Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 03 28 COURT FILE No.: Newmarket 998 23 91100693

BETWEEN:

HIS MAJESTY THE KING

— AND —

STEPHAN KULAR

Before: Justice Rose

Heard on: March 27, 2024 Reasons for Judgment released on: March 28, 2024

Counsel: Mr. J. Mutton, counsel for the Crown Mr. N. Jackson, for the defendant Stephan Kular

Rose J.:

Overview

[1] Mr. Kular was seen by PC Noble coming out of an LCBO at Yonge and Merrivale in Aurora, and get into a grey Jeep Cherokee. PC Noble followed him onto Yonge Street and stopped him as he drove onto the parking lot of a strip mall just south of the LCBO. PC Noble was there because he was doing a mobile RIDE program, stopping motorists who left the LCBO. He said that he wanted to check that LCBO customers were sober to drive.

[2] Mr. Kular was ultimately arrested and then blew 180 and 170 mg % that afternoon. He was therefore charged with Operation with Excess Blood Alcohol on that day, January 19, 2023. His defence is Charter based.

Evidence

[3] The narrative was videotaped by PC Noble’s in car camera (ICC), which recorded the investigation and arrest of Mr. Kular. The video shows PC Noble following Mr. Kular’s car onto Yonge street, turn south, drive down Yonge for a few seconds before turning right into the parking lot. The sound portion commences a few seconds after the Jeep is stopped by the officer’s flashing lights. Notably those lights started when the defendant was in the parking lot and not before. From that point the audio and video are captured. That evidence was helpful in deciding this case.

[4] Once Mr. Kular’s car was stopped PC Noble got out of his own car, walked up, and told Mr. Kular to pull into a parking spot, which he did. PC Noble pulled in behind him, got out and had a discussion about drinking. Mr. Kular admitted to consumption some time before. PC Kular noticed watery eyes. He made an ASD demand at 10:45 am., and at 10:47 Mr. Kular failed the test. He was then arrested, given his primary caution and a summary of his s. 10(b) rights at 10:49. Complete rights to counsel were read to him at 10:52, and a formal caution and an Approved Instrument demand at 10:54.

[5] When Mr. Kular was arrested he complained twice about the grip of the handcuffs. In response, PC Noble changed them so that Mr. Kular was handcuffed to the front.

[6] PC Noble testified that he believed that his authority for stopping Mr. Kular was under the Highway Traffic Act to check for sobriety. He said that he could not pull over Mr. Kular before he pulled into the strip mall because it was unsafe. While he was following Mr. Kular onto Yonge Street a second car pulled in between them, and the right hand curb lane of Yonge street was closed because of construction. All of that was seen in the ICC.

[7] The breath readings were proven by a Certificate of Qualified Technician.

[8] Mr. Kular testified on the Charter Application alone. He is 64, retired and lives about 2 minutes from the plaza where he was arrested. He said that being arrested put him in panic mode. He was bewildered and wondered what he had done wrong. His eyes tend to water when the weather was cold, like that day, and the handcuffs were very tight. In his words, this taught him an expensive lesson.

[9] Mr. Kular concedes the legal elements of the offence of 80 plus under s. 320.31. He argues that his Charter rights were violated when the police stopped him on the parking lot of the plaza. His argument is that the police have no authority to stop a motorist on private property – in this case a parking lot of a strip mall – and make a roadside breath demand. The issue in this trial is therefore whether the police investigation of Mr. Kular in the strip mall was constitutionally compliant.

Analysis

R. v. McColman 2023 SCC 8

[10] Much argument turned on the effect of the Supreme Court of Canada’s ruling in R. v. McColman, 2023 SCC 8. That case is close to being on all fours with the case at bar. In McColman the Respondent was seen by members of the OPP leaving an establishment driving an ATV. He drove along a highway and then entered his own driveway about a minute later. The officers followed him there, spoke with him and formed grounds to arrest him for drinking and driving. The case turned on whether the police had lawful authority to stop him once he was on his own driveway.

[11] The Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1) (HTA) authorizes random stops of motorists for purposes of confirming sobriety. No individualized suspicion is needed.

[12] The Supreme Court of Canada found that the Highway Traffic Act did not furnish the authority for a stop which is only signaled when the motorist is on private property. A “driver” for purposes of s. 48(1) must be on a highway, which excludes a private driveway. Secondly, the Court found that the key moment in determining the timing of the stop was when the intention to stop was signalled to the motorist. That the officer had it in mind to stop the motorist before then is not relevant. It is when the stop is signaled that is important, see McColman at paras 44 – 47. If the police have no individualized suspicion, they cannot randomly detain a motorist on private property under the power of the HTA s. 48(1).

[13] What the Supreme Court did not consider was whether there was any other lawful authority to detain and investigate a motorist for sobriety on private property. The Court in McColman confined its ruling to the interpretation of s. 48(1) of the HTA, see McColman at paras 24 – 26. In his argument Mr. Jackson brought to my attention the Crown’s Supreme Court of Canada leave factum in McColman. In it the Crown argued that “This Court should clarify the role of the common (sic) to fill the gaps in legislation”. It is clear from the ruling in McColman that the Court did not take up that request. It did not grant leave on the issue of whether the police had the common law power to conduct the stop, see McColman at par. 27.

[14] With this established I have no difficulty in finding that PC Noble had no statutory authority under the HTA to stop Mr. Kular in the parking lot of the strip mall. PC Noble was unequivocal that he had the authority under the HTA to stop Mr. Kular as he did.

Common Law authority to stop

[15] The Crown argued that PC Noble, nonetheless, had a common law authority to stop Mr. Kular. I agree. The common law authority to stop a motorist on private property has been recognized in several rulings, none of which are in doubt.

[16] In R. v. Dillon Molloy J. considered this very issue in a case involving a police investigation of a motorist parked on private property. The investigation was for purposes of sobriety check. She found that there was a long standing common law power to detain motorists for sobriety checks flowing from R. v. Dedman, [1985] 2 S.C.R. 2. Molloy J. found that Dedman applied post Charter and extended beyond public highways into private parking lots. Key to her analysis is that property owners give implied licence to members of the public to enter their property for a legitimate reason including legitimate police business, see Dillon at par. 35. I agree. Dillon has been followed in other cases, see: R. v. Vander Griendt, 2015 ONSC 6644; R. v. Ndaye, 2019 ONSC 4967; R. v. Nield, 2015 ONSC 5730.

[17] In the case at bar the plaza where Mr. Kular was detained contained several varied retail stores ranging from a bank to dollar store to a nail salon. The parking lot has the capacity to hold, to my eye, dozens of cars. There are no signs visible in the parking lot which restrict its use, and there is no evidence before me that Mr. Kular has a unique privacy interest in the parking lot. On the evidence before me he was simply a member of the public driving onto the lot without any control by the owner – and there is no evidence about who the owner is.

[18] I also find that PC Noble had a legitimate police interest when he detained Mr. Kular. PC Noble was in a police car investigating LCBO customers to confirm their sobriety for purposes of driving a car on the highway. As he said, when the volume of customers was low every customer driving away would be stopped. When the volume was high, perhaps every fifth customer would be stopped. In my finding PC Noble was connecting operation of a motor vehicle with purchase of alcohol. That is legitimate police business.

[19] For these reasons PC Noble had a common law power to stop Mr. Kular as he did. It follows that s. 320.27(2) of the Code was satisfied. PC Noble’s investigation satisfied the common law test for investigative powers and the Code permits an officer in such a situation to make an ASD demand without a reasonable suspicion if they have an ASD with them, which PC Noble did.

Mistake of Law

[20] That is not the end of the analysis. PC Noble was clear, and I find, that the reason to detain Mr. Kular flowed the Highway Traffic Act. In that he was wrong. He said nothing about the common law. The question becomes whether the common law power which he had replaces his erroneous basis to stop under the Highway Traffic Act.

[21] In R. v. Tim, 2022 SCC 12 the Supreme Court found that a mistake of law cannot found a lawful arrest. In that case the broad legal issue was that “.. a lawful arrest cannot be based on a mistake of law — that is, when the officer knows the facts and erroneously concludes that they amount to an offence, when, as a matter of law, they do not”. See Tim at par. 30.

[22] In the case before me the officer relied on a mistake of law to found a detention, not an arrest, but I find that the same reasoning applies. PC Noble turned his mind to the reason for the detention namely the HTA, so it cannot be said his decision to stop was without forethought. Nonetheless, a detention is a restriction of liberty at the hands of the state. For this reason a detention based on an error of law is an unlawful one.

[23] It follows that Mr. Kular has established a violation of his rights under s. 9 of the Canadian Charter of Rights and Freedoms. PC Noble detained and investigated Mr. Kular based on a mistake of law. His ASD samples were taken based on the wrongful detention and therefore there is a s. 8 breach which is tied to the s. 9 violation.

No Reasonable Suspicion?

[24] Mr. Jackson also argued that PC Noble had no reasonable suspicion to make an ASD demand. I reject that. PC Noble had an admission of some prior consumption and Mr. Kular had watery eyes. There may well be exculpatory weight to his utterance that the watery eyes was the result of weather and that his apparent manual dexterity showed sobriety, but the test is very low. The Code furnishes a basis to make the ASD demand if there are reasonable grounds to suspect that the driver has alcohol in his body and had operated a conveyance in the previous three hours, see s. 320.27 of the Criminal Code. PC Noble fulfilled the statutory criteria.

Should the breath evidence be excluded?

[25] Applying the first prong of the test from R. v. Grant, 2009 SCC 32 I find that the breach is technical, and therefore at the less serious end of the spectrum. I make this finding for a number of reasons. First, PC Noble had a lawful basis to detain Mr. Kular, namely the common law, but he was not aware of it. This is tied to the second reason, which is that the law about the scope of s. 48(1) of the HTA was in flux on January 19, 2023. The Supreme Court heard argument on McColman on November 1, 2022 and did not release its decision until March 23, 2023 some 2 months after Mr. Kular’s arrest. As the Supreme Court said in McColman at par. 28, “This case presents the first opportunity for this Court to address whether police officers can conduct random sobriety stops on private property pursuant to s. 48(1) of the HTA.” With this in mind, I cannot find that the law was so settled that PC Noble was expected to know it.

[26] I also find that the video shows PC Noble to have been respectful of Mr. Kular’s rights generally. He gave him a summary of his 10(b) rights immediately upon arrest and then in more detailed form once he was in custody. This reflects respect for Charter values.

[27] On the first limb of the test from Grant I find that the state conduct deviated from the law in only the technical sense. Once the ASD sample was taken PC Noble had legitimate grounds to arrest Mr. Kular for impaired operation. There is no reason for the Court to dissociate itself from what happened here. The first prong of Grant strongly pulls in favour of admission of the breath evidence.

[28] On the second limb of Grant I find that Mr. Kular was arrested close to his home and that he found this to be an embarrassing incident. There is no evidence about his privacy interest in this parking lot, and it appeared to be busy that day with customers coming and going as would be expected mid week. He was taken into custody and subjected to breath testing. He complained about his handcuffs being too tight but that was mitigated by PC Noble adjusting them so that they were not as uncomfortable. For these reasons the second prong of Grant modestly favours exclusion.

[29] On the third prong of the Grant test, the question is whether the truth seeking function of the trial process would be better served by exclusion or admission of the evidence, see McColman at par. 69. In this case the evidence is reliable breath testing results. It is crucial to the Crown’s case. Mr. Kular’s BAC was more than double the legal limit, and society has a vital interest in interdiction of drunk drivers, see R. v. Bernshaw, [1995] 1 S.C.R. 254 at par. 16. The third prong of Grant strongly favours admission of the evidence.

Conclusion

[30] In sum, and despite Mr. Jackson’s able argument, the breath evidence should not be excluded from the trial. It follows that Mr. Kular is convicted of the offence.

Released: March 28, 2024

Signed: Justice David Rose