Dedman v. The Queen

Dedman v. The Queen
Collection
Supreme Court Judgments
Date
1985-07-31
Report
[1985] 2 SCR 2
Case number
16726
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Ontario
Subjects
Criminal law
Professional law
Notes
SCC Case Information: 16726
Decision Content
Dedman v. The Queen, [1985] 2 S.C.R. 2
Robert B. Dedman Appellant;
and
Her Majesty The Queen Respondent;
and
The Attorney General for New Brunswick and the Attorney General for Alberta Interveners.
File No.: 16726.
1984: October 9; 1985: July 31.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for ontario
Police‑‑Powers and duties‑‑R.I.D.E. program‑‑Vehicles randomly stopped in spot check program to detect impaired drivers and deter impaired driving‑‑Exercise of police power must be authorized by statute or at common law‑‑No statutory authority for random stop‑‑Random stop for purpose of R.I.D.E. program authorized at common law.
Criminal law‑‑Roadside breathalyser testing‑‑Failure to provide breath sample after vehicle randomly stopped in spot check program to detect impaired drivers‑‑Random stop of motor vehicle authorized at common law‑‑No reasonable excuse for non‑compliance with the demand for a breath sample‑‑Criminal Code, s. 234.1(1) , (2) .
Appellant voluntarily complied with a police officer's request to stop his vehicle. There was nothing improper about his driving or the condition of his car. The stop was ordered as part of a spot check program, known as R.I.D.E., whose principal aim is to detect, deter and reduce impaired driving. The police go to a location where they believe there has been a high incidence of impaired driving and, on a random basis, request motorists to pull over and stop. They then ask for a valid driver's licence and proof of insurance to initiate conversation with the goal of detecting the otherwise undetectable drinking driver.
The officer, while checking appellant's licence, smelled a strong odour of alcohol on his breath and made a demand pursuant to s. 234.1 of the Criminal Code that he supply breath samples for analysis in a roadside screening device. Appellant, despite repeated attempts, failed to provide a sample of his breath sufficient to give a proper reading on the device. He was charged with failing, without reasonable excuse, to comply with a demand to supply a breath sample, pursuant to s. 234.1(2) of the Code. Appellant's acquittal before the Provincial Court judge was confirmed by the Ontario Supreme Court but set aside by the Court of Appeal. This appeal is to determine whether, in the circumstances, the police officer possessed authority, either statutory or at common law, to require the appellant to stop his motor vehicle; and if not, whether appellant could be convicted of failing or refusing, without lawful excuse, to provide a breath sample.
Held (Dickson C.J. and Beetz and Chouinard JJ. dissenting): The appeal should be dismissed.
Per McIntyre, Lamer, Wilson and Le Dain JJ.: The random stop by police of appellant's vehicle was lawful at common law and the appellant accordingly had no reasonable excuse for his non‑compliance with the demand for a breath sample.
Police officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority either conferred by statute or derived from their duties at common law. The ambit of police authority, as distinct from police liability, is not to be determined by the limits of a police officer's criminal or civil responsibility.
The appellant's compliance with the signal to stop cannot alter the legal basis which must exist to justify the random stop. Having regard to the coercive nature of police action and uncertainty over the extent of police powers, compliance with a request to stop at a roadside check point cannot be regarded as voluntary in any meaningful sense.
No statutory authority for the signal to stop may be found in either the Criminal Code or the relevant provisions of the Ontario Highway Traffic Act.
Common law authority for the random vehicle stops, for the purpose contemplated by the R.I.D.E. program, may 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. The right to circulate in a motor vehicle on the public highway may be described as a liberty; however, when assessing the interference caused by a random vehicle stop, it cannot be regarded as a fundamental liberty like an individual's right of movement, since it is a licensed activity subject to regulation and control for the protection of life and property.
Applying the Waterfield test, the random vehicle stop was a prima facie unlawful interference with liberty since it was not authorized by statute. The random stop does fall within the general scope of police duties to prevent crime and to protect life and property by the control of traffic as these are the very objects of the R.I.D.E. program, a measure intended to improve the deterrence and detection of impaired driving.
The random vehicle stop was not an unjustifiable use of police power because it was both necessary to the execution of police duty and reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. Random stops for the R.I.D.E. program do not unreasonably interfere with the right to circulate on the highway because of the importance of deterring impaired driving, the necessity of random stops to effective detection, the fact that driving is already subject to regulation and control in the interests of safety and the minor inconvenience experienced by innocent motorists.
Per Dickson C.J. and Beetz and Chouinard JJ., dissenting: The police only act lawfully when they exercise authority conferred upon them by statute or at common law. Having regard to the authoritative and coercive character of police requests, submission to a police officer's exercise of apparent authority, such as a demand to stop at a roadblock, cannot be characterized as voluntary, unless it was clear to the person at the time that he or she was free to refuse to comply.
It has always been a fundamental tenet of the rule of law that the police, in carrying out their general duties as law enforcement officers have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. It is necessary to distinguish the duties of police officers from the power, or lawful authority, they possess to execute those duties. The fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends.
In the criminal law, the rules and principles relating to arrest establish justifiable limits upon a citizen's liberty. Short of arrest, the police have never possessed legal authority at common law to detain any one against his or her will for questioning or to pursue an investigation. Under the R.I.D.E. program, the police are stopping and detaining motorists arbitrarily to investigate whether or not they might be committing a criminal offence. These random stops by the police under the R.I.D.E. program are indistinguishable from detention for questioning or investigation and, without validly enacted legislation to support them, are unlawful. It would be contrary to the long standing protection accorded individual liberty by the common law and detrimental to the individual's fundamental right to be free from arbitrary interference to conclude that this action of the police was authorized and lawful. It is the function of the legislature, not of the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law.
Since the police officer randomly stopped the appellant and arbitrarily detained him, he was not acting lawfully at the time of the demand under s. 234.1(1) and it was not lawfully made. Accordingly, the s. 234.1(1) demand was invalid and the appellant cannot be convicted of failing or refusing without reasonable excuse to comply with a demand for a breath sample contrary to s. 234.1(2) .
Cases cited
By the majority
R. v. Waterfield, [1963] 3 All E.R. 659, applied; Hoffman v. Thomas, [1974] 2 All E.R. 233, considered; Johnson v. Phillips, [1975] 3 All E.R. 682; Knowlton v. The Queen, [1974] S.C.R. 443; R. v. Stenning, [1970] S.C.R. 631; Rice v. Connolly, [1966] 2 Q.B. 414; Wiretap Reference, [1984] 2 S.C.R. 697; Brownridge v. The Queen, [1972] S.C.R. 926; Morris v. Beardmore, [1980] 2 All E.R. 753, referred to.
By the minority
Morris v. Beardmore, [1980] 2 All E.R. 753; R. v. Waterfield, [1963] 3 All E.R. 659; Wiretap Reference, [1984] 2 S.C.R. 697; Knowlton v. The Queen, [1974] S.C.R. 443; Hoffman v. Thomas, [1974] 2 All E.R. 233; R. v. Stenning, [1970] S.C.R. 631; Johnson v. Phillips, [1975] 3 All E.R. 682; Moore v. The Queen, [1979] 1 S.C.R. 195; Albert v. Lavin, [1981] 3 All E.R. 878; Rice v. Connolly, [1966] 2 Q.B. 414; Samuel v. Payne (1780), 1 Doug. K.B. 359, 99 E.R. 230; Christie v. Leachinsky, [1947] A.C. 573; R. v. Biron, [1976] 2 S.C.R. 56; Brownridge v. The Queen, [1972] S.C.R. 926; Rilling v. The Queen, [1976] 2 S.C.R. 183; Taraschuk v. The Queen, [1977] 1 S.C.R. 385.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 118 [am. 1972 (Can.), c. 13, s. 7], 234.1(1), (2) [as en. by 1974‑75‑76 (Can.), c. 93, s. 15], 449 and 450 [rep. & subs. R.S.C. 1970 (2nd Supp.), c. 2, s. 5].
Highway Traffic Act, R.S.O. 1970, c. 202, s. 14 [as am. by 1979 (Ont.), c. 57, s. 2].
Highway Traffic Act, R.S.O. 1980, c. 198, s. 189a.(1) [as en. by 1981 (Ont.), c. 72, s. 2].
Interpretation Act, R.S.O. 1970, c. 225, s. 27(b).
Police Act, R.S.O. 1970, c. 351, s. 55 [now R.S.O. 1980, c. 381, s. 57].
Authors Cited
Bailey, S.H. and D.J. Birch. "Recent Developments in the Law of Police Powers," [1982] Crim. L.R. 475.
Butler, T.R.F. and M. Garsia. Archbold Criminal Pleading, Evidence and Practice, 36th ed., London, Sweet & Maxwell, 1966.
Cohen, S. "The Investigation of Offences and Police Powers" (1981), 13 Ottawa L. Rev. 549.
Devlin, P.B. The Criminal Prosecution in England, New Haven, Yale University Press, 1958.
Halsbury’s Laws of England, vol. 30, 3rd ed., London, Butterworths, 1959.
Halsbury’s Laws of England, vol. 36, 3rd ed., London, Butterworths, 1961.
Honsberger, J. "The Power of Arrest and the Duties and Rights of Citizens and the Police," [1963] L.S.U.C. Special Lectures: Arrest and Interrogation 1.
Humphrey, D.G. "Abuse of Their Powers by the Police," [1979] L.S.U.C. Special Lectures: Abuse of Power 557.
Lanham, David, "Arrest, Detention and Compulsion," [1974] Crim. L.R. 288.
Leigh, L.H. Police Powers in England and Wales, London, Butterworths, 1975.
Salhany, R.E. Canadian Criminal Procedure, 3rd ed., Toronto, Canada Law Book Ltd., 1978.
Smith, J.C. and B. Hogan. Criminal Law, London, Butterworths, 1965.
APPEAL from a judgment of the Ontario Court of Appeal (1981), 59 C.C.C. (2d) 97, 122 D.L.R. (3d) 655, 32 O.R. (2d) 641, 23 C.R. (3d) 228, 10 M.V.R. 59, which allowed an appeal from the judgment of Maloney J. (1980), 55 C.C.C. (2d) 97, 118 D.L.R. (3d) 425, 30 O.R. (2d) 555, 23 C.R. (3d) 203, 8 M.V.R. 142, dismissing an appeal by way of stated case from the judgment of Charles Prov. Ct. J. (1980), 55 C.C.C. (2d) 97 at 98, 118 D.L.R. (3d) 425 at 427, 30 O.R. (2d) 555 at 557, 15 C.R. (3d) 261, 6 M.V.R. 233, acquitting the appellant on a charge of failing to comply with a demand to supply breath samples contrary to s. 234.1(2) of the Criminal Code . Appeal dismissed, Dickson C.J. and Beetz and Chouinard JJ. dissenting.
Morris Manning, Q.C., and Joseph Favaro, for the appellant.
Murray D. Segal, for the respondent.
John H. Evans, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., and Richard Taylor, for the intervener the Attorney General for Alberta.
The reasons of Dickson C.J. and Beetz and Chouinard JJ. were delivered by
1. The Chief Justice (dissenting)‑‑This appeal arises out of a random stop of a motorist by the police as part of the program in Ontario to reduce impaired driving known as R.I.D.E. (Reduce Impaired Driving Everywhere). It raises important questions concerning police powers and the appropriate balance between the interest of the community in law enforcement and the interest of the individual in being free from arbitrary interference with his or her liberty.
I. Facts and Procedural History
2. The aim of the R.I.D.E. program in Ontario is to reduce impaired driving by detecting the impaired motorist and deterring others from driving after drinking. The police go to a location where they believe there has been a high incidence of impaired driving or alcohol related accidents. Motorists passing through this location are requested, on a random basis, to pull over and stop. Police officers ask the driver for a valid driver's licence and proof of insurance and they note the condition of the vehicle and the driver. The demand for a licence and proof of insurance is made for the purpose of initiating conversation with the ultimate goal of allowing the police to detect the drinking driver whom they might otherwise be unable to detect. R.I.D.E. officers are equipped with approved road‑side screening devices to permit them to make demands for breath samples, pursuant to s. 234.1 of the Criminal Code , if they form the requisite grounds during their conversation with the driver.
3. The appellant was signalled to stop by a police officer participating in the R.I.D.E. program on February 4, 1980. The only reason he was requested by the police to stop was the R.I.D.E. program. There was nothing improper about his driving or the condition of his car. The police did not have reasonable and probable grounds for believing he had committed or was committing a criminal offence under any statute, either provincial or federal. The officer did not, at the time of the stop, have any reasonable suspicion that the appellant had alcohol in his body.
4. The appellant complied with the request to stop his vehicle. During conversation, the police officer formed a reasonable suspicion that the appellant was driving with alcohol in his body and demanded that he provide a sample of his breath. The appellant, following instruction and despite repeated attempts, failed to furnish a sample of his breath sufficient to give a proper reading on the A.L.E.R.T. (Alcohol Level Evaluation Roadside Tester) device. An appearance notice was issued on a charge of failing or refusing to comply with a road‑side demand contrary to s. 234.1(2) of the Criminal Code and the appellant departed.
5. The appellant was acquitted at trial before Provincial Court Judge Charles: (1980), 55 C.C.C. (2d) 97 at 98, 118 D.L.R. (3d) 425 at 427, 30 O.R. (2d) 555 at 557, 15 C.R. (3d) 261, 6 M.V.R. 233. An appeal by stated case was dismissed by Maloney J. of the Ontario Supreme Court: (1980), 55 C.C.C. (2d) 97, 118 D.L.R. (3d) 425, 30 O.R. (2d) 555, 23 C.R. (3d) 203, 8 M.V.R. 142. A Crown appeal to a five‑member panel of the Ontario Court of Appeal was unanimously allowed: (1981), 59 C.C.C. (2d) 97, 122 D.L.R. (3d) 655, 32 O.R. (2d) 641, 23 C.R. (3d) 228, 10 M.V.R. 59. The Court ordered that the case be remitted to the trial judge for consideration of the question whether the appellant's seeming attempts to comply with the demand were genuine or feigned.
6. The appellant was granted leave to appeal to this Court.
II. Issues
7. This appeal raises two issues:
1) whether, in the circumstances, the police officer possessed statutory or common law authority to require the appellant to stop his motor vehicle;
2) if not, whether the appellant may be convicted of failing or refusing, without lawful excuse, to provide a sample of his breath.
8. I have had the opportunity of reading the reasons for judgment prepared by Le Dain J. and I agree with him, for the reasons he has given, that police officers only act lawfully when they exercise authority conferred upon them by statute or at common law. The apparent voluntary compliance by a citizen with a police request to stop a motor vehicle cannot alter the legal basis which must justify such police action when it is challenged in later proceedings.
9. Having regard to the authoritative and coercive character of police requests, submission to a police officer's exercise of apparent authority, such as a demand to stop at a roadblock, cannot be characterized as voluntary or consensual unless it was clear to the person at the time that he was free to refuse to comply.
III. Lawfulness of Random Vehicle Stops
A. Statutory Authority
10. The R.I.D.E. program was not, at the time the appellant was stopped, expressly authorized by statute, either federal or provincial. I agree with Le Dain J. that none of the provincial statutory provisions relied upon can be interpreted to grant police officers authority to request a motorist stop for the purposes of the R.I.D.E. program. In particular, s. 14 of The Highway Traffic Act, R.S.O. 1970, c. 202, as amended by 1979 (Ont.), c. 57, s. 2 (now R.S.O. 1980, c. 198), does not provide statutory authority for the signal to stop. It is unnecessary to express any opinion as to the constitutional validity of s. 14. Section 14 is not being applied to confer authority to make a random vehicle stop for the purpose contemplated by the R.I.D.E. program. The constitutional question set in this case need not therefore be answered.
B. Common Law Authority
11. With respect, I am unable to agree with Le Dain J. that the general duties of police officers provide the foundation for common law authority to stop a motor vehicle for the purpose and in the manner contemplated by the R.I.D.E. program.
12. It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Laskin C.J. dissenting, in R. v. Biron, [1976] 2 S.C.R. 56, made the point at pp. 64‑65:
Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.
Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully.
13. Martin J.A., in the case at bar, accurately summarized the rights of the citizen and the power of the police as follows:
In carrying out their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of the citizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to be subjected to imprisonment, arrest, or physical restraint that is not justified by law, and every invasion of the property of the citizen is a trespass unless legally justified.... On the other hand, when a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence. [Authorities omitted.]
14. The common law duties of police have been described as the preservation of the peace, the prevention of crime and the protection of life and property; from this latter duty flows the duty to control traffic on the public roads. A statutory statement of the traditional common law duties of the police may be found in s. 57 of the Police Act, R.S.O. 1980, c. 381.
15. I do not think it is open to question that action to detect and prevent people from driving while impaired by alcohol, an offence under the Criminal Code , falls within the general duties of the police described above. It is, however, necessary to distinguish the duties of police officers from the power, or lawful authority, they possess to execute those duties. The fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends. The question raised by this appeal is whether the police have the power at common law, in other words the lawful authority, to execute their general duties by means of random stops of motorists when they have no reason to believe, prior to the stop, that the motorist has committed, is committing or will commit a criminal offence. In my opinion, they possess no such authority.
16. The distinction between the scope of a police officer's duties and the ambit of his or her power is well stated by L. H. Leigh, Police Powers in England and Wales (1975), at p. 29:
The police have long functioned under a regime of wide duties but limited powers. That is to say, that while they are under general duties to prevent crime, and breaches of the peace and to detect criminals, they do not have all those powers which, it might be thought, would be reasonably necessary for them to do so. Historically, there is no warrant for an ancillary powers doctrine of this sort. Police interferences with individual liberty must, if they are to be valid, be founded upon some rule of positive law.
17. In the criminal law, the rules and principles relating to arrest establish justifiable limits upon a citizen's liberty. The basic powers of a private citizen or a police officer to arrest without warrant are found in ss. 449 and 450 of the Criminal Code . Additional powers of arrest without warrant also exist under various federal and provincial statutes in relation to specific offences. See, R. E. Salhany, Canadian Criminal Procedure (3rd ed. 1978), at p. 31.
18. At common law, police possessed authority to arrest without warrant (a) where they reasonably suspected (i) a felony had been committed and (ii) the party to be arrested was guilty of the felony or (b) to prevent the commission of a felony. Samuel v. Payne (1780), 1 Doug K.B. 359, 99 E.R. 230; Christie v. Leachinsky, [1947] A.C. 573 (H.L.); Smith and Hogan, Criminal Law (1965), at pp. 278‑79; Butler and Garsia, Archbold Criminal Pleading, Evidence and Practice (36th ed. 1966), at paragraph 2808.
19. Short of arrest, the police have never possessed legal authority at common law to detain anyone against his or her will for questioning, or to pursue an investigation. Moore v. The Queen, [1979] 1 S.C.R. 195, at p. 203; Albert v. Lavin, [1981] 3 All E.R. 878 (H.L.); Rice v. Connolly, [1966] 2 Q.B. 414 (C.A.), at p. 419; Leigh, supra, at p. 29; Devlin, The Criminal Prosecution in England (1958), at p. 82; Honsberger, "The Power of Arrest and the Duties and Rights of Citizens and the Police," [1963] L.S.U.C. Special Lectures: Arrest and Interrogation 1; Cohen, "The Investigation of Offences and Police Powers" (1981), 13 Ottawa L. Rev. 549; Lanham, "Arrest, Detention and Compulsion," [1974] Crim. L.R. 288, at p. 289; Bailey and Birch, "Recent Developments in the Law of Police Powers," [1982] Crim. L.R. 475, at p. 481.
20. R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), is often relied upon as enunciating the test for the common law basis of police power. The English Court of Appeal stated at p. 661:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited.
21. Waterfield has been applied by this Court in R. v. Stenning, [1970] S.C.R. 631, and Knowlton v. The Queen, [1974] S.C.R. 443, and in two English cases of note, Hoffman v. Thomas, [1974] 2 All E.R. 233 (Q.B.D.), and Johnson v. Phillips, [1975] 3 All E.R. 682 (Q.B.D.)
22. I had occasion to review the Waterfield, Stenning and Knowlton cases recently in my dissenting reasons in the Wiretap Reference, [1984] 2 S.C.R. 697. As I noted, at p. 717, these cases all involved charges of assaulting or obstructing a police officer in the execution of his duty. Charges were laid as a result of altercations with the police and the defence was raised that the police were not acting in the execution of their duty at the time.
23. In the Wiretap Reference it was argued, in reliance upon Waterfield, that the common law recognizes certain powers inherent in the execution of a police officer's duty and that these powers would, in the circumstances, permit the police to engage in acts necessary to the fulfilment of their duty even though they involved an otherwise unlawful interference with a person's liberty or property. After noting that the police have never been entitled to exercise a general right of entry as part of the powers accorded them at common law, I stated, in dissenting reasons, that Waterfield does not stand for the proposition that the power of entry to private property for the purpose of installing a listening device can arise simply by virtue of a police officer's general duty to detect crime and enforce the law.
24. I concluded that the Waterfield test provides no support for police conduct, where the conduct is unlawful at common law (at pp. 718‑19):
I cannot accept that conduct of itself unlawful and initiated with full knowledge of its potential illegality could ever fall within the general scope of a policeman's duty.
...
The fact that police officers could be described as acting within the general scope of their duties to investigate crime cannot empower them to violate the law whenever such conduct could be justified by the public interest in law enforcement. Any such principle would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual's rights. For the Waterfield principle to apply, the police must be engaged in the lawful execution of their duty at the time of the conduct in question.
(Emphasis added.)
25. A police officer is not empowered to execute his or her duty by unlawful means. The public interest in law enforcement cannot be allowed to override the fundamental principle that all public officials, including the police, are subject to the rule of law. To find that arbitrary police action is justified simply because it is directed at the fulfilment of police duties would be to sanction a dangerous exception to the supremacy of law. It is the function of the legislature, not the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law.
26. Since police lack legal authority to detain a person for questioning or for purposes of investigation at common law, even on suspicion, short of arrest, I am unable to find any basis for the power to stop and detain a motorist asserted in the circumstances of this case.
27. It is vital to characterize correctly the powers the police have exercised here and not allow them to be obscured by the desirable objective the R.I.D.E. program is designed to attain. The police are stopping motorists on an entirely arbitrary basis to question them and determine if they have been drinking. As Professor Cohen notes in "The Investigation of Offences and Police Powers", supra, at p. 562, note 47: "The exercise is no less random because it requires the procedure to be carried out in specific locations noted for alcohol‑related accidents or frequent impaired driving. It is random insofar as it relates to each stopped motorist."
28. As stated above, the police had no grounds to reasonably suspect that the appellant had committed, was committing or was about to commit a criminal offence before he was requested to stop. Indeed, the police did not observe anything suspicious or improper about the appellant's driving or the condition of his car. The only reason for the random stop of the appellant was the fact that he happened to be passing through a location where the police believed there was a high incidence of drinking and driving. It is inescapable that, in essence, the police stopped and detained the appellant arbitrarily to investigate whether he might be committing a criminal offence.
29. In my opinion, the police were not authorized to stop the appellant at random for the purposes of the R.I.D.E. program. A random stop of a motorist is indistinguishable from detention for questioning or investigation against a person's will, something the courts have long recognized that police lack the power to do at common law. The vice is increased and the invasion of individual autonomy magnified when the individual is detained, not under any suspicion directed at the driver personally, but on the simple chance of where he or she happens to be driving. To conclude that this action of the police was authorized would run contrary to the long‑standing protection accorded individual liberty by the common law and erode the individual's fundamental right to be free from arbitrary interference.
30. With respect, the majority of the Court departs firm ground for a slippery slope when they authorize an otherwise unlawful interference with individual liberty by the police, solely on the basis that it is reasonably necessary to carry out general police duties. The objection to a random stop made without any grounds for suspicion or belief that the particular driver has committed or is committing an offence goes far beyond the unpleasant psychological effects produced for the innocent driver. Even if these would tend to be minimized by the well‑publicized nature of the R.I.D.E. program, the erosion of individual liberty with its ultimately detrimental effect on the freedom of all members of society would remain.
31. Furthermore, the fact that driving a motor vehicle is a licensed activity subject to regulation and control in the interests of safety is irrelevant to police power if the conditions for licensing have been met and are adhered to; the curtailment of liberty by the police in no way flows from the fact of licensing or any other regulation. The right to circulate on the highway is not limited to freedom from unreasonable interference by the police; it exists unfettered except in so far as it is curtailed by law.
32. The conclusion that random stops by police under the R.I.D.E. program are illegal at common law is supported by academic comment on the point. Professor Cohen in "The Investigation of Offences and Police Powers", supra, has stated at p. 562:
In theory, then, the police have no general power which permits them to stop and detain individuals at random, whether such action be for the purpose of conducting a search, proceeding with an interrogation, or compelling citizens to identify themselves. The exercise of the power must pertain to a specific investigation and be based upon reasonable grounds, or it must be expressly and specifically authorized by legislation. These constraints are the mechanism whereby the state ensures that official action will not be arbitrary.
Viewed in this fashion, an administrative scheme to validate random discretionary intrusions upon individual liberty such as those "authorized" under Ontario's R.I.D.E. programme cannot be characterized as other than arbitrary. No legislation expressly conferred a power upon police officers to stop motor vehicles at random in order to search out intoxicated motorists. A laudable social purpose is not enough to clothe the exercise with legality.
See also Humphrey, "Abuse of Their Powers by the Police," [1979] L.S.U.C. Special Lectures: Abuse of Power 557; Honsberger, "The Power of Arrest and the Duties and Rights of Citizens and the Police," supra, at p. 25.
33. It follows from what I have said that the appellant, when requested to stop his motor vehicle by a signal from the police officer, was under no duty to stop and submit to investigation: see Moore v. The Queen, supra, Rice v. Connolly, supra, and Hoffman v. Thomas, supra. The absence of a duty to stop turns upon the fact that, in the circumstances of this case, the police lacked lawful authority, either statutory or common law, for the request to stop.
34. It would be a mistake, however, to interpret this opinion as suggesting that motorists or other members of the public are free to disregard the directions of police officers. As Maloney J. noted, there are innumerable valid reasons, perhaps unapparent at the time, for which the police may quite properly stop a motor vehicle or a person, both under statute and at common law. Even where a member of the public questions the authority of the police, it will generally be in the interests of public order and all concerned that he or she obey the police command. Any doubt which remains may be resolved in later proceedings, if necessary. Society as a whole bears responsibility for the maintenance of law and order; co‑operation between the public and the police is essential to the effective fulfilment of the already difficult tasks performed by the police.
35. I conclude that, without validly enacted legislation to support them, the random stops by the police under the R.I.D.E. program are unlawful. In striving to achieve one desirable objective, the reduction of the death and injury that occurs each year from impaired driving, we must ensure that other, equally important, social values are not sacrificed. Individual freedom from interference by the state, no matter how laudable the motive of the police, must be guarded zealously against intrusion. Ultimately, this freedom is the measure of everyone's liberty and one of the corner‑stones of the quality of life in our democratic society.
IV. The Charge Under Section 234.1(2)
36. Since, in my view, the random vehicle stop was unlawful for lack of statutory or common law authority, it is necessary to consider whether the appellant may nonetheless be convicted of the offence under s. 234.1(2) of the Criminal Code with which he was charged. Subsections 234.1(1) and (2) read:
234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved roadside screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.
(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
37. On appeal to the Ontario Supreme Court, Maloney J. held that the random stop was unlawful. In his opinion, this gave the appellant a reasonable excuse for failing to comply with the s. 234.1(2) demand. His conclusion, reached after reviewing the relevant authorities, including Brownridge v. The Queen, [1972] S.C.R. 926, Rilling v. The Queen, [1976] 2 S.R.C. 183, and Taraschuk v. The Queen, [1977] 1 S.R.C. 385, is best expressed in his own words:
After anxious consideration I hold that in the circumstances of this case, in which the police officer made a wholly arbitrary and random stop as part of the R.I.D.E. programme, there exists a reasonable excuse for failing to comply with the demand made under s. 234.1 of the Criminal Code . The best of intentions on the part of the police cannot authorize an act which is not otherwise permitted in law. I have found that the stop involved an unjustified interference with the personal liberty of the accused. The police officer was acting in excess of his powers and was not acting in the execution of his duty when he required the accused to stop his motor vehicle. A refusal to conclude that such circumstances afford a reasonable excuse within the meaning of s. 234.1(2) of the Criminal Code would rob these findings of any legal significance and would result in mere lip service being paid to the right of a law abiding citizen who is above reproach to peacefully go about his own affairs free from being stopped, questioned and interfered with by the police for no apparent reason.
38. In the Ontario Court of Appeal, Martin J.A. dealt briefly with the charge under s. 234.1(2) . He held that the demand to provide a breath sample was validly made and therefore the appellant had no reasonable excuse for failure to comply. This conclusion followed from his earlier conclusion that the police officer, in enforcing the R.I.D.E. program, was lawfully carrying out his general duties because the appellant had stopped voluntarily.
39. The appellant argues that, absent statutory and common law authority to stop motor vehicles at random, a motorist who has been stopped at a random spot check has, in law, a reasonable excuse for failing or refusing to supply a sample of his breath within the meaning of s. 234.1(2) . The appellant's submission is that the police officer lacked reasonable and probable cause to make a demand for a sample of breath and this constituted a reasonable excuse.
40. The respondent replies that, even absent statutory or c