Mr. Mooiman was a passenger in a vehicle that had been stopped by police on a rural road. The driver was taken back to the police car for questioning. The officer then returned to the truck to speak with Mr. Mooiman. In the course of this, the officer informed Mr. Mooiman that he had a sniffer dog that he intended to deploy, querying whether, if he did so, the dog would indicate the presence of narcotics. Whereupon Mr. Mooiman gave the constable a plastic bag containing marihuana. When the constable asked, Mr. Mooiman said that the driver knew of this marihuana. The constable then arrested Mr. Mooiman and the driver for possession of a controlled substance. They were convicted at trial but appealed, arguing an unreasonable search and unlawful detention. Their appeals were dismissed:
Only the driver of a vehicle is necessarily detained by a traffic-safety stop. In the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter. The police may engage in the preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but—all other things being neutral—nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance. Despite a police officer’s request for a bystander’s cooperation in answering the officer’s questions or in providing assistance to the officer, a bystander is under no legal obligation to comply with that request. R. v. Mooiman and Zahar, 2016 SKCA 43