Steven Penney (University of Alberta – Faculty of Law) has posted Driving While Innocent: Curbing the Excesses the ‘Traffic Stop’ Power (Forthcoming, Canadian Criminal Law Review/Revue canadienne de droit pénal) on SSRN. Here is the abstract:

Canadian police have exceptionally broad powers to stop and investigate motorists for driving related offences without objective suspicion of wrongdoing. Though extraordinary, the “traffic stop” power has survived constitutional challenge on the basis that driving is dangerous and thus requires extensive regulation and surveillance. Because it is intrinsically arbitrary, however, courts have attempted to cabin its reach to driving related offences. But under the “dual purpose” doctrine, they have also allowed police to use information gleaned from lawful traffic stops to develop grounds for other detention and search powers, as long as they do not do so “pretextually,” i.e., by taking investigative steps that serve no traffic safety purpose.

In practice, however, courts have often permitted investigative intrusions that are at best tenuously connected to traffic safety.

This has encouraged police to leverage the stopping power to further vague suspicions of criminality and gather general intelligence, especially in the context of “roving” patrols of high crime neighbourhoods and major highways. Most disturbingly, there is mounting evidence that this practice is associated with discriminatory racial profiling. I therefore propose prohibiting police from: (i) conducting roving, suspicionless stops; (ii) using drivers’ compelled identifying information to conduct database searches for non-driving offences; (iii) questioning drivers about matters unrelated to traffic safety; and (iv) interacting with passengers without grounds to believe that they have committed an offence or threaten public safety.