COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McColman, 2021 ONCA 382

DATE: 20210604

DOCKET: C68630

Feldman, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Walker McColman

Respondent

Davin M. Garg, for the appellant

Donald R. Orazietti, for the respondent

Heard: December 3, 2020 by video conference

On appeal from the order of Justice Edward E. Gareau of the Superior Court of Justice, dated September 16, 2019, with reasons reported at 2019 ONSC 5359, 381 C.C.C. (3d) 375, allowing an appeal from the conviction entered on October 4, 2018, by Justice Robert P. Villeneuve of the Ontario Court of Justice.

Tulloch J.A.:

A. INTRODUCTION

[1] In the early morning hours of March 26, 2016, the police stopped the respondent, Walker McColman, for the purpose of determining whether he was driving under the influence of drugs or alcohol. The stop took place in a private driveway outside the respondent’s parents’ house.

[2] Upon stopping the respondent, the police observed signs of intoxication and proceeded to arrest him. The respondent was subsequently charged with, and convicted of, impaired operation of a motor vehicle and operating a motor vehicle while “over 80” pursuant to ss. 253(1)(a) and 253(1)(b) (since repealed) of the Criminal Code, R.S.C. 1985, c. C-46. The provincial court judge sentenced him to a 12-month driving prohibition, imposed a $1,000 fine, and conditionally stayed the s. 253(1)(a) conviction pursuant to Kienapple v. R., 1974 SCC 14, [1975] 1 S.C.R. 729.

[3] On appeal, the summary conviction appeal judge overturned the s. 253(1)(b) conviction, finding that the trial judge erred in law by concluding that the stop was authorized under s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). The appeal judge found the stop to be unlawful, breaching the respondent’s right not to be arbitrarily detained under s. 9 of the Canadian Charter of Rights and Freedoms. He proceeded to exclude the evidence under s. 24(2) of the Charter and entered an acquittal.[^1]

[4] The Crown subsequently brought a motion for leave to appeal the acquittal entered by the summary conviction appeal judge. The Crown sought to raise the following question of law:

If a police officer forms the lawful intention to stop a driver on a public street for a sobriety check, but the driver turns on to private property before the officer can effect the stop, does the officer maintain authority to conduct the stop?

The Crown relied on s. 48(1) of the HTA, or in the alternative, the powers of the police at common law for the authority to conduct a stop in these circumstances.

[5] The issue on appeal equally can be framed as follows:

Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person had been drinking?

[6] A panel of this court granted leave on August 25, 2020, finding that the questions raised in this appeal are significant to the administration of justice as they deal with the lawful scope of police powers.

[7] For the reasons that follow, I would dismiss the appeal. In my view, neither the HTA nor the common law authorized the police conduct in this case. The stop violated the respondent’s s. 9 Charter rights, and the evidence was properly excluded.

B. FACTUAL OVERVIEW

[8] The relevant facts of this case are important. At the outset, I note that this is not a case where the driver was swerving on the road. It is not a case where there was a broken taillight or any other obvious HTA infractions. It is a case of a driver who drove normally onto their own driveway and parked. With that said, this section provides a detailed review of what happened in this case.

[9] At approximately 12:30 a.m. on March 26, 2016, Constable Jack Lobsinger, along with his partner, Constable Laura Hicks, were conducting general patrol in the area of the Thessalon First Nation. The officers observed a utility terrain vehicle (“UTV”) parked outside a restaurant and gas station. As the vehicle “seemed like it was [going to] be leaving” the parking lot, the officers decided to conduct a sobriety check of the driver.

[10] The officers turned their car around and began following the UTV, which had exited the parking lot and was driving eastbound down a public road. About 200 metres down the road, the UTV turned right and then left onto the private driveway of the respondent’s parents’ house. The driveway also provides a means of access to a neighbouring commercial business. The police followed the UTV into the driveway and activated their lights to indicate to the driver that a police car was behind him. The officers exited their vehicle to speak with the respondent, who had walked around to the passenger side of the UTV. A second person was sitting in the passenger seat. This sequence of events occurred over the course of approximately one minute.

[11] At this point, the officers did not have a reasonable suspicion that the respondent was connected to any particular crime. Constable Lobsinger testified that they did not see any signs of impairment prior to stopping the respondent and agreed with the suggestion of defence counsel that there was nothing unusual about the respondent’s driving. Rather, Constable Lobsinger explained that they were exercising their authority to conduct random sobriety checks pursuant to s. 48(1) of the HTA.

[12] Immediately upon approaching the respondent, Constable Lobsinger noted that he was impaired. Specifically, he observed the following indicia of intoxication: the respondent was unsteady on his feet; he was hanging on to the side of the UTV; his knees were wobbly; his eyes were red and bloodshot; and there was a strong odour of alcohol on his breath. Constable Lobsinger testified that, when he asked the respondent if he had consumed any alcohol, the respondent admitted that he may have had ten beers.

[13] The officers arrested the respondent for impaired driving, and then transported him to a police station. At the station, the respondent provided two breath samples with readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood, respectively. In other words, both readings were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. While at the station, the respondent also vomited several times and continued to show signs of intoxication.

C. DECISIONS BELOW

[14] The respondent brought a Charter application, alleging, among other things, that the stop was unlawful and constituted a breach of his rights under s. 9 of the Charter. He argued that the police did not have authority to conduct the stop on private property.

[15] The trial judge dismissed the application, finding that s. 48(1) of the HTA provided lawful authority for the stop for two reasons: (1) the officers intended to stop the respondent’s vehicle for the purpose of checking the driver’s sobriety; and (2) they had formed the intention to enact the stop while the vehicle was being operated on a public highway. The trial judge reasoned that the “mere fact that [Constable Lobsinger] did not effect this stop until the [respondent] had turned into a private driveway and was thus on private property did not eliminate or invalidate the officer’s authority under s. 48(1) of the Highway Traffic Act.” In light of his conclusion on s. 48(1) of the HTA, the trial judge declined to consider whether the officers had authority under the common law to stop the respondent on his private driveway.

[16] Because he considered the stop lawful, the trial judge concluded that the officers did not violate the respondent’s right under s. 9 of the Charter. Therefore, any evidence obtained as a result of the stop was admissible at trial.

[17] Having dismissed the Charter application, the trial judge went on to convict the respondent of impaired driving and operating a motor vehicle “over 80”, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. He found that, based on the various indicators of intoxication, the respondent was “clearly impaired by the consumption of alcohol.” Both breath samples put him over 80 milligrams of alcohol in 100 millilitres of blood. As noted above, the s. 253(1)(a) conviction was conditionally stayed on sentencing pursuant to the principle in Kienapple.

(1) Summary Conviction Appeal Judge’s Decision

[18] On appeal to the Superior Court of Justice, the respondent argued, among other things, that the trial judge had erred in finding that a police officer could conduct a sobriety stop on private property pursuant to s. 48(1) of the HTA.

[19] The summary conviction appeal judge allowed the appeal, finding that neither ss. 48(1) nor 216(1) of the HTA permit the police to conduct a sobriety or highway safety stop on private property absent reasonable and probable grounds. Once the respondent’s vehicle left the public roadway and entered the private driveway, he was no longer a “driver” within the meaning of the HTA and therefore the police did not have statutory authority to randomly detain him in order to check his sobriety. Additionally, the appeal judge found that the stop was not authorized by the common law police powers to protect the public, as the “public did not require protection from the [respondent] once he was in his private driveway”: R. v. McColman, 2019 ONSC 5359, 381 C.C.C. (3d) 375, at para. 45. The stop was unlawful and thus constituted a breach of s. 9 of the Charter.

[20] In his analysis under s. 24(2) of the Charter, the appeal judge found that the actions of the police were serious, as the officers “pursued the appellant onto private property when they had neither the statutory or common law authority to do so”: at para. 49. The impact of the breach was also significant, as the respondent had a high expectation of privacy on his own property. While society clearly had an interest in the adjudication of the matter on its merits, the balancing favoured exclusion.

[21] The appeal judge thus allowed the appeal, set aside the conviction, and entered an acquittal.

D. ISSUES ON APPEAL

[22] The Crown raises three grounds of appeal:

(1) the appeal judge erred in finding that s. 48(1) of the HTA did not authorize the sobriety stop;

(2) the appeal judge erred in finding the common law did not authorize the sobriety stop; and

(3) if there was a Charter breach, the appeal judge erred in excluding the evidence under s. 24(2) of the Charter.

[23] I will address each issue in turn.

E. ANALYSIS

(1) Was the police stop authorized by s. 48(1) of the HTA?

(a) Legal Principles

[24] As noted above, the Crown argues that s. 48(1) authorized police to stop the respondent on his private driveway.

[25] Section 48(1) of the HTA permits the police to stop drivers to determine whether the driver is impaired:

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 320.27 or 320.28 of the Criminal Code.

[26] In order for the police to invoke the statutory power under s. 48(1), three conditions must be met: (1) the police officer must be readily identifiable as a police officer; (2) the person being stopped must be a “driver” for the purposes of the HTA; and (3) the purpose of the stop must be to determine whether there is evidence to justify making a demand for a sample of breath or other means of testing the driver’s sobriety.

[27] Under s. 1(1) of the HTA, a “driver” is a “person who drives a vehicle on a highway.” Section 48(18) provides that in the context of s. 48, a driver “includes a person who has care or control of a motor vehicle.”

[28] The HTA defines a “highway” as:

a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for passage of vehicles and includes the area between the lateral property lines thereof.

[29] If the criteria set out above are satisfied, s. 48(1) authorizes an officer to randomly stop a vehicle absent reasonable suspicion or reasonable and probable grounds: R. v. Ladouceur, 1990 SCC 108, [1990] 1 S.C.R. 1257; R. v. Hufsky, 1988 SCC 72, [1988] 1 S.C.R. 621.

(b) Application to this Case

[30] The first precondition under s. 48(1) – whether the officers were identifiable as police – appears to be uncontested.

[31] What is in dispute is whether this factual matrix satisfies the second precondition, which requires the respondent to be a “driver” within the meaning of the HTA.

[32] As noted above, under the HTA, a “driver” is a “person who drives a vehicle on a highway.” Section 48(18) adds to this definition that a driver “includes a person who has care or control of a motor vehicle”. The question in this appeal is whether the respondent was still a “driver”, even though he was on a private driveway when he was stopped by police.

[33] First, it is well established that a private driveway is not a highway as defined in the HTA. This court canvassed the scope of the HTA’s definition of “highway” in R. v. Hajivasilis, 2013 ONCA 27, 114 O.R. (3d) 337. Doherty J.A. identified the limits of the meaning of “highway” at para. 10:

The phrase “intended for or used by the general public for the passage of vehicles” limits the meaning of “highway”. If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of “highway”. Most privately owned parking lots are not “highways” as defined in the HTA. It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of “highway” in the HTA. [Emphasis added.]

[34] Based on this interpretation, a private driveway is not a “highway” as it is “property to which the general public does not have access” and it only has “a limited purpose other than passage” (i.e., parking).

[35] Because a private driveway is not a “highway” for the purposes of the HTA, on the plain language of the HTA, a person in their private driveway cannot be a “driver” as they are not a “person who drives a vehicle on a highway” (emphasis added).

[36] The Crown does not seem to take issue with the fact that a private driveway cannot strictly be considered a “highway” under the HTA. This fact, according to the Crown, was not lost on the trial judge. Rather, the Crown argues that the officers conducted a lawful stop pursuant to the HTA because they crystallized the intention to stop the respondent while he was still on a public roadway. Put another way, the Crown contends that the officers intended to stop the respondent for a sobriety check while he was still a “driver” under the HTA, and therefore they were authorized to do so even though the stop occurred on private property. This view, according to the Crown, is consistent with a purposive and remedial interpretation of the HTA. The Crown relies on decisions from this and other courts which, according to the Crown, support taking a broad interpretation of the HTA.

[37] I cannot accept this argument. The issue is whether the police were acting pursuant to lawful authority at the moment when they conducted the stop. That authority must be exercised within the confines stipulated by the HTA, including the precondition that the person subject to the stop is a “driver” on a “highway”. The officers’ intentions in the moments preceding the stop do not render an otherwise unlawful stop lawful.

[38] As set out above, the plain language of s. 48(1) and the related definitions of “driver” and “highway” do not authorize random stops off the highway.

[39] The Crown relies on the purpose and context of the HTA to argue in favour of its proposed interpretation. The Crown points to cases from this court, including R. v. Boughen, 2002 ONCA 41476, R. v. Clarke, 2005 ONCA 15452, [2005] 196 C.C.C. (3d) 426, (Ont. C.A.), leave to appeal to S.C.C. refused, 31012 (September 29, 2005), and R. v. Lotozky 2006 ONCA 21041, [2006], 210 C.C.C. (3d) 509, (Ont. C.A.), as well as the decision of the Court of Appeal for Saskatchewan in R. v. Anderson, 2014 SKCA 32, 308 C.C.C. (3d) 11, which suggests that prior approaches to the interpretation of the HTA justify the expansion of the police powers proposed in this case.

[40] Respectfully, in my view, these cases do not assist the Crown. The Crown argues that Boughen and Clarke support the proposition that the HTA can authorize a stop on private property if the investigation commenced on the highway. These cases are distinguishable. In Boughen, the police observed an HTA infraction and as a result, had grounds to detain the accused under the HTA. In a brief endorsement, this court upheld the summary conviction appeal judge’s conclusion that the police were entitled to continue their HTA investigation onto private property. In Clarke, again, the police observed an HTA infraction, and they initiated a stop while the accused was still on the highway. The accused failed to stop, and only then – when the police had grounds to arrest the accused for failing to stop as required – did they follow him onto private property. These cases bear no similarity to the present case, which involved a random, groundless stop on private property.

[41] The Crown relies on Lotozky in support of its argument that policy concerns should drive this court’s interpretation of s. 48(1). In that case, Rosenberg J.A. commented, at para. 37, that it “would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase.” He held that police officers who have reasonable grounds to suspect that a motorist is impaired are entitled to walk up a driveway to further their investigation. Again, an important distinction is that the police on Lotozky had reasonable grounds. They did not select the accused at random. Notably, Rosenberg J.A. was interpreting the common law, and was not dealing with explicit statutory language. The Court of Appeal for Saskatchewan’s decision in Anderson, while dealing with different statutory language, invoked similar concerns about escaping motorists to support the conclusion that police could pursue drivers off the highway and onto private property to conduct random stops: see para. 25.

[42] There was no suggestion here that the respondent was attempting to evade the police. Indeed, it was accepted that he simply pulled into his driveway because he had reached his destination. A true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances.

[43] While, as the Crown submits, pursuant to s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, the HTA must be interpreted “as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects,” this court does not have the power to read into the HTA police powers the legislature has not seen fit to provide. Looking at the broader context of the HTA, the legislature used the word “highway” and drafted provisions that incorporate that definition with care: Hajivasilis, at paras. 27 and 35. The legislature chose to limit the application of some provisions of the HTA to the highway, while extending others off the highway: Hajivasilis, at paras. 27-40. On its terms, the police power contained in s. 48(1) is confined to highways. As this court observed in Hajivasilis, at para. 27: “[T]he interpretive exercise must strive to give some meaning to the choice made by the legislature.”

[44] Accordingly, since one of the necessary conditions for invoking the power provided by s. 48(1) cannot be met in this case, the police did not have statutory authority to stop the respondent in a private driveway.

(2) Was the police stop authorized by the common law?

(a) Legal Principles

[45] In carrying out their general duties as law enforcement, police officers are only entitled to interfere with the liberty of a citizen where such interference is authorized by law.

[46] It is settled law that the police have a common law power to randomly stop vehicles in the course of protecting public roadways, absent reasonable suspicion: Dedman v. The Queen, 1985 SCC 41, [1985] 2 S.C.R. 2. As the Supreme Court of Canada held in Hufsky, and Ladouceur, random stops for the purpose of investigating motor vehicle infringements on a public highway are an arbitrary detention, but are justifiable pursuant to s. 1 of the Charter. However, this police power is not without its limits. As Cory J. noted in R. v. Mellentin, 1992 SCC 50, [1992] 3 S.C.R. 615, at p. 487, this power is constrained by the purpose for which it serves:

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]

[47] Similarly, in contemplation of the scope of the common law police power recognized in Dedman, Doherty J.A. issued the following words of caution in R. v. Simpson, 1993 ONCA 3379, [1993] 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 491:

In Dedman, supra, at pp. 119-22, the court held that the common law ancillary police power justified random stops of vehicles in the course of the enforcement of laws relating to the operation of those vehicles. This power to stop was, however, closely tied to the particular purpose of the stops, the dangers presented by the activity targeted by the stops, the qualified nature of the liberty interfered with by the stops, and the absence of other less intrusive means of effective enforcement of the relevant laws. The authority to stop described in Dedman was clearly not a general power to stop for all police purposes, but was limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner. [Emphasis added.]

[48] The question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on a private driveway, in circumstances not authorized by the HTA, where the person exited the highway after the officer decided to conduct the stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed.

[49] This court has not yet weighed in on whether the common law should recognize this police power. We must tread lightly in doing so, as “[e]stablishing and restricting police powers is something that is well within the authority of legislatures”: Fleming v. Ontario, 2019 SCC 45, 437 D.L.R. (4th) 220, at para. 41. As Iacobucci J. observed in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 17: “complex legal developments are best left to the experience and expertise of legislators.” This is particularly so when the proposed expansion in police power “would restrict lawful activities of individuals”: Fleming, at para. 5. It is important to bear in mind the words of La Forest J. in R. v. Wong, 1990 SCC 56, [1990] 3 S.C.R. 36, at p. 57, as cited in Fleming, at para. 4, that “it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties.”

[50] That being said, the Supreme Court has been clear that courts “cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist”: Fleming, at para. 42. The court must be diligent in its role as a custodian over the common law, which, by its very nature is organic and must develop incrementally in tandem with a changing society.

[51] In Fleming, the Supreme Court recently reiterated the test to determine whether the common law authorizes a particular police action that interferes with individual liberty. Writing for the court, Côté J. noted that this question requires an application of the ancillary powers doctrine; a framework originally set out in R. v. Waterfield, [1963] 3 All E.R. 659, at pp. 660-62 and adopted by the Supreme Court in Dedman.

[52] The ancillary powers doctrine holds that police actions that interfere with individual liberty can be recognized under the common law if they are “ancillary” to the pursuit of recognized police duties, provided that the police action is reasonably necessary for the fulfilment of that duty: Fleming, at paras. 45-47.

[53] At the outset, the court must clearly define the asserted police power and the liberty interests at stake: Fleming, at para. 46. The ancillary powers doctrine will apply “where the power in issue involves a prima facie interference with liberty”: Fleming, at para. 46. Once the police power and liberty interests are defined, the analysis proceeds in two stages: Fleming, at para. 46.

[54] The first stage of the inquiry under the ancillary powers doctrine asks whether the police action at issue falls within the general scope of a statutory or common law police duty. The second stage asks whether the proposed expansion involves a justifiable exercise of the police powers associated with the general police duty or duties in question. At this second stage of analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of that duty or duties: Fleming, at para. 47. As the Supreme Court put it in Dedman, at p. 35:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.

[55] The concept of reasonableness requires this court to consider whether other, less intrusive, measures are available and valid options in the circumstances: Fleming, at para. 54. If the police can fulfill their duties “by an action that interferes less with liberty, the purported power is clearly not reasonably necessary”: Fleming, at para. 54. In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37, the Supreme Court instructed courts to weigh three factors in this determination:

(1) the importance of the performance of the duty to the public good;

(2) the necessity of the interference with individual liberty for the performance of the duty; and

(3) the extent of the interference with individual liberty.

[56] The onus remains with the state to justify the existence of common law police powers that involve interference with liberty: Fleming, at para. 48.

(b) Defining the Power and the Liberty Interests at Issue

[57] As noted above, at the outset, we must define the asserted police power and the nature of the liberty interest at stake to determine whether the power in issue involves a prima facie interference with liberty. In my view, it does.

[58] The power at issue, as defined by the Crown, is the power to pursue a vehicle off the highway and detain the driver to conduct a random sobriety check on a private driveway, where there are no grounds to suspect an offence has been or is about to be committed. Here, the officer’s intention to stop the vehicle crystallized before the vehicle left the highway but the officer did not initiate the stop before the vehicle left the highway.

[59] The liberty interests engaged in this appeal include those protected by s. 9 of the Charter. An individual confronted by the police ordinarily has the option to simply walk away: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 21. Detention is a limit on the broad right to liberty enjoyed both at common law and under the Charter: Grant, at para. 19. Section 9 of the Charter guarantees that when the state is permitted to interfere with individual autonomy, that power “will not be exercised arbitrarily”: Grant, at para. 21. A police power to detain necessarily interferes with an individual’s liberty interest.

[60] The context of this liberty interference is particularly significant. It involves limiting the freedom of individuals to move about freely on their own driveways. In this way, the liberty interests at stake differ from cases that recognized the common law power to conduct random stops on public roadways, such as Dedman and its progeny. Certainly, driving – whether it is on public or private property – remains a licensed activity subject to regulation and control in the interest of safety. This qualifies the relevant liberty interest.

[61] However, I am satisfied that an individual has greater liberty to do as they wish at home than they do on a public highway. This liberty must be considered against the backdrop of one’s reasonable expectation of privacy on their own private property. This privacy interest has long been considered paramount, with roots tracing back to the provenance of the common law: see Semayne’s Case (1604), 77 E.R. 194, and R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 13-16, 22.

[62] The fact that driving is a regulated activity must be balanced against the heightened liberty interest at one’s own private property. Driving on highways is a highly regulated activity, and drivers expect that the rules of the road will be enforced. By contrast, at home, the individual has no expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter onto their driveway and arbitrarily detain them.

[63] I am satisfied that the asserted police power represents a prima facie interference with the above-noted liberty interest.

(c) The Random Stop on Private Property Falls Within the General Scope of the Duty to Prevent Crime and Protect Life and Property

[64] In this case, the asserted police power falls within the general scope of the duties to prevent crime and protect life and property. Police officers have broad duties in relation to the public, as reflected in s. 42 of Ontario’s Police Services Act, R.S.O. 1990, c. P. 15. Included within these duties, is “the preservation of the peace, the prevention of crime, and the protection of life and property”: Dedman, at p. 32. The power exercised in this case can be conceptualized as an extension of the police duties to prevent crime (impaired driving) and to protect life and property (the harms associated with impaired driving). Pursuing drivers off the highway onto private property to conduct random sobriety checks is related to these duties. The carnage of impaired driving knows no bounds when it comes to the difference between public and private property.

(d) The Expansion of Power is Not Reasonably Necessary

[65] Having met the requirements of the first stage, the inquiry now turns to the second branch of the ancillary powers doctrine.

[66] There can be no doubt that impaired driving is a serious problem that demands innovative strategies to deter and detect the dangers posed to the public. It is clearly important to the public good that the police perform their duties in this regard. But in my view, the Crown has not met its onus of demonstrating that pursuing and detaining an individual on their own private property without any suspicion of wrongdoing is reasonable or necessary to pursue this objective.

[67] There are many less intrusive, Charter compliant means of enforcement at the disposal of police in combatting impaired driving. For example, police have: (1) the common law power to conduct Reduced Impaired Driving Everywhere (“R.I.D.E.”) programs; (2) the statutory power under the HTA to stop drivers without any grounds for the purpose of checking their sobriety, so long as the statutory preconditions are met; and (3) the common law power to stop a driver for an investigative detention based on reasonable suspicion.

[68] Considered in light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion on liberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonably necessary. The police have extensive powers to combat impaired driving, and it is difficult to see the need for the courts to fill a legislative gap in this respect. The police can conduct a random stop under s. 48(1) as soon as the vehicle enters the highway. They also have the option to observe the driver without detaining them, and based on those observations, develop a reasonable suspicion that would give them a basis to detain.

[69] I note that a key reason why random stops were considered justified in Dedman, Hufsky, and Ladouceur is because of their deterrent function. In those cases, the court reasoned that an expectation of being randomly stopped by police on highways would deter people from driving under the influence: Dedman, at pp. 35-36; Hufsky,at pp. 636-637, Ladouceur, at p. 1284. Stated otherwise, the arbitrary nature of the stop was justified and necessary for its deterrent purpose. It is not clear that adding random stops on private property enhances the deterrent function of these stops in any meaningful way.

[70] The Crown argues, and the minority accepts, that declining to authorize this police power will lead to an absurd consequence: drivers will be able to flee to private property to escape the enforcement of highway laws. In my view, this concern is misplaced. This is not a case of escape: there is no suggestion that the respondent’s actions were an artifice designed to evade police. In a true case of escape, the police may well have the authority to continue pursuing that person. It is important to bear in mind that the question is whether the police are entitled to stop someone on private property without any cause for suspicion.

[71] The police officers in this case did not immediately stop the respondent after forming the intention to conduct a random stop to determine whether or not there was evidence to justify making a demand. They followed the respondent for about a minute as he made a turn and then another turn into his driveway. The police lights were not activated until the respondent was safely on his driveway.

[72] Certainly, drivers should not be entitled to escape onto private property to avoid culpability. However, police officers should not be allowed to follow drivers onto private property to investigate their driving where there are no grounds to suspect any wrongdoing.

[73] A police officer may choose to follow a driver along a highway to see if the manner of driving gives rise to a reasonable suspicion that the driver is intoxicated. Alternatively, the police officer may immediately stop the driver to see if there is evidence to support making a demand. However, where there is no indication from the manner of driving that the driver is intoxicated, police officers should not be entitled to follow a driver, after forming a crystallized intention to effect a stop, and wait to do so until after the driver has entered onto private property. This would allow the police to enter private property and detain people based on a claimed prior intention to stop the car, formed in the absence of any actual suspicion of impairment. The potential for abuse of such a power dictates against the recognition of the existence of such a power.

[74] When considering whether an expansion of a police power is reasonably necessary, caution must be taken when it comes to low visibility encounters with police, which may leave some marginalized individuals at particular risk: Grant,at para. 154. In its role as an arbitrator between the state and individual liberty, the court must remain vigilant of the unfettered expansion of police powers.

[75] I note as well that the proposed police power would be difficult to review. The random nature of the stops means that the power to detain “would generally not result in the laying of charges, [and] the affected individuals would often have no forum to challenge the legality” of the detention: Fleming, at para. 84. Further, since the valid exercise of the proposed police power depends entirely on whether, in the officer’s own mind, the officer intended to stop the vehicle before it pulled off the highway, judicial oversight of this power could prove challenging.

[76] While the liberty interests at stake are qualified by the driving context, randomly detaining an individual on their own driveway is a non-trivial interference with liberty. In this case, the officers testified that the purpose of the stop was to conduct a random sobriety check. At the time of the stop, the driver was no longer on a public highway, nor was he even operating the motor vehicle. He had reached his destination – his home. He had parked the UTV on his private driveway, and he was standing outside the vehicle. It is undisputed that at this point the officers had no reason to think he was impaired, nor did they have reasonable suspicion to believe that an offence was being, or had been, committed. Nor was there any sign of a further driving issue.

[77] I am satisfied that the proposed expansion of police power is not reasonably necessary and thus fails under the second branch of the ancillary powers doctrine.

(3) Did the police stop breach the Charter?

[78] Given my conclusion that police did not have the authority to randomly check the sobriety of the respondent on his private property, the stop was unlawful. Therefore, the stop breached the respondent’s s. 9 rights. The next question is whether the evidence obtained in the course of the Charter breach should be excluded under s. 24(2).

(4) Should the evidence be excluded under s. 24(2) of the Charter?

[79] The trial judge did not find a Charter breach and did not conduct an analysis under s. 24(2). On appeal, the summary conviction appeal judge found a s. 9 breach, conducted a s. 24(2) analysis, and excluded the evidence. For the reasons that follow, I am of the view that the summary conviction appeal judge was correct in his conclusion under s. 24(2). The evidence was rightly excluded.

[80] Section 24(2) of the Charter states that:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[81] Here, there is no question that the evidence was obtained in a manner that breached the respondent’s s. 9 rights. It was only after the police followed the respondent onto his property and effected the arbitrary stop that they noticed indicia of impairment.

[82] Where it is found that evidence was obtained in a manner that infringed an individual’s Charter right, the court must determine whether the admission of the impugned evidence would bring the administration of justice into disrepute. The test was summarized by the Supreme Court in Grant, at para. 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society’s interest in the adjudication of the case on its merits.

[83] The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[84] In addressing the first factor, the court must evaluate the seriousness of the state violation, with an eye to how the conduct bears on public confidence in the rule of law and its processes. While I am not prepared to find that the police acted in bad faith, their conduct in this case was brazen in the sense that they pursued the respondent onto his own private property when they had neither the statutory nor common law authority to do so.

[85] I reject the Crown’s argument that the summary conviction appeal judge failed to consider that the law on this point was unsettled. Any lack of clarity in the law on this point does not give officers free licence to assume that they have authority. Moreover, the law around arbitrary detentions is well settled, and the officers ought to have been aware that they were entering dangerous territory by effecting a random stop, off the highway, without any suspicion of wrongdoing. I am reminded of the words of Trotter J.A., albeit in a different context, in R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561,at para. 72: “This situation called for caution, not hubris.” The state violation was serious, and the court would do well to disassociate itself from this overreach by law enforcement.

[86] In assessing the second factor, the court must evaluate “the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, at para. 76. The protected interests include liberty. I am of the view that the impact was significant, as the police questioned the respondent and obtained evidence against him in the course of his unlawful detention. This occurred on his private property, where he had a reasonable expectation of privacy. I am satisfied that the breach significantly undermined the respondent’s protected interests. As noted in Grant, at para. 77, the more serious the incursion, “the greater the risk that admission of the evidence would bring the administration of justice into disrepute.”

[87] On the third and final factor, the court must determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79. This means that the court must be alive both to “the negative impact of admission of the evidence on the repute of the administration of justice” and to “the impact of failing to admit the evidence”: Grant, at para. 79 (emphasis in original).

[88] In conducting the analysis under this factor, the court must balance the factors in favour of admission and the factors in favour of exclusion of the evidence.

[89] In addressing the factors in favours of admission of the evidence, the following facts have to be considered: (1) there is no evidence the police officers were acting in bad faith; (2) if the stop had occurred thirty seconds earlier, while on the highway, there would be no issue; (3) the respondent was intoxicated and there is a public interest in combatting drinking and driving; and (4) the evidence obtained is reliable and essential to the Crown’s case. These factors weigh in favour of inclusion.

[90] The factors in favour of exclusion are as follows: (1) the police could have stopped the respondent 30 seconds earlier, while he was still on the highway, but they did not; (2) while the respondent was driving on the highway, the police did not observe any indicia of impairment to justify forming a reasonable suspicion to investigate him, nor was there any evidence of another HTA infraction;[^2] and (3) the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment, overrides the public interest in the admission of evidence.

[91] While there is no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, society has a vital interest in having a justice system that is above reproach. As I alluded to above, officers are not above the law, and conduct that tests the limits of their authority should not be condoned by this court. On balance, I agree with the summary conviction appeal judge that inclusion of the evidence would bring the administration of justice into disrepute. I would exclude the evidence and uphold the respondent’s acquittal.

F. DISPOSITION

[92] I would dismiss the appeal.

“M. Tulloch J.A.”

“I agree. K. Feldman J.A.”

Hourigan J.A. (dissenting):

A. INTRODUCTION

[93] Impaired driving is a scourge in our society. Despite concerted efforts for approximately the last 40 years to eradicate the practice, drivers continue to operate motor vehicles while impaired by alcohol or drugs. They selfishly and recklessly engage in this high-risk behaviour and leave in their wake death, injuries and destruction. Given this pressing societal concern, the Supreme Court has ruled that the random stopping of vehicles on public streets by the police is constitutionally permissible because such a minimal restriction of liberty is demonstrably justified in a free and democratic society: see R. v. Ladouceur, 1990 SCC 108, [1990] 1 S.C.R. 1257.

[94] The case at bar involves an egregious example of impaired driving. When the police were able to catch up with the respondent and ask him whether he had been drinking, according to one of the police officers involved, he offered an honest but frightening answer, “I’ve had a few beers. Well, I might've had 10." After his arrest, but before the police were able to test his blood-alcohol level, the respondent vomited due to his excessive alcohol consumption. When the tests were ultimately administered, they showed blood alcohol levels well above the legal limit.

[95] Yet, according to the majority reasons, the respondent is immune from investigation or prosecution because he pulled onto the shared driveway that leads to his parents' house and a commercial establishment (a store). In effect, by pulling over to private property, the respondent moved into an area of legal sanctuary. The policy implications of the majority's decision are both evident and far-reaching.

[96] The sanctuary finding means that an impaired driver who the police intended to stop on a public highway is free to pull onto private property when the driver spots a police cruiser. This property need not be a place to which they have any connection or even a legal right to visit. It matters not that a police officer wished to conduct the random stop on a public highway. As long as the driver gets their vehicle onto a stretch of private property, sanctuary applies, and they are "home free." For drivers who are in the process of being pulled over as part of a random stop, if they can pull onto private property as the safe spot to stop their vehicle, arguably they too will have reached sanctuary. In many cases, this sanctuary will be fleeting, as the impaired driver will stay on the private property only for as long as the police cruiser is in the area. Once it is out of sight, the driver will be free to re-enter the public highway and continue to endanger public safety.

[97] The majority engages in a strict construction of the powers of a police officer to undertake a random traffic stop under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). That construction leads to its sanctuary finding, which prevents the police from effectively carrying out their duties. This is a statutory interpretation that is contrary to the public safety policy imperative that animates the HTA.

[98] The majority’s approach also stands in sharp contrast to the reasoning of the Court of Appeal for Saskatchewan and the Ontario Superior Court in nearly identical cases: see R. v. Anderson, 2014 SKCA 32, 433 Sask. R. 255, affirming 2013 SKQB 219, 422 Sask. R. 130; R. v. Alrayyes, 2013 ONSC 7256. Those courts took a purposive and common-sense approach to the issue and rendered decisions that facilitated the public safety purposes of the relevant legislation. They permitted the police to conduct a random stop of a driver on private property in restricted situations where the police formed an intention to make a stop while the vehicle was on a public highway.

[99] I also cannot accede to the majority’s conclusion that the police did not have the common law power to conduct a random check. Under the ancillary powers doctrine, the common law has long been used to fill gaps in legislation. As the Supreme Court has stated in the context of legislation enacted to combat impaired driving, the common law should be used to provide sufficient flexibility in an enforcement scheme to ensure that it is effective: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 45.

[100] Finally, this case is another example of the cursory application of the test mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, in determining whether evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms. The appeal judge's reasons on this critical issue are one paragraph in length, and are factually and legally flawed. As will be discussed, the focus of s. 24(2) is societal; it aims to preserve the integrity of the justice system in a manner that is reflective of societal values. Courts should not lose sight of the fact that the Grant test requires careful consideration of its lines of inquiry to determine whether, considered objectively, the overall repute of the justice system will be adversely impacted by the admission of the impugned evidence. When courts do not engage in a meaningful s. 24(2) analysis and automatically exclude evidence because there has been a Charter breach, they fail in their duty to protect the integrity of the justice system. In this case, on a proper application of the Grant test, the evidence should not have been excluded.

B. FACTS

[101] On March 25, 2016, at approximately 12:30 a.m., Constable Jeff Lobsinger, who was on general patrol with Constable Laura Hicks, spotted an all-terrain vehicle (“ATV”) parked outside a convenience store at the Thessalon First Nation. The respondent, Walker McColman, was the driver.

[102] As the ATV left the parking lot, Constable Lobsinger directed Constable Hicks to U-turn the police cruiser and followed the ATV on the public highway. The trial judge found as a fact that while the respondent was driving on a public highway, Constable Lobsinger decided to conduct a random sobriety stop pursuant to s. 48(1) of the HTA. At trial, the officer fairly conceded that there were no signs of impaired driving that otherwise warranted a stop.

[103] When the officers caught up to the respondent, he had pulled off the public highway and stopped in the middle of a driveway that served a commercial property and the respondent’s parents’ home. There was no suggestion at trial that the respondent pulled into the shared driveway to avoid the police. The police activated the cruiser’s roof lights and approached the respondent’s vehicle. From the time of spotting the vehicle to the time of the stop, approximately one minute had elapsed.

[104] At the stop, Constable Lobsinger spoke to the respondent and observed obvious signs of impairment, including trouble standing despite hanging on to the side of the vehicle, a strong odour of alcohol, bloodshot eyes, and mumbling speech. As noted above, according to Constable Lobsinger, the respondent told him that he had consumed excessive amounts of alcohol that evening. Constable Lobsinger arrested the respondent for impaired driving at 12:36 a.m. A breathalyzer test was delayed at the police station because the respondent vomited due to his alcohol consumption. Two breathalyzer tests were eventually conducted, which recorded his blood alcohol concentration level at 120 and 110 milligrams of alcohol in 100 millilitres of blood.

C. PROCEEDINGS BELOW

[105] The respondent brought an application alleging breaches of ss. 8, 9, and 10(b) of the Charter. That application was dismissed by the trial judge, who found in regard to the alleged s. 9 breach that Constable Lobsinger formed his intention to stop the respondent on the public highway and, as a result, the officers’ authority under the HTA to stop the vehicle continued after the respondent turned onto the shared driveway. In reaching this conclusion, the trial judge rejected the defence theories that Constable Lobsinger did not subjectively intend to stop the respondent on the highway for a sobriety check and was instead motivated by animus due to an interaction with the respondent some three years earlier. The trial judge did not consider any common law authority to stop the vehicle.

[106] The respondent was found guilty of both impaired driving and over 80 operation of a motor vehicle. The trial judge conditionally stayed the impaired driving conviction under s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and sentenced the respondent to the mandatory minimums of a $1,000 fine (plus a $300 victim surcharge) and a 12-month driving prohibition.

[107] On appeal to the Summary Conviction Appeal Court, the appeal judge held that the officer had no statutory or common law authority to stop the respondent on the shared driveway. Consequently, he found a breach of s. 9 and then excluded all evidence that resulted from the sobriety check under s. 24(2). After excluding the evidence, he acquitted the respondent.

D. SUMMARY OF THE ISSUES

[108] As I will explain, I believe that the appeal judge erred in his statutory interpretation of the HTA. Specifically, he failed to take a purposive approach to the legislation and instead interpreted it in a manner contrary to the public safety protections that underlie the statute. I am also of the view that the appeal judge erred in his consideration of the officers’ common law powers, and would find that the officers had the common law power to conduct the stop if they were not permitted to do so under the HTA. Finally, the appeal judge engaged in a cursory and error-filled s. 24(2) analysis, which this court owes no deference. On a proper Grant analysis, the evidence should not have been excluded. Each of these issues will be considered in turn below.

E. ANALYSIS

(1) Power Under the HTA

(a) Section 48(1) of the HTA

[109] The statutory authority for random sobriety checks is found in s. 48(1) of the HTA, which provides:

48(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 320.27 or 320.28 of the Criminal Code (Canada).

[110] The Supreme Court found that a provision in a previous iteration of the HTA requiring motorists to stop when directed to do so by a police officer was constitutionally valid under s. 1 of the Charter because random sobriety checks are reasonably and demonstrably justified in a free and democratic society. In reaching this conclusion, the court found overwhelming evidence of the direct connection between serious accidents and driving under the influence of alcohol or drugs: Ladouceur, at p. 1282. It also found that the absence of spot checks means that “impaired drivers could easily avoid the consequences of their dangerous misconduct”: Ladouceur, at p. 1285.

[111] Instructive for present purposes are the court's comments regarding the limited nature of the privacy intrusion occasioned by these stops. The court noted that driving is a licensed activity, the stops are relatively short, the driver is minimally inconvenienced, and the officer's investigation is restricted to the purpose of the check: Ladouceur, at pp. 1285-87.

[112] The Crown submits that the appeal judge erred in taking a narrow and restrictive interpretation of the random stopping powers of the police under the HTA. It argues for a police power under the HTA to check sobriety on private property provided that the following elements are present: (i) the police officer observes the driver operating on a highway; (ii) the police officer forms the intention to stop the driver for a sobriety check while the driver is still on the highway; and (iii) although the driver leaves the highway and enters private property before the stop is conducted, the events constitute one continuous investigative transaction. It is necessary to undertake a statutory interpretation analysis of the HTA to consider this submission.

(b) Principles of Statutory Interpretation

[113] The law regarding the correct approach to statutory interpretation is well settled and need not be considered in detail here. As Côté J. recently stated in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 6:

[6] Indeed, this Court has reiterated on numerous occasions that the modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), 1998 SCC 837, [1998] 1 S.C.R. 27, at para. 21).

See also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[114] Proper statutory interpretation cannot be founded on the wording of the legislation alone: Rizzo & Rizzo Shoes Ltd. (Re), 1998 SCC 837, [1998] 1 S.C.R. 27, at para. 21. Watt J.A. in R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, at para. 176, described the preferred statutory interpretation approach this way:

[176] This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.

[115] Thus, even where the words of the statute appear to be clear on their face, the reviewing court must examine whether the words truly reflect the intention of the legislature. It is well established in the jurisprudence of this court and the Supreme Court that it is necessary to consider the entire context before settling on what appears, at first blush, to be the plain meaning of a legislative provision: see Solar Power Network Inc. v. ClearFlow Energy Finance Corp., 2018 ONCA 727, 426 D.L.R. (4th) 308, at para. 75, leave to appeal refused, [2018] S.C.C.A. No. 487. See also Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, 437 D.L.R. (4th) 567, at para. 96, per Côté and Brown (dissenting); Rooney v. ArcelorMittal S.A., 2016 ONCA 630, 133 O.R. (3d) 287, at para. 13; and Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696, 377 D.L.R. (4th) 369, at para. 37.

[116] To be clear, I do not take issue with the conclusion of the appeal judge and the majority in this court that, at first blush, an operator of a motor vehicle on private property does not meet the definition of a driver in the HTA because a driver is defined as a person who drives a vehicle on a highway, and the definition of a highway does not include private property. The difficulty I have with their interpretation is that after considering the plain meaning of the words used in the HTA, they stopped their analysis. That is a legally unsound practice when undertaking statutory interpretation. It divorces context and purpose from the exercise and may lead, as in this case, to a restricted analysis that reaches a conclusion contrary to the legislative purpose underlying the legislation.

(c) Purpose of the HTA

[117] The purpose of the HTA has been canvassed in this court’s jurisprudence. Doherty J.A., writing for a five-judge panel in R. v. Hajivasilis, 2013 ONCA 27, 114 O.R. (3d) 337, at paras. 50-51, described the purpose of the HTA as follows:

[50] Bearing that caution in mind, the case law does identify in broad terms the object of the HTA. In R. v. Raham (2010), 99 O.R. (3d) 241, [2010] O.J. No. 1091, 2010 ONCA 206, at para. 33, the court refers to the HTA as "public welfare legislation designed to protect those who use the roads of the province”. Earlier, in Ontario (Hydro-Electric Power Commission) v. Bruell Float Service Ltd. (1974), 1974 ONCA 34, 3 O.R. (2d) 108, [1974] O.J. No. 1841 (C.A.), at p. 114 O.R., aff’d on other grounds, 1975 SCC 17, [1976] 1 S.C.R. 9, [1975] S.C.J. No. 22, this court said:

[T]he general purpose of the Highway Traffic Act is the regulation of the use of the highways by persons on foot and in vehicles; that is not to say that certain provisions of the statute will not apply to the use of vehicles other than on a highway, but in an over-all sense the Legislature is directing itself to the regulation of vehicular traffic and not to commerce conducted in or by means of vehicles.

[51] In my view, regulation to protect the public using the province's roads is not necessarily limited to roads that fall within the meaning of "highway" in the Act. Public safety concerns might well demand regulation in respect of traffic in large private parking facilities even though those facilities are not used by the general public for "the passage of vehicles". Similarly, public safety concerns might well demand the regulation of private parking facilities as incidental to regulations maintaining the safety of the "highway" leading into and out of that facility.

[118] Both the majority and the appeal judge ignore the purpose of the HTA. Instead, they focus only on what they say is the plain meaning of the statute's text. That methodology violates s. 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which requires that "[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects."

(d) R. v. Anderson

[119] Contrast the majority’s approach with the reasoning of the Court of Queen’s Bench for Saskatchewan and the Court of Appeal for Saskatchewan in Anderson. In that case, a police officer observed no driving infractions, mechanical issues, or any other noteworthy activity, but decided to stop a vehicle to check the driver’s sobriety. After the officer formulated the intention to stop the vehicle, but before doing anything to carry out the stop, the accused turned off the public highway and entered a private lot. The officer followed and activated his emergency lights as he entered the private lot.

[120] In Anderson, the Saskatchewan equivalent of the HTA was considered, being The Traffic Safety Act, S.S. 2004, c. T-18.1, which provided, in part:

209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer:

(a) is readily identifiable as a peace officer; and

(b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1):

(a) require the driver to give his or her name, date of birth and address;

(b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and

(c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

[121] The trial judge found that although the investigating officer formulated the intention to stop the accused’s vehicle pursuant to s. 209.1 while he was operating his motor vehicle on a public highway, the stop was arbitrary because the officer did not take steps to carry out the stop before the accused crossed onto private property. On appeal to the Court of Queen’s Bench for Saskatchewan, that decision was overturned. Popescul C.J.Q.B., reasoned, at paras. 31-34:

[31] The defendant was on a public highway. The investigating officer did form the intention to check the defendant for legislatively authorized purposes prior to him turning onto a private lot. The police must be allowed "sufficient flexibility to be effective”.

[32] Further, entering onto the private lot to complete the check stop was reasonably necessary having regard to the nature of the liberty interfered with and the public purpose served. The interference was minimal. In the event, for example, that the defendant had not been driving after consuming alcohol, the episode would have been over.

[33] The public purpose served is significant. Giving the police the authority to stop vehicles randomly in order to, among other things, check for sobriety is intended to reduce the carnage on our roads by preventing and deterring those who might be inclined to drive after drinking too much alcohol.

[34] To restrict that police power merely because a driver happens to have turned onto a private lot does not make sense or advance the administration of justice. As recognized by the trial judge:

[30] ... This is not to say that a driver becomes untouchable and immune from investigation and police inquiries by simply breaking the plane of the goal line, so to speak, and crossing onto private property. ... .

I agree. There is no “home free” zone in circumstances such as this.

[122] The Court of Appeal for Saskatchewan affirmed the decision of the Queen’s Bench. They did not give effect to the same argument advanced in this case, viz., that the power of the police officer to stop the vehicle was eliminated once it entered private property. In rejecting that argument, the court reasoned, at paras. 24-25, as follows:

[24] It is a fact found by the trial judge that the police officer formed the intention to stop the appellant prior to the appellant turning onto private property. In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete that lawful activity. Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, was reasonably necessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference.

[25] To decide otherwise would encourage drivers to seek the sanctuary of private roadways if they suspected they were about to be stopped by police. In the circumstances of this case, where a police officer has formed the intention to stop a driver on a public highway pursuant to s. 209.1 of The Traffic Safety Act, the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation.

[123] In my view, the Court of Appeal for Saskatchewan took the correct approach to the issue before this court. It considered not only the words of the legislation, but the purpose of the statute and the policy implications of simply giving effect to what, at first blush, appears to be the plain meaning of the text. Similarly, the HTA must be interpreted in a manner that is consistent with its purpose.

(e) R. v. Alrayyes

[124] The decision of the Court of Queen’s Bench for Saskatchewan in Anderson was followed by Justice Giselle Miller, sitting in Summary Conviction Appeal Court, in Alrayyes.[^3] This case is not mentioned in the reasons of the appeal judge or the majority, but it has facts and issues that are very similar to the case at bar. Given these similarities, a detailed discussion of the case is warranted.

[125] In Alrayyes, a police officer observed the accused driving a motor vehicle leaving the parking lot of a strip mall. The officer followed the vehicle, watching as it entered the highway, drove some distance, then exited the highway into a gas station. The trial judge found that the officer formed the intention to stop the vehicle pursuant to s. 48 of the HTA before the vehicle pulled off the highway into the gas station, but delayed signalling the vehicle to stop as he was at an intersection and did not want to confuse other drivers. Before the officer was able to activate the lights on his police cruiser at a safe location, the accused’s vehicle had already turned into the gas station. The officer carried out the random stop at the gas station.

[126] Thus, the circumstances are nearly identical to the situation in the present case. The police officer formed an intention to conduct a random stop of a driver on a public highway, and before he was able to activate his emergency lights, the driver pulled onto private property. Miller J. then put the issue in its proper legal context as follows:

[12] It is clear from the Supreme Court of Canada decision in R. v. Mansour, 1979 SCC 46, [1979] S.C.J. No. 77, that a "highway" under the Highway Traffic Act does not include a parking lot.

[13] The Ontario Court of Appeal in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, recently considered whether all provisions of the Highway Traffic Act are applicable only to "highways." The Court concluded that each provision has to be considered according to the way in which it is worded. Doherty, J.A. indicated at paragraph 13 that, for example, a "driver" under s. 48 of the Highway Traffic Act means "‘a person who drives a vehicle on a highway’. A person driving a motor vehicle on a private parking lot is at least arguably not a driver for the purposes of the HTA.”

[14] Both the Appellant and the Respondent agree that paragraph 13 of Hajivasilis is obiter, and that the word "arguably" leaves open whether a "driver" may be stopped pursuant to s. 48 of the Highway Traffic Act once the driver has left a "highway" on which he or she was previously observed to be driving, and entered onto private property.

[21] There is no issue that if police have reasonable grounds to believe an offence is being committed they may pursue a vehicle, and the driver of that vehicle onto private property in order to continue their investigation and/or to effect an arrest if in hot pursuit. R. v. Macooh, 1993 SCC 107, [1993] 2 S.C.R. 802; R. v. Boughen, [2002] O.J. No. 4060 (C.A.) There is no suggestion that either situation existed here.

[22] There is no issue that reasonable grounds to stop a vehicle, except under the authority of s. 48(1) of the Highway Traffic Act, are necessary otherwise the detention resulting from the stop would be arbitrary and therefore contrary to s. 9 of the Charter.

[23] There is no issue that s. 48(1) of the Highway Traffic Act does not give police authority to stop a vehicle being driven solely on private property. R. v. Campbell, 2009 ONCJ 157, [2009] O.J. No. 1534 (O.C.J.); R. v. Cordeiro, [2009] O.J. No. 4923; R. v. Tresham, 1998 ONSC 14756, [1998] O.J. No. 1744 (G.D.).

[24] The question is whether s. 48(1) of the Highway Traffic Act authorises police, who have observed a vehicle to be driving on a highway, to effect a stop of that vehicle once it has entered onto private property.

[127] Miller J. went on to summarize the parties' positions, which are similar to the submissions made on this appeal. The defence argued that since Ladouceur found that the power to randomly stop vehicles was only saved by s. 1 of the Charter as rationally and proportionally addressing the pressing and substantial concern in relation to the safe operation of vehicles on our highways, once the vehicle left the highway, that safety concern was no longer engaged.

[128] The Crown argued that to require the police to stop a vehicle driving on a highway only while it remains on the highway would be illogical and contrary to the object of the HTA as "public welfare legislation designed to protect those who use the roads of the province" per para. 33 of this court’s decision in R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241.

[129] In the end, Miller J. agreed with the approach of the Court of Queen’s Bench for Saskatchewan in Anderson, and concluded, at para. 31, as follows:

[31] [P]olice must be given reasonable flexibility in carrying out their duties. I am satisfied that if a vehicle is observed by police to be driving on a “highway” as defined by the Highway Traffic Act, their authority to stop that vehicle pursuant to s. 48(1) of the Highway Traffic Act does not come to an end simply because the vehicle enters onto private property.

[130] I concur with her analysis and conclude that she interpreted s. 48(1) in a manner that ensured that the police power granted therein could be effectively used.

(f) Purposive Interpretation

[131] In my view, the interpretation favoured by the appeal judge and the majority in this court is contrary to the public protection purpose of the HTA. It allows motorists, like the respondent, to avoid the power of the police to conduct random stops by pulling their vehicle onto private property. The majority's sanctuary finding means that impaired drivers will be encouraged to drive onto private property any time they see a police cruiser in the area, even though a police officer formed an intention to conduct a random stop of them on a public highway. As noted above, the impaired driver need not have any connection to the private property, and in many cases, the sanctuary will be short-lived.

[132] For drivers who are in the process of being pulled over as part of a random stop, s. 216(1) of the HTA requires them to pull over to a safe place. With the majority's sanctuary ruling, impaired drivers will undoubtedly select a spot on private property as the safe place to stop their vehicle. Once they have done so, they too will arguably have reached sanctuary and will be immune from investigation. Again, when the police cruiser leaves the area, they will be free to continue to put public safety at risk.

[133] Can it credibly be argued that these results were what the legislature intended in enacting the HTA? My view is that the sanctuary finding, which will inevitably endanger public safety, could not have been intended by a legislature passing a statute enacted to protect public safety. It is also essential to recognize that the Crown is not submitting that the random stop power should be expanded to private property in all situations. Its reasonable and sensible position is restricted to situations where the police officer formed the intention to make the random stop on a public highway, and the stop is carried out on private property as part of one continuous transaction.

(g) Summary

[134] In summary, I agree with the Crown’s interpretation of the HTA. It makes practical sense, gives effect to the legislature's intention, and provides sufficient flexibility for the legislation to be effective. I would adopt the Crown’s interpretation of the HTA and find that the officers in this case had the authority to make the stop on the shared driveway.

(2) Common Law Power

(a) Legal Principles

[135] The Crown submits that if the respondent’s move to private property extinguished the police officers’ ability to conduct the check under the HTA, then the common law should fill the gap because the police should not be rendered powerless to make an already-intended lawful stop. There is no question that the common law can be adapted through the ancillary powers doctrine to fill legislative gaps: Fleming v. Ontario, 2019 SCC 45, 437 D.L.R. (4th) 220, at para. 42; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 50.

[136] The detention in the instant case is a prima facie interference with liberty and will be authorized under the ancillary powers doctrine if two requirements are met: (i) the police must have been acting within the general scope of a statutory or common law police duty; and (ii) the conduct in question must involve a justifiable exercise of police powers associated with that duty: Fleming, at para. 46. This test, which has long been employed in determining the validity of police action, was first articulated in the English case, R. v. Waterfield, [1963] 3 All E. R. 659.

[137] In reviewing the second requirement - that the police conduct was justifiable - the court asks whether the police action is reasonably necessary for the fulfilment of the duty. This involves the consideration of three factors: (i) the importance of the performance of the duty to the public good; (ii) the necessity of the interference with individual liberty for the performance of the duty; and (iii) the extent of the interference with individual liberty: Fleming, at para. 47; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37.

[138] Molloy J. in R. v. Dillon (2006), 2006 ONSC 10745, 141 C.R.R. (2d) 1 (Ont. S.C.), undertook a comprehensive review of the law in this area in circumstances where the police investigated the driver of a vehicle sitting in the parking lot of a bar. She found that the officers had no power to investigate the vehicle under the HTA. In considering their common law powers, Molloy J. relied on the Supreme Court's decision in Dedman v. The Queen, 1985 SCC 41, [1985] 2 S.C.R. 2, in concluding that the police had the common law power to detain the accused for a spot check. Dedman, which involved a traffic stop under the “Reduce Impaired Driving Everywhere” (“R.I.D.E.”) program, was decided before the enactment of s. 48(1) of the HTA. Therefore, the validity of the random check in that case was dependent on whether the police had a common law power to stop the vehicle.

[139] In Dedman, Le Dain J., writing for the court, held that there was common law authority to randomly stop a vehicle for the purpose contemplated by the R.I.D.E. program. His conclusion on the second branch of the Waterfield test, at pp. 35-36, was as follows:

Because of the seriousness of the problem of impaired driving, there can be no doubt about the importance and necessity of a program to improve the deterrence of it. The right to circulate on the highway free from unreasonable interference is an important one, but it is, as I have said, a licensed activity subject to regulation and control in the interest of safety. The objectionable nature of a random stop is chiefly that it is made on a purely arbitrary basis, without any grounds for suspicion or belief that the particular driver has committed or is committing an offence. It is this aspect of the random stop that makes it capable of producing unpleasant psychological effects for the innocent driver. These effects, however, would tend to be minimized by the well‑publicized nature of the program, which is a necessary feature of its deterrent purpose. Moreover, the stop would be of relatively short duration and of slight inconvenience. Weighing these factors, I am of the opinion that having regard to the importance of the public purpose served, the random stop, as a police action necessary to the carrying out of that purpose, was not an unreasonable interference with the right to circulate on the public highway. It was not, therefore, an unjustifiable use of a power associated with the police duty, within the Waterfield test.

[140] The decision of Molloy J. in Dillon was applied in R. v. Nield, 2015 ONSC 5730, leave to appeal refused, 2017 ONCA 722, 393 C.R.R. (2d) 314. There, the court was concerned with a situation where a police officer observed the accused running through a parking lot at 1:22 a.m. and hopping into the driver's seat of a vehicle. The officer followed the accused on a public highway and parked behind his vehicle when it stopped in a hotel parking lot. On the officer’s investigation of the accused in the parking lot, he determined that the accused had been drinking and made a demand for a breath sample. The accused failed the roadside test, and breathalyzer readings over the legal limit were subsequently recorded.

[141] The trial judge in Nield found that the stop was arbitrary because the accused was no longer a driver under the HTA when he parked his vehicle. The trial judge excluded the evidence and acquitted the accused. On appeal to Fregeau J., sitting in the Summary Conviction Appeal Court, the appeal judge upheld the trial judge’s ruling regarding the HTA. However, he went on to find that the police officer was acting within his common law authority when he stopped and detained the respondent in the hotel parking lot.

[142] Fregeau J. observed that in order to randomly detain a motorist without reasonable grounds for suspecting that person has committed a crime, the police must be acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle: Nield, at para. 43. He accepted Molloy J.’s conclusion that assuming the police had a valid common law power to detain the accused for investigative purposes, there is no principled reason to find that such power was lost because the detention occurred in a parking lot adjacent to a roadway from which he had just left: Nield, at para. 50.

(b) Application of Legal Principles

[143] There can be little doubt that the first requirement of the ancillary powers doctrine has been satisfied in this case. A police officer's general scope of duties includes preserving the peace, preventing crime, and protecting life and property: Fleming, at para. 69. Where, as in the instant case, there has been a finding of fact that the purpose of the stop was to ensure that a driver was not impaired, the police are acting in the exercise of a lawful duty: Dillon, at para. 49.

[144] Turning to the second requirement, the effort to prevent impaired driving is unquestionably important to the performance of the duty to the public good. The significant role of random stops in combating impaired driving has been accepted since Dedman and has been recognized in subsequent Supreme Court jurisprudence, including in Ladouceur, at p. 1282, and R. v. Hufsky, 1988 SCC 72, [1988] 1 S.C.R. 621, at p. 636.

[145] In undertaking his analysis on the second requirement, the appeal judge found that public safety was no longer a relevant consideration because the respondent had reached the driveway of his residence, and there was no evidence that he intended to return to the highway. I agree with the Crown that this finding is problematic for three reasons.

[146] First, it ignores the public benefit from the deterrent effect of random sobriety checks. There is an overall benefit to public safety when drivers cannot avoid random sobriety checks by simply leaving the highway.

[147] Second, the appeal judge failed to properly apply the evidence from the trial in undertaking his analysis. That evidence did not support that the police knew that the respondent had reached his residence at the time of the stop. On the contrary, Constable Lobsinger testified that he believed that the respondent had entered the driveway of another convenience store.

[148] Third, this argument - that any public safety concern ends when a driver reaches private property - has been rejected in the jurisprudence: see Nield, at paras. 46-50. Further, as stated by the Supreme Court in R. v. Lotozky (2006), 2006 ONCA 21041, 81 O.R. (3d) 335 (C.A.), at para. 37, the police do not need to wait and see if a driver on private property will return to the highway:

[37] [U]ntil the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street.

[149] Regarding the necessity of the interference with individual liberty for the performance of the duty, it is obvious that a vehicle must be stopped, and that the officer must have some interaction with the driver for the screening process to be effective. In this regard, the comments of Charron J. in Orbanski, at para. 45, are apt:

[45] The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.…The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedmanby that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35).

[150] Finally, a random stop occasions minimal interference with individual liberty. Driving is not a fundamental liberty, like the ordinary right of movement of the individual. Rather, it is a licenced activity that is subject to state control to protect life and property: Dedman, at p. 35. Further, as noted by the Supreme Court in Ladouceur, at pp. 1286-87, random stops are brief, minimally inconvenience the driver, and are restricted to the purpose of the check.

[151] In my view, if the officers did not have authority under s. 48(1) of the HTA to make the stop on the shared driveway, they had the common law authority to do so. This is an instance where any gaps in the legislative scheme should be filled by the common law to ensure that the screening regime is effective.

(3) Section 24(2) of the Charter

(a) Appeal Judge’s Analysis

[152] The trial judge did not undertake a s. 24(2) analysis because he found no Charter violation. The appeal judge’s s. 24(2) analysis, in its entirety, is as follows:

The actions of the police are serious. They pursued the appellant onto private property when they had neither the statutory nor common law authority to do so. The Charter-protected interest to be protected is one of privacy. The expectation of privacy on one’s own property is a high one. As to the third test set out in Grant, clearly society has an interest in having the matter adjudicated on its merits. Having said that, when all three factors are balanced, the balance favours the exclusion of evidence.

[153] This cursory s. 24(2) analysis is consistent with a pattern we see in this court where lower courts undertake a detailed review of whether there has been a Charter breach and then treat the Grant test as a required, but ultimately meaningless, ritual to be undertaken on the road to the inevitable exclusion of evidence. In short, it is not sufficient to recite the lines of inquiry from Grant, make some conclusory statements, and then exclude the evidence. As I will explain, the proper application of the Grant lines of inquiry is as important as the analysis of whether there has been a Charter breach.

(b) Purpose of s. 24(2)

[154] It is helpful at this juncture to take a step back and consider the purpose of s. 24(2). It was designed to ensure that the Charter appropriately balanced individual and societal interests when it came to the exclusion of evidence obtained through state misconduct.

[155] Prior to the enactment of the Charter, Canadian courts rarely excluded evidence, regardless of the extent of police misconduct in obtaining the same. As one commentator put it, “[t]he court’s search for the truth trumped any interest in procedural fairness or in protecting the rights of an accused”.[^4] Consistent with this jurisprudence, an early draft of the Charter contained an express provision that prohibited the exclusion of evidence on the basis that it was obtained pursuant to a Charter breach. Some members of the legal community protested this draft provision. Ultimately, a Special Joint Committee of the House of Commons and the Senate determined that an exclusion clause should be included in the Charter.[^5]

[156] In creating an exclusion clause, the drafters of the Charter developed a compromise approach, which balanced individual and societal rights. Dickson C.J. described it this way in R. v. Simmons, 1988 SCC 12, [1988] 2 S.C.R. 495, at p. 532:

The final question in this appeal is whether the evidence should be excluded under s. 24(2) of the Charter. As Lamer J. noted in R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray, 1970 SCC 2, [1971] S.C.R. 272). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute. The person seeking to exclude the evidence bears the burden of persuading the Court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, "dispassionate and fully apprised of the circumstances of the case" (Collins, supra, at p. 282).

[157] Clearly, in rejecting the American approach, the drafters of the Charter wanted to avoid situations where serious charges were not determined on the merits because of technical, minor, or good faith mistakes by police. Thus, when judges undertake a s. 24(2) analysis, their role is to uphold the delicate balance that underlies the Charter. They abrogate that responsibility when they default to the American approach rejected by the drafters of the Charter. Judges must not lose sight of the fact that s. 24(2) not only provides an effective remedy for the accused, it also serves to preserve the integrity of the justice system in a manner that is reflective of societal values.

(c) The Grant Test

[158] It is also helpful to consider what the Supreme Court was trying to achieve in Grant when it formulated a new test for the exclusion of evidence under s. 24(2). It has been twelve years since the decision was released, and cases like the one at bar suggest that the thinking behind the test has become obscured over time.

[159] Prior to Grant, the jurisprudence under s. 24(2) had developed rigid rules for the exclusion of certain types of evidence: see R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265; R. v. Stillman, 1997 SCC 384, [1997] 1 S.C.R. 607. The court in Grant found that these rules were inconsistent with s. 24(2), noting, at para. 65:

[65] It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained.

[160] A new approach was necessary to ensure that the circumstances of the Charter breach were fully explored and weighed in determining whether to exclude evidence. The court stressed that s. 24(2) is aimed at protecting the integrity of, and public confidence in, the justice system. It instructed that a court considering s. 24(2) must look objectively at whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the impugned evidence: Grant, at para. 68.

[161] Consistent with the comments of Dickson C.J. in Simmons, the court in Grant emphasized, at para. 70, that at its core, this exercise is societal in its focus:

[70] Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[162] Under Grant, the court is mandated to consider the interest of society in having an adjudication on the merits. This interest is balanced against the seriousness of the Charter-infringing state misconduct, and the impact of the breach on the Charter-protected interests of the accused. It is not every Charter breach that trumps the legitimate societal interest in seeing criminal cases determined on their merits. The Grant analysis is designed to determine whether a Charter breach is one that is excusable in the circumstances, or one that requires the court to dissociate itself with the state misconduct because to do otherwise would bring the administration of justice into disrepute.

[163] The point I am making is that Grant calls for a thoughtful and nuanced balancing of factors. A judge on a s. 24(2) application is required to carefully review the circumstances of the case and consider the relevant lines of inquiry in undertaking the ultimate balancing exercise to determine whether the evidence should be excluded: see R. v. Shinkewski, 2012 SKCA 63, 399 Sask. R. 11, at para. 38. To properly complete this exercise, the court should engage in a methodical analysis of all of the lines of inquiry and should not let one factor trump or overwhelm the others: R. v. Archambault, 2012 QCCA 20, 307 C.C.C. (3d) 151, at para. 69, leave to appeal refused, [2012] S.C.C.A. No. 426; R. v. Fan, 2017 BCCA 99, 352 C.C.C. (3d) 280, at para. 68. By that standard, the analysis undertaken by the appeal judge does not suffice.

[164] Normally, where a trial judge has considered the proper factors under Grant and has not made any unreasonable finding, their determination is owed considerable deference on appellate review: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. However, where a trial judge commits a legal error, makes unreasonable findings, or fails to properly engage in a meaningful s. 24(2) analysis, on appeal, that judge's decision is not entitled to deference, and the appeal court may conduct the s. 24(2) analysis afresh: R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 54; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 87 to 93; and R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 166.

(d) Application of the Grant Test

[165] With that background in mind, I turn now to a consideration of the three lines of inquiry mandated by Grant and the overall balancing exercise to determine whether the evidence in this case should be excluded.

(i) Seriousness of the Charter-infringing state misconduct

[166] The appeal judge found that the misconduct of the officers was serious because they did not have the statutory or common law power to make the stop on private property. That conclusion is nothing more than a bald statement that the respondent’s Charter rights were breached. It misses the point of the exercise entirely because it does not advance the analysis of the seriousness of state misconduct.

[167] It is a given that the respondent’s rights were breached; that is why a s. 24(2) analysis was being undertaken. As Miller J.A. stated in R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, it is a legal error to conclude that the state misconduct must be serious because there has been a Charter breach. Rather, as he said, at para. 26, of that case, "there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other."

[168] It is worth reiterating that the whole purpose of the Grant test is to move away from exclusions of evidence based on rigid categories and instead to evaluate the circumstances of the case to determine whether the admission of the evidence would bring the administration of justice into disrepute. On this prong of the test, a judge hearing a s. 24(2) application must carefully consider the seriousness of the state’s misconduct in breaching the Charter and place that misconduct on a spectrum from serious to trivial. The appeal judge failed to do that.

[169] As the Supreme Court stated in Grant, Charter-infringing state misconduct varies in seriousness. Inadvertent or minor violations of the Charter will have a minimal impact on public confidence in the rule of law, whereas evidence obtained through willful or reckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute. Such willful or reckless disregard sends the message that courts "effectively condone state deviation from the rule of law": Grant, at paras. 72-75.

[170] On a proper review of the evidence in the instant case there is nothing to suggest that the officers were not operating in good faith. In this regard, I note that the trial judge rejected the defence argument that Constable Lobsinger’s actions were motivated by personal animus against the respondent.

[171] Another relevant factor in evaluating the seriousness of state misconduct is uncertainty regarding the state of the law. Where a police officer ignores established legal principles or is willfully blind to the same, our courts will not countenance this conduct: see Grant at para. 75; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59; and R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 109, leave to appeal refused, [2017] S.C.C.A. No. 225. Charter rights are of limited value if police officers are permitted to ignore them or remain willfully ignorant of those rights.

[172] Notwithstanding the foregoing, the Supreme Court has consistently held that legal uncertainty is a factor that a court may take into account in assessing the seriousness of a Charter breach resulting from police misconduct. As Moldaver J. stated in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 92:

[92] Where the law is evolving or in a state of uncertainty, and where the police are found to have acted in good faith, without ignorance or wilful or flagrant disregard of an accused’s Charter rights, the seriousness of the breach may be attenuated: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 86-89; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 50; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 69 and 71; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 77; and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 93-95.

[173] Contrary to the assertion made by the majority in this case, the limits on police authority to continue the traffic stop on the shared driveway were not well settled. However, to the extent that there was applicable jurisprudence, such as Anderson and Alrayyes, it supported the officer’s authority to make the stop on the shared driveway.

[174] In addition to those cases, in R. v. Calder, [2002] O.J. No. 3021 (S.C.), aff’d 2004 ONCA 36113, [2004] O.J. No. 451 (C.A.), the Summary Conviction Appeal Court judge considered whether s. 48(1) of the HTA applied to a parking lot behind a bank. There, the officer observed a vehicle on the road and then approached the car in a parking lot because it was "oddly parked." The trial judge held that the police officer had no legal justification for approaching the appellant's vehicle absent some basis for thinking that the appellant violated the HTA or some other legislation. In allowing the Crown appeal, Killeen J. held, at para. 57:

[57] In leading cases such as R. v. Mansour (1979), 1979 SCC 46, 47 C.C.C. (2d) 129 (S.C.C.) and Gill et al. v. Elwood (1970), 1969 ONCA 215, 9 D.L.R. (3d) 681 (Ont. C.A.) it has been held that driving conduct on a parking lot cannot give rise to an HTA or Code driving charge, but these cases have not held that the police investigative powers set out in s. 33(1), 48(1) and 216(1) are magically suspended or exhausted at the curb of a public street.

[175] Calder was followed in R. v. Warha, 2015 ONCJ 214, aff’d 2016 ONSC 93, which involved a situation where a police officer watched a vehicle on the road, but did not observe any signs of impairment. He followed the car to the parking lot of a plaza, walked up to the driver, and detected alcohol on his breath. In rejecting an assertion by the defence that this interaction violated the driver's ss. 8, 9 and 10 Charter rights, the court found, at para. 7, that “[t]he law does not require him to have observed any improper driving or be suspicious that Mr. Warha might be impaired." The fact that the driver was on private property was found not to restrict the authority of the officer to conduct an HTA investigation. That finding was upheld on appeal: Warha (2016), at para. 3. A similar finding was made in R. v. McGregor, 2015 ONCJ 692, at paras. 10-14.

[176] As noted above, in Nield, the court held that the HTA does not provide authority to undertake a sobriety check on private property. However, as discussed, in that case, the court found that the police did have the common law power to do so.

[177] While police officers cannot ignore Charter rights or established limitations on their authority, they are also not expected to weigh debatable constitutional niceties in the context of a dynamic interaction with a member of the public. In this case, if the officers could have stopped time and inquired of a constitutional expert whether they had the authority to continue the traffic stop, they may well have received an answer that, according to the two cases closest to their fact situation, being Anderson and Alrayyes, they had the authority to make the stop on the shared driveway. Given the state of the law, the officers' actions do not even rise to the level of negligence.

[178] In my view, the state misconduct was minor or technical in nature. This was a dynamic situation where there was jurisprudence that supported the officers’ authority to make the stop on the shared driveway. Put another way, if the police officers in this case made a mistake about the legality of the random stop on the shared driveway, so too did the Court of Appeal for Saskatchewan and Miller J. of the Ontario Superior Court. This line of inquiry, properly considered, militates against the exclusion of the evidence.

(ii) Impact of the breach on the Charter-protected interests of the respondent

[179] Turning to the impact of the breach on the Charter-protected interests of the respondent, the more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, thereby breeding public cynicism and bringing the administration of justice into disrepute: Grant, at para. 76.

[180] The appeal judge’s consideration of this factor does not advance the analysis. His statement that the Charter-protected interest was privacy and that “[t]he expectation of privacy on one’s own property is a high one” is flawed. The stop took place on the shared driveway that leads to the respondent's parents' home and a store. The shared driveway was not solely for the respondent's parents’ property. It was also a means of access to the commercial business. In these circumstances, there was an implied licence for members of the public, including the police, to enter the shared driveway, and any privacy expectation held by the respondent would be minimal: Dillon, at para. 40. This is hardly comparable to the police kicking down the door of a private residence. Yet, the appeal judge’s analysis makes no distinction between these two disparate situations.

[181] In addition, the investigation started on a public highway, a domain where the respondent had a minimal privacy right. Further, as stated by the Supreme Court in Ladouceur, driving is a licensed activity, random stops are relatively short, the driver is minimally inconvenienced, and the officer's investigation is restricted to the purpose of the check. In this case, the traffic stop was not invasive, as the indicia of impairment was evident as the officer approached the respondent. In my view, taking into account all of these facts, this factor militates against the exclusion of the evidence.

(iii) Society’s interests in an adjudication on the merits

[182] The third Grant factor considers society’s interests in an adjudication on the merits. This line of inquiry “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79. The reliability and importance of the evidence are crucial factors in this line of inquiry: Grant, at paras. 81-83.

[183] This factor favours the admission of the evidence. Society has a legitimate interest in seeing cases of impaired driving adjudicated on the merits. The excluded evidence, which included the respondent’s statement about his alcohol consumption, the officer’s observation of his obvious signs of impairment, and the results of the breathalyzer tests, was reliable. It was also overwhelming proof of the respondent’s guilt beyond a reasonable doubt on both counts. The exclusion of this reliable evidence resulted in the acquittal of the respondent.

(iv) Balancing the Grant factors

[184] In balancing the Grant factors, all three lines of inquiry favour the admission of the evidence. Viewed objectively, any breach was done in good faith and was minor or technical in nature, the impact on the respondent’s Charter protected rights was minimal, and the evidence was reliable and crucial in the convictions registered by the trial judge.

[185] With the admission of the evidence, a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would not lose faith in the criminal justice system or believe that the administration of justice had been brought into disrepute. On the contrary, the exclusion of reliable and crucial evidence based on a restrictive and technical view of police power would likely cause the public to lose faith and confidence in our criminal justice system. I would, therefore, not exclude the evidence.

F. Disposition

[186] For the foregoing reasons, I would allow the appeal, set aside the appeal judge's order, and restore the convictions and the stay entered by the trial judge. I would grant leave to appeal sentence, eliminate the victim surcharge, but otherwise not interfere with the sentence imposed.

Released: June 4, 2021 “K.F.”

“C.W. Hourigan J.A."

[^1]: An acquittal was also entered for the s. 253(1)(a) conviction that was initially conditionally stayed, though this occurred at a separate proceeding on October 2, 2019.

[^2]: While the respondent’s blood alcohol level was above the legal limit, it was not enough to visibly affect his driving.

[^3]: At the time of the decision in Alrayyes, the Court of Appeal for Saskatchewan had not yet released its decision in Anderson.

[^4]: Patrick McGuinty, “Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis” (2018) 41:4 Man. L.J. 273, at p. 277.

[^5]: Peter Sankoff, “The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action” (2004) 28 Adv. Q. 103, at p. 104.