CITATION: Brampton (City) v. Ashkani, 2024 ONCJ 303

DATE: June 20, 2024

IN THE MATTER OF

the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1

Between

Corporation Of The City of Brampton

prosecutor

and

Shiva Ashkani

defendant

Ontario Court of Justice

Brampton, Ontario

Quon J.P.

Reasons for ruling on non-suit or no-evidence motion

Prosecution’s evidence completed on: February 15, 2024.

Judgment on non-suit released: June 20, 2024.

Charge: s. 12(1) Cannabis Control Act, 2017 – “have care or control of vehicle or boat with cannabis readily available”

Counsel:

Wyner, M., municipal prosecutor

Ashkani, Shiva, defendant, was self-represented at trial

Cases Considered or Referred To:

Brampton (City) v. Christopher Rampersaud, [2024] O.J. No. 608 (Ont. C.J.), per Quon J.P.

Hunter v. Southam, 1984 33 (SCC), [1984] S.C.J. No. 36, 41 C.R. (3d) 97 (S.C.C.).

Ontario v. Bharath, 2016 ONCJ 382, [2016] O.J. No. 3416 (Ont. C.J.), per Quon J.P.

R. v. Balkaran, 2024 ONCJ 144, [2024] O.J. No. 1300 (Ont. C.J.), per Newton-Smith J.

R. v. Boudreault, [2012] 3 S.C.R. 157, 2012 SCC 56 (S.C.C.).

R. v. Chung, 2011 ONCJ 757, [2011] O.J. No. 5945 (Ont. C.J.), per Pringle J.

R. v. Crowdis, [1985] S.J. No. 273 (Sask. Q.B.).

R. v. Dedman, 1985 41 (SCC), [1985] S.C.J. No. 45 (S.C.C.).

R. v. Dillon, [2006] O.J. No. 1366 (Ont. S.C.J.), per Molloy J.

R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 (S.C.C.).

R. v. Ford, 1982 16 (SCC), [1982] S.C.J. No. 4 (S.C.C.).

R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253 (O.C.A.), per O'Connor A.C.J.O., Doherty, Sharpe, Epstein JJ.A. and Cavarzan J. (ad hoc), rev'g R. v. Hajivasilis, [2012] O.J. No. 859 (O.C.J.), per Mocha J. and rev'g R. v. Hajivasilis, 2009 ONCJ 310, [2009] O.J. No. 2731 (O.C.J.), per Cremisio J.P.

R. v. Hufsky, 1988 72 (SCC), [1988] S.C.J. No. 30 (S.C.C.).

R. v. Ladouceur, 1990 108 (SCC), [1990] S.C.J. No. 53 (S.C.C.).

R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 (S.C.C.).

R. v. Lockerby, 1999 NSCA 122, [1999] N.S.J. No. 349, 139 C.C.C. (3d) 314 (N.S.C.A.).

R. v. Lotozky, 2006 21041 (ON CA), 81 O.R. (3d) 335, (Ont.C.A.), per Weiler, Rosenberg, and MacPherson JJ.A.

R. v. Lux , [2012] S.J. No. 796 (Sask. C.A.).

R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.).

R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8 (S.C.C.).

R. v. McKinlay Transport Ltd., 1990 137 (SCC), [1990] S.C.J. No. 25, 76 C.R. (3d) 283 (S.C.C.).

R. v. Mellenthin, 1992 50 (SCC), [1992] S.C.J. No. 100 (S.C.C.).

R. v. Nzita, [2020] O.J. No. 3109 (Ont. C.J.), per Brunet J.

R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).

R. v. Sergalis, [2009] O.J. No. 4823 (Ont. S.C.J.), per Lauwers J.

R. v. Singer, 2023 SKCA 123, [2023] S.J. No. 406 (Sask. C.A.).

R. v. Smith, 2005 NSSC 191, [2005] N.S.J. No. 307 (N.S.S.C.).

R. v. Tessling, 2004 SCC 67, [2004] S.C.J. No. 63 (S.C.C.).

R. v. Tresham, 1998 14756 (ON SC), [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)), per Boyko J.

R. v. Tricker (1995), 1995 1268 (ON CA), 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198 (O.C.A.), per Galligan, Weiler and Austin, JJ.A.

R. v. Vander Griendt, [2015] O.J. No. 5675 (Ont. S.C.J.), per Dawson J.; aff'g R. v. Vandergriendt, [2014] O.J. No. 2943 (O.C.J.), per Duncan J.

R. v. Waterfield, [1963] 3 All E.R. 649, 48 Cr. App. Rep. 42, 128 J.P. 48, [1964] 1 Q.B. 164, 107 Sol. Jo. 833, [1963] 3 W.L.R. 946 (C.C.A.).

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] S.C.J. No. 23, 54 C.C.C. (3d) 417 (S.C.C.).

Statutes, Regulations, Rules, and Orders cited:

Cannabis Control Act, 2017, S.O 2017, c. 26, Sched. 1, ss. 1, 12(1), 12(2), and 12(3).

Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 1, 7, 8, 9, 10(a) and 10(b).

Chief Justice’s Set Fines Orders (Schedule 0.3 - Ontario Court of Justice (ontariocourts.ca)), Schedule “O.3”, items 20 to 25.

Collection Of Identifying Information In Certain Circumstances - Prohibition And Duties Regulation (Police Services Act, R.S.O. 1990, c. P.15). Ont. Reg. 58/16., s. 1(2).

Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 3(1).

Criminal Code, R.S.C. 1985, c. C-46, ss. 320.11 and 320.35.

General Regulation (Cannabis Control Act, 2017), Ont. Reg. 30/18.

Highway Traffic Act, R.S.O. 1990, C. H.8, ss. 1(1), 7(5), 33(1), 48(1), 48(18), and 216(1).

Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22, 42(1).

Trespass to Property Act, R.S.O. 1990, c. T.21, s. 3(2).

Reference Material Considered:

Christopher Sherrin, “Distinguishing Charter Rights In Criminal And Regulatory Investigations: What’s The Purpose Of Analyzing Purpose?”, Alberta Law Review (2010) 48:1, 93-125.

Croft Michaelson, "The Limits of Privacy: Some Reflections on Section 8 of the Charter." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 40, (2008). DOI: https://doi.org/10.60082/2563-8505.1111; https://digitalcommons.osgoode.yorku.ca/sclr/vol40/iss1/4.

1. INTRODUCTION

[1] Privacy can be said to be the right to be left alone or to be free from interference or intrusion from others. However, the right to privacy may be limited in certain contexts, especially under a regulatory statute.

[2] So imagine if you had been fast asleep or passed out in the driver’s seat of your motor vehicle while its engine had still been running, with keys still in the ignition, and while your motor vehicle is also parked completely on your own driveway, which would be private property. And, imagine at that moment, you also had an open package of cannabis in your motor vehicle near the center console area, which could also be easily reached by you. Now, suppose a police officer, who had been notified about a suspected impaired driver operating a motor vehicle registered to your address, enters onto your driveway and wakes you up, and while you are exiting your motor vehicle, the police officer observes that open package of cannabis inside your vehicle along with other items of drug paraphernalia. And, when the police officer asks you for your driver’s licence as part of their investigation to determine if you had been impaired by alcohol or drug, you then provide your driver’s licence to the police officer. From that scenario, could you be convicted of the offence of “have care or control of vehicle or boat with cannabis readily available”, contrary to s. 12(1) of the Cannabis Control Act, 2017, S.O 2017, c. 26, Sched. 1, from evidence that had been obtained from the police officer who entered onto private property and who had observed the purported open package of cannabis inside your motor vehicle, which may have violated your right to privacy?

[3] The “have care or control of vehicle or boat with cannabis readily available” offence set out in s. 12(1) provides that “[n]o person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat”. However, under s. 12(2) of that Act, if the cannabis in the vehicle or boat is still in its original packaging and has not been opened or the cannabis is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat, then it would not be unlawful to drive or have care or control of a vehicle or boat containing cannabis.

[4] For the case at bar, the scenario mentioned above did in fact occur to the defendant, Shiva Ashkani, who was charged with the Part I offence of “have care or control of vehicle or boat with cannabis readily available” under s. 12(1) of the Cannabis Control Act, 2017, with a set fine of $175. The defendant had been observed by Peel Regional Police Officer Crispin at about 12:37 a.m., on February 15, 2023, either asleep or passed out in the driver’s seat of her motor vehicle with its engine still running and with keys in the ignition, and where the motor vehicle had also been stopped fully on the defendant’s driveway. No part of the defendant’s vehicle had been on the roadway that was adjacent to the defendant’s driveway. The circumstances that led to the defendant being charged with the offence of “have care or control of vehicle or boat with cannabis readily available” resulted initially from the Peel Regional Police being called about a suspected impaired driver. Officer Crispin, who charged the defendant with the s. 12(1) offence, had received a call from her dispatcher at 12:26 a.m. on February 15, 2023, about a suspected impaired driver operating a motor vehicle with a particular licence plate number of CRAJ825 in the Hurontario Street and Steeles Avenue West area of Brampton. Officer Crispin then obtained the address of 122 Yuile Court in the City of Brampton as the registered address for the owner of the suspect motor vehicle that had been reported to the Peel Regional Police. Officer Crispin then drove to that address and at 12:37 a.m. (which is 11 minutes after receiving the call) and located that suspect motor vehicle parked on the driveway of 122 Yuile Court. Officer Crispin had also noticed that the suspect motor vehicle’s engine had been still running as she entered onto the driveway. Officer Crispin then walked up the private driveway to the suspect motor vehicle, which was a 2006 grey-coloured Honda Accord. Officer Crispin also testified that when she reached the driver’s side door of the Honda Accord motor vehicle, Officer Crispin had noticed that keys were still in the ignition of the motor vehicle and that a female person had been passed out in the front driver’s seat of the motor vehicle. Officer Crispin also noticed that the female person had a small abrasion on the left side of her cheek. Officer Crispin then knocked several times on the window of the motor vehicle in order to wake up the female person. The female person eventually woke up and Officer Crispin had requested and was able to obtain identification in the form of an Ontario driver’s licence from the female person after she had exited the motor vehicle. Officer Crispin then identified the female person as “Shiva Ashkani” from the driver’s licence that had been provided. Officer Crispin had also confirmed the identity of the female person by searching the Ministry of Transportation database. While the defendant was exiting the vehicle, Officer Crispin had also observed through the front driver’s door a purported open package of cannabis inside the motor vehicle near the center console area, along with rolling papers and a lighter, which were all within reach of the driver’s seat. After investigating the sobriety of the female person that was sitting in the driver’s seat of the Honda Accord, Officer Crispin concluded that the female person was not impaired by alcohol or drug, but did charge the female person with the “have care or control of vehicle or boat with cannabis readily available” offence, contrary to s. 12(1) of the Cannabis Control Act, 2017.

[5] As the defendant was unrepresented at the trial of the s. 12(1) offence, this court decided after the prosecution had completed its case, to adjourn the trial in order to consider several issues related to whether the prosecution had met its evidentiary burden in proving that the defendant had committed the actus reus of the offence of “have care or control of vehicle or boat with cannabis readily available”. This intercession by the court in the trial for the benefit of the defendant would be similar to a motion of non-suit (directed verdict) or of no evidence that would be brought on behalf of the defendant and had been based on the circumstances of the defendant’s motor vehicle being completely parked and stopped on the defendant’s own driveway which is on private property and also on concerns about the defendant’s privacy interests, considering that Officer Crispin had entered onto a private driveway for investigating a suspected impaired driver operating the defendant’s motor vehicle and then purportedly observed the open package of cannabis inside the defendant’s motor vehicle. The principal questions in this judicial intercession that have to be resolved include: (1) whether Officer Crispin had been acting lawfully when she entered onto private property to wake up and request from the defendant, who had been sitting in the driver’s seat and who had been asleep or passed out in a motor vehicle with its engine still running, to provide Officer Crispin with her driver’s licence; (2) whether the defendant, who had been asleep or passed out in the driver’s seat of her motor vehicle located on her driveway while its engine was still running, had “care or control” of the motor vehicle for purposes of s. 12(1) of the Cannabis Control Act, 2017; and (3) whether the defendants right to be secure from unreasonable search and seizure under s. 8 of the Charter had been infringed when Officer Crispin entered onto the defendants’ driveway on private property and purportedly observed inside the defendant’s motor vehicle an open package of cannabis near the center console area, in light of the defendant’s privacy interest in respect to the inside of her motor vehicle that had been parked on her own private property.

[6] In respect to the first question, after reviewing the applicable caselaw; ancillary police powers under the common law; s. 12 and other provisions of the Cannabis Control Act, 2017 and its regulations; and after considering the objective of the legislation and the purpose of why Officer Crispin had attended at 122 Yuile Court in the City of Brampton in regards to receiving a call about a suspected impaired driver operating a motor vehicle registered in the defendant’s name, and for which Officer Crispin had obtained the address of the registered owner of the suspect vehicle; and also after considering that Officer Crispin had attended at that address approximately 11 minutes later and had observed the suspect vehicle fully on the driveway of that address with its engine still running; and after considering that Officer Crispin had entered onto the private driveway and observed a female person being asleep or passed out in the driver’s seat of the suspect vehicle, Officer Crispin had been in the lawful execution of her duties and responsibilities in regards to protecting life and property, preventing offences, and ensuring public safety under her ancillary police powers provided under the common law. Furthermore, when Officer Crispin had approached the Honda Accord motor vehicle with its engine still running and that had been stopped fully in the private driveway of 122 Yuile Court, Officer Crispin had entered onto the private driveway to investigate a possible impaired driving criminal offence and had woken up the female person sitting in the driver’s seat of the Honda Accord motor vehicle and had requested the driver’s licence from the female person that had been sitting in the driver’s seat of the suspect vehicle, it had been part of the investigation into obtaining the identity of the driver of the suspect vehicle reported to the police as a possible impaired driver. As such, Officer Crispin’s entry onto a private driveway for the purpose of investigating a possible impaired driver in the suspect vehicle with its engine still running and in requesting the defendant provide her driver’s licence for identification purposes was not unlawful in those circumstances and had been authorized by the common law and under the Police Services Act, R.S.O. 1990, c. P.15. Moreover, the entry onto private property by Officer Crispin was also justified for public safety reasons, since the motor vehicle was still running and could have been driven onto a highway at any moment by a potentially impaired driver.

[7] In respect to the second question, the actus reus of the offence of “have care or control of vehicle or boat with cannabis readily available” for the purposes of s. 12(1) of the Cannabis Control Act, 2017, is not limited or restricted to only situations or circumstances where a motorist is observed in the driver’s seat of a motor vehicle that is in “motion” on a highway. Ergo, even though Officer Crispin did not observe the defendant in the driver’s seat of a “moving” motor vehicle on a “highway” or being operated on a highway, the circumstances of the defendant being asleep or passed out in the driver’s seat of a motor vehicle with its engine still running, with keys still in the ignition, and that was completely stopped on a private driveway is some evidence in which a properly instructed trier of fact could find that the defendant had “care or control” of the Honda Accord motor vehicle for the purposes of s. 12(1) of the Cannabis Control Act, 2017.

[8] And, in respect to the third question, Officer Crispin did not infringe the defendant’s right to be secure from unreasonable search and seizure that is guaranteed under s. 8 of the Charter, as s. 12(3) of the Cannabis Control Act, 2017 legally permits Officer Crispin to search the defendant’s motor vehicle without warrant at any time for cannabis, if Officer Crispin has reasonable grounds to believe that the defendant’s vehicle contains cannabis. Moreover, Officer Crispin had been acting lawfully when she entered the driveway on private property under her ancillary police power under the common law to protect life and property, prevent offences, and to ensure public safety in respect to her investigation into a possible impaired driver. Furthermore, in the defendant’s situation, Officer Crispin had observed, without having to enter the defendant’s vehicle, the open package of cannabis in the center console area along with other drug paraphernalia, by looking through the front driver’s door when the defendant had exited the Honda Accord motor vehicle, after being awoken by Officer Crispin in her investigation of a possible impaired driver operating or having care or control of the defendant’s Honda Accord motor vehicle. Ergo, having observed the purported open package of cannabis inside the defendant’s motor vehicle along with rolling papers and a lighter, Officer Crispin would have had the requisite reasonable grounds to believe the Honda Accord motor vehicle contained cannabis and, as such, s. 12(3) would have bestowed Officer Crispin with the authority to enter the vehicle without warrant to search for cannabis. However, Officer Crispin did not have to enter the defendant’s vehicle, since Officer Crispin had made her observation of the purported open package of cannabis and drug paraphernalia while she had stood outside of the defendant’s vehicle. This observation from outside the defendant’s motor vehicle would have provided Officer Crispin with the reasonable grounds of belief that the defendant’s vehicle had contained cannabis. Furthermore, considering that Officer Crispin had initially been investigating the sobriety of the female person asleep or passed out in the defendant’s motor vehicle with its engine still running and with keys in the ignition, and which had also been the suspect vehicle that had been reported to the police about it being driven by a suspected impaired driver, Officer Crispin in performing her duties and responsibilities would have been justified in looking from outside the vehicle into the vehicle for weapons for the purpose of officer safety. And, as it was only at the point after the defendant had exited the Honda Accord motor vehicle that Officer Crispin did actually observe the cannabis and other drug paraphernalia inside the defendant’s motor vehicle that would have been readily available to the defendant while the defendant had been sitting in the driver’s seat. Furthermore, Officer Crispin’s observation of the cannabis would have also been made prior to the defendant providing her driver’s licence to Officer Crispin and prior to the defendant being investigated and questioned by Officer Crispin in respect to the defendant’s sobriety and before the point when Officer Crispin had concluded that the defendant had not been impaired by alcohol or drug. Ergo, the evidence of the purported open package of cannabis along with rolling papers and a lighter being observed by Officer Crispin in the defendant’s motor vehicle had already been observed or obtained as evidence prior to the point when Officer Crispin had concluded that the defendant had not been impaired by alcohol or drug, and under s. 12(3) that evidence of cannabis would have been nevertheless legally obtainable by Officer Crispin without warrant once Officer Crispin had viewed that cannabis near the center console area when Officer Crispin had been standing outside of the defendant’s vehicle and had looked inside the defendant’s vehicle after the defendant had exited the vehicle.

[9] Therefore, in respect to this court’s non-suit motion made on behalf of the defendant, the prosecution has met its evidential burden in adducing some evidence on each essential element of the offence of “have care or control of vehicle or boat with cannabis readily available”, contrary to s. 12(1) of the Cannabis Control Act, 2017, S.O 2017, c. 26, Sched. 1, in which a reasonable trier of fact properly instructed could find the defendant guilty of committing that offence beyond a reasonable doubt.

[10] Lastly, the trial of the defendant Shivani Ashkani’s charge of “have care or control of vehicle or boat with cannabis readily available”, contrary to s. 12(1) of the Cannabis Control Act, 2017, had been held on February 15, 2024. After the prosecution had completed its case, the trial was adjourned to June 20, 2024, for the court to consider those questions in the court’s motion for non-suit (directed verdict) or of no evidence made on behalf of the unrepresented defendant. Therefore, the following is the court’s written reasons on the ruling on the non-suit motion that are being released as of June 20, 2024:

2. THE CHARGE

[11] The defendant has been charged under a Part I Certificate for committing the following offence:

Certificate of Offence # 3160-3169235:

I, Cst Crispin, believe and certify that on the day of

2023/02/15 1237 AM

Ashkani

Shiva

122 Yuile Crt

Brampton ON L6Y5J5

At 122 Yuile Crt

City of Brampton

Did commit the offence of:

Have Care or control of Vehicle or Boat with Cannabis Readily Available

Contrary to Cannabis Control Act sect. 12(1)

CRAJ825 ON …

Set fine of $175.00 Total Payable $215

3. ISSUES

[12] In order to determine if the prosecution has met its evidential burden in adducing some evidence on each essential element of the strict liability offence of “have care or control of vehicle or boat with cannabis readily available” that is set out in s. 12(1) of the Cannabis Control Act, 2017, the following issues need to be resolved:

(1) Did Officer Crispin have a valid and lawful reason for entering onto a driveway on private property and investigate a person sitting in the driver’s seat and who had been asleep or passed out in a motor vehicle that still had its engine running?

(2) Was Officer Crispin acting lawfully when she entered onto private property to wake up and request from the person sitting in the driver’s seat, who had been asleep or passed out in a motor vehicle with its engine still running, to provide Officer Crispin with their driver’s licence?

(3) Was Officer Crispin in the lawful execution of her duties and responsibilities in regards to the protection of property, preventing offences, and for purposes of public safety, when she had entered onto a private driveway and had asked the defendant, Shiva Ashkani, for her driver’s licence?

(4) For the offence of “have care or control of vehicle or boat with cannabis readily available”, does the Honda Accord motor vehicle have to be on public property or can the offence be made out if the motor vehicle is situated on private property?

(5) Would the circumstances of the defendant being asleep or passed out in a motor vehicle in which the engine had been still running, with keys still in the ignition, and which had been stopped completely on her driveway on private property be some evidence that the defendant had “care or control” of the motor vehicle for the purposes of s. 12(1) of the Cannabis Control Act, 2017?

(6) Has the defendant’s right to be secure from “unreasonable search and seizure” under s. 8 of the Charter been infringed when Officer Crispin entered onto the defendant’s driveway on private property and purportedly observed an open package of cannabis located inside the defendant’s motor vehicle near the center console along with other items of drug paraphernalia when the defendant had exited her motor vehicle that had been located fully on private property?

(7) Has the prosecution adduced some evidence that the cannabis that was in plain view in the center console of the Honda Accord motor vehicle had not been in its original sealed packaging?

4. ANALYSIS

[13] The Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1, is a regulatory statute. The Part I regulatory offence of “have care or control of vehicle or boat with cannabis readily available” under s. 12(1) is a strict liability offence in which the prosecution is only legally required to prove that the defendant has committed the actus reus of the offence beyond a reasonable doubt to obtain a conviction. No mens rea element has to be proven by the prosecution for a conviction of a strict liability offence. However, if the prosecution proves that the defendant as committed the actus reus of the offence beyond a reasonable doubt, the defendant may still avoid being convicted of the strict liability offence if the defendant fulfills her legal burden in proving the defence of due diligence on a balance of probabilities, either by proving that the defendant reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that she took all reasonable steps to avoid the particular event: R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).

[14] Subsection 12(1) of the Cannabis Control Act, 2017, provides that “[n]o person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat”. However, s. 12(2) of the provision expressly states that the prohibition against a person driving or having the care or control of a vehicle or boat while any cannabis is contained in the vehicle or boat would not apply if the cannabis is in its original packaging and has not been opened, or the cannabis is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. But more importantly, a police officer is empowered under s. 12(3) of that provision to enter and search the vehicle or boat at any time and search any person found in it for cannabis at any time without warrant, if the police officer has reasonable grounds to believe that cannabis is being contained in that vehicle or boat in contravention of s. 12(1) [emphasis is mine below]:

Transporting Cannabis

12(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Application to cannabis for medical purposes

(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed

There are six Part 1 offences that an accused person can be charged with committing under s. 12(1) of the Cannabis Control Act, 2017

[15] Under the Chief Justice’s Set Fines Orders (Schedule 0.3 - Ontario Court of Justice (ontariocourts.ca)), Schedule “O.3”, items 20 to 25 set out six different Part 1 offences with set fines of $175, in respect to s. 12(1) of the Cannabis Control Act, 2017:

Drive vehicle or boat with cannabis in open original packaging

12(1)

$175

Have care or control of vehicle or boat with cannabis in open original packaging

12(1)

$175

Drive vehicle or boat with cannabis in open baggage

12(1)

$175

Have care or control of vehicle or boat with cannabis in open baggage

12(1)

$175

Drive vehicle or boat with cannabis readily available

12(1)

$175

Have care or control of vehicle or boat with cannabis readily available

12(1)

$175

[16] Officer Crispin had charged the defendant with the Part I offence which is described by item 25 of Schedule “O.3”, of “have care or control of vehicle or boat with cannabis readily available”, with the set fine of $175, in respect to s. 12(1) of the Cannabis Control Act, 2017.

[17] To reiterate, the defendant had been observed by Officer Crispin seated in the driver’s seat of a 2006 grey-coloured Honda Accord motor vehicle stopped on the driveway of 122 Yuile Court in the City of Brampton. In addition, Officer Crispin had observed that the engine of the Honda Accord vehicle was still running and that the keys were still in the ignition when Officer Crispin arrived at 122 Yuile Court at approximately 12:37 a.m. on February 15, 2023, and had observed the suspect motor vehicle on the driveway at that address. Prior to arriving at that location, Officer Crispin, on a search of databases available to her, had obtained the registered address for the owner of the suspect vehicle with licence plate number CRAJ825 in respect to the impaired driving call, which was 122 Yuile Court in Brampton. Moreover, Officer Crispin had received the call about the motor vehicle with that particular licence plate being operated by a suspected impaired driver at 12:26 a.m. from her dispatcher. As such, Officer Crispin had arrived at 122 Yuile Court about 11 minutes after receiving that call from her dispatcher.

[18] After obtaining the address for the suspect motor vehicle, Officer Crispin then drove to 122 Yuile Court and had observed the suspect motor vehicle, that was involved in the reported possible impaired driving call, stopped fully on the driveway at that address. Officer Crispin then had walked onto the driveway and had observed that the Honda Accord motor vehicle’s engine had been still running, and when Officer Crispin had approached the driver’s side door of the Honda Accord motor vehicle Officer Crispin had observed a female person either asleep or passed out in the driver’s seat of that motor vehicle and that keys were still in the ignition. Officer Crispin also noticed that the female person had an abrasion on her left cheek. Officer Crispin then knocked several times on the window of the vehicle to wake up the female person sitting in the driver’s seat of the motor vehicle. After the female person exited the vehicle, Officer Crispin had observed through the front driver’s door a purported open package of cannabis in the center console area of the Honda Accord motor along with other drug paraphernalia. Furthermore, after requesting from and obtaining the female person’s driver’s licence, Officer Crispin identified the female person as “Shivani Ashkani”. In addition, after completing an investigation into the sobriety of the female person, Officer Crispin concluded that the female person had not been impaired by alcohol or drug. However, based on Officer Crispin’s observation of the purported open package of cannabis inside the Honda Accord motor vehicle, which had been readily within reach of the female person sitting in the driver’s seat of the Honda Accord motor vehicle while its engine was still running. Officer Crispin subsequently charged “Shivani Ashkani” with committing the Part I regulatory offence of “have care or control of vehicle or boat with cannabis readily available”, contrary to s. 12(1) of the Cannabis Control Act, 2017, and issued a summons to the defendant to appear in the Brampton Provincial Offences court.

[19] Due to the defendant being unrepresented at trial, after the prosecution had completed its case on February 15, 2024, the court had been concerned about the lawfulness of a police officer entering onto a driveway on private property to wake up and investigate a person who had been asleep or passed out in a motor vehicle, which was fully stopped on a private driveway and that was located at that person’s residence, in respect to an investigation of the defendant’s motor vehicle being possibly driven by an impaired driver. Furthermore, as the defendant had been initially observed by Officer Crispin either asleep or passed out in the driver’s seat of the Honda Accord motor vehicle which had been fully stopped on a private driveway, would this be evidence of the defendant having “care or control” of the motor vehicle for the purposes of s. 12(1) of the Cannabis Control Act, 2017. In addition, even though Officer Crispin had concluded that the defendant had not been impaired by alcohol or drug after waking up the defendant and investigating the defendant for sobriety, Officer Crispin did purportedly observe an open package of cannabis in the center console of the Honda Accord, which had been readily accessible to the defendant while the defendant had been in the driver’s seat of the Honda Accord motor vehicle. Ergo, since Officer Crispin had observed the cannabis located inside the defendant’s motor vehicle which had been fully situated on the defendant’s driveway on private property, the court had also been concerned about whether the defendant’s s. 8 Charter right to be secure from unreasonable search and seizure had been infringed.

(A) WAS OFFICER CRISPIN LEGALLY PERMITTED TO ENTER ONTO THE DEFENDANT’S DRIVEWAY LOCATED ON PRIVATE PROPERTY AND DID OFFICER CRISPIN ACT LAWFULLY ON FEBRUARY 15, 2023, WHEN OFFICER CRISPIN KNOCKED ON THE WINDOW OF THE DEFENDANT’S VEHICLE AND WOKE UP THE DEFENDANT WHO HAD BEEN ASLEEP OR PASSED OUT IN THE DRIVER’S SEAT OF THE VEHICLE AND MAKE A REQUEST TO THE DEFENDANT FOR THE DEFENDANT’S DRIVER’S LICENCE?

[20] The first issue that has to be decided in respect to the non-suit motion is whether Officer Crispin had been legally permitted to enter onto a private driveway in order to investigate a motor vehicle with its engine still running, in which Officer Crispin had been earlier called and notified about a suspected impaired driver and in which the suspect motor vehicle of that possible impaired driving call and had been located by Officer Crispin at the address of 122 Yuile Court, which is also the registered address of the owner of the suspect motor vehicle. And, if Officer Crispin is legally permitted to enter onto the private driveway, is Officer Crispin permitted to then wake up the person asleep or passed out in the motor vehicle with its engine running and with keys in the ignition, in order to check on the sobriety or possible impairment of that person, and to also request that the person provide their driver’s licence to Officer Crispin?

(1) In Respect To Motor Vehicles, Neither s. 12(1) Nor The Cannabis Control Act, 2017 Specifies That The Act Only Applies To Public Property Or On Highways

[21] Unlike the H.T.A., where certain provisions of the H.T.A. would only apply to highways and not on private property, the Cannabis Control Act, 2017 does not specifically express that it would only apply on highways or on public property. Moreover, as it applies to vehicles, s. 12(1) of the Cannabis Control Act, 2017 also does not specify where it would or would not apply. As such, s. 12(1) is not excluded from applying on private property.

(2) The Authority For Police Officers To Conduct “Random Stops” Of Drivers Of Motor Vehicles On Private Property Under The Common Law Has Not Been Changed Or Limited By The Supreme Court’s Decision In R. v. McColman

[22] In R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8, the Supreme Court of Canada had to decide whether the police can conduct a “random sobriety stop on private property” using their authority under s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. In that case, an Ontario Provincial Police constable had formed the intention on a highway to “randomly stop” McColman, who had been operating an all-terrain motor vehicle in order to ascertain his sobriety, and had followed McColman onto a private driveway to do so. The OPP constable had just observed McColman leave an LCBO store and then drive the motor vehicle onto a highway. However, the constable had not yet formed the opinion that there were “reasonable and probable grounds” about McColman’s sobriety to stop and check McColman’s sobriety under s. 48(1) before McColman had driven off the highway and entered onto the private driveway of McColman’s parents’ private property. However, the constable had followed McColman’s vehicle onto the private driveway and it had been only when the constable had approached McColman on that private driveway on private property, that the constable had observed McColman to have obvious signs of intoxication. McColman had also indicated to the constable that McColman might have had 10 beers. Subsequently, two breathalyzer tests that were conducted on McColman had revealed that McColman’s blood alcohol concentration had been above the legal limit. McColman was then charged with impaired driving and with operating a motor vehicle with an excess of 80 milligrams of alcohol in 100 milliliters of blood, contrary to the Criminal Code. McColman was convicted at trial, but on appeal the summary conviction appeal judge found that neither s. 48(1) nor s. 216(1) of the Highway Traffic Act had permitted police officers to conduct random sobriety or highway safety stops on private property absent reasonable and probable grounds. Eventually, the Crown brought an appeal to the Supreme Court of Canada.

[23] The Supreme Court had also specified in R. v. McColman, at paras. 28 to 41, that police officers conducting “random vehicular stops” must exercise their powers vigilantly and not overstep the limits of their powers. The Supreme Court also reiterated that random stops constitute "arbitrary detention" and that the detention would only be justified under s. 1 of the Charter if the police act within the limited highway-related purposes for which the powers were conferred. In addition, the Supreme Court had concluded that the definition of “driver” in Ontario’s Highway Traffic Act (“H.T.A.”) had placed sharp limits on police officers' authority to conduct “random sobriety stops” under s. 48(1) of the H.T.A. In deciding whether McColman had been a "driver" for the purpose of s. 48(1) of the H.T.A. at the time of the random sobriety stop, the Supreme Court had held that the H.T.A. contains two definitions for the word "driver" that may apply to McColman: (1) first, that s. 1(1) of the H.T.A. defines 'driver' as “a person who drives a vehicle on a highway" and (2) second, s. 48(18) of the H.T.A. states that a 'driver' includes “a person who has care or control of a motor vehicle". Furthermore, the Supreme Court had indicated that exhaustive definitions are generally introduced using the verb "means", while non-exhaustive definitions are introduced with the verb "includes". Hence, the Supreme Court found that the definition of “driver” in s. 1(1) is exhaustive and that it also specifies the scope of the word "driver", whereas the definition of “driver” in s. 48(18) is non-exhaustive and expands the ordinary meaning of the defined term. In addition, the Supreme Court also explained that the definition of "driver" in s. 1(1) is two-pronged, as it targets both an “activity” and the “locus of such activity”. In other words, the Supreme Court noted that to be a “driver” under the definition in s. 1(1), one must be driving a vehicle (activity) and that one must do so on a highway (locus). However, for the definition of “driver” in s. 48(18), the Supreme Court concluded that it seeks only to expand the activity prong of the definition and not the locus element. Moreover, the Supreme Court also noted that a non-exhaustive definition does not necessarily oust other definitions and depending on the context, exhaustive and non-exhaustive definitions can be read together. Ergo, the Supreme Court in using a harmonious reading of the two definitions of "driver" for the purpose of s. 48(1), held that the word "driver" refers to a person who is driving or has care or control of a motor vehicle on a highway. Furthermore, the Supreme Court also reasoned that a person who has care or control of a motor vehicle, but who is no longer on a highway would not be a "driver" under the H.T.A. Accordingly, the Supreme found that McColman was not a "driver" for the purpose of s. 48(1) when he was stopped by the police off of the highway and on private property. Furthermore, even if it can be said that McColman had “care or control” of the all-terrain vehicle, the Supreme Court reiterated that McColman had not been on a “highway” when the OPP constable had effected the random stop. As such, the Supreme Court held that the random police stop of McColman on private property was not authorized by s. 48(1) of the H.T.A. [emphasis is mine below]:

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.

On several occasions, this Court has stated that various forms of random vehicular stops violate s. 9 of the Charter but are justified under s. 1. In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, this Court held that statutorily authorized spot checks -- random police checks conducted at stationary, predetermined locations -- violate s. 9 but are justified under s. 1. Shortly after, this Court held in R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, that statutorily authorized roving stops -- random police stops to check licences, proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers -- violate s. 9 but are justified under s. 1.

Police officers conducting random vehicular stops must exercise their powers vigilantly and ensure that they do not overstep the limits of their powers. Since these random stops constitute "arbitrary detention", the "detention will only be justified under s. 1 of the Charter if the police act within the limited highway-related purposes for which the powers were conferred": R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 22 (citations omitted).

The question of whether police officers can effect random sobriety stops on private property has been addressed by various appellate courts across the country under their versions of the HTA: see, e.g., R. v. Lux, 2012 SKCA 129, 405 Sask. R. 214; R. v. Anderson, 2014 SKCA 32, 433 Sask. R. 255; Scott v. R., 2021 QCCS 3866. However, Ontario's HTA differs in important ways from the other provincial statutes that regulate driving and drivers. In analyzing a provision of the HTA, a court must keep its focus on the text, context, and purpose of the provision at issue.

Both the appellant Crown and the Court of Appeal for Ontario drew heavily upon jurisprudence of the Court of Appeal for Saskatchewan. In Lux, police officers observed a motor vehicle driving in a private parking area and conducted a random sobriety stop of the vehicle while it was still within the private parking area. The Court of Appeal held that s. 209.1 of The Traffic Safety Act, S.S. 2004, c. T-18.1, did not authorize peace officers to conduct random sobriety stops on private property: para. 31. Two years later, in Anderson, a case factually similar to the case at bar, the Court of Appeal held that a police officer who had formed his intention on a highway to randomly stop the vehicle could lawfully complete the stop on private property pursuant to s. 209.1 of The Traffic Safety Act: paras. 24-25.

Despite the seeming relevance of Lux and Anderson, Ontario's HTA differs in relevant respects from The Traffic Safety Act from Saskatchewan. Notably, the latter does not define the term "driver"; in contrast, as we shall discuss, the HTA's definition of driver places sharp limits on police officers' authority to conduct random sobriety stops under s. 48(1) of the HTA. Given that Lux and Anderson focus closely on the specific wording of s. 209.1 of The Traffic Safety Act, neither judgment sheds much light on how this Court should approach s. 48(1) of Ontario's HTA.

(1) The Meaning of Section 48(1) of the HTA

We turn now to s. 48(1) of the HTA, which states:

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).

Under the modern approach to statutory interpretation, "the words of a statute must 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'": Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 117, citing Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Canada v. Alta Energy Luxembourg S.A.R.L., 2021 SCC 49, at para. 37. In determining the meaning of the text, a court cannot read a statutory provision in isolation, but must read the provision in light of the broader statutory scheme: Rizzo, at para. 21.

In its written submissions and during oral argument, the Crown placed great weight on the broader purposes underlying the HTA. But a purposive analysis does not grant the interpreter licence to disregard the clear meaning of the statute: see R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 26.

The key question in this case is whether Mr. McColman was a "driver" for the purpose of s. 48(1) of the HTA at the time of the random sobriety stop. The HTA contains two definitions of the word "driver" that may apply to Mr. McColman. Section 1(1) of the HTA states that "'driver' means a person who drives a vehicle on a highway". By contrast, s. 48(18) provides that, within s. 48, "'driver' includes a person who has care or control of a motor vehicle". In its factum, the Crown suggests that it is possible to interpret s. 48(1) such that it authorizes police to conduct random sobriety stops whenever they see someone in the care or control of a motor vehicle, irrespective of whether they intended to check the person's sobriety on a highway. In other words, the Crown submits that s. 48(18) sets out essential elements of what constitutes a "driver". This argument must fail for two reasons.

First, not all statutory definitions are exhaustive: R. Sullivan, The Construction of Statutes (7th ed. 2022). Exhaustive definitions "declare the complete meaning of the defined term and completely displace whatever meanings the defined term might otherwise bear in ordinary or technical usage", whereas non-exhaustive definitions "do not purport to displace the meaning that the defined term would have in ordinary usage; they simply add to, subtract from or exemplify that meaning": pp. 69-70. Exhaustive definitions are generally introduced using the verb "means", while non-exhaustive definitions are introduced with the verb "includes": pp. 69-70.

Here, the definition in s. 1(1) is exhaustive and specifies the scope of the word "driver", whereas the definition in s. 48(18) is non-exhaustive and expands the ordinary meaning of the defined term. Indeed, the definition of "driver" in s. 1(1) is two-pronged; it targets both an activity and the locus of such activity. To be a driver, one must be driving a vehicle (activity) and must do so on a highway (locus). The definition in s. 48(18) seeks only to expand the activity prong of the definition and not the locus element.

Second, this Court has stated that, while the relative effects of ordinary meaning, context, and purpose on the interpretive process may vary, courts must seek to read the provisions of an act as a harmonious whole: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. As stated above, a non-exhaustive definition does not necessarily oust other definitions. Depending on the context, exhaustive and non-exhaustive definitions can be read together. Under a harmonious reading of the two definitions of "driver", for the purpose of s. 48(1), "driver" refers to a person who is driving, or has care or control of, a motor vehicle on a highway. A person who has care or control of a motor vehicle but who is no longer on a highway would not be a "driver" under the HTA.

In the present case, Mr. McColman was not a "driver" for the purpose of s. 48(1) when he was stopped by the police. Even if it can be said that he had care or control of the ATV, he was not on a highway when the police effected the stop. Therefore, the police stop was unauthorized by s. 48(1) of the HTA.

[24] Moreover, in comparing the legal authority of the police to conduct random stops of motorists on a highway, the Supreme Court, at paras. 42 to 51, in R. v. McColman, held that ss. 48(1) and 216(1) of the H.T.A. are not differing legislative choices since the two provisions do not need not be read apart. In addition, the Supreme Court had emphasized that the two provisions are often cited together to furnish the statutory authority to conduct “random sobriety stops”: (1) first, that s. 216(1) sets out the mechanics of the general police power to stop vehicles, including the corresponding duty on drivers to stop "when signalled or requested to stop" and (2) second, that s. 48(1) sets out the circumstances under which police are permitted to stop drivers without reasonable and probable grounds to ascertain sobriety. Therefore, the Supreme Court held that the two provisions fit together to supply a police power “to conduct random sobriety stops on highways” and a corresponding duty on drivers to stop when signalled or requested to stop. In particular, the Supreme Court noted that s. 216(1) supplies a "communication" requirement, so that a police officer seeking to invoke the s. 48(1) authority must at a minimum signal or otherwise request that the driver stop their vehicle on a “highway”. But more importantly, the Supreme Court also recognized that “random sobriety stops” are not the only tool available to police to combat impaired driving, and reasoned that even though it is unlawful for police officers to conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the H.T.A., police officers are legally permitted to stop drivers if they have “reasonable and probable grounds”: R. v. Ladouceur, at p. 1287. As such, the Supreme Court stated that their judgment in R. v. McColman does not constitute a blanket ban on “police stops of drivers” on private property. To clarify, the Supreme Court had noted that despite s. 48(1) furnishing the police officers with the legal authority “to conduct random sobriety stops” of drivers of motor vehicles, the OPP constable in R. v. McColman did not have the legal authority to stop McColman because McColman had not been a "driver" within the meaning of the H.T.A. at the time of the random stop. And, because the random stop of McColman was unlawful, the Supreme Court held that the OPP constable had breached McColman's rights under s. 9 of the Charter not to be arbitrarily detained or imprisoned. Moreover, the Supreme Court in McColman also confirmed that a detention not authorized by law is arbitrary and violates s. 9 of the Charter. And, because the OPP constable did not have the legal authority to randomly stop McColman, the Supreme Court found that McColman had been arbitrarily detained by the OPP constable [emphasis is mine below]:

The Crown suggests that a core question in this appeal is whether police must communicate their intention to effect a random sobriety stop on a highway in order to fall under s. 48(1) of the HTA. The Crown argues that s. 48(1) authority is triggered when police form the intention to effect a random sobriety stop of a driver who is on a highway, and not when police communicate that intention to the driver. The Crown maintains that this interpretation is supported by s. 216(1) of the HTA.

On the Crown's view, s. 216(1) exhibits a legislative choice to put communication of intent to stop a driver at issue. Since the legislature chose not to include the language of "signalled or requested to stop" in s. 48(1), that section does not require the police to communicate their decision to stop a driver. So long as the driver was on the highway at the time the police officer formed the subjective intention to stop them, the officer can avail themselves of s. 48(1) authority to carry out a random sobriety stop on private property. In our view, this argument must also fail.

Sections 48(1) and 216(1) do not speak to differing legislative choices because the two provisions need not be read apart. In fact, the provisions are often cited together to furnish the statutory authority to conduct random sobriety stops: see, e.g., R. v. Sivarasah, 2017 ONSC 3597, 383 C.R.R. (2d) 1, at para. 108; R. v. Holland, 2017 ONCJ 948, at para. 11 (); R. v. Warha, 2015 ONCJ 214, at para. 5 (); R. v. Vander Griendt, 2015 ONSC 6644, 331 C.C.C. (3d) 135, at paras. 4 and 21. Section 216(1) sets out the mechanics of the general police power to stop vehicles, including the corresponding duty on drivers to stop "when signalled or requested to stop". By contrast, s. 48(1) sets out the circumstances under which police can stop drivers without reasonable and probable grounds to ascertain sobriety. The two provisions fit together to supply a police power to conduct random sobriety stops on highways and a corresponding duty on drivers to stop when signalled or requested to stop.

On this reading, the absence of the phrase "when signalled or requested to stop" in s. 48(1) does not speak to any legislative choice to privilege the point in time when police form the intention to conduct a random sobriety stop. Section 216(1) supplies a "communication" requirement, such that a police officer seeking to invoke s. 48(1) authority must, at a minimum, signal or otherwise request that the driver stop their vehicle on a highway.

Moreover, the inclusion of the word "require" in s. 48(1) implies the communication of an expectation or order to someone. The Oxford English Dictionary (online) defines "require" as "[t]o order, instruct, or oblige (a person) to do something" (emphasis in original). One cannot require someone to do something by merely subjectively intending it, as the Crown is arguing.

Here, the police waited until Mr. McColman had pulled onto his parents' driveway before they signalled their intention to stop him. Accordingly, they did not properly invoke their authority to conduct a random sobriety stop under s. 48(1).

Finally, the Crown submits that maintaining the majority of the Court of Appeal's reading of s. 48(1) of the HTA would create a sanctuary problem. The sanctuary problem refers to the idea that in the future, impaired drivers will simply pull onto private property whenever they spot a police cruiser. The dissenting judge below suggested that "[i]n 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": para. 96, per Hourigan J.A. In our view, the sanctuary problem is overstated.

First, random sobriety stops are not the only tool available to police to combat impaired driving. While police officers may not conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the HTA, they may stop drivers if they have reasonable and probable grounds: Ladouceur, at p. 1287. This judgment does not constitute a blanket ban on police stops of drivers on private property. Various factual scenarios might give rise to reasonable and probable grounds. For example, if a driver is driving erratically, a police officer may have reasonable and probable grounds to pursue the driver onto private property. In addition, as the majority at the Court of Appeal noted, a "true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances": para. 42. Thus, police officers are not barred from stopping drivers on private property in all circumstances.

Second, absent a successful constitutional challenge, this Court must respect the will of the legislature as expressed in valid legislation. It is not this Court's role to rewrite the law or to ask what law it would have enacted itself. When read contextually, s. 48(1) of the HTA does not authorize police officers to conduct random sobriety stops on private property. This Court is duty-bound to respect the legislature's will. If the legislature believes that police officers ought to wield wider powers under s. 48(1), it may amend the provision.

(2) The Random Sobriety Stop Breached Mr. McColman's Section 9 Charter Rights

While s. 48(1) of the HTA furnished the police officers with the legal authority to conduct random sobriety stops of drivers of motor vehicles, they did not have the authority to stop Mr. McColman because he was not a "driver" within the meaning of the HTA at the time of the stop. Since the stop was unlawful, the police officers breached Mr. McColman's rights under s. 9 of the Charter, which proclaims that "[e]veryone has the right not to be arbitrarily detained or imprisoned". This Court has affirmed that "a detention not authorized by law is arbitrary and violates s. 9": Grant, at para. 54. Given the above finding that the police officers did not have the legal authority to randomly stop Mr. McColman, it follows that they arbitrarily detained him.

[25] Consequently, as a result of the Supreme Court’s finding in R. v. McColman, it is unlawful for police officers to follow a motorist onto a private driveway to conduct a “random sobriety stop” under s. 48(1) of the H.T.A., unless the police officers had formed the opinion that they had reasonable and probable grounds about the motorist’s sobriety before the motorist had driven off the highway onto the private property.

(3) Police Officers Are Permitted To Randomly Stop Motorists On A “Highway” Under The Common Law

[26] The Supreme Court of Canada also noted at para. 27 in R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8, that the Supreme Court did not grant leave on the issue of whether the police had the common law authority to conduct the random stop of a motorist on private property [emphasis is mine below]:

It must be noted that this Court did not grant leave on the issue of whether the police had the common law authority to conduct the stop.

[27] Accordingly, the authority for police officers to conduct “random stops” of drivers of motor vehicles on private property under the common law has not been changed or limited by the Supreme Court’s judgment in in R. v. McColman.

[28] Moreover, the law on whether a police officer needs to have reasonable suspicion or to have reasonable and probable grounds to believe that an offence has been committed or being committed before being able to legally stop a motorist is well settled. It had been held by the Supreme Court of Canada that the police needs neither of these two standards of belief before they are legally permitted to stop and investigate a motorist operating a motor vehicle on a highway if the purpose of the traffic stop is related to road safety. Specifically, in the trilogy of cases of R. v. Dedman, 1985 41 (SCC), [1985] S.C.J. No. 45; R. v. Hufsky, 1988 72 (SCC), [1988] S.C.J. No. 30; and R. v. Ladouceur, 1990 108 (SCC), [1990] S.C.J. No. 53, the Supreme Court has held that police officers may conduct “random stops” of motor vehicles being operated on a highway within the meaning of a specific provincial Highway Traffic Act without having to have any identifiable grounds or cause for the stop where the stop is authorized by law and the purpose of the random stop is related to road safety to check for sobriety, licences, ownership, insurance, and the mechanical fitness of the vehicles.

[29] In all three cases, the Supreme Court had considered whether police officers had the statutory power or power under the common law to legally stop motor vehicles or the motorists operating motor vehicles without having to have any grounds of suspicion or belief that an offence had been committed or was being committed, and whether these random or groundless stops would be an infringement of the Charter.

[30] The first of the random stopping of motor vehicles without cause cases was decided by the Supreme Court in R. v. Dedman, 1985 41 (SCC), [1985] S.C.J. No. 45, which involved the police using R.I.D.E programs or stationary check stops to check for impaired drivers and compliance with traffic laws in Ontario. At that time, there had been no statutory authority that the police could rely on to randomly stop motor vehicles on a highway. However, despite the lack of any statutory authority under the H.T.A. at that time to randomly stop vehicles without cause, Le Dain J., writing for the majority of the Supreme Court, at paras. 65 to 69, found that the police had the authority to randomly stop motor vehicles without cause under their “ancillary police power” that had been derived from their common law duty to preserve the peace, prevent crime, and to protect life and property, from which is derived the duty to control of traffic on the public roads [emphasis is mine below]:

It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property, from which is derived the duty to control traffic on the public roads. See Rice v. Connolly, [1966] 2 Q.B. 414, at p. 419; Johnson v. Phillips, [1975] 3 All E.R. 682, at p. 685; Halsbury's Laws of England, 3rd ed., vol. 30, para. 206, p. 129.

The common law basis of police power has been derived from the nature and scope of police duty. Referring to the "powers associated with the duty", Ashworth J. in R. v. Waterfield, supra, at pp. 661-62, laid down the test for the existence of police powers at common law, as a reflection of police duties, as follows:

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example, in Davis v. Lisle, [1936] 2 All E.R. 213; [1936] 2 K.B. 434, it was held that even if a police officer had a right to enter a garage to make inquiries, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thenceforward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.

The test laid down in Waterfield, while generally invoked in cases in which the issue is whether a police officer was acting in the execution of his duties, has been recognized as being a test for whether the officer had common law authority for what he did. …… The test laid down in Waterfield was treated as authoritative and applied by this Court in R. v. Stenning, 1970 12 (SCC), [1970] S.C.R. 631, and in Knowlton v. The Queen, 1973 148 (SCC), [1974] S.C.R. 443, both cases in which the issue was whether a police officer was in the execution of his duty. In Knowlton, Fauteux C.J., delivering the judgment of the Court, said at p. 446, "Police duty and the use of powers associated with such duty are the sole matters in issue in this appeal", and he concluded at p. 448, "I cannot find in the record any evidence showing that Sergeant Grandish or other police officers resorted, on the occasion, to any unjustifiable use of the powers associated with the duty imposed upon them." Leigh, Police Powers in England and Wales (1975), p. 33, refers to the decision in Knowlton as reflecting a movement towards "an ancillary powers doctrine which would enable the police to perform such reasonable acts as are necessary for the due execution of their duties." In The Wiretap Reference, 1984 31 (SCC), [1984] 2 S.C.R. 697, Dickson J. (as he then was), dissenting, considered the Waterfield test under the heading "The Common Law Powers of The Police", which he referred to as "powers inherent in the execution of a police officer's duty".

In applying the Waterfield test to the random stop of a motor vehicle for the purpose contemplated by the R.I.D.E. program, it is convenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". That is the way it was referred to in Hoffman v. Thomas, supra, and in Johnson v. Phillips, supra. In assessing the interference with this right by a random vehicle stop, one must bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and control for the protection of life and property. Applying the Waterfield test, then, and using the word "liberty" in this qualified and special sense, it may be said that the random vehicle stop in this case was prima facie an unlawful interference with liberty and since it was not authorized by statute. The first question, then, under the Waterfield test is whether the random stop fell within the general scope of the duties of a police officer under statute or common law. I do not think there can be any doubt that it fell within the general scope of the duties of a police officer to prevent crime and to protect life and property by the control of traffic. These are the very objects of the R.I.D.E. program, which is a measure to improve the deterrence and detection of impaired driving, a notorious cause of injury and death.

Turning to the second branch of the Waterfield test, it must be said respectfully that neither Waterfield itself nor most of the cases which have applied it throw much light on the criteria for determining whether a particular interference with liberty is an unjustifiable use of a power associated with a police duty. There is a suggestion of the correct test, I think, in the use of the words "reasonably necessary" in Johnson v. Phillips, supra. 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. 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. I would accordingly hold that there was common law authority for the random vehicle stop for the purpose contemplated by the R.I.D.E. program.

[31] After the release of the Supreme Court’s decision in R. v. Dedman, s. 189a of the H.T.A. [the precursor to the present s. 216(1) of the H.T.A.] was enacted in Ontario, which then provided the police the authority to stop motor vehicles being operated on Ontario highways at any time without cause when it is for the purposes of road safety.

[32] Then in the second case of the trilogy, the Supreme Court had to consider the police use of non-stationary or roving spot check stops in R. v. Hufsky, 1988 72 (SCC), [1988] S.C.J. No. 30. This particular type of “random check stop” was not like the stationary R.I.D.E. program setup where police officers and police vehicles were used at a fixed location to randomly stop and check motorists for sobriety and compliance with traffic laws. In these spot check stops the police were not guided by any criteria, standards, guidelines, or procedures to determine which vehicles should be stopped. The only guideline for the police in using these spot check stops to check motorists for sobriety, licences, insurance, and the mechanical fitness of vehicles was that there had to be at least one marked police vehicle involved in the roving check stop. Therefore, it was left to the discretion of the police in choosing which vehicle to stop. As in R. v. Dedman, the Supreme Court in Hufsky held at paras. 20 and 21 that these roving check stops used by the police were arbitrary detentions that contravened s. 9 of the Charter. However, the Court held that for the reason of highway safety and for the purpose of increasing both the detection of and the perceived risk of being detected of motor vehicle offences, many of which cannot be detected by mere observation of driving, police officers would be permitted to conduct a random stop of a motor vehicle without having any suspicion that an offence has been committed or is being committed, which would be a reasonable limit that is demonstrably justified under s. 1 of the Charter if the stop is conducted in respect to the H.T.A. [emphasis is mine below]:

In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society. The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served. If the stopping of motor vehicles for such purposes is not to be seriously inhibited, it should not, in my respectful opinion, be subjected to the kinds of conditions or restrictions reflected in the American jurisprudence (cf. Delaware v. Prouse, 440 U.S. 648 (1979), and Little v. State, 479 A.2d 903 (Md. 1984)), which would appear seriously to undermine its effectiveness while not significantly reducing its intrusiveness. As for publicity, which was referred to in Dedman in connection with common law authority for a random stop for the purposes contemplated by the R.I.D.E. program, I think it may be taken now that the public is well aware of random stop authority both because of its frequent and widespread exercise and its recognition by legislatures.

For the above reasons I am of the opinion that the random stop of the appellant for the purposes of the spot check procedure was a justified interference with the right not to be arbitrarily detained guaranteed by s. 9 of the Charter, ...

[33] For the last case in the trilogy of “random stop” cases, Cory J. for the majority in R. v. Ladouceur, 1990 108 (SCC), [1990] S.C.J. No. 53 (S.C.C.) had to consider the constitutionality of police officers using roving random check stops under the authority of s. 189a(1) [now s. 216(1)] of the H.T.A. to stop motor vehicles as a matter of routine. In that particular case, the accused motorist, who was later charged with “drive while driver’s licence suspended”, had been stopped by two police officers when there had been no reason or basis of suspicion to stop the motorist. At para. 40, Cory J. writing for the majority, held that the power of a police officer to stop motor vehicles at random is prescribed by law. He also explained that the authority to randomly stop motor vehicles is derived from s. 189a(1) [now s. 216(1)], as well as having been previously justified by the Supreme Court in R. v. Dedman as a prescription of the common law [emphasis is mine below]:

The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) [now s. 216(1)] of the Highway Traffic Act and is thus prescribed by law. See Hufsky, supra, at p. 634. The authority also has been justified by this Court in its decision in Dedman, supra, as a prescription of the common law.

[34] In addition, Cory J. in R. v. Ladouceur, at para. 5, had confirmed Le Dain J.’s majority decision in R. v. Hufsky that had recognized that unlicensed and uninsured drivers are more likely to cause accidents, and that the only way to protect the public from bad drivers and to stop these unlicenced and uninsured drivers from driving on public highways, is to allow the police to randomly stop the drivers of motor vehicles without cause to check for sobriety, licences, insurance and the mechanical fitness of motor vehicles [emphasis is mine below]:

This Court in Hufsky, supra, held that the detention was justified under s. 1 in light of the statistics that were put before the Court relating to unlicensed driving and accidents. Le Dain J. found that these statistics supported the conclusion that unlicensed drivers caused a significantly higher percentage of accidents than licensed drivers. Therefore, extraordinary enforcement measures were justified to eliminate this hazard. In the present case, the Court of Appeal invited the Crown to submit a new record to justify this additional inroad on the rights to be free from arbitrary detention. The Crown submitted volumes of "statistical data, charts and comparable legislation". The Court of Appeal analyzed this data and the majority judgment concludes, at p. 259, that:

... the material submitted does not show that there is a proportionality between the measure taken, i.e., a power to stop motorists at random in order to check whether they have a valid driver's licence, and the admittedly valid government objective of promoting safety on the highways. The only statistical figures concerning unlicensed drivers and higher accident rates shows a correlation between uninsured vehicles and a higher rate of personal injuries, but a reverse correlation as far as property damage is concerned.

[35] Ergo, even though “random roving check stops” of motorists by police officers on a highway, where there is no suspicion of unlawful activity, violates the motorist’s right against arbitrary detention under s. 9 of the Charter, it has been held by the Supreme Court of Canada that it is a reasonable limit of the motorist’s rights under s. 1 of the Charter, if the purposes of the traffic stop is related to road safety and the random stopping of motor vehicles is authorized by law to check on such matters as sobriety, licensing, insurance, and the mechanical fitness of the vehicle: Dedman, Hufsky and Ladouceur.

[36] In short, police officers are permitted to stop any motor vehicle at any time on a highway without reason, as long as it is for road or highway safety purposes to check for sobriety, licensing, insurance, and mechanical fitness. In addition, in R. v. Mellenthin, 1992 50 (SCC), [1992] S.C.J. No. 100 (S.C.C.) at paras. 10 and 15, Cory J. confirmed that the detention of a motorist in a random check stop constituted an arbitrary detention which infringed s. 9 of the Charter, but was justified within the meaning of s. 1, as a means of combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on highways. However, aware that the police could improperly use or abuse the power to randomly stop motorists without cause, Cory J. limited that power by holding that the primary aim of these random check stop programs is to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars, but that the police use of random stop programs should not be extended beyond these aims nor turned into a means of conducting either an unfounded general inquisition or an unreasonable search [emphasis is mine below]:

It was decided in Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, that stopping a vehicle as a part of a R.I.D.E. Program constituted detention. The case arose prior to the passage of the Charter, however the reasoning was relied upon in cases that did take into account Charter rights. In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, it was determined that the detention of the motorist in a random check stop constituted an arbitrary detention which infringed s. 9 of the Charter. However, these decisions held that the random stops were justified pursuant to s. 1 as a means of combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on our highways. In those cases, it was deemed appropriate for the officers conducting a check stop program to pose questions as to the mechanical condition of the vehicle and to require the production of a driver's licence, certificate of ownership and proof of insurance. This does not make a check stop any less a manifestation of police authority. For even the most experienced and sophisticated driver it will create an atmosphere of some oppression. This follows not simply from a consideration of the reasons in Dedman, Hufsky and Ladouceur but is a matter of common sense. There can be no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to respond to questions from the police.

… 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.

[37] Therefore, in respect to the defendant, if Officer Crispin had lawfully executed her duties, responsibilities, and powers as a police officer which are provided under the common law or by statute in conducting a random stop of the defendant on a “highway” as defined under the H.T.A., even though the arbitrariness of the “random stop” would contravene the defendant’s rights to be free from arbitrary detention under s. 9 of the Charter, it would nonetheless be a justified limitation of the defendant’s right against arbitrary detention under s. 1 of the Charter, since the random stop had been prescribed by law and the stop had been for road or highway safety purposes. However, the defendant’s motor vehicle had been situated fully on a private driveway and had not been on a “highway” as defined under the H.T.A., when the purported open package of cannabis had been observed inside the defendant’s vehicle by Officer Crispin. As such, the law in respect to a police officer being permitted to lawfully enter onto private property has to be reviewed and considered.

(4) Under What Situations Can A Police Officer Lawfully Enter Onto Private Property?

[38] Despite not having the authority to conduct “random vehicular stops” on private property for a sobriety check under s. 48(1), the Supreme Court in R. v. McColman, at para. 49, did however recognize that a police officer can lawfully follow a motorist from a public roadway onto a private driveway for a sobriety check under s. 48(1) of the H.T.A., if the police officer has formed the opinion that he or she has “reasonable and probable grounds” to stop and check a motorist for sobriety prior to the motorist leaving the roadway and driving onto the private driveway. Furthermore, the Supreme Court in R. v. McColman also noted that police officers are not barred from randomly stopping and investigating motorists on “private property” in all circumstances [emphasis is mine below]:

First, random sobriety stops are not the only tool available to police to combat impaired driving. While police officers may not conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the HTA, they may stop drivers if they have reasonable and probable grounds: Ladouceur, at p. 1287. This judgment does not constitute a blanket ban on police stops of drivers on private property. Various factual scenarios might give rise to reasonable and probable grounds. For example, if a driver is driving erratically, a police officer may have reasonable and probable grounds to pursue the driver onto private property. In addition, as the majority at the Court of Appeal noted, a "true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances": para. 42. Thus, police officers are not barred from stopping drivers on private property in all circumstances.

[39] Hence, police officers are allowed to enter onto private property when the police officers are engaged in the lawful execution of their duties and responsibilities and that police officers may also pursue a driver of a motor vehicle onto private property if the officers have reasonable and probable grounds to stop the driver by virtue of s. 48(1), s. 216(1), or otherwise under the common law.

(a) The importance of highway safety and the role it plays in justifying the authority of the police to randomly stop motorists without cause for the purpose of increasing both the detection of motor vehicle offences and for deterring unlicenced and uninsured drivers from operating motor vehicles on highways.

[40] The “random stopping” of motorists was accepted by the Supreme Court in R. v. Mellenthin, 1992 50 (SCC), [1992] S.C.J. No. 100, at para. 10, to be a reasonable means justified under s. 1 of the Charter for combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on public highways [emphasis is mine below]:

It was decided in Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, that stopping a vehicle as a part of a R.I.D.E. Program constituted detention. The case arose prior to the passage of the Charter, however the reasoning was relied upon in cases that did take into account Charter rights. In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, it was determined that the detention of the motorist in a random check stop constituted an arbitrary detention which infringed s. 9 of the Charter. However, these decisions held that the random stops were justified pursuant to s. 1 as a means of combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on our highways. In those cases, it was deemed appropriate for the officers conducting a check stop program to pose questions as to the mechanical condition of the vehicle and to require the production of a driver's licence, certificate of ownership and proof of insurance. …

[41] Furthermore, from the data presented as evidence in R. v. Hufsky, the Supreme Court of Canada, at paras. 19 and 20, accepted the statistical conclusion that there is a relatively higher proportion of unlicensed and uninsured drivers as compared to licensed and insured drivers that are involved in motor vehicle accidents resulting in death or personal injury. Also, based on the statistical evidence, the Supreme Court had acknowledged that motor vehicle offences, such as driving without a licence or while under licence suspension or without insurance, could not be detected by observation of the driving, and that allowing the police to conduct random stops of motorists was justified for the purpose of increasing the detection of motor vehicle offences and as an effective deterrent by increasing the perceived risk to such unlicenced and uninsured drivers that they will detected of committing such offences [emphasis is mine below]:

The above material reinforces the impression of the gravity of the problem of motor vehicle accidents in terms of the resulting deaths, personal injury and property damage, and the overriding importance of the effective enforcement of the motor vehicle laws and regulations in the interests of highway safety. The charts or tables prepared by the respondent from the statistical data in the government reports stress the following points: the relative importance of licence suspension and the effective enforcement of it; the relatively higher proportion of unlicensed and uninsured drivers, by comparison with the proportion of licensed and insured drivers, involved in motor vehicle accidents resulting in death or personal injury; and the relative importance of the motor vehicle offences, including driving without a licence or while under licence suspension or without insurance, which cannot be detected by observation of the driving. Again, a random stop authority is said to be justified by increasing the perceived risk of the detection of such offences.

In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society. The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served. …

[42] Moreover, in R. v. Ladouceur, 1990 108 (SCC), [1990] S.C.J. No. 53 (S.C.C.), at paras. 42 to 48, Cory J. for the majority, concluded that as a legislative objective, the power of the police to randomly stop motor vehicles without suspicion of unlawful activity provided for under s. 189a of the H.T.A. [now s. 216(1)] is a limitation that is of sufficient importance to warrant overriding the constitutional right against arbitrary detention under s. 9. In reaching this conclusion, Cory J. relied on statistics to highlight the potential for killing, for injury and for material destruction, which is associated with the operation of automobiles, but that the potential for harm on highways could be reduced and directly pertinent to the question of random stops, and that the statistical evidence had demonstrated a positive correlation between unlicensed driving and an increased risk of serious highway accidents [emphasis is mine below]:

There cannot be any serious doubt that the legislation in question deals with a pressing and substantial concern. The statistics paint a depressing picture of the killing and maiming that results from the operation of motor vehicles on the streets and highways of the nation. The evidence filed vividly demonstrates the validity of the pressing and substantial nature of the concern.

It shows that between 1980 and 1984, the number of accidents reported in Ontario came within the range of 182,000 to almost 200,000. These accidents resulted in the death of well over 1000 persons, as well as injuries to more than 90,000 others, in each of these years. In 1984 alone, the amount of estimated property damage reached close to $500 million (Ontario Motor Vehicle Accident Facts: 1980, 1981, 1982, 1983 and 1984). These excerpts highlight the potential for killing, for injury and for material destruction which is associated with the operation of automobiles. It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.

The evidence also reveals a more specific pressing and substantial concern pertaining to particular and precise aspects of driving a motor vehicle. These statistics relate to areas where the probability of accidents can be reduced. They are therefore directly pertinent to the question of random stopping. The mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver are the three primary and specific areas of concern. Each of the three represents a significant component of the aggregate accident figures. These factors, which are pre-requisites to the safe operation of a motor vehicle, can be readily identified and, if they can be controlled, then accidents causing death and injury will be reduced. It is therefore a very legitimate goal to strive by legislation to control and eradicate those dangerous factors thereby reducing the terrible toll of highway accidents.

The mechanical fitness category comprises, among other things, the working condition of headlights, brakes and seat belts. The statistics concerning the use of seat belts provide an interesting example. The evidence indicates that both drivers and passengers have a much better chance of escaping injury in a car accident when wearing seat belts. In 1984, the likelihood of escaping injury was almost 20 percent better for drivers wearing seat belts. Moreover, the severity of injury was significantly lessened amongst those who did get injured (Ontario Motor Vehicle Accident Facts: 1984).

In addition, significant weight must be given to the statistical evidence that demonstrates a positive correlation between unlicensed driving and an increased risk of serious highway accidents. In 1984, for example, there were 330,000 reported automobile accidents in Ontario, 1500 of which resulted in fatalities. Of the total of 330,000, over 6,000 (roughly 2 percent) involved unlicensed drivers. However, in what I consider a truly astounding figure, of the 1,500 fatal accidents, over 100 (or roughly 7 percent) involved unlicensed drivers. In other words, in accidents involving licensed drivers, the probability of fatalities was 214 to 1, while for unlicensed drivers the same probability was 59 to 1. The same type of comparison for insured and uninsured vehicles involved in fatal accidents yielded results which were almost as marked. To drive without proper insurance increases the chances of involvement in fatal accidents from 212 to 1 to 83 to 1 (Ontario Motor Vehicle Accident Facts: 1984). The statistics for 1982 and 1983 reveal a comparable pattern.

The only method of ensuring that the brakes and seat belts are operational is by stopping and checking vehicles. Of even greater importance is to determine if a driver is licensed and insured. Once again this can only be done by stopping vehicles. The unlicensed driver is a statistically proven menace on the highways. Moreover, such a driver has demonstrated a contempt for the law and an irresponsible attitude as well as a marked propensity to being involved in serious accidents. All users of the highways have an interest in seeing that unlicensed drivers are apprehended and removed from the highway. As well, society as a whole has an interest in reducing the cost of medical, hospital and rehabilitation services which must be provided to accident victims and in minimizing the emotional damage suffered by the victims' families. Surely the preventive medication of requiring drivers to stop provided by s. 189a(1) is preferable to the incurable terminal tragedy represented by the fatal accident victim and the permanently disabled victim. Surely it must be better to permit the random stop and prevent the accident than to deny the right to stop and repeatedly confirm the sad statistics at the morgue and hospital. The majority reasons of United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 (1979), finding random stops unconstitutional, were specifically rejected in Hufsky. However, the position on this issue was well put by Rehnquist J. (as he then was) in his dissenting reasons, at p. 666:

The State's primary interest ... is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The [majority of the United States Supreme] Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.

Another facet of the proper legislative goal of safety on the highways is the reduction of impaired driving. The studies on this subject have been well publicized over recent years. Once again, the evidence is overwhelming in its confirmation of the relationship between serious accidents and driving under the influence of alcohol or other drugs. In 1984 the presence of alcohol and drug use as a percentage of the total number of accidents rose from 8 percent for all accidents to 10 percent for accidents involving injuries, and even higher to 31 percent in accidents involving fatalities (Ontario Motor Vehicle Accident Facts: 1984). This correlation became the justification for widespread campaigns aimed at educating people about impaired driving, and at organized random stop programs like R.I.D.E. in larger centres aimed at reducing the incidence of impaired driving.

[43] Cory J. also found in R. v. Ladouceur, at paras. 52 to 55, that random stops of motor vehicles authorized under s. 189a of the H.T.A. [now s. 216(1)], as a legislative objective, is rationally connected and carefully designed to achieve safety on the highways. and that random stops would impair as little as possible the rights of the driver [emphasis is mine below]:

In my view the random stop is rationally connected and carefully designed to achieve safety on the highways. The stops impair as little as possible the rights of the driver. In addition, the stops do not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights.

To begin with, it has been observed that not only is the stopping of vehicles rationally connected to highway safety, it is the sole method of checking a driver's licence and insurance, or the mechanical fitness of a vehicle or whether the driver is impaired. It should be remembered that when penalties are imposed for driving offences, the suspension of the driver's licence often plays a significant role. In addition, with the suspension of the driver's right to drive, society remains protected when the court decides in appropriate cases to impose a lighter jail term to the benefit of the offender. In order for licence suspensions to be effective as a means of punishment, they must be enforceable. To permit those whose licence is suspended to drive creates both a danger to society and fosters a contempt for the law by the ease of infringement. There must be a real element of risk of detection of driving by unlicensed drivers for the suspension of a licence to be an effective remedy. Random stops supply the only effective deterrent.

Deterrence is thus a critical aspect of the routine check. As Rehnquist J. put it in Delaware v. Prouse, supra, at p. 666, "an unlicensed driver who is not deterred [merely] by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check." In other words, while a driver might be willing to chance driving without a licence where the factors leading to being caught are more or less within the driver's control, a random routine check is outside of this controllable range and might deter the unlicensed driver from getting behind the wheel.

The evidence indicates that, in 1984, 1 in 37 drivers in the province of Ontario were serving licence suspensions (Ontario Motor Vehicle Accident Facts: 1984). With such a large number of suspended drivers in the province, the goal of deterring them from driving illegally necessitates more than just the organized random stop or stop for articulable cause. R.I.D.E. locations are frequently well-known or visible in advance, allowing an offender to avoid the organized stop. Without random routine checks, impaired drivers could easily avoid the consequences of their dangerous misconduct. One commentator has described the routine check as "the predominant pro-active policing technique to deal with drinking drivers": Segal, "R. v. Hufsky: Random Spot Check Programmes" (1989) 1 J.M.V.L. 34, at p. 44.

(b) Police officers cannot use their statutory powers under [ss. 48(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) and [216(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) of the [H.T.A.](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) to randomly stop motorists without cause in a parking lot on private property.

[44] Since s. 48(1) of the H.T.A. expressly refers to a “driver”, to which the definition of a “driver” under s. 1(1) of the H.T.A. means a person who drives a vehicle on a “highway”, and as s. 216(1) also expressly refers to a “driver”, then the police can only rely on the random stopping power contained in ss. 48(1) and 216(1) of the H.T.A. to stop motorists on a “highway” within the meaning of the H.T.A., even where the police do not have reasonable and probable grounds to suspect that an offence has been or is being committed [emphasis is mine below]:

1(1) In this Act,

“driver” means a person who drives a vehicle on a highway; …

“highway” includes 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 the passage of vehicles and includes the area between the lateral property lines thereof; (“voie publique”)

[45] Moreover, in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253 (O.C.A.), at paras. 12 and 13, Doherty J.A. considered that not only would the H.T.A. be limited only to a “highway” as defined under s. 1(1) when reference in a provision expressly referred to an act or omission having to occur on a highway, a specific provision of the H.T.A. would also be limited to only apply to a highway when there is expressed reference to a “driver” committing the act or omission instead of just the act or omission being committed by a person [emphasis is mine below]:

Other words used in the HTA are defined using the word "highway". In doing so, those words arguably incorporate within their definition the limitation found in the definition of "highway". "Driver" and "roadway" are two examples. According to s. 1(1) of the HTA:

"driver" means a person who drives a vehicle on a highway;

"roadway" means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of the roadways collectively[.]

Thus, for example, s. 48, which allows a police officer to "require the driver of a motor vehicle to stop" for a specified reason, arguably has application only on highways as defined in the HTA since, by definition, "driver" 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.

[46] And, in respect to whether police officers can use the statutory power under the H.T.A. to randomly stop motorists on parking lots on private property for purposes of traffic safety, Molloy J. in R. v. Dillon, [2006] O.J. No. 1366 (Ont. S.C.J.), has confirmed at paras. 22 and 23, that the power of police officers under ss. 48(1) and 216(1) of the H.T.A. to randomly stop motorists without cause only applies to stopping motor vehicles being operated on a “highway” within the meaning of the H.T.A. and has no application to parking lots on private property. However, Molloy J. held that if the police wish to justify detaining the accused motorist on a parking lot on private property, then they must be able to show that the detention had been made pursuant to a “common law power” [emphasis is mine below]:

Police Action Would Be Proper if on Public Roadway

In R. v. Ladouceur (1990), 1990 108 (SCC), 56 C.C.C. (3d) 22 (S.C.C.) the Supreme Court of Canada considered the constitutionality of police stopping a motorist randomly as a matter of routine, without any suspicion of a driving or other offence, and with no other particular reason for the stop. The Crown sought to justify the detention as authorized under what was then s. 189a of the Highway Traffic Act. The Supreme Court held that such a stop, although authorized by the Highway Traffic Act was an arbitrary detention and therefore a violation of s. 9 of the Charter. However, the Court went on to find this was a reasonable limit prescribed by law and therefore saved under s. 1 of the Charter. Thus, if Mr. Dillon had exited the parking lot and then been stopped by the police on Wilson Avenue, it is clear his detention would have been lawful. Likewise, if he were sitting in a car parked at the curb on Wilson Avenue, rather than a few meters south in the parking lot, his detention would have been lawful.

However, the parking lot in which Mr. Dillon was detained was private property and the Highway Traffic Act therefore has no application. The police here cannot rely on any statutory power, general or otherwise, to stop motorists on a roadway. Therefore, in order to justify the detention, they must be able to show it was made pursuant to a common law power.

(c) Police Officers May Randomly Stop Motorists In Parking Lots On Private Property To Check For Sobriety Using Their “Ancillary Police Powers” Derived From Their Duty Under The Common Law To Prevent Crime And To Protect Life And Property By Controlling Traffic.

[47] Furthermore, in deciding whether the police could use their “ancillary police powers” under the common law to randomly stop a motorist in a parking lot on private property to check for sobriety, Molloy J. held in R. v. Dillon, at paras. 23 to 27 and 34, that the police could use such power, since there was no apparent rationale that could be found for limiting the common law police powers to detain someone for investigative purposes that would be based on the location of the detention. In addition, Molloy J. also confirmed that since the H.T.A. had no application to the parking lot on private property where the accused motorist had been detained, then the police could not rely on the statutory power set out in ss. 48(1) or 216(1) of the H.T.A. that authorizes the random stopping of motorists on a “highway” in respect to stopping the accused motorist in a parking lot on private property, and had to instead justify the detention of the motorist in a parking lot under a “common law” power. Molloy J. then explained that the common law recognizes an “ancillary police power” to detain for investigative purposes, but that the power is not unlimited. Furthermore, to determine whether the police in detaining a person for investigative purposes would be justified, Molloy J. confirmed that there is a two-pronged analysis that has to be used, which had been established by the Supreme Court of Canada in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308, when the officer's conduct is prima facie an unlawful interference with an individual's liberty or property. For the first stage of the analysis, Molloy J. explained that the police conduct in question has to fall within the general scope of any duty imposed on the police officer by statute or common law and that detecting impaired drivers and preventing them from operating cars on highways would fall within the scope of those police duties. And, for the second stage of the analysis, Molloy J. clarified that the prosecution must demonstrate that the police conduct was a justifiable use of the powers associated with the duty, which would require a balancing of interests between the protection of the public by police carrying out their duty to prevent crime and the protection of the liberty interests at stake [emphasis is mine below]:

However, the parking lot in which Mr. Dillon was detained was private property and the Highway Traffic Act therefore has no application. The police here cannot rely on any statutory power, general or otherwise, to stop motorists on a roadway. Therefore, in order to justify the detention, they must be able to show it was made pursuant to a common law power.

Investigative Detention at Common Law: The Application of R. v. Dedman

Our common law recognizes an ancillary police power to detain for investigative purposes. That power, however, is not unlimited. The Supreme Court of Canada has adopted the test for the exercise of the common law powers as expressed by the English Court of Appeal in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.). This involves a "two-pronged analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property": R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) at para 24.

The first stage of the analysis requires a consideration of whether the police conduct falls within the general scope of any duty imposed on the officer by statute or common law. The police have a duty to investigate crime and to protect life. Detecting impaired drivers and preventing them from operating cars on our highways is within the scope of those police duties: R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2, 20 C.C.C. (3d) 97, 20 D.L.R. (4th) 321. In the case before me, the two officers were motivated by a concern about a potential impaired driver. Although he was not operating on the roadway, he was in a parking lot of an establishment that had closed, or was about to close, and his engine was running. It was a reasonable inference that his entry onto the public roadway was imminent. Their investigation of Mr. Dillon was therefore within the general scope of their police duty.

At the second stage of the analysis, the prosecution must demonstrate that the police conduct was a justifiable use of the powers associated with the duty. This requires a balancing of interests between the protection of the public by police carrying out their duty to prevent crime and the protection of the liberty interests at stake. The court must consider the necessity and reasonableness of the interference with liberty, as assessed in light of the nature of the liberty interfered with and the importance of the public purpose served: Mann at para 26.

The Supreme Court has consistently held that the brief detention of motorists to check for driver's licenses, mechanical fitness and/or sobriety is a minimal infringement of liberty when seen in the context of the extreme danger represented by unlicensed or impaired drivers on the roads: Dedman; R. v. Hufsky (1988), 1988 72 (SCC), 40 C.C.C. (3d) 398, [1988] 1 S.C.R. 621, 63 C.R. (3d) 14; Ladouceur; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. The Court's decision in Dedman is of particular relevance to the case before me. At issue in that case was whether the authority of police to randomly stop motorists to check for sobriety as part of the R.I.D.E. program. This was prior to the enactment of the provision of the Highway Traffic Act giving police a general power to stop motorists, which was the provision at issue in Ladouceur and Hufsky. Since there was no statutory authority for stopping motorists under the R.I.D.E. program, the Dedman decision turned on the investigative detention power of the police at common law, essentially the issue before me.

Dedman Test Applies to Detention in Parking Lot Open to the Public

The next consideration is the impact, if any, of the fact that the detention occurred on private property rather than on the highway. I do not see any rationale for limiting the common law police powers to detain for investigative purposes based on the location of the detention in this case.

[48] It should also be emphasized that in R. v. Vandergriendt, [2014] O.J. No. 2943 (Ont. C.J.), at paras. 6 to 9, Duncan J. had held that he was bound by Molloy J.’s decision in R. v. Dillon, [2006] O.J. No. 1366 (Ont. S.C.J.), that had held that the police have the common law authority to stop and detain motorists for purposes related to highway safety concerns, that this common law stopping authority has no spatial limitations, and that it may be lawfully exercised in locations excluded from the scope of a statutory stopping power, such as parking lots on private property. Furthermore, Duncan J. held that the enactment of the statutory authority in ss. 48 and 216 of the H.T.A. for the police to conduct random traffic stops of motorists did not supplant or remove the common law authority to “randomly stop” motorists for the purposes of highway safety that had been recognized before those enactments. Duncan J. had also disregarded the holdings in R. v. Tresham 1998 14756 (ON SC), [1998] O.J. No. 1744, in R. v. Sergalis [2009] O.J. No. 4823 (Ont. S.C.J.), and in R. v. Lux , [2012] S.J. No. 796 (Sask. C.A.), because those decisions did not consider the possibility that the police had the power to randomly stop motor vehicles on parking lots on private property under their “ancillary police power” to randomly stop motor vehicles, which had been derived from the duty of the police under the common law to prevent crime and to protect life and property [emphasis is mine below]:

Common law and parking lots:

Apart from statute, the police have common law authority to stop and detain motorists for purposes related to highway safety concerns. The authority has no spatial limitations. It may be lawfully exercised in locations excluded from the scope of a statutory stopping power, including parking lots: R. v. Dillon [2006] O.J. No. 1366 (Sup Crt Molloy J).

The Dillon case is binding on me. In any event I agree with it, as have other courts: R v Mclelland [2012] O.J. No. 6022 (Sup Crt Tulloch J). No case to the contrary has been brought to my attention. While counsel has cited R v Tresham supra and R v Sergalis (2009) 90 MVR 5TH 116 (Ont Sup Crt) and the Saskatchewan case of R v Lux 2012 SKCA 129, none of these cases makes any reference to possible common-law authority and therefore, having not considered the point, do not support any view that conflicts with Dillon.

I can add little to the analysis in Dillon except the observation that police officers in Ontario have the duties and powers ascribed to a constable at common law (Police Services Act s 42(3). Their common law and statutory powers are cumulative. The enactment of statutory authority in sections 48 and 216 did not supplant or remove the common law authority that had been recognized before those enactments.

[49] Moreover, the accused in R. v. Vandergriendt, [2014] O.J. No. 2943 (Ont. C.J.), had appealed Duncan J’s decision. After hearing the accused’s appeal, Dawson J. then held In R. v. Vander Griendt, [2015] O.J. No. 5675 (Ont. S.C.J.) [the name of the accused had been spelled as “Vandergriendt” in the trial judgment and “Vander Griendt” in the appeal judgment], at para. 34, that both the trial judge and Molloy J. in R. v. Dillon [2006] O.J. No. 1366 (Ont. S.C.J.) had been right to ask at the outset whether the detention was lawful, and if it were lawful, then it would not be arbitrary. That being the case, Dawson J. recognized at para. 34 that it had been logical to start with the decision in R. v. Dedman where the Supreme Court’s had found that, even in the absence of a statutory provision, the police still had the “common law power” to stop vehicles at random to check the sobriety of drivers, which had been found to exist based on the two pronged Waterfield test:

In view of these statements of principle it seems to me that both the trial judge and Molloy J. in Dillon were right to ask at the outset whether the detention was lawful. If it was lawful it was not arbitrary. That being the case it was logical to start with Dedman where the court found that, in the absence of a statutory provision, the police had a common law power to stop vehicles at random to check the sobriety of drivers. That power was found to exist based on the two pronged Waterfield test.

(d) Police Officers Are Only Permitted To Ask The Motorist Questions In Respect To Driving Offences If There Is No Suspicion That A Criminal Offence Has Been Or Is Being Committed.

[50] In R. v. Ladouceur, at para. 60, Cory J. writing for the majority of the Supreme Court, held that the only questions that may justifiably be asked of the motorist during the random traffic stop are those related to driving offences unless the police officer has reasonable and probable grounds to conduct more intrusive procedures [emphasis is mine below]:

Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.

[51] In the case at bar, Officer Crispin had originally approached the defendant sitting in the driver’s seat of a motor vehicle with its engine running on a private driveway for the purposes of a criminal investigation of a suspected impaired driver of the defendant’s motor vehicle when Officer Crispin had observed an open package of cannabis in the center console area of the defendant’s Honda Accord motor vehicle when the defendant exited her motor vehicle. Thus, Officer Crispin’s initial investigation had been related to someone operating the defendant’s motor vehicle while being suspected of being impaired by alcohol or drug, and as such, it had not been a random stop to investigate a motorist, but had been for checking the sobriety of the defendant, who had been sitting in the driver’s seat of a motor vehicle with its engine running that had been the suspect motor vehicle on an impaired driving call, and which had been initially related to a suspected criminal offence. Moreover, the initial investigation of the person inside the Honda Accord motor vehicle would also fall within the scope of Officer Crispin’s police duties. More importantly, Officer Crispin’s observation through the front driver’s door of the purported open package of cannabis had been made after the defendant had exited her vehicle, which had been also before Officer Crispin had obtained the defendant’s driver’s licence and before Officer Crispin had determined that the defendant had not been impaired by alcohol or drug.

(e) The Public Has Implied Permission To Enter Onto Private Property Under The [Trespass To Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t21/latest/rso-1990-c-t21.html).

[52] Under s. 3(2) of the Trespass To Property Act, there is a presumption that no one is prohibited from having access to the door of a building on a property by a means apparently provided and used for the purpose of access for lawful purposes:

Implied permission to use approach to door

3(2) There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited.

(f) Police Officers And The Public Have An Implied Invitation To Enter Onto Private Property Under The Common Law.

[53] This issue about the legality of the police entering onto private property to investigate an individual was raised and considered by the Court of Appeal for Ontario in R. v. Lotozky, 2006 21041 (ON CA), 81 O.R. (3d) 335 (Ont. C.A.). In that case, the Court of Appeal had to consider whether police officers, who had reasonable grounds to suspect a motorist of being impaired, are entitled to walk a short distance up a driveway to further their investigation and whether the fruits of their investigation would be inadmissible for infringing the accused’s right to be secure from unreasonable search and seizure under s. 8 of the Charter. At trial, the accused Lotozky had challenged the power of the police officer to enter onto the accused’s parents’ driveway without a search warrant to investigate the accused while the accused was sitting in his motor vehicle that was stopped in the driveway, by arguing that this police conduct had infringed his reasonable expectation of privacy.

[54] For the specific circumstances in R. v. Lotozky, the police officers had received a radio call about a suspected impaired driver and were given the licence plate number for the motor vehicle being driven by the suspected impaired driver. The officer had determined the address of the registered owner of the vehicle and waited outside the front of the house registered to the owner of the suspect vehicle. A short time later, the police officers observed a vehicle being driving in an odd manner as it approach their location where they were parked. The vehicle then turned onto the driveway of the house for the registered owner of the suspect vehicle. The officers then walked up the driveway and asked the driver questions while the driver and vehicle were on the private driveway. The police officers then formed the opinion that the driver’s ability to drive was impaired by alcohol and the driver was arrested for that offence and removed from the property. At trial, the accused driver argued that his s. 8 Charter rights had been infringed. The trial judge agreed with the accused that his right against unreasonable search and seizure had been infringed and the fruits of the police officers’ investigation were excluded. The Crown then appealed.

[55] Rosenberg J.A., writing for the Court of Appeal in R. v. Lotozky first noted at paras. 14 to 19, that Binnie J. for the Supreme Court in R. v. Tessling, 2004 SCC 67, [2004] S.C.J. No. 63, had identified three notions of privacy which are personal, territorial, and informational privacy. And, for the situation of a police officer entering onto private property to investigate an individual, Rosenberg J.A. noted that not every trespass onto private property by police would constitute a search, nor would he consider the police to be trespassing on a driveway that is open to public view for the purposes of a search or seizure. Furthermore, Rosenberg J.A. also reasoned that a police officer merely walking onto a driveway, even with the intent to conduct an investigation involving the owner does not constitute a sufficient intrusion to be considered a search, and would require something more, as in the perimeter search cases, such as the police officer peering in windows of the home and trying to detect odours from within the home. Rosenberg J.A. also held that asking routine questions of a motorist about licencing, ownership, and insurance would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy. However, Rosenberg J.A. did emphasize that in most cases the search and seizure threshold is not crossed until the breathalyzer demand is made. Furthermore, Rosenberg J.A. also commented that para. 41 of R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 (S.C.C.), would assist in clarifying the notion that checking sobriety of drivers is lawful at common law. In addition, Rosenberg J.A. reasoned that if the police conduct had been unlawful then it was only because it had taken place on the driveway as opposed to a public highway. However, Rosenberg J.A. concluded that the police were not unlawfully on the driveway, even though the police had questioned the respondent on his parents’ driveway to check the accused’s sobriety, so as such, it did not render that particular investigative technique unlawful [emphasis is mine below]:

In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 189 C.C.C. (3d) 129, the Supreme Court of Canada identified three notions of privacy, namely: personal, territorial and informational privacy. In Tessling, which involved use of infrared technology to detect heat emanations from a private home, both territorial and informational privacy were implicated. In that case, Binnie J. concluded that the external pattern of heat distribution on the external surfaces of a house is not information in which the homeowner has a reasonable expectation of privacy. Interestingly, in reaching that conclusion, he looked at the nature of the intrusion as a facet of the reasonable expectation of privacy analysis on the theory, it seems, that "privacy 'is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual'" (referring to Schreiber v. Canada (Attorney General), 1998 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, at para. 19).

In this case, at least until the breathalyzer demand, the respondent invokes only territorial privacy. He says that he has a reasonable expectation of privacy while sitting in his car in his parents' driveway. He does not expressly identify the intrusion that he says interfered with that reasonable expectation. He says simply that the police conduct infringed that reasonable expectation of privacy.

It seems to me that there are four elements to the police conduct. First, the police walked on to the driveway. Second, the police tapped on the window to get the respondent's attention. Third, the police questioned the respondent about his licence, ownership and insurance. Fourth, the police made the breathalyzer demand. The conduct at the two ends of the spectrum can most easily be categorized.

The breathalyzer demand was clearly a search or seizure. The police sought by demand personal information. That demand was, however, authorized by law and there was no attack on either the validity of the demand or the validity of the legislation authorizing the demand. If, however, the police were trespassing at the time they made a demand, it might be argued that the demand was an unreasonable search and seizure. In R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 278 S.C.R., Lamer J. held that a search will be reasonable "if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable". It might be argued that the search was not carried out in a reasonable manner if the police were trespassers at the time they made the demand.

At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure.

As regards the other two aspects of the police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search. Asking routine questions of a motorist about licence, ownership and insurance similarly would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy. See R. v. Grant, 2006 18347 (ON CA), [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at para. 36. Finally, cases concerning questioning of motorists in drinking and driving situations have turned on issues such as right to counsel and detention, not search and seizure. See most recently: R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481. Obviously, the fact that the courts have not dealt with this element of the drinking and driving paradigm as a search issue is not determinative, but it does suggest to me that in most cases the search and seizure threshold is not crossed until the breathalyzer demand is made. Elias, at para. 41, is also helpful in clarifying that checking sobriety of drivers is lawful at common law. If the police conduct was unlawful in this case it was only because it took place on the driveway as opposed to a public highway. Since, as I explain below, I have concluded that the police were not unlawfully on the driveway, the fact that they questioned the respondent on his driveway to check his sobriety did not render that particular investigative technique unlawful.

[56] In addition, Rosenberg J.A., at paras. 20 to 30, and 35 to 37, in R. v. Lotozky, held that the entrance by the police onto the Lotozky driveway was justified by the “implied licence” doctrine as explained in R. v. Tricker (1995), 1995 1268 (ON CA), 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198 (Ont. C.A.), that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come onto the occupier’s property, but that this implied licence ends at the door of the dwelling house. In addition, Rosenberg J.A. referred to Galligan J.A.’s holding in R. v. Tricker where it was held that a police officer carrying out the statutory mandate under the H.T.A. to obtain reasonable identification of a motorist had a lawful reason to speak to the motorist. Therefore, it had been held by Galligan J.A. that when the police officer had entered onto the driveway to obtain the motorist’s identification, the police officer had been within the ambit of the implied licence recognized by the common law, but that the property owner was also entitled to withdraw that licence to enter, and if the property owner did so before grounds for lawful arrest come into existence, the police officer would have been required to leave. Rosenberg J.A. also recognized that it would not be good policy to interpret the law so as to encourage motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase [emphasis is mine below]:

Accordingly, I am of the view that the violation of the respondent's s. 8 rights must relate to the fact that the police made the demand while they were on private property. If, contrary to the findings of the trial judge and the appeal judge, the police were lawfully on the property when they made the demand, the search was reasonable having been authorized by a reasonable law and carried out in a reasonable manner.

As I have said, Crown counsel offers three different bases for justifying the officers entering on to the driveway. I find it unnecessary to consider the second and third bases since I am satisfied that the entrance on to the driveway was justified by the implied licence doctrine. In my view, this court's decision in R. v. Tricker (1995), 1995 1268 (ON CA), 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198 (C.A.) is determinative of this issue.

Tricker was a police officer charged with manslaughter. While on routine patrol, he saw a car speeding on a residential street. The car drove on to a private driveway and into a garage. Constable Tricker followed the car and parked on the driveway. There was a confrontation on the driveway between the officer and the deceased. The evidence as to what occurred was confusing. However, on one version of the evidence, the officer told the deceased that he had been speeding and asked him for his licence and insurance papers. The deceased refused to produce them and ordered the officer off his property. When the deceased refused to identify himself, the officer attempted to arrest him. The two struggled and the struggle continued into the deceased's home where unfortunately the deceased died while the officer was attempting to restrain him. The officer was convicted of manslaughter. One of the crucial issues was whether the officer had a lawful reason for being on the driveway. The Crown contended that the officer was a trespasser from the moment he entered on to the driveway. This court disagreed.

Speaking for the court, Galligan J.A. held at p. 579 O.R., p. 203 C.C.C. that "the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling [house]". He further held at p. 580 O.R., p. 204 C.C.C. that a police officer carrying out the statutory mandate under the Highway Traffic Act to obtain reasonable identification of a motorist has lawful reason to speak to the person. Therefore, when the officer entered on to the driveway to obtain the deceased's identification he was "within the ambit of the implied licence recognized by the common law" [at p. 580 O.R., p. 204 C.C.C.]. Galligan J.A. noted that the property owner was entitled to withdraw the licence and if he did so before grounds for lawful arrest came into existence, the officer would have been required to leave.

In this case, the respondent never asked the officers to leave his parents' driveway. Thus, if the implied licence doctrine applied, the officers were lawfully on the property and there could be no violation of s. 8. The respondent submits that the implied licence doctrine articulated in Tricker has been limited by the subsequent decision of the Supreme Court of Canada in Evans.

In Evans, the police had received an anonymous tip that the accused were growing marijuana in their home. After an investigation that did not disclose any illegality, the officers decided to knock on the door and question the occupants regarding the complaint. They knocked on the door and when one of the accused opened the door, the officers smelled marijuana. They arrested the accused.

Sopinka J. speaking for the majority at para. 13 referred to this court's decision in Tricker [at p. 579 O.R.] and quoted with approval this excerpt from that case:

The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939.

Sopinka J. then drew this conclusion [at para. 13]:

As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.

Two issues present themselves. First, when are police acting in accordance with the implied invitation? Second, do the same limitations on the implied invitation doctrine apply to the driveway as to the dwelling house?

In resolving these issues I think it important to bear in mind the differences between this case and Tricker and the Evans case. In the Evans case, the conduct sought to be brought within the implied licence doctrine was the knocking on the door of the dwelling house to investigate a criminal offence. In Tricker and in this case, the conduct sought to be justified was investigation on a driveway. Thus, in Evans, after referring to Tricker, Sopinka J. applied the implied licence doctrine to the police actions in conducting an investigation that required questioning of the occupant in his own home. This case and Tricker, however, do not include the greater level of intrusion found in Evans and do not depend upon licence to question occupants of the dwelling house, only to conduct an investigation on the driveway.

To return to Evans, Sopinka J. held at para. 15 that in determining the scope of activities that are authorized "by the implied invitation to knock" it is important to bear in mind the purpose of the implied invitation. He held that the implied invitation to knock is "to facilitate communication between the public and the occupant" [emphasis added]. At para. 16, he found that the police approached the home "not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them". He concluded as follows:

Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock. (Emphasis added)

At para. 18, Sopinka J., after referring to the participant surveillance cases, summed up the law in this way:

Similarly, where the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant's home. Since the implied invitation is for a specific purpose, the invitee's purpose is all-important in determining whether his or her activity is authorized by the invitation. (Emphasis added)

In my view, there is a fundamental difference between the police conduct of knocking on the door of a dwelling house to investigate the occupants discussed in Evans and merely entering on to a driveway. The latter does not involve an investigation of persons in their own home. A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context.

The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. that licences may arise by implication from the nature of the use to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view.

The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. The driver drove the vehicle in an unusual fashion as he approached the driveway. The officers would have been entitled to stop the vehicle on the street under s. 48(1) of the Highway Traffic Act. For reasons of safety, they waited until the motorist had brought the vehicle safely to a stop. This was a reasonable decision to make. It makes no sense that because the officers exercised a reasonable degree of caution their actions should be characterized as illegitimate.

There are other reasons for viewing the officers' actions as legitimately within the scope of the implied licence. 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. Further, until 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.

[57] Furthermore, in R. v. Lotozky, [2006 21041 (ON CA)](https://www.canlii.org/en/on/onca/doc/2006/2006canlii21041