not he was wanted on any outstanding warrants (TT at 10/19-20). [13] When questioned on whether there was any requirement that the registered owner be the one operating the motor vehicle, he agreed there was no such requirement; however, the officer added that he has the authority to conduct a traffic stop for a variety of reasons (TT at 10/24-27; 11/24-31). The stop was to determine whether or not the vehicle may have been stolen without the registered owner’s knowledge at the time (TT at 11/26-31). Additionally, that the policy of conducting such a vehicle stop is to then check the documents of the driver and also determine if there is a revelation that the driver has warrants or is bound by conditions. That is, the reason why he conducted this stop was “in order to possibly gain that information” (TT at 10/35-40). [14] As a result of the police officer’s policy, he stopped Mr. Mohamed and upon conducting a search of information that was provided, including a Canadian Police Information Centre system (CPIC) query, he determined that Mr. Mohamed was a criminally prohibited driver and on probation, and charged him accordingly. Page: 4 V. Provincial Court Decision [15] The Provincial Court rendered its decision on January 17, 2019. The trial judge found that the stop was authorized by provincial statute (and in particular s 166 of the Traffic Safety Act) and was therefore authorized by law. As a result, the detention was not arbitrary. [16] The trial judge adopted the reasons of another Provincial Court Judge in the case of R v Ng, 2014 ABPC 62, 2014 CarswellAlta 598, which was very similar to the circumstances and facts leading to the stop in this case. The trial judge went on to state that, as in Ng, the police officer targeted the vehicle in question because the particulars of the registered owner obtained after running the license plate did not appear to match that of the driver. Further, the type of vehicle being driven was commonly a stolen type in the area being patrolled by the police officer. [17] In Ng, the Provincial Court Judge found that the police officer stopped the vehicle on the basis that the driver was clearly not the registered owner, that: The driver was a young male, a demographic cohort that is frequently involved in stealing motor vehicles, and although the vehicle was not reported stolen, owners are often not aware of such theft for a period of time. (para 19) [18] As in this case, the police officer in the Ng case testified that the stop of the vehicle was to determine if the driver had the registered owner’s consent to drive the vehicle.