Court of Appeal for Ontario
Date: 2019-07-08 Docket: C64272
Judges: Tulloch, van Rensburg and Harvison Young JJ.A.
Between
Her Majesty the Queen Respondent
and
Brian Mayor Appellant
Counsel
Mark C. Halfyard, for the appellant
Jason A. Morische, for the respondent
Heard
April 12, 2019
On Appeal
On appeal from the conviction entered on April 28, 2017, by Justice Paul R. Sweeny of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
Overview
[1] After the Hamilton Police Service received an anonymous tip that the appellant was dealing drugs from his car, their High Enforcement Action Team (HEAT) began an investigation of the appellant in December 2015. An officer with the team conducted surveillance on the appellant on four occasions without observing any signs of drug trafficking. In the course of the investigation, the officer learned that the appellant's driver's licence was suspended.
[2] On January 17, 2016, the appellant's vehicle was stopped by that officer and another HEAT member. They arrested him for driving with a suspended licence. The officer who had previously investigated the appellant rearrested him for impaired driving after observing signs of impairment. Another officer arrived to provide backup and searched the vehicle. The search revealed cocaine, cell phones, and drug-related paraphernalia. The appellant was then charged with possession of a controlled substance for the purpose of trafficking.
[3] The appellant brought a Charter application challenging the legality of his arrest and the search of his vehicle, and seeking to exclude the items seized. After the application was dismissed he was convicted of the drug offence.
[4] The appellant appeals his conviction. He contends that the trial judge erred in dealing with his Charter application in two ways, both of which are related to the trial judge's conclusion that the appellant's arrest and the consequent search of his vehicle were legal.
[5] First, the appellant says that the trial judge did not apply the proper test when he concluded that the police had the authority to arrest him under the Highway Traffic Act, R.S.O. 1990, c. H.8, rather than determining whether they used this authority as a ruse to further their drug investigation. Second, the appellant argues that the trial judge reversed the onus of proof.
The Law
[6] The Ontario Legislature has given the police broad powers to stop motor vehicles for highway regulation and safety purposes, and, in some circumstances, to arrest drivers of motor vehicles. Section 216(1) of the Highway Traffic Act gives an officer the power to stop a vehicle, even if the stop is random and the officer lacks reasonable and probable grounds or even reasonable suspicion: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 255, at para. 55. The Supreme Court upheld this power as constitutional in R. v. Ladouceur, [1990] 1 S.C.R. 1257. Likewise, s. 217(2) of the Highway Traffic Act authorizes an officer to make a warrantless arrest of a person who the officer believes on reasonable and probable grounds to be driving while suspended. If the officer is satisfied that a person is driving while suspended, the officer also has the duty to detain and impound the vehicle: Highway Traffic Act, s. 55.2(1).
[7] However, the existence of these powers does not automatically make motor vehicle stops lawful because the police are not free to use these powers for some other purpose, including to further a criminal investigation. The Legislature granted the police these powers for the purpose of ensuring road safety: Brown v. Durham Regional Police Force, 43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police use these powers in a manner consistent with this purpose. As a result, if the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the stop: Gonzales, at para. 60. If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s. 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54. The court must thus determine whether the officer actually formed a "legitimate intention" to make the detention or arrest for road safety purposes: R. v. Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at para. 62.
[8] A detention or arrest pursuant to a Highway Traffic Act power can be lawful if the officer has either only road safety purposes in mind or has both road safety and other legitimate purposes in mind. In Brown, Doherty J.A. accepted that as long as the police have a road safety purpose subjectively in mind, they may also have other legitimate purposes in mind: at p. 238. The investigation of criminal activity is one such legitimate purpose: Brown, at p. 240. Indeed, in Brown, Doherty J.A. found that motor vehicle stops which were partially motivated by a desire to investigate crime were lawful because the police also had road safety purposes in mind: at pp. 239-240. Doherty J.A. noted that a Highway Traffic Act stop where the police are furthering some other legitimate interest is lawful provided that the additional police purpose is not improper or pursued through improper means, and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the Highway Traffic Act: at p. 236. See also Gonzales, at para. 58. In many cases it will be unhelpful to take an either/or approach to whether a stop is for road safety or some other legitimate purpose. See for example Sandhu, at para. 59. An officer may thus have a road safety purpose in mind even if the officer simultaneously has a criminal law purpose in mind: Sandhu, at para. 62.
[9] However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Act powers will not authorize police stops if the police use these powers as a "ruse" to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as "a plausible façade for an unlawful aim." Accordingly, in R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at para. 88, Code J. held that using Highway Traffic Act powers "as a mere 'ruse' or 'pretext' for a broad and unfounded criminal investigation" would violate s. 9 of the Charter.
[10] Consequently, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the Highway Traffic Act power as a ruse to conduct a criminal investigation. In determining the police purpose, the court must consider all the circumstances, including the evidence of the officers, the evidence of the detained person, the circumstances of the stop, and the police conduct during the stop: Brown, at p. 238; Gonzales, at para. 67.
Application
[11] In this case, the trial judge summarized the evidence about the legality of the appellant's arrest as follows:
The evidence of [the officers] was that this was an investigation into the suspended driving because the drug investigation had led nowhere. They are entitled to investigate for suspended driving. The HEAT unit laid 27 charges for driving while suspended in 2016.
[12] After referring to the appellant's position on the application and the relevant principles from Brown, the trial judge noted that "in this case the position of the police is stronger than a random stop" and he stated that "the flaw in the [appellant's] analysis is that the officers had a valid purpose for the stop. The accused was arrested for driving while suspended". The trial judge then went on to consider the search. He concluded his reasons by stating that he was "satisfied the officers had authority to stop and arrest the appellant for driving while suspended," and therefore, there was no breach of ss. 8 or 9 of the Charter.
[13] In our view, the trial judge did not resolve the central issue on the application, which was whether the police used powers that the Legislature granted for a road safety purpose as a ruse to search the appellant's vehicle as part of a drug investigation. Instead, he appears to have treated the existence of the power to arrest the appellant for suspended driving in s. 217(2) of the Highway Traffic Act as dispositive. He erred in law in so doing. It was incumbent on him to determine whether the officers subjectively formed an intention to arrest the appellant for the road safety purpose that motivates the s. 217(2) grant of authority to police. If the officers did not subjectively form this intention, then their reliance on s. 217(2) was a ruse and s. 217(2) could not authorize the arrest.
[14] The Crown points out that there was evidence from the officers that the "sole" purpose of the stop was to investigate the appellant for driving with a suspended licence, and that the drug investigation at that time was closed. While this may well be the case, the trial judge did not engage with this evidence, nor did he make any necessary findings of fact. It was incumbent on him to do so.
[15] Without expressing any view on the merits of the application, we note that the evidence included not only the officers' explanations for the stop, but also all of the surrounding circumstances. These included the fact that the appellant was stopped by the same members of a specialized, plainclothes police unit who had been investigating him, without success, for a drug offence; that he had been placed under surveillance at midnight; that the officers disagreed about whether they set out to investigate the appellant for driving while suspended, or whether they decided to do so because it was a "slow night"; that the notes of one of the officers included a reference to the drug investigation; and that the police inventory of the contents of the vehicle listed only drugs, cell phones and drug paraphernalia. As Brown and Gonzales establish, the trial judge should have considered all of these circumstances to determine the legality of the appellant's arrest, and in particular whether the traffic stop was a pretext to further a drug investigation.
[16] The conclusion that the trial judge did not make the necessary findings and apply the proper test in considering whether the appellant's arrest was lawful, is sufficient for the determination of the appeal. We therefore allow the appeal, set aside the appellant's conviction, and direct a new trial before a different judge.
"M. Tulloch J.A."
"K. van Rensburg J.A."
"Harvison Young J.A."