R. v. Ladouceur

R. v. Ladouceur
Collection
Supreme Court Judgments
Date
1990-05-31
Report
[1990] 1 SCR 1257
Case number
20408
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 20408
Decision Content
R. v. Ladouceur, [1990] 1 S.C.R. 1257
Gerald Jay Ladouceur Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Nova Scotia,
the Attorney General for New Brunswick and
the Attorney General of Manitoba Interveners
indexed as: r. v. ladouceur
File No.: 20408.
1989: November 6; 1990: May 31.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Random routine traffic checks -- Checks authorized by statute -- Driver stopped for no apparent reason -- Driver found to be driving while licence under suspension and convicted -- Whether or not random routine traffic checks violating ss. 7 , 8 and 9 of the Charter -- If so, whether or not checks saved by s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 -- Highway Traffic Act, R.S.O. 1980, c. 198, s. 189a(1).
Appellant was stopped while driving his car in a random police search to ensure that his papers were in order and that he had a valid driver's licence. The officers did not suspect that the appellant was acting unlawfully. Appellant admitted that he knew that his driver's licence was suspended when he was asked for his driver's licence, ownership and vehicle insurance documents. A Justice of the Peace found him guilty of driving while his licence was suspended contrary to s. 35 of the Highway Traffic Act and the Provincial Court (Criminal Division) and the Ontario Court of Appeal upheld the conviction. The constitutional questions stated before this Court queried: (1) if s. 189a(1) of the Highway Traffic Act was inconsistent with ss. 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms to the extent that it authorized the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds to believe that an offence had been committed when such stop was not part of an organized program; and (2) if so, whether s. 189a(1) could be justified pursuant to s. 1 of the Charter ?
Held: The appeal should be dismissed.
Per Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: Appellant was detained in violation of s. 9 of the Charter . The police officers assumed control over his movement by a demand or direction and the legal consequences of the detention were significant. The detention was arbitrary in that the decision as to whether the stop should be made lay in the absolute discretion of the police officers.
Sections 7 and 8 of the Charter were not violated. No "seizure" within the meaning of s. 8 occurred here. It was unnecessary to decide whether these random stops infringed s. 7 since it has been determined that routine check random stops violate s. 9 of the Charter .
Section 189a(1) of the Highway Traffic Act was saved by s. 1 of the Charter . The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) of the Highway Traffic Act and is thus prescribed by law. The authority also has been justified by this Court as a prescription of the common law.
The statistics relating to the carnage on the highways substantiate a pressing and substantial concern which the government was properly addressing through the legislation in question and the random stops. A more specific aspect of this concern related to areas where the probability of accidents can be reduced: the mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver. They are directly pertinent to the question of random stopping.
The means chosen was proportional or appropriate to those pressing concerns. The random stop is rationally connected and carefully designed to achieve safety on the highways and impairs as little as possible the rights of the driver. It does not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights. Indeed, stopping vehicles is the only way of checking a driver's licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.
Deterrence is a critical aspect of the random routine check. The suspension of the driver's licence for driving offences is important in that the court can impose lighter jail terms for the benefit of the offender and yet ensure that society is protected. Licence suspensions, however, must be enforceable to be an effective means of punishment. A real element of risk of detection of driving by unlicensed drivers is necessary for the suspension of a licence to be an effective remedy. Random stops supply the only effective deterrent.
To recognize the validity of the random routine check is to recognize reality. This form of deterrent is a plausible response to the general difficulties of establishing such programs due to fiscal constraints and shortages of personnel and due to the impossibility of establishing an effective organized program in rural areas in particular.
The random routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. Mechanisms are already in place to prevent abuse by law enforcement officers. Officers can stop persons only for legal reasons -- in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter .
Similar powers have been legislatively conferred upon police officers in other free and democratic societies regarding the stopping of motor vehicles.
Per Dickson C.J. and Wilson, La Forest and Sopinka JJ.: The unlimited right of police officers to stop motor vehicles without any reason cannot be justified under s. 1 of the Charter . The evidence here, however, should not be excluded under s. 24(2) of the Charter .
The random stop constituted an arbitrary detention. The Crown's efforts to discharge its s. 1 onus must be viewed in the context of the s. 9 breaches sanctioned to date in meeting the objective of ridding the highways of dangerous drivers. Police officers are entitled to stop motorists at organized check points as part of the R.I.D.E. program to provide a roadside screening test of sobriety and to check for licences, insurance and mechanical fitness. The organized check point is available, therefore, as a means of detection of the unlicensed driver. This case may be viewed as the last straw. If sanctioned, a police officer could stop any vehicle at any time, in any place, without having any reason to do so. For the motorist, this would mean a total negation of the freedom from arbitrary detention guaranteed by s. 9 of the Charter .
The Crown has not demonstrated that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available. Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for. It is somewhat more carefully designed to serve enforcement, and is less intrusive and not as open to abuse as the unlimited power sought to be justified. The roving random stop, by contrast, would permit any individual officer to stop any vehicle, at any time, at any place. The decision may be based on any whim. The unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy.
Cases Cited
By Cory J.
Considered: Dedman v. The Queen, [1985] 2 S.C.R. 2; Hufsky v. The Queen, [1988] 1 S.C.R. 621; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Delaware v. Prouse, 440 U.S. 648 (1979).
By Sopinka J.
Considered: R. v. Hufsky, [1988] 1 S.C.R. 621; referred to: Dedman v. The Queen, [1985] 2 S.C.R. 2; Delaware v. Prouse, 440 U.S. 648 (1979); R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 24(1) , (2) .
Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83, s. 3(1).
Constitution Act, 1982, s. 52(1) .
Game and Fish Act, R.S.O. 1980, c. 182, s. 14.
Highway Traffic Act, R.S.O. 1980, c. 198, ss. 18(1), 19(1), 35, 189a(1).
Motor Car Act, 1958 (Victoria), ss. 22, 29, 40.
Motor Traffic Acts, 1909‑1957 (New South Wales), s. 5(1).
Motorized Snow Vehicles Act, R.S.O. 1980, c. 301, s. 15a.
Provincial Offences Act, R.S.O. 1980, c. 400.
Road Traffic Act, 1961 (South Australia), No. 50, s. 42.
Road Traffic Act, 1972 (U.K.), c. 20 s. 159.
Road Traffic Act, 1974‑1982, (Western Australia), s. 53.
Traffic Act, 1949‑1988 (Queensland), ss. 35, 39.
Traffic Ordinances, 1949‑59 (Northern Territory), ss. 46, 48, 55.
Transport Act, 1962 (New Zealand), No. 135, s. 66.
Authors Cited
Ontario. Royal Commission on Civil Rights. Royal Commission Inquiry into Civil Rights. Report No. 1, vol. 2. Toronto: Queen's Printer, 1968.
Segal, Murray D. "R. v. Hufsky: Random Spot Check Programmes" (1989), 1 J.M.V.L. 34.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 59 O.R. (2d) 688, 35 C.C.C. (3d) 240, 41 D.L.R. (4th) 682, 20 O.A.C. 1, 57 C.R. (3d) 45, dismissing an appeal from a judgment of the Provincial Court (Criminal Division) (Bordeleau Prov. Ct. J.) dismissing an appeal from conviction by Scott J.P. Appeal dismissed.
Morris Manning, Q.C., for the appellant.
S. Casey Hill and R. H. MacDonald, for the respondent.
Graham Garton, Q.C., for the intervener the Attorney General of Canada.
Rheinhold Endres, for the intervener the Attorney General of Nova Scotia.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
Donna J. Miller, for the intervener the Attorney General of Manitoba.
//Sopinka J.//
The reasons of Dickson C.J. and Wilson, La Forest and Sopinka JJ. were delivered by
SOPINKA J. -- The appellant challenges his conviction for driving while his licence was under suspension on the basis that s. 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, pursuant to which the police officers stopped him and discovered the offence, violates ss. 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms . While I agree with my colleague Justice Cory that this appeal should be dismissed and that s. 189a(1) authorizes an arbitrary detention contrary to s. 9 of the Charter , I do not agree that the unlimited right of police officers to stop motor vehicles without any reason can be justified under s. 1 of the Charter . I would dismiss this appeal, however, on the basis that the evidence in this case should not be excluded under s. 24(2) of the Charter .
The charge arose out of the following facts. Two police officers were on a stake‑out when the appellant passed their vehicle. They decided to stop the appellant as a matter of routine. However, while citing s. 189a(1) of the Highway Traffic Act as authority for their actions, the police officers acknowledged that there was no basis of suspicion and no other reason to stop the appellant. When the appellant was asked to produce his driver's licence, it was revealed that it was under suspension for failure to pay parking tickets.
The Court of Appeal held that s. 189a(1) of the Highway Traffic Act did not authorize this type of random check. Speaking for the majority, Tarnopolsky J.A. held that there was an arbitrary detention of the appellant and that to the extent that this was authorized by s. 189a(1), it was not a reasonable limit within s. 1 of the Charter . The court sustained s. 189a(1), however, by reading it down to apply only when there is an articulable reason for stopping a motor vehicle. The court further held, however, that the evidence should be admitted under s. 24(2) because the police were acting bona fide and did not have the benefit of the court's interpretation of s. 189a(1).
I agree with my colleague that in light of this Court's decision in R. v. Hufsky, [1988] 1 S.C.R. 621, there can be no doubt that the random stop in this case constituted an arbitrary detention. In Hufsky, the driver was stopped by a police officer on duty at a stationary check point, circumstances that are less arbitrary than those involved when a police officer randomly stops a vehicle from the position of a roving car.
This Court in Hufsky, supra, held that the detention was justified under s. 1 in light of the statistics that were put before the Court relating to unlicensed driving and accidents. Le Dain J. found that these statistics supported the conclusion that unlicensed drivers caused a significantly higher percentage of accidents than licensed drivers. Therefore, extraordinary enforcement measures were justified to eliminate this hazard. In the present case, the Court of Appeal invited the Crown to submit a new record to justify this additional inroad on the rights to be free from arbitrary detention. The Crown submitted volumes of "statistical data, charts and comparable legislation". The Court of Appeal analyzed this data and the majority judgment concludes, at p. 259, that:
... the material submitted does not show that there is a proportionality between the measure taken, i.e., a power to stop motorists at random in order to check whether they have a valid driver's licence, and the admittedly valid government objective of promoting safety on the highways. The only statistical figures concerning unlicensed drivers and higher accident rates shows a correlation between uninsured vehicles and a higher rate of personal injuries, but a reverse correlation as far as property damage is concerned.
The minority does not address the statistics except in a general way.
Tarnopolsky J.A., writing for the majority, listed the three requirements that a limit must meet to satisfy s. 1 , namely: (1) it must be reasonable; (2) it must be prescribed by law; and, (3) it must be demonstrably justified in a free and democratic society. He found that the legislation failed on (1) and (3) and that he did not need to deal with (2).
In deciding whether the Crown has satisfied the burden of proof of justifying a breach of s. 9 , this case must be considered in the context of breaches of s. 9 that have been sanctioned to date in meeting the admittedly important government objective which seeks to rid the highways of dangerous drivers. In this regard, police officers are entitled to stop motorists at organized check points as part of the R.I.D.E. program to provide a roadside screening test of sobriety, to check for licences, insurance and mechanical fitness. See Dedman v. The Queen, [1985] 2 S.C.R. 2, and Hufsky, supra. The organized check point is available, therefore, as a means of detection of the unlicensed driver. This case may be viewed as the last straw. If sanctioned, we will be agreeing that a police officer can stop any vehicle at any time, in any place, without having any reason to do so. For the motorist, this means a total negation of the freedom from arbitrary detention guaranteed by s. 9 of the Charter . This is something that would not be tolerated with respect to pedestrians in their use of the public streets and walkways. It is in this light that the efforts of the Crown to discharge its s. 1 onus must be viewed.
Although the statistics are voluminous, there is no evidence as to whether during the relevant period police officers were actually exercising the "roving random stop" power. For example, was the percentage of accidents involving unlicensed drivers realized notwithstanding the fact that police officers were employing this method of enforcement? If it was, presumably it is only since s. 189a(1) was enacted in 1981. What were the percentages before this method was used? How many motorists who were perfectly law‑abiding were stopped for every one that was committing some violation? On the other hand, if the police have not been using this method and this case is an isolated incident, what is the evidence that police officers consider that this power is essential to effective enforcement? The record is surprisingly devoid of any reference to police practice in this regard. As pointed out by Tarnopolsky J.A., in the United States where the problem is equally pressing even a principled program of roadside checks is considered over‑inclusive. In Delaware v. Prouse, 440 U.S. 648 (1979), White J., at pp. 659‑60, stated:
The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained. Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves. Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers. If this were not so, licensing of drivers would hardly be an effective means of promoting roadway safety. It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed. The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best.... In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.
Here we have the organized spot check to add to the balance on the side of enforcement. In my view, it is crucial therefore for the Crown to persuade the court that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available. In my opinion, Hufsky, supra, is not authority for this extension of police power. That case is consistent with the view that in justifying random organized check points, the outer limits of s. 1 had been reached. Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for. The decision to locate the check point will be made either by a superior officer or by the decision of several officers. While the decision as to which automobile will be stopped will be made by an individual officer, his conduct can be observed by other officers. Since he has limited time to observe a vehicle, his decision will be either truly random or based on some objective basis. The result is that this method of enforcement is somewhat more carefully designed to serve enforcement, less intrusive, and not as open to abuse as the unlimited power sought to be justified. The judgment in Hufsky, supra, makes it clear, however, that the limit prescribed by law which is justified in that case is the organized spot check. The reasons conclude as follows, at p. 637:
For the above reasons I am of the opinion that the random stop of the appellant for the purposes of the spot check procedure was a justified interference with the right not to be arbitrarily detained guaranteed by s. 9 of the Charter , and I would accordingly answer the third constitutional question in the affirmative.
By contrast, the roving random stop would permit any individual officer to stop any vehicle, at any time, at any place. The decision may be based on any whim. Individual officers will have different reasons. Some may tend to stop younger drivers, others older cars, and so on. Indeed, as pointed out by Tarnopolsky J.A., racial considerations may be a factor too. My colleague states that in such circumstances, a Charter violation may be made out. If, however, no reason need be given nor is necessary, how will we ever know? The officer need only say, "I stopped the vehicle because I have the right to stop it for no reason. I am seeking unlicensed drivers." If there are bound to be instances where admittedly Charter violations which cannot be justified will occur, can we overlook these and approve a practice even if in its general application Charter breaches can be justified? Moreover, the unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy. Any perfectly law‑abiding citizen travelling late at night on a lonely country road must be prepared to have a police car approach, perhaps, from the rear, siren blaring, lights flashing, and must then and there come to a stop to prove his or her legitimacy on the roadway. How many innocent people will be stopped to catch one unlicensed driver? We have no information on this, but the statistics show that, in 1984, 1 in 37 drivers in Ontario was serving a licence suspension. The ratio, therefore, of licensed drivers to those driving while their licences were under suspension will be 37 to some fraction of 1. The probability is that in excess of 37 innocent motorists will be stopped for each offender.
I am therefore in complete agreement with Tarnopolsky J.A. that the Crown has failed to satisfy requirements (1) and (3) of s. 1 , referred to above, in accordance with R. v. Oakes, [1986] 1 S.C.R. 103. I find particularly apt the following statement by Dickson C.J., at p. 139:
First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.
In view of the above, it is not necessary to deal with the third requirement, that is, whether s. 189a(1) is a limit prescribed by law.
I agree, therefore, with Tarnopolsky J.A., at pp. 263-64, that s. 189a(1) must be interpreted as being limited
to an organized programme of stopping, like the R.I.D.E. programme, or road-blocks where all vehicles are required to halt, or to stopping for some articulable cause.
I also agree that the evidence that the appellant was driving while under suspension should not be excluded pursuant to s. 24(2) of the Charter for the reasons given by Tarnopolsky J.A. and would therefore dismiss the appeal.
//Cory J.//
The judgment of Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
CORY J. -- This case raises the issue of whether the so‑called "routine check" random stops of motorists by police violate ss. 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms and, if so, whether they can be justified pursuant to s. 1 of the Charter .
Factual Background
On April 27, 1982, at 7:20 p.m., only ten days after the proclamation of the Charter , the appellant, Gerald Ladouceur, was stopped by two policemen while he was driving his car on St. Laurent Blvd. in Ottawa. The two officers, Constable Brian Bell and Constable Michael Hudson, had been in the area maintaining surveillance on a house. Just as they were leaving, they saw the appellant driving his car. The officers followed the appellant's car along Donald St. and then pulled him over at the corner of St. Laurent Blvd. and Queen Mary St., across from a convenience store.
The officers did not suspect that the appellant was acting unlawfully or that he was in any way connected with the house under surveillance. Constable Bell testified that the sole purpose of the stop was to ensure that the appellant's papers were in order and that he had a valid driver's licence. He said they had stopped several other vehicles in the area on the same night. When asked in cross‑examination whether the stops were "at random", he replied, "Pretty well, yes."
While Constable Hudson waited in the police car, Constable Bell asked the appellant for his driver's licence, ownership and vehicle insurance documents. He then asked the appellant to accompany him to the police car, and the appellant agreed. Once in the car, the appellant admitted to the police officers that he knew his driver's licence was suspended. He was issued a summons under the Provincial Offences Act, R.S.O. 1980, c. 400, charging him with driving while his licence was suspended contrary to s. 35 of the Highway Traffic Act, R.S.O. 1980, c. 198.
Constable Bell testified that the vehicle stop lasted about fourteen minutes (from 7:21 p.m. to 7:35 p.m.). Constable Hudson stated that the appellant was in the police car for about four to five minutes. The appellant was never placed under arrest, no threat of arrest was made, and the appellant appeared to understand that he was not under arrest. Constable Bell testified that if the appellant had attempted to leave he would have arrested him, while Constable Hudson said that if the appellant had tried to leave he would have let him do so without arresting him. There was no suggestion of any improper or coercive conduct on the part of the police.
The Courts Below
Provincial Court
The appellant was tried on November 15, 1982 before Justice of the Peace Scott. He was convicted of driving while his licence was suspended, contrary to s. 35 of the Highway Traffic Act and fined $2,000. Scott J.P. held that, on the basis of s. 19 of the Highway Traffic Act, police officers have the authority to randomly stop automobiles without any suspicion of unlawful activity in order to require the driver to produce his driver's licence and identification. He concluded that the appellant had not been detained and that his statement to the police officers was properly obtained. It was revealed at the sentencing proceedings that the appellant had been convicted in November 1981, January 1982, and April 1982 of driving while his licence was under suspension.
Provincial Court (Criminal Division)
In his appeal to Bordeleau Prov. Ct. J., the appellant argued that s. 189a of the Highway Traffic Act was unconstitutional because it violated ss. 7 , 8 and 9 of the Charter . In a brief judgment released June 13, 1983, Bordeleau Prov. Ct. J. held that it was unnecessary to determine whether either ss. 7 , 8 or 9 had been violated because s. 1 of the Charter would apply in any event.
Court of Appeal
This appeal was first heard in June 1985 by the Ontario Court of Appeal but adjourned until June 1986 so that the respondent could present fresh evidence to support its s. 1 arguments. The Court rendered its judgment dismissing the appeal on April 8, 1987 (now reported at 35 C.C.C. (3d) 240).
Tarnopolsky J.A., for the majority, held that the power of a police officer to stop motorists at random constitutes arbitrary detention and therefore violates s. 9 of the Charter . He determined, moreover, that s. 189a(1) of the Highway Traffic Act did not meet the proportionality requirements enunciated by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, and therefore could not be justified under s. 1 of the Charter . Tarnopolsky J.A. declined, however, to strike down s. 189a(1) as of "no force and effect" pursuant to s. 52(1) of the Constitution Act, 1982 . Instead, he read the provision down, requiring that it be "limited to an organized programme of stopping, like the R.I.D.E. programme, or road-blocks where all vehicles are required to halt, or to stopping for some articulable cause." Finally, he held that although the random stop that had taken place in this case violated the Charter , the appellant's statement to the police officer admitting that he knew his licence was suspended should not be excluded pursuant to s. 24(2) of the Charter .
Brooke J.A., dissenting in part, held that although the random stop constituted arbitrary detention, it could be justified under s. 1 of the Charter . In his opinion, the issues in this case were governed by Dedman v. The Queen, [1985] 2 S.C.R. 2, even though the facts of that case had occurred prior to the proclamation of the Charter .
Issues
The constitutional questions were stated as follows by the Chief Justice in his order of January 24, 1989:
1.Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms to the extent that it authorizes the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. program?
2.If the answer to question 1 lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. 1 of the Charter ?
Statutory and Constitutional Provisions
Highway Traffic Act, R.S.O. 1980, c. 198
18.--(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him by the Minister.
19.--(1) Every driver of a motor vehicle shall carry his licence with him at all times while he is in charge of a motor vehicle and shall surrender the licence for reasonable inspection upon the demand of a constable or officer appointed for carrying out the provisions of this Act.
189a--(1) A police officer, in the lawful execution of his duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83
3.--(1) An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,
(a) an insurance card for the motor vehicle; or
(b)an insurance card evidencing that the operator is insured under a contract of automobile insurance,
and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
24.--(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Constitution Act, 1982
52.--(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Previous Decisions by this Court on the Validity of Random Stops
In Dedman v. The Queen, supra, and Hufsky v. The Queen, [1988] 1 S.C.R. 621, both the significance and consequences of the random stopping of motorists by the police were considered.
In Dedman, the random stop was conducted as part of the Province of Ontario's R.I.D.E. campaign, a program in which police establish checkpoints at the side of the road and pull over motorists at random to check their sobriety. It was acknowledged that police officers conducting these stops would ask to see motorists' licences in order to engage them in conversation. In reality this was done to determine whether there were grounds for a reasonable suspicion that the driver had been drinking alcohol.
The random stop at issue in Dedman was conducted in 1980, one year before s. 189a(1) of the Highway Traffic Act was enacted and two years before the Charter came into effect. Both the majority and minority judgments held that the police officer had no statutory authority to conduct a random stop. Le Dain J., writing for the majority, held, however, that common law authority for the random stops conducted under the R.I.D.E. program could be derived from the general duties of police officers on the basis of the test laid down in R. v. Waterfield, [1963] 3 All E.R. 659. Le Dain J. noted at pp. 34‑35:
In applying the Waterfield test to the random stop of a motor vehicle for the purpose contemplated by the R.I.D.E. program, it is convenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". . . . In assessing the interference with this right by a random vehicle stop, one must bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and control for the protection of life and property.
The case of Hufsky, supra, was also concerned with the validity of an organized program of random stops which were carried out this time under a "spot check" program not part of the R.I.D.E. program. These stops were ostensibly authorized by s. 189a(1) of the Highway Traffic Act. The section was challenged on the grounds that it contravened the provisions of the Charter . Unlike the R.I.D.E. program random stopping considered in Dedman, the spot check random stop at issue in Hufsky was more than a search for impaired drivers. Instead, as in the case at bar, the stop had a broad range of purposes -- to check for sobriety, for licences, insurance and the mechanical fitness of cars. The only guideline governing the random stops in Hufsky, supra, was that the vehicles engaged in the spot check duty were required to include at least one marked police car.
Hufsky had been randomly stopped by a police officer in Metro Toronto. The officer asked to see the appellant's driver's licence and proof of insurance and verified their validity. While speaking to Hufsky, the officer detected alcohol on his breath and noticed that his speech was slightly slurred. The officer asked Hufsky to accompany him to his police car to conduct a roadside breath test. But when the officer made the breath demand, Hufsky refused to comply. The officer then told Hufsky that he would be charged with failing to provide a breath sample and informed him of his right to retain and instruct counsel without delay.
Le Dain J., writing for a unanimous Court, held that the random stops conducted under the spot check program and authorized by s. 189a(1) of the Highway Traffic Act did not violate the Charter . He concluded that although the random stop constituted arbitrary detention in violation of s. 9 of the Charter it was justified under s. 1 . He also held that the random stop did not constitute an unreasonable search and seizure in violation of s. 8 of the Charter . In holding that the random stops, though violating s. 9 , were justified under s. 1 , he stated at pp. 636‑37:
In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society. The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served.
There are few distinctions between the random stop under consideration in the case at bar and the random stop dealt with by this Court in Hufsky. In both cases, the stop was conducted in order to check licences, insurance, mechanical fitness and, although never explicitly stated at the appellant's trial, the sobriety of the driver. In both cases, the police actions were authorized primarily by s. 189a(1) of the Highway Traffic Act which granted them absolute discretion to stop motorists if in the lawful execution of their duties. Finally, the respondent the Attorney General for Ontario relied on exactly the same extrinsic evidentiary material in each case to justify the random stops.
It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of a routine check which was not part of any organized program. It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program. Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of a statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter .
Does a Routine Check Random Stop Violate ss. 7, 8 and 9 of the Charter ?
In Hufsky, supra, Le Dain J. held that a random stop of a motorist for the purposes of the spot check procedure violated s. 9 of the Charter . He found that a motorist stopped at a check point was detained as that term was defined in R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640. He stated at p. 632:
By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by a demand or direction that might have significant legal consequence, and there was penal liability for refusal to comply with the demand or direction.
Le Dain J. also determined that the detention was arbitrary, since "there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure". He stated at p. 633:
The selection was in the absolute discretion of the police officer. A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.
The conclusions reached in Hufsky, supra, determine the arbitrary detention issue raised in this case. Although the police officers differed as to whether the appellant would have been arrested if he had attempted to flee, there can be no question that he was detained. The police officers had assumed control over the movement of the appellant by a demand or direction. In addition, while the detention involved only traffic offences rather than violations of the Criminal Code , the maximum penalties which provide for a $2,000 fine or six m