Court Information
Ontario Court of Justice Central West Region Brampton, Ontario
Parties
Between:
Her Majesty the Queen
-and-
David Vandergriendt
Reasons for Judgment
Judge: Duncan J.
Facts
1The defendant is charged with exceed 80, offence date December 10, 2012. The issue in this case centres on the fact that the defendant was stopped by police as he drove in a shopping plaza parking lot.
2A police officer and her trainee officer were conducting mobile sobriety spot checks, focusing on vehicles in the vicinity of drinking establishments. Her attention was drawn to the defendant's pick-up as it drove near a pizza place in a large plaza parking lot. She stopped it, still in the lot. A smell of alcohol and an admission of drinking lead to a failed ASD, an arrest, demand and breath samples betraying an excess of alcohol in the defendant's blood (130; 120).
The Issues
3The issue raised can be stated as this:
Does the Ontario Highway Traffic Act or the common law authorize police to conduct random check-stops of vehicles in parking lots?
4The issue can be broken down into sub-issues:
- Does the HTA authorize check-stops in private parking lots?
- Does the common law authorize check-stops in parking lots?
- Does the common law authorize random check stops in parking lots?
Analysis
HTA and Parking Lots
5I accept, at least for the present case, that the law in Ontario is that the stopping power conferred by sections 48 and 216 of the Highway Traffic Act does not apply in private parking lots. The path of reasoning was described in R v Tresham, [1998] OJ 1744 and need not be repeated here. However it must be said that, while the reasoning based on statutory construction seems sound enough, it is doubtful that such a result was ever intended by the legislators. Certainly it seems like a very circuitous and oblique way to express an intention to exclude parking lots. Moreover, it is difficult to imagine any policy reason or civil liberties concern that could motivate creation of such a distinction. To the contrary, a distinction that might encourage or require police to wait until a possible drunk driver hits the street – and possibly hits something else – seems unwise, to say the least.[1]
Common Law and Parking Lots
6Apart from statute, the police have common law authority to stop and detain motorists for purposes related to highway safety concerns. The authority has no spatial limitations. It may be lawfully exercised in locations excluded from the scope of a statutory stopping power, including parking lots: R v Dillon, [2006] OJ No 1366 (Sup Crt Molloy J).
7The Dillon case is binding on me. In any event I agree with it, as have other courts: R v Mclelland, [2012] OJ No 6022 (Sup Crt Tulloch J). No case to the contrary has been brought to my attention. While counsel has cited R v Tresham supra and R v Sergalis, (2009) 90 MVR (5th) 116 (Ont Sup Crt) and the Saskatchewan case of R v Lux, 2012 SKCA 12, none of these cases makes any reference to possible common-law authority and therefore, having not considered the point, do not support any view that conflicts with Dillon.[2]
8I can add little to the analysis in Dillon except the observation that police officers in Ontario have the duties and powers ascribed to a constable at common law (Police Services Act s 42(3)). Their common law and statutory powers are cumulative. The enactment of statutory authority in sections 48 and 216 did not supplant or remove the common law authority that had been recognized before those enactments.
Are Random Stops Authorized?
9The stop in this case was random in the sense that it was made without any grounds to believe or suspect the commission of any offence. I did not understand the officer to claim otherwise. Rather, I took her description of the vehicle's movements to be merely narrative explaining why the vehicle came to her attention, rather than a statement of or claim to grounds for suspicion.
10Counsel Ms. Rosenberg argues that, even assuming as per the above that there is common law authority to stop a vehicle in a parking lot, the stop cannot be random but rather must be based on articulable cause or reasonable suspicion. While the argument has been well presented, I am unable to accept it for two reasons; first because I am bound by Dillon which specifically decided that random stops in parking lots were authorized by common law and secondly, even if I was not so bound, I do not think that the argument is correct.
11Dealing with the merits, the first submission in support of this argument goes beyond parking lots to include the broader contention that the law does not authorize random stops anywhere – that articulable cause is always required.[3] But in my view, the trio of cases from the Supreme Court: Dedman, Hufsky, and Ladouceur made it crystal clear that the Court was recognizing common law and statutory authority for random "check stops" meaning stops for purposes of traffic safety made without any grounds to believe or suspect the commission of any offence. That was the point of those cases. All three cases on their facts involved groundless stops, though each was of a different type, and in all three cases convictions were imposed or affirmed. In those cases, a random stopping power was recognized and then found to pass constitutional muster under section 1.
12It is argued however that in R v Wilson, [1990] 1 SCR 1291, a companion case to Ladouceur, the Court examined and discussed whether the officer had articulable cause. Why would the Court feel it necessary to engage in this exercise, if such cause was not required? Ms. Rosenberg is not the first to ask this question. Wayne Gorman (now Gorman J.) "Arbitrary Detentions and Random Stops" (1999) 41 Crim Law Q 41 at 48 wrote that Wilson "changed everything" and that the "Court's foray into the articulable cause standard effectively destroyed" what had been decided in Hufsky and Ladouceur.
13With respect, I think there is really no confusion or erosion of these cases by Wilson. While it is true that the Court did not have to deal with the question of whether grounds for the stop existed, courts do not always confine themselves to the narrowest basis on which a case can be decided. This is particularly so when one basis is factual and the other legal. In Wilson the brief judgment gave two reasons why the stop was lawful. On the facts, there were grounds; if not, on the law, it was still lawful. Cory J for the majority concluded:
… if the stopping of the appellant's vehicle is considered to be a random stop then for the reasons given in Ladouceur, supra, I would conclude that although the stop constituted an arbitrary detention, it was justified under s. 1 of the Charter.
14It is further argued that developments since the random stop trilogy have qualified those cases and imposed an articulable cause or reasonable suspicion standard for investigative detentions applicable to both pedestrian and vehicle stops: R v Mann, 2004 SCC 52 , [2004] 3 SCR 59; R v Simpson, (1993), 79 CCC (3d) 482. Again, this argument was rejected by the binding case of Dillon. Beyond that, these subsequent developments did not qualify the holding of the motor vehicle safety "check-stop" cases but rather dealt with and declared the standard for stops made for other purposes. It was made clear in the check stop trio and emphasized soon thereafter in R v Mellenthin, [1992] 3 SCR 615, that the random stopping power was confined to stopping related to highway regulation and safety and that the power was not to be used generally or in pursuit of other kinds of investigations. In such situations, later cases declared, articulable cause or reasonably grounded suspicion must be present, including where motor vehicles are involved: R v Simpson supra; R v Bryce, (2009) 87 MVR (5th) 259 (Ont Sup Crt Hill J.). In my view, legal developments on detention and reasonable suspicion occurring subsequent to the check-stop trilogy do not modify those cases but rather recognize that there are two different streams with two separate rules, depending on the purpose for which the stop is made.
15The second part – and really the core of the defendant's argument – is that, assuming a generally applicable random stop power, it does not extend to parking lots. This is because, it is argued, the same public safety concerns motivating the random stop rule do not apply in parking lots. Random stops were found to be a reasonable limit under section 1 on a balancing of the great harm done by drinking drivers, the ineffectiveness of grounds-predicated enforcement and the minimal inconvenience to those engaged in the heavily regulated activity of driving. Take away or substantially reduce the safety/harm component, and the balance changes to the point where it cannot be said that the infringement on liberty is justified either under the Waterfield test or section 1.
16Again I can't accept the argument. In my view there is substantially the same safety concern in parking lots as on the road. Such lots are not always or often wide open deserted places where no harm can be done. They can contain hundreds of other cars and pedestrians moving about. Impaired driving is as much a crime there as on the road. Beyond that there is the potential danger. Cars in parking lots are just seconds away from going on the road and frequently their drivers intend to do just that. A stop in a parking lot is safer for both police and the detained motorist. On the other side of the equation, there is no heightened privacy or mobility interest attaching to a motorist in a parking lot. His being randomly stopped in a lot is no greater infringement on his liberty than if it occurred on the road.
17In sum, it is my view that the rationale for permitting random safety check-stops applies equally to vehicles in parking lots.
Conclusion
18There was no Charter violation. The breath test results are admissible. They prove the offence. The defendant is found guilty as charged.
June 18, 2014
B Duncan J
Ms D Rosenberg for the defendant
Ms. Scully for the Crown
Footnotes
1On the other hand, the parking lot issue has been around since the 1970s and no amendment or clarification has been enacted.
2In Sergalis the argument at trial turned exclusively on section 48 HTA and on appeal the Crown conceded "arbitrary detention" (para 14) that is, did not rely on common law. Dillon, then 3 years old, was not referred to. Further Sergalis was a case where the defendant had been seen driving on the highway before pulling into the parking lot. Its holding on such facts conflicts with the more recent decision of Miller J in R v Heer, 2013 ONSC 2757 and the Court of Appeal in R v Calder, [2004] OJ No 451.
3I base this understanding on the fact that counsel places substantial reliance on R v Wilson, [1990] 1 SCR 1291 – not a parking lot case.