[29] The case law makes it clear that a roadside stop of a vehicle for possible violations of the Criminal Code (e.g. impaired driving) or provincial regulatory offences under statutes like the HTA (e.g. speeding) is a detention: see e.g. R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; Mellenthin; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. Furthermore, the Supreme Court of Canada held in Orbanski, at para. 60, that the implicit limitation on the s. 10(b) right to counsel that is inherent to roadside stops was justifiable under s. 1 of the Charter.
[30] In the present case, the appellant remained detained throughout the time that the police officers processed his speeding infraction. The appellant was not free to leave the scene until this process was completed. In this context, Sergeant Webb's question about the contents of the box, flowing from his suspicion that the box contained illegal cigarettes, placed the appellant in jeopardy pursuant to the TTA. This new jeopardy triggered the appellant's s. 10 rights, especially his right to consult counsel. The reason for this was cogently explained by Doherty J.A. in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 40:
A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.).
[31] It is true that when Sergeant Webb asked the question about the contents of the box, the appellant was not yet detained under the TTA. However, he was detained under the HTA and he could not leave the scene. In such a circumstance, at a common sense level and as a matter of law, Cory J.'s statement in Mellenthin, at p. 622, is apposite:
There can be no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to respond to questions from the police.
It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation which was present in this case.
[32] For these reasons, I conclude that the trial judge erred in not finding that the appellant's s. 10 rights crystallized when Sergeant Webb asked him the question about the contents of the box. Before answering the question, which had nothing to do with his speeding offence, he should have been advised of his right to consult counsel. His s. 10(b) Charter right was violated.
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