The issue in this matter concerns the authority of the police to direct an individual’s movements during the course of a traffic stop

Administrative law – Decisions of administrative tribunals – Police Review Board – Police – Authority to arrest – Disciplinary proceedings – Public interest – Judicial review – Evidence

Adaikin v. Calgary (Police Service), [2013] A.J. No. 1028, 2013 ABCA 333, Alberta Court of Appeal, September 30, 2013, P.W.L. Martin, B.K. O’Ferrall and B.L. Veldhuis JJ.A.

The appellant Constable pulled over a vehicle for speeding. While writing the speeding ticket in his cruiser, the driver became irate because he did not think he was speeding. The driver left his vehicle and approached the police officer’s car. The police officer stepped outside his vehicle and informed the driver to return to his car. The direction was ignored and the police officer again instructed the driver to get back into his car, or move to the sidewalk, otherwise he would be arrested. The driver returned to his car. The police officer then gave the driver the speeding ticket.

Subsequently, the driver filed a complaint against the officer with the Calgary Police Service. The Chief of Police ruled that the police officer exceeded his authority when he advised the driver that he would be arrested if he did not return to his car. An official warning was placed on the police officer’s file.

The officer appealed to the Law Enforcement Review Board, arguing that he acted appropriately in the circumstances. The Review Board affirmed the Chief of Police’s decision concluding that the driver maintained a reasonable distance, was not verbally abusive, stopped when instructed to do so and did not physically confront the officer. The Review Board found that the driver did not commit an offence. For these reasons, the Review Board found that the officer exceeded his authority when threatening arrest. The officer appealed this ruling to the Alberta Court of Appeal on the basis that the Review Board erred in law by concluding that he acted unlawfully by directing the driver to get back into his car or face arrest.

The Court of Appeal remitted the matter back to the Police Chief for reconsideration.

The Appeal Court recited authorities which maintain that a police officer may only arrest (or lawfully threaten to do so) if given such authority under statue or at common law. While police officers have the power to detain a motorist for a traffic violation, there are no specific statutory provisions dealing with the power of a police officer to direct an individual’s movements during the course of a traffic stop. According to the common law, the Appeal Court phrased the relevant appeal issue as follows: the issue is not whether the officer had the authority to tell the driver to return to his car or face arrest, but whether the exercise of this power was reasonably necessary in light of the totality of the circumstances (para. 12). Such a question involves balancing the seriousness of the risk to the public or individual safety (in this case the officer was performing his duty to enforce traffic safety) with the liberty interests of members of the public (restricting the driver’s physical movements to his care for a few moments).

The Appeal Court agreed with a previous Supreme Court of Canada decision that held it would be a rare case when it will be reasonably necessary for a police officer to arrest a motorist at a routine traffic stop, opining that training police officers to be less aggressive and more courteous at traffic stops would avoid most troublesome situations and defuse others. Despite this, the matter was remitted to the Police Chief for reconsideration to focus on the relevant issue including whether the officer had at his disposal less intrusive measures to ensure his safety and the continuation of his duty to issue the traffic ticket.

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