DATE: 20021028 DOCKET: C31187

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– JAMES CLYDE BOUGHEN (Appellant)

BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Donald H. Crawford, Q.C., for the appellant

Carol-Ann Bauman, for the respondent

HEARD: October 10, 2002

RELEASED ORALLY: October 10, 2002

On appeal from the order for a new trial of Justice Edward R. Browne of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated November 24, 1998.

E N D O R S E M E N T

[1] [1] This is an appeal from the decision of Browne J. of the Superior Court of Justice in Goderich, allowing the Crown appeal from the decision of Brophy J. dated June 22, 1998 acquitting the appellant of the offence of “over 80” contrary to s. 253(b) of the Criminal Code.

[2] [2] The facts of this case, put briefly, are that Constable Walraven was on duty the night of October 24, 1997. Just before 11:00 p.m., he noticed a maroon truck travelling eastbound approaching him. After the car passed, Walraven looked in his rearview mirror and saw that the truck’s rear taillights were not on. The constable made a U-turn and proceeded to follow the truck with the intention to stop the truck to investigate the unlit taillights. The officer followed the truck for two-and-a-half blocks. The truck then turned into the Fish and Game Country Club parking lot and Constable Walraven pulled in behind and witnessed the appellant exiting from the driver’s side of the truck.

[3] [3] The appellant walked away from the truck and Constable Walraven asked him four times to return to the truck. The appellant asked “What for?” and Constable Walraven said that his taillights were not on. The appellant returned to the vehicle and turned the lights on. During this discussion, Constable Walraven detected a very strong and overpowering odour of liquor on the appellant’s breath. When asked how much he had had to drink, the appellant said he did not have to say because he was not driving.

[4] [4] The only ground that was argued in this court was that there was no lawful authority for the officer to detain the appellant at the time he was in the parking lot and thus the detention was arbitrary. The Crown’s position was that the detention was authorized under the Highway Traffic Act, R.S.O. 1990, c. H.8 and was not arbitrary. We agree with the Crown’s position for the reasons given by the summary conviction appeal court judge as follows:

I do not conclude that the initial detention arose in a context in which legal authorization was absent. Expressed positively, in my view, the Highway Traffic Act permitted and authorized in the circumstances of this case continuing investigation off of the highway onto private property. The particular investigation started with the sole focus of the Highway Traffic Act violation pertaining to the lights and only progressed to a criminal investigation in the context of the continuing Highway Traffic Act investigation. As indicated, I do not find the initial detention to be arbitrary.

[5] [5] Accordingly, leave to appeal is granted but the appeal is dismissed.

Signed: “G. D. Finlayson J.A.”

“M. J. Moldaver J.A”

“K. Feldman J.A.”