R v Arseneau

R. v. Arseneau

[1988] O.J. No. 2525
Ontario Provincial Court - Criminal Division — Bice Prov. Ct. J. | April 12, 1988

Background

Leo Arseneau was pulled over for speeding in Bracebridge, Ontario, and charged under both section 109 (speeding) and section 61 of the Highway Traffic Act (driving with a radar warning device). When Constable Dawson clocked Arseneau's vehicle on radar, he immediately became suspicious that the defendant was using a radar detector. After stopping the vehicle, Arseneau denied having any such device.

The officer searched the car under his authority in section 61(3) of the Highway Traffic Act and found a wire leading from the cigarette lighter to a clip on the dashboard — the type used to hold radar detectors — but no device. When Arseneau offered to open the hood, the officer spotted what looked like a radar detector in the defendant's pocket. Arseneau again denied having the device, so the officer arrested him under section 118 of the Criminal Code for obstruction of justice and seized the radar detector from his pocket.

Issues

1. Was the arrest for obstruction of justice lawful?
2. Was the search of the defendant's person reasonable under section 8 of the Charter?
3. Should evidence obtained through an unlawful search be excluded?

The Bogus Obstruction Arrest

Here's the problem with the officer's strategy: the Highway Traffic Act only gives police the power to search the vehicle for radar detectors under section 61, not the person. So when the device wasn't in the car, the officer got creative. Following a procedure outlined in an Ontario Provincial Police memo, he arrested Arseneau for obstruction of justice under the Criminal Code, which would then give him the power to search the defendant's person.

But Judge Bice wasn't buying it. The court found that simply refusing to hand over the radar detector didn't constitute obstruction of justice — there was no legal obligation for Arseneau to incriminate himself by turning over evidence. The judge referenced R. v. Balsdon, noting that "no man can be compelled to incriminate himself," a principle that predates the Charter and remains valid. Without reasonable and probable grounds for obstruction, the arrest was unlawful, making the search both unlawful and unreasonable under section 8 of the Charter.

Key Takeaway

Police can't manufacture arrests to get around statutory search limitations.

When legislation gives police specific search powers (like searching vehicles under section 61), they can't simply arrest you on trumped-up charges to expand those powers. The exclusion of the radar detector evidence meant the prosecution couldn't prove the section 61 charge, demonstrating that Charter violations have real consequences even in Provincial Offences Act matters.