OPP can’t use RIDE to check passenger

Detaining man who was in back seat called ‘very serious’ breach of rights

An OPP officer’s decision to ask for identification from a back-seat passenger during a RIDE checkpoint was a violation of the passenger’s Charter rights, an appeal court has confirmed.

A Superior Court judge upheld Ontario Court Justice Robert Selkirk’s ruling that the officer had committed “very serious” breaches when he arbitrarily detained Patrick Dale and violated his privacy rights during the roadside check near Pembroke on April 1, 2012.

Court heard OPP Const. Darryl Graveline took a copy of Dale’s birth certificate, had another officer run it through a police database and determined Dale was under conditions not to possess or drink alcohol. Graveline then returned to the car, asked Dale to step out, smelled alcohol on his breath and charged him with the breach of probation.

Before running Dale’s name, the officer said he inquired about Dale’s backpack, which was full of unopened cans and bottles of beer, after spotting a beer cap between the driver’s legs and smelling alcohol from inside the car.

Graveline also testified that the OPP routinely ask for identification from everyone in the cars they stop, while another officer agreed it was “common” to run passengers’ names through a police database to see if they are breaching conditions.

Seizing passenger identifications at RIDE checkstops has been specifically denounced by the highest court in Canada and Ontario, Selkirk said.

“The OPP must obey the law. They cannot ignore it. They are sworn to uphold it. But they do not,” said Selkirk, who acquitted Dale even though he freely admitted he was in violation of his probation.

Selkirk found the OPP acted in “bad faith” because the privacy rights violations committed by the force were “either deliberate or through their ignorance,” and made more significant by the fact they do it routinely.

“RIDE programs were never intended or permitted to become a vehicle for warrantless searches of every person, including passengers, who go through one,” said Selkirk. “RIDE programs are to catch and deter drinking drivers. There is no justification for warrantless and groundless searches of passengers.”

Dale, who has a criminal record and previous run-ins with police, testified he didn’t think he had any choice but to comply.

He feared a confrontation and more charges if he didn’t comply.

But as a passenger, Dale was under no obligation to give his name and was free to walk away — something the officer knew but never told Dale when he asked for his identification, Selkirk said.

The Crown appealed Dale’s acquittal, arguing that Selkirk’s findings in fact were flawed. Ontario Superior Court Justice Timothy Ray dismissed the Crown appeal in June. Ray found that “great deference” needed to be given to Selkirk’s “expressed concern about the seriousness of the police conduct” before concluding that Selkirk made no errors in law.

Graveline declined to comment on the matter.