Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Christopher Falconer

Reasons for Judgment

Judge: Duncan J.

1. Charge

The defendant is charged with exceed 80, offence date March 13, 2013.

2. Issue

The sole issue in the case is whether the defendant's right to be free from arbitrary detention was violated when a police officer conducting sobriety checks targeted motorists, including the defendant, leaving a liquor store parking lot. It is argued that such targeting is constitutionally impermissible.

Selective Random Stopping and Section 9

3. Legal Framework for Vehicle Stops

The police in Ontario are empowered by both common law and statute to stop vehicles for what may be broadly described as highway regulation and safety purposes (s 216 HTA) and more specifically, to check driver sobriety (s 48 HTA).[1] These are commonly referred to as "random" stops though the word is not used in the sections. "Random" usually means without pattern, method, thought or choice and in that sense seems to be almost the opposite of "targeted" or selected. On this reasoning, it has been held that a targeted stop cannot be a random stop authorized by these sections: R v Tulloch [1994] OJ No.4212 at Para 24. However, I think that the concept of randomness in this area of the law carries a different meaning and refers to vehicle stops made without any grounds for suspicion or belief that the particular driver has committed or is committing any offence.[2] A stop may be truly random in both senses or it may be random only in the sense of being groundless and, at the same time, be selective: Brown v Durham Police Force, [1998] OJ No 5274 (CA).

4. Permissible Targeting

Selection or targeting is not in itself improper. It is inevitable that police with finite resources must make choices as to the deployment of those resources. Targeting may be directed to the time, place or group upon which enforcement efforts will be focused. The targeting of individuals or groups treads on sensitive ground and, where it occurs, must be carefully scrutinized (Brown Para 41). Police must not make choices based on race, sex or other similar criteria – even if motivated by highway safety concerns (Brown para 38). But targeting individuals or groups (other than on racial grounds and the like) is permissible provided that there are identifiable highway safety concerns associated with the targeted group. So for example, the targeting of bikers and their associates was considered permissible in Brown since it was reasonable to believe that the group's general distain for the law and its fondness for drugs and alcohol supported legitimate highway safety concerns (Brown para 42-43).

5. Location Targeting

But this is not a case of group targeting. At issue here is only location targeting. It is not suggested that those stopped were anything other than a cross-section of the general population. The concerns about improper discriminatory selection do not arise nor do the same principles or the need for careful scrutiny apply. In my opinion, location targeting alone[3] raises no Charter issue or concern.

6. Police Error in Location Selection

Obviously, police will usually choose locations where they suspect a high incidence of offending. It has been suggested that if the choice is misconceived or ill-informed, that the stop becomes a Charter infringing arbitrary detention.[4] I cannot agree. In my view, if the police are wrong in their predictive selection, their choice may be unwise and less productive than anticipated, but it is not unconstitutional.

7. Rational Connection to LCBO Location

If I am wrong in this view and if the targeted location must be scrutinized and justified in the same way as group targeting, I am of the opinion that the LCBO location choice in this case passes such scrutiny. There is a rational connection between the purchase of liquor and a heightened concern about possible impaired driving. It is not as if the officer had targeted a day care or a church.

8. Conclusion

The argument is rejected. There was no Charter violation. All else is proven. The defendant is found guilty.

February 13, 2014

B Duncan J.

J McCulligh for the defendant

S Andersen for the Crown

Footnotes

[1] The power is circumscribed by these purposes and does not authorize vehicle stopping in pursuit of investigations not connected with highway safety, though the existence of such additional investigative interest does not invalidate a stop that is also made for legitimate HTA purposes. It does not authorize stops made for discriminatory or improper (ill motivated) reasons: Brown v Durham Police Force, [1998] OJ No 5274 (CA).

[2] R v Dedman, [1985] 2 SCR 2 at Para 69

[3] There may be cases where location and group are so closely linked that choice of location amounts to targeting a group. This is not such a case.

[4] In Farquharson (unreported March 14 2013) it was argued that because people did not actually consume liquor at an LCBO, the officer was wrong in thinking that it might be a hot spot and his error created an arbitrary detention. In R v Hume 2013 ONCJ 380, [2013] OJ 3243 it was argued that reliance by police on unverified statistical information re drinking trouble spots undermined the choice of target location and again created a Charter infringement. The argument was accepted in the first case and rejected in the second.