Your Rights – Random Police Identification Checks

I recently acted for a client who was arrested in Edmonton.  The circumstances of his arrest bothered me greatly.  My client was standing in front of a convenience store with a cigarette in hand.  A passing police officer noticed him with the cigarette and approached to possibly give him a ticket for smoking within the restricted area.  As the officer got closer though, he realized the cigarette was not lit, and therefore no infraction had taken place.  Rather than just leave my client alone at that point, he requested that my client produce identification.  This is apparently a common practice of the Edmonton Police Service.  The EPS randomly “cards” people about 26,000 times per year.  This carding led to the arrest of my client.

What rights does one have when randomly “carded”?  The Canadian Charter of Rights and Freedoms protects Canadians against being “arbitrarily detained” (s.9) and we all have the right to not be unreasonably searched (s.8). So do you need to show the police your identification?

The short answer is no, but there are exceptions. Judge Fradsham of the Provincial Court of Alberta in the case R. v. Honoroski (2003 ABPC http://canlii.ca/t/57jz) found that there is no obligation in law to provide one’s name to the police.    There are, however, three exceptions.

The first exception is if you are engaged in certain regulated activities.  Examples of regulated activities include operating a motor vehicle, crossing the border, going to a restricted movie, or purchasing alcohol or cigarettes.  All of these activities (and others) have legal regulations obligating the production of identification, and therefore you must produce your identification when requested.

Secondly, if you have committed an offence (or if an officer believes you have) that would result in a Bylaw or a Provincial Offence ticket, you are obliged to produce identification.  Examples would be jay-walking, having open liquor in public, or not having a light on your bicycle.  Again in these situations, you must produce identification when requested.

Lastly, if an officer has reasonable and probable grounds to arrest you for a criminal offence (even if you didn’t do it), you must also produce identification.  Under these last two exceptions, if you fail to identify yourself, you can be charged with the Criminal Code offence of Obstruction of a Peace Officer, and also arrested and held until you can be properly identified.

Judge Fradsham did quote an older English case in his decision and I include that quote here.  In Rice v. Connelly (1966) 2 All E.R.649, Lord Parker, C.J. noted:

“It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place short, of course, of arrest.”

In the end, one needs to use their judgement to decide whether to identify themself to the police.  If the situation is one where the police are in the process of an actual investigation, I believe that social duty kicks in.  In the circumstances of a random check, I see no moral, social or legal obligation to do so.

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