R. v. Hufsky

Le Dain J.‑‑This appeal raises the following questions:

1. Whether the non‑universal proclamation of the former s. 234.1 of the Criminal Code , respecting mandatory roadside breath testing, as a result of which s. 234.1 was not in force in the provinces of British Columbia and Quebec, infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights;

Whether the random stop of a motor vehicle by a police officer in the course of "spot check duty" for the purposes of checking driver's licences and proof of insurance, the mechanical fitness of vehicles and the condition or "sobriety" of drivers infringed the right not to be arbitrarily detained guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms ; and

Whether the spot check procedure, whereby the police officer required the surrender for inspection of the driver's licence and insurance card, infringed the right to be secure against unreasonable search guaranteed by s. 8 of the Charter .

2. The appeal is by leave of this Court from the judgment of the Ontario Court of Appeal on September 18, 1984, dismissing an appeal from the judgment of Kane Co. Ct. J. on November 2, 1983, which dismissed an appeal from the conviction of the appellant by Camblin Prov. Ct. J. on May 2, 1983 of failing or refusing, without reasonable excuse, to comply with a demand by a police officer to provide a sample of breath into a roadside screening device contrary to s. 234.1(2) of the Criminal Code .

I

3. On January 14, 1983, at approximately 12:30 a.m., the appellant was stopped by a police officer while driving north on Midland Avenue in the municipality of Metropolitan Toronto. The officer testified that when he stopped the appellant he did not notice anything unusual about the appellant's driving and that the appellant was driving in a normal manner. The officer asked to see the appellant's driver's licence and proof of insurance and verified their validity. During the course of his conversation with the appellant the officer detected the odour of alcohol on the appellant's breath and noticed that his speech was slightly slurred. The officer requested the appellant to accompany him to his vehicle for the purpose of a roadside breath test, and at approximately 12:36 a.m. the officer made a formal demand upon the appellant to provide a sample of breath into the approved roadside screening device known as A.L.E.R.T. (Alcohol Level Evaluation Roadside Tester) Model J3A. The appellant refused to do so. Upon his refusal the officer informed the appellant that he would be charged with the offence of refusing to provide a sample of breath and informed him of his right to retain and instruct counsel without delay. The appellant was released upon an appearance notice at approximately 1:05 a.m.

When he stopped the appellant the officer was engaged, beginning about 11:30 p.m. on January 13, 1983, in a police spot check of motor vehicles and drivers on Midland Avenue, north of Lawrence Avenue. He described the "spot check duty" as follows: "That is what they call it when we have certain vehicles, officers included, for the purposes of stopping vehicles, checking the mechanical fitness of the vehicle and the conditions of the drivers at the time." He agreed with counsel that the purpose of spot check duty was to "check licences, insurance, mechanical fitness of cars and sobriety of the owners." The officer also agreed that it was common to check the ownership of the vehicle to make sure that it had not been stolen but he could not recall whether he had done so in this case. The officer testified that the only guideline for spot check duty was that there must be at least one marked police vehicle. Other vehicles engaged in spot check duty could be marked or unmarked. There were no criteria, standards, guidelines or procedures to determine which vehicles should be stopped. It was in the discretion of the police officer. The officer who stopped the appellant was in uniform at the time but in an unmarked car. He testified that he was stopping vehicles "at random". He said that during the previous eight months, during which he had been assigned spot check duties, he had pulled over approximately five hundred vehicles and had administered roadside breath tests in approximately twenty cases. He said that the appellant's vehicle was one of several he had pulled over during the course of his shift.

On the charge of failing or refusing, without reasonable excuse, to comply with the demand by the police officer to provide a sample of breath into the roadside screening device, contrary to s. 234.1(2) of the Criminal Code , the appellant contended before Camblin Prov. Ct. J. that the charge should be dismissed on the grounds, among others, that the non‑universal proclamation of s. 234.1 infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights and that the random stop and spot check procedure infringed the rights to be secure against unreasonable search and not to be arbitrarily detained guaranteed by ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . The provincial court judge rejected these contentions, convicted the appellant and fined him $100. The appeal from this judgment was dismissed by Kane Co. Ct. J. without reasons.

The appeal from the judgment of Kane Co. Ct. J. was dismissed by the Ontario Court of Appeal (Howland C.J.O., Martin and Blair JJ.A.) (1984), 14 O.A.C. 1, for the following reasons in the endorsement of Howland C.J.O.:

Counsel for the appellant raised three grounds of appeal:

1. His first contention was that s. 234.1 of the Criminal Code ... was inoperative because it had not been proclaimed in British Columbia or Quebec and so infringed the right of the appellant to equality before the law in s. 1(b) of the Canadian Bill of Rights . . . .

We are unable to accept this submission. We consider that the reasoning of this court in R. v. Negridge (1980), 6 M.V.R. 255, 17 C.R. (3d) 14, 54 C.C.C. (2d) 304 (Ont. C.A.), is conclusive on this point.

2. The second contention was that the appellant was arbitrarily detained contrary to s. 9 of the Canadian Charter of Rights and Freedoms . We consider that this contention has been disposed of by the decisions of this court in R. v. Simmons (1984), 3 O.A.C. 1; 45 O.R. (2d) 609; 26 M.V.R. 168; 39 C.R. (3d) 223; 11 C.C.C. (3d) 193; 7 D.L.R. (4th) 719 (Ont. C.A.), and R. v. Dedman (1981), 32 O.R. (2d) 641; 10 M.V.R. 59; 23 C.R. (3d) 228; 59 C.C.C. (2d) 97; 122 D.L.R. (3d) 655 (Ont. C.A.).

3. The third contention was that asking the appellant to produce his driver's licence and proof of insurance was an unreasonable search contrary to s. 8 of the Charter .

We are all of the view that there was no unreasonable search in light of the provisions of the Highway Traffic Act, R.S.O. 1980, c. 198 requiring such production, which provisions we consider to be reasonable.

On the appeal to this Court the following constitutional questions were stated by Estey J. in his order of January 8, 1987:

1. Does the non‑universal proclamation of s. 234.1 of the Criminal Code of Canada abrogate, abridge or infringe the appellant's right to equality before the law as provided by s. 1(b) of the Canadian Bill of Rights?

2. Does the random stopping of motor vehicles by police officers pursuant to federal and/or provincial statute infringe the right to not be arbitrarily detained as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms ?

3. If the answer to question 2 above is in the affirmative, is such statutorily permitted conduct justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?

4. Was the appellant's right to be secure against unreasonable search as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms infringed by the "spot check" procedure employed by the investigating officer herein?

5. If the answer to question 4 above is in the affirmative, is such statutorily permitted conduct justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?

II

The first issue in the appeal is whether the non‑universal proclamation of the former s. 234.1 of the Criminal Code , pursuant to s. 102(3) of the Criminal Law Amendment Act, 1975, S.C. 1974‑75‑76, c. 93, as a result of which s. 234.1 was in force in Ontario at the time the appellant was charged but was not in force in British Columbia and Quebec, infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights. That question was considered and determined by the Court in R. v. Cornell, [1988] 1 S.C.R. 461, which was heard at the same time as this appeal. For the reasons given in Cornell, the non‑universal proclamation of s. 234.1 was justified by a valid federal objective and therefore did not infringe s. 1(b). The first constitutional question should accordingly be answered in the negative.

III

The second issue in the appeal is whether the random stop of the appellant's motor vehicle resulted in the appellant's being arbitrarily detained within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms , which provides:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

The second constitutional question refers to "the random stopping of motor vehicles by police officers pursuant to federal and/or provincial statute." The statutory provision relied on by the respondent as authority for the random stop of the appellant for the purposes contemplated by the spot check procedure is s. 189a of the Ontario 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. Sections 189a(1) and (2) are as follows:

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.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both.

In the course of oral argument reference was also made to s. 30a of the Highway Traffic Act, as amended by s. 1 of the Highway Traffic Amendment Act, 1981 (No. 3), which provides for the surrender and suspension of a driver's licence in certain cases following a demand for a sample of breath under s. 234.1(1) or s. 235(1) of the Criminal Code . Section 30a(1) reads as follows:

30a.‑‑(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 234.1 of the Criminal Code (Canada) .

It was not contended that there was federal statutory authority for the random stop, as distinct from the s. 234.1(1) demand, nor was reliance placed on the common law authority for a random stop affirmed in Dedman v. The Queen, [1985] 2 S.C.R. 2, although the reasoning in Dedman was referred to by the respondent in support of the constitutionality of the random stop authority conferred by the Highway Traffic Act.

Reference may also be made at this point to the provincial legislative provisions requiring the surrender for inspection of a driver's licence and insurance card upon the demand of a police officer. They are s. 19(1) of the Highway Traffic Act and s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83, which, at the time the appellant was stopped, read as follows:

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.

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.

The first issue with respect to the appellant's contention based on s. 9 of the Charter is whether the random stop of the appellant for the purposes of the spot check procedure‑‑in this case, to check the driver's licence and proof of insurance and to observe his condition or "sobriety"‑‑resulted in a detention of the appellant within the meaning of s. 9. I refer to the period during which the appellant was stopped for the purposes of the spot check procedure, as distinct from the period following the s. 234.1(1) demand. In my opinion the random stop of the appellant for the purposes of the spot check procedure, although of relatively brief duration, resulted in a detention of the appellant within the meaning of s. 9 of the Charter . It fell within the general concept of detention that was applied in R. v. Therens, [1985] 1 S.C.R. 613, and reaffirmed by the Court in R. v. Thomsen, [1988] 1 S.C.R. 640, which was heard at the same time as this appeal and in which judgment has been rendered today. 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. Although Therens and Thomsen were concerned with the meaning of "detention" in s. 10 of the Charter , there is, in my opinion, no reason in principle why the general approach to the meaning of detention reflected in those cases should not be applied to the meaning of "detained" in s. 9. The further restraint of liberty as a result of the s. 234.1(1) demand was also a detention, as was held in Thomsen, but that demand was not based directly on random choice, as was the stop for purposes of the spot check procedure, but on a reasonable suspicion, formed as a result of the observation of the appellant in the course of the spot check procedure, that the appellant had alcohol in his blood.

The next issue with respect to the appellant's contention based on s. 9 of the Charter is whether the detention resulting from the random stop for the purposes of the spot check procedure was arbitrary within the meaning of s. 9. Section 189a(1) of the Highway Traffic Act empowers a police officer who is in the lawful execution of his duties and responsibilities to require the driver of a motor vehicle to stop. It does not specify that there must be some grounds or cause for stopping a particular driver but on its face leaves the choice of the drivers to be stopped to the discretion of the officer. In carrying out the purposes of the spot check procedure, including the observation of the condition or "sobriety" of the driver, the officer was clearly in the lawful execution of his duties and responsibilities. Although authorized by statute and carried out for lawful purposes, the random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, in an arbitrary detention because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. 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 appellant was therefore arbitrarily detained, within the meaning of s. 9 of the Charter , as a result of the random stop for the purposes of the spot check procedure, and the second constitutional question should accordingly be answered in the affirmative.

IV

It is necessary then to consider whether the right not to be arbitrarily detained, guaranteed by s. 9 of the Charter , is subject, in the case of the authority to stop motor vehicles conferred by s. 189a(1) of the Highway Traffic Act, to a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter , which provides:

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.

As indicated in Therens and Thomsen, a limit prescribed by law, within the meaning of s. 1 of the Charter , may arise by implication from the terms of a legislative provision or its operating requirements. There is, in my opinion, the implication of a limit on the right not to be arbitrarily detained arising from the terms of s. 189a(1) of the Highway Traffic Act, which confers an authority on a police officer to choose, in his absolute discretion, the drivers of motor vehicles whom he will require to stop. In other words, it authorizes the random stop of motor vehicles.

The question then is whether the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained is a reasonable one demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter . The test for determining that question was formulated in R. v. Oakes, [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, as follows at pp. 768‑69:

Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

The section 1 material that was placed before the Court by the respondent on the issue of arbitrary detention falls into two parts. The first consists of the material in volumes I to VII inclusive on the problem of impaired driving which was considered and applied by the Ontario Court of Appeal in R. v. Seo (1986), 25 C.C.C. (3d) 385, and by this Court in Thomsen, in concluding that the limit imposed by s. 234.1(1) of the Criminal Code on the right to counsel was justified under s. 1 of the Charter . That material would appear to have been introduced by the respondent in this appeal primarily in justification of the detention resulting from the s. 234.1(1) demand. The conclusions that were drawn from that material by Finlayson J.A. in Seo were adopted by this Court in Thomsen, and they need not be restated here. It is sufficient to note what would appear to be of particular relevance in the material to the justification of a random stop authority. What the material emphasizes is not only the seriousness of impaired driving, but the difficulty of detecting it by observation of the driving and the importance, in order to increase the effective deterrence of it, of increasing the perceived risk of its detection. The material refers at several places to the random stop or spot check of drivers as calculated to increase the perceived risk of the detection of impairment because it affords a police officer a closer opportunity for observation of a driver's condition. It is seen as a means of making mandatory roadside breath testing more effective.

What may be regarded as the second part of the s. 1 material is contained in volumes VIII to X inclusive and in appendices to the respondent's factum. It consists of the following material: legislation in other provinces and democratic jurisdictions conferring authority to require the driver of a motor vehicle to stop; other legislation in Ontario conferring authority to stop motor vehicles "without articulable cause"; provisions of the Highway Traffic Act and Compulsory Automobile Insurance Act the violation of which occur "without any necessary external or visible manifestations"; provincial government reports for several years containing statistical analysis of motor vehicle accidents, motor vehicle offences, suspension of driver's licences, and claims on the Motor Vehicle Accident Claims Fund; and charts or tables collating the statistical data with reference to what the respondent submitted were the indications of particular relevance to the justification of a random stop authority.

The above material reinforces the impression of the gravity of the problem of motor vehicle accidents in terms of the resulting deaths, personal injury and property damage, and the overriding importance of the effective enforcement of the motor vehicle laws and regulations in the interests of highway safety. The charts or tables prepared by the respondent from the statistical data in the government reports stress the following points: the relative importance of licence suspension and the effective enforcement of it; the relatively higher proportion of unlicensed and uninsured drivers, by comparison with the proportion of licensed and insured drivers, involved in motor vehicle accidents resulting in death or personal injury; and the relative importance of the motor vehicle offences, including driving without a licence or while under licence suspension or without insurance, which cannot be detected by observation of the driving. Again, a random stop authority is said to be justified by increasing the perceived risk of the detection of such offences.

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. If the stopping of motor vehicles for such purposes is not to be seriously inhibited, it should not, in my respectful opinion, be subjected to the kinds of conditions or restrictions reflected in the American jurisprudence (cf. Delaware v. Prouse, 440 U.S. 648 (1979), and Little v. State, 479 A.2d 903 (Md. 1984)), which would appear seriously to undermine its effectiveness while not significantly reducing its intrusiveness. As for publicity, which was referred to in Dedman in connection with common law authority for a random stop for the purposes contemplated by the R.I.D.E. program, I think it may be taken now that the public is well aware of random stop authority both because of its frequent and widespread exercise and its recognition by legislatures.

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.

V

The final issue in the appeal is whether, as contended by the appellant, the demand by the police officer that the appellant surrender his driver's licence and insurance card for inspection, as required by s. 19(1) of the Highway Traffic Act and s. 3(1) of the Compulsory Automobile Insurance Act, infringed the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter , which is as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

The appellant contended that the compelled production of his driver's licence and insurance card constituted a search within the meaning of s. 8 and that it was an unreasonable search because there were no criteria or guidelines for determining when a driver should be required to surrender these documents for inspection. In my opinion the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute a search within the meaning of s. 8 because it did not constitute an intrusion on a reasonable expectation of privacy. Cf. Hunter v. Southam Inc., [1984] 2 S.C.R. 145. There is no such intrusion where a person is required to produce a licence or permit or other documentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of a right or privilege. There was therefore no infringement of the right to be secure against unreasonable search or seizure, and I would accordingly answer the fourth constitutional question in the negative.

For the foregoing reasons I would dismiss the appeal and answer the constitutional questions as follows: