Brampton (City) v. Rampersaud, 2024 ONCJ 78

CITATION: Brampton (City) v. Rampersaud, 2024 ONCJ 78

DATE: February 9, 2024

IN THE MATTER OF

the Highway Traffic Act, R.S.O 1990, c. C.8

Between

Corporation Of The City of Brampton

prosecutor

and

Christopher Rampersaud

defendant

Ontario Court of Justice

Brampton, Ontario

Quon J.P.

Reasons for Judgment

Ex-parte trial held on: November 6, 2023.

Judgment released: February 9, 2024.

Charges: s. 53(1) H.T.A. – “driving while driver’s licence suspended”

Counsel:

Biacco, M., municipal prosecutor

Rampersaud, Christopher, defendant did not appear for trial

Cases Considered or Referred To:

Brown v. Durham Regional Police Force, 1998 7198 (ON CA), [1998] O.J. No. 5274 (Ont. C.A.), per Doherty, Weiler, and Goudge JJ.A.

Ontario (Ministry of Transportation) v. Balasubramaniam, [2017] O.J. No. 5007 (Ont. C.J.), per Quon J.P.

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

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

R. v. Clarke, 2005 15452 (ON CA), [2005] O.J. No. 1825 (Ont. C.A.), per Sharpe, Simmons, LaForme JJ.A.

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

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. 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. Jacobs, [1955] B.C.J. No. 95 (B.C.C.A.).

R. v. Kazemi (2013), 2013 ONCA 585, 117 O.R. (3d) 300, [2013] O.J. No. 4300 (Ont. C.A.), per Laskin, Goudge and Watt, JJ.A.

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. 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. MacDonagh, [1974] 1 All E.R. 257 (C.A.).

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

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

R v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.).

R. v. Petrovic, [2012] O.J. No. 4185 (O.C.J.), per Dechert J.P.

R. v. Peuker, [2016] O.J. No. 7072 (O.C.J.), per Bonas J.P.

R. v. Russo, [2013] O.J. No. 3564 (O.C.J.), per Opalinski J.P.

R. v. Ryan, [2007] N.J. No. 338 (N.L. Prov. Ct.).

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

R. v. Srecko, [2016] O.J. No. 4329 (O.C.J.), per Kowarsky J.P.

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.).

York (Regional Municipality) v. Tassone, 2007 ONCA 215, [2007] O.J. No. 1109 (Ont. C.A.), per Sharpe, Simmons and Cronk, JJ.A.

Statutes, Regulations and Rules cited:

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, 8 and 9.

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

Highway Traffic Act, R.S.O. 1990, C. H.8, ss. 1(1), 7(5), 33(1), 53(1), 48(1), 48(18), 78.1, 106(3), 144(18), and 216(1).

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

Exhibits entered:

Exhibit "1" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated July 18, 2023, which indicates that a male person named CHRISTOPHER U. RAMPERSAUD had his driver’s licence suspended effective March 11, 2022, for default of payment of fine and that this suspension was still in effect on June 3, 2023, and that a Notice of Suspension of Driver’s Licence dated March 11, 2022 had been forwarded by mail on March 11, 2022, to CHRISTOPHER UMESH RAMPERSAUD to an address located at [removed for privacy] in Brampton, Ontario, which was the latest address on the records of the Ministry [suspension number: 2021327] (3 pages).

Exhibit "2" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated July 18, 2023, which indicates that a male person named CHRISTOPHER UMESH RAMPERSAUD had his driver’s licence suspended effective October 26, 2019, for failure to complete the remedial measures program and that this suspension was still in effect on June 3, 2023, and that a Notice of Suspension of Driver’s Licence dated October 28, 2019 had been forwarded by mail on October 28, 2019, to CHRISTOPHER UMESH RAMPERSAUD to an address located at [removed for privacy] in Brampton, Ontario, which was the latest address on the records of the Ministry [suspension number: 9144059] (3 pages).

1. INTRODUCTION

[1] For the purposes of highway safety, can a police officer in Ontario enter onto private property in order to investigate and question a person that had been asleep or passed out in the driver’s seat of a motor vehicle, which still had its engine running and which had also been partly stopped on a private driveway and partly stopped on a public roadway? That question arose in the ex-parte trial of Christopher Rampersaud, who had been observed by Officer Shawn Palmer to be asleep or passed out in the driver’s seat of a black-coloured 2018 Honda Civic motor vehicle, which still had its engine running and which had also been stopped partly on the driveway of a house and partly stopped on the roadway in the earning morning hours of June 3^rd, 2023. The driveway was located at 348 Sunny Meadow Boulevard in the City of Brampton. Rampersaud’s registered address in the Ministry of Transportation records is not at 348 Sunny Meadow Boulevard, but at another address in Brampton. Moreover, Officer Palmer had received a call from his dispatcher to attend that address in regards to a man that was passed out in the driver’s seat of a motor vehicle at that address. Upon arriving at 348 Sunny Meadow Boulevard, Officer Palmer had walked onto the driveway and approached the driver’s side door of the Honda Civic motor vehicle and observed a man either asleep or passed out in the driver’s seat of that motor vehicle, with its engine still running. Officer Palmer also observed the presence of Fire and Ambulance personnel that had been already there at the scene. Officer Palmer then turned off the engine of the Honda Civic motor vehicle for reason of “officer safety”, and then woke up the male person sitting in the driver’s seat of the motor vehicle. After asking the male person to step out of the vehicle and after obtaining the male person’s Ontario Health Card as identification, and completing an investigation into the status of the male person’s driver’s licence, Officer Palmer identified the man as “Christopher Rampersaud”. In checking on the status of Rampersaud’s driver’s licence using police query tools, Officer Palmer also discovered that Rampersaud was a suspended driver in regards to two separate suspensions. Officer Palmer then subsequently charged Christopher Rampersaud with committing the Part III offence of “driving while driver’s licence suspended”, contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, H.8 (“H.T.A.”) and issued a summons to Rampersaud to appear in the Brampton Provincial Offences court.

[2] The trial of the defendant Christopher Rampersaud’s charge of “driving while driver’s licence suspended” was eventually set down for trial for November 6, 2023. However, the defendant did not appear at his trial on November 6^th and the trial commenced on an ex-parte trial basis. The prosecution only called one witness and it was Officer Palmer who testified in the ex-parte trial.

[3] The issues that arose at trial which have to be decided include: (1) whether Officer Palmer can lawfully enter onto private property and request identification from a person that had been asleep or passed out in a motor vehicle with its engine running and that had been stopped partly on a private driveway and stopped partly on a public roadway, in light of the Supreme Court of Canada’s ruling in R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8, which had held that it is unlawful for a police officer to conduct a random stop of a motorist on private property to check on sobriety under s. 48(1) of the H.T.A.; (2) whether the Honda Civic motor vehicle for the purpose of s. 53(1) of the H.T.A. was stopped on a “highway” or stopped on a private driveway, since the vehicle was partly situated on the driveway and partly situated on a highway; and (3) if the motor vehicle had been stopped on a highway within the meaning of the H.T.A., whether the circumstances of Rampersaud being asleep or passed out in the driver’s seat of the motor vehicle with its engine still running at a location which is not his registered address, would constitute the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A.

[4] Consequently, after reviewing the common law, R. v. McColman, and ss. 48(1) and 216(1) of the H.T.A., and the purpose for why Officer Palmer had been dispatched to 348 Sunny Meadow Boulevard, in the City of Brampton, in regards to a call about a person being passed out in the driver’s seat of a motor vehicle at that address, Officer Palmer had been in the lawful execution of his duties and responsibilities in regards to protecting life and property, preventing offences, and ensuring public safety, when Officer Palmer had approached the Honda Civic motor vehicle with its engine still running and that had been stopped partly in the private driveway of 348 Sunny Meadow Boulevard and partly stopped on the public roadway, when Officer Palmer had requested identification from the male person that had been in the driver’s seat. As such, Officer Palmer’s entry onto a private driveway was not unlawful in the circumstances.

[5] And, on the issue as to whether the Honda Civic motor vehicle that Rampersaud had been sitting in had been stopped on a “highway” or on a private driveway, the evidence establishes that a substantial portion of the vehicle had been stopped on the public roadway. Specifically, Officer Palmer had observed that the rear two tires of the Honda Civic motor vehicle were sitting on the roadway, so that the motor vehicle was not completely off of the roadway and stopped entirely on the private driveway. As this was more than just a trifling amount of the vehicle overhanging onto the roadway, and since there had been a significant and noticeable portion of the vehicle situated on the roadway, then for the purposes of the application of the H.T.A. the Honda Civic motor vehicle had been situated on a “highway”.

[6] In addition, in respect to the issue of what constitutes the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A., it is not limited or restricted to only situations or circumstances where a motorist is observed in a motor vehicle that is in “motion” on a highway. Ergo, even though Officer Palmer did not observed Rampersaud in the driver’s seat of a “moving” motor vehicle on a highway, the circumstances of Christopher Rampersaud being asleep or passed out in the driver’s seat of a motor vehicle with its engine still running and that was partly stopped on a private driveway and partly stopped on a public roadway, in which the driveway is not at the registered address of Rampersaud; and there being the absence of any evidence that the Honda Civic motor vehicle had been towed or mechanically lifted and placed at that location, as well as there being the absence of any evidence that Rampersaud had not been the one who had driven the Honda Civic motor vehicle to 348 Sunny Meadow Boulevard, are sufficient indicia that the defendant, Christopher Rampersaud, was still in the act of “drives a motor vehicle on a highway”

[7] Ergo, as the prosecution has proven beyond a reasonable doubt that Christopher Rampersaud was a suspended driver (Exhibits #1 and #2), and that Rampersaud was in a motor vehicle that was still running and situated on a “highway”, and that for the circumstances, Rampersaud was in the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A., then the prosecution has met its burden in proving beyond a reasonable doubt that Christopher Rampersaud has committed the offence of “driving while driver’s licence suspended”.

[8] Lastly, the ex-parte trial of Christopher Rampersaud’s charge of “driving while driver’s licence suspended” under s. 53(1) of the H.T.A. had been held on November 6, 2023. After the prosecution had completed its case, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment that are being released as of February 9, 2024:

2. BACKGROUND

(a) Testimony of Officer Shayne Palmer

[9] Only one witness testified in the trial and that had been Officer Shayne Palmer, of the Peel Regional Police. Officer Palmer had also been the police officer who had charged the defendant with committing the “driving while driver’s licence suspended” offence under s. 53(1) of the H.T.A.

[10] As to what had occurred with the defendant, Officer Palmer had testified that the Peel Regional Police had received a call for service on Sunday, June 3, 2023, at approximately 1:16 a.m., to attend at 348 Sunny Meadow Boulevard in the City of Brampton for a male that had been passed out in the driver’s seat of a vehicle. When Officer Palmer arrived at 348 Sunny Meadow Boulevard, Officer Palmer said he had observed a 2018 black-coloured Honda Civic, bearing marker “CDTW591”, on the driveway and parked nose in with the tail of the vehicle hanging just off the driveway. Officer Palmer then said that he had pulled his police cruiser behind the vehicle and then exited the cruiser and walked to the driver’s side door where he observed a male that appeared to be passed out in the driver’s seat of the Honda Civic motor vehicle. Before waking the male up, Officer Palmer said he had shut off the motor vehicle for officer’s safety.

[11] Furthermore, Officer Palmer also said, at that time, fire and ambulance were already at the scene.

[12] After waking the male up and getting the male out of the vehicle, Officer Palmer then said that he had asked the male person for his identification. Officer Palmer said he then received an Ontario Health Card from the male person in the name of “Christopher Rampersaud” with a birthdate of [removed for privacy]. In addition, Officer Palmer said he had used his police query tools and obtained a residential address for the male which was [municipal address removed for privacy], in the City of Brampton.

[13] In addition, Officer Palmer said that the male had also been wanted on a warrant by OPP Caledon.

[14] Officer Palmer then said that the male driver was then taken into custody initially at 1:45 a.m. on the strength of that OPP arrest warrant.

[15] Moreover, Officer Palmer testified that upon making further queries, Officer Palmer said that the male person was a prohibited driver with two driver’s licence suspensions numbered 22SUSP-2021327 and 19SUSP9144059.

[16] Officer Palmer also said that after talking to OPP Caledon, the OPP were not going to return the male person to Caledon and the male person was then released unconditionally at 2:54 a.m. in respect to the OPP warrants. Officer Palmer then said that the male person was then issued a Part III summons for the offence of “drive while driver’s licence suspended”, contrary to s. 53(1) of the Highway Traffic Act.

[17] In addition, when asked about the driver’s licence number for the male person, Officer Palmer said that he did not write it down in his notes. However, Officer Palmer did say that the male person had identified himself with his name and date of birth and his Ontario Health Card. Officer Palmer also said that he had run the name of “Christopher Rampersaud” and his birthdate that was on the Ontario Health Card on the police system. Consequently, Officer Palmer said he had been satisfied with the identity of the male person that had been in the driver’s seat of the Honda Civic motor vehicle, which had been based on the picture of the person on the Ontario Health Card matching the likeness of the male person that was in the driver’s seat.

[18] Furthermore, when specifically asked where the vehicle was located, Officer Palmer said that the Honda Civic motor vehicle was on the driveway of 348 Sunny Meadow Boulevard, but that the vehicle had been half-hanging out of the driveway with the tail end of that motor vehicle, specifically the back two tires, had not been completely in the driveway. Instead, Officer Palmer said that the back two tires of the vehicle were on the roadway.

3. THE CHARGE

[19] The defendant has been charged under a Part III Information for committing the following offence:

Information #6277:

Christopher Rampersaud, of [residential address removed for privacy], Brampton, Ontario,

on or about 3^rd day of June, 2023

at the City of Brampton in the said region

did commit the offence of

at approximately 2:35 a.m. did unlawfully operate a motor vehicle, licence number CDTW591 on a highway, namely on Sunny Meadow Boulevard, when his driver’s licence was suspended by operation of the Highway Traffic Act, contrary to the Highway Traffic Act, section 53(1).

4. ISSUES

[20] In order to determine if the defendant has committed the H.T.A. offence of “driving while driver’s licence suspended”, contrary to s. 53(1) of the H.T.A., beyond a reasonable doubt, the following issues need to be resolved in this ex-parte trial:

(1) Has the Supreme Court of Canada’s ruling in R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8, which had held that it is unlawful for a police officer to “randomly stop” a motorist on private property to check for sobriety under s. 48(1) of the H.T.A., altered or changed a police officer’s power under the common law to enter onto and investigate a motorist on private property for the purposes of public or highway safety in respect to checking for licences, proof of insurance, and the mechanical fitness of vehicles?

(2) Was Officer Palmer acting lawfully when he entered onto private property to stop, request identification and documents, and question a motorist who had been asleep or passed out in a motor vehicle with its engine still running that had been stopped partly on a private driveway that is not at the motorist’s registered address and stopped partly on a public roadway?

(3) Was Officer Palmer in the lawful execution of his duties and responsibilities in regards to the protection of property, preventing offences, and for purposes of public safety, when he had entered onto a private driveway and had asked the defendant, Christopher Rampersaud, for his identification?

(4) Was the Honda Civic motor vehicle in which the defendant was sitting in on a “highway” or situated on private property at the time in question?

(5) Would the circumstances of the defendant being asleep or passed out in a motor vehicle in which the engine is still running and which is partly stopped on a highway and also partly stopped on a private driveway that is not at the defendant’s registered address, constitute the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A.?

(6) Has the prosecution proven beyond a reasonable doubt that the defendant has committed the offence of “driving while driver’s licence suspended” contrary to s. 53(1) of the H.T.A.?

5. ANALYSIS AND DECISION

[21] Subsection 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, expressly requires that the “driving while driver’s licence suspended” offence be committed on a “highway” within the meaning of the Highway Traffic Act and that the offence is committed when a person “drives a motor vehicle … on a highway” [emphasis is mine below]:

Driving while driver’s licence suspended

53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both.

(A) CHRISTOPHER RAMPERSAUD WAS A SUSPENDED DRIVER ON JUNE 3, 2023

[22] Based on the two certified Ministry of Transportation documents entered as Exhibits #1 and #2, the prosecution has proven beyond a reasonable doubt that the defendant, Christopher Rampersaud, was a suspended driver on June 3, 2023, when Officer Palmer observed the defendant in the driver’s seat of a running Honda Civic motor vehicle that had been stopped with its two rear tires on the public roadway known as Sunny Meadow Boulevard, in the City of Brampton, on June 3, 2023 at 2:35 a.m.

(B) DID OFFICER PALMER ACT LAWFULLY ON JUNE 3, 2023, WHEN OFFICER PALMER ENTERED ONTO A PRIVATE DRIVEWAY ON PRIVATE PROPERTY AND ASKED CHRISTOPHER RAMPERSAUD FOR IDENTIFICATION?

[23] After the prosecution had completed its case, the court was concerned about the lawfulness of a police officer entering onto a driveway on private property to stop and investigate a motorist who was asleep or passed out in a motor vehicle that was partly stopped on a private driveway, especially after the Supreme Court of Canada had ruled in R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8, on the unlawfulness of police officers following a motorist and entering onto a driveway on private property to “randomly” stop and investigate a motorist for sobriety under s. 48(1) of the H.T.A.

The unlawfulness had been because the police officers who had been following McColman’s all-terrain motor vehicle on a public highway had not yet formed the opinion that they had reasonable and probable grounds about McColman’s sobriety when they had followed McColman onto McColman’s parents’ driveway when McColman had driven off the public roadway. And, it was only when the police officers had approached McColman on the private property that the officers had first observed signs of intoxication on McColman. And, because the police were acting unlawfully when they had entered onto the private property, the Supreme Court had held that the police had violated s. 9 of the Charter in regards to McColman’s right not to be arbitrarily detained or imprisoned, when the police had randomly stopped and investigated McColman on that private property and had been able to observe signs of McColman’s alcohol-based impairment.

[24] It was on March 23, 2023, that the Supreme Court had released their judgment in R. v. McColman, in which the Court had unanimously held that police officers do not have the legal authority under s. 48(1) of the H.T.A. to conduct random sobriety stops of a motorist in a private driveway. Furthermore, the Supreme Court reasoned, that because the H.T.A. had defined a “driver” as someone who drives or has care or control of a vehicle on a highway and that a “highway” is defined as a “common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles”, the accused McColman, who had been operating the all-terrain motor vehicle was not a “driver” within the meaning of s. 48(1) because McColman had not been on a “highway” when the police had effected the “random” stop. Ergo, the Supreme Court had concluded that the ”random stop” on private property by the police to check for McColman’s sobriety under s. 48(1) of the H.T.A. had been unlawful and resulted in McColman’s arbitrary detention and the violation of McColman’s s. 9 Charter rights.

[25] However, even though the Supreme Court had found in R. v. McColman that police officers who conduct “random stops” of motorists on private driveways or private property for the purpose of a sobriety check under s. 48(1) of Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8 (“H.T.A.”), would be acting unlawfully, the Court did also reason that a police officer is permitted to follow a motorist from a public roadway onto a private driveway, if the police officer prior to entering onto the private property had formed the opinion that he or she had reasonable and probable grounds to stop the motorist to check on their sobriety when the motorist was still on a public highway and before the motorist had driven onto the private property. In other words, if the police officer had formed reasonable and probable grounds about a motorist’s sobriety in respect to s. 48(1) before the motorist had entered onto the private property, then the Supreme Court had reasoned that the police officer would be permitted to follow a motorist onto the private property to then stop and investigate the motorist’s sobriety, and that this investigative stop of a motorist would not be unlawful under s. 48(1).

[26] More importantly, the Supreme Court’s decision in R. v. McColman had only related to limiting or restricting the police’s ability to follow and “randomly” stop and investigate a motorist on private property for sobriety under s. 48(1) of the H.T.A., if a police officer had not formed an opinion that they had reasonable and probable grounds in regards to sobriety of the motorist before the motorist drove onto private property. The Supreme Court had also emphasized that they were only deciding the issue of the lawfulness of the police conducting random stops of motorists on private property to check for sobriety under s. 48(1) of the H.T.A. and not for determining whether the police can lawfully enter onto private property to stop motorists under the common law, in order for the police to check motorists for licences, proof of insurance, the mechanical fitness of vehicles, and for sobriety, for the purpose of public safety. Ergo, the R. v. McColman decision does not affect the authority of the police to conduct investigative stops of motorists on private property under the common law, if the police had reasonable and probable grounds to conduct that investigative stop for the purposes of public safety.

[27] Moreover, police officers may also conduct random stops of motorists under s. 216(1) of the H.T.A., which provides the statutory power or authority for a police officer, while in the lawful execution of his or her duties and responsibilities, to conduct random stops of drivers of motor vehicles on a “highway” within the meaning of the H.T.A., for the purpose of public safety to check licences, proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers.

[28] In addition, under the common law, police officers may also randomly stop a motorist at any time on a “highway” for the purposes of public safety, to check licences, proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers. This power by the police to randomly stop motorists on highways has been held by the Supreme Court of Canada to violate s. 9 of the Charter, but the Court has also been found these random police stops of motorists to be justified under s. 1 of the Charter: 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.

[29] Now, in regard to the present charge of “drive while driver’s licence suspended” that had been laid against Christopher Rampersaud, who had been in a motor vehicle that had been partly stopped in a private driveway, and because of the issue in R. v. McColman that had been in respect to “impaired driving” charges laid under the Criminal Code and a police officer’s entry onto private property to randomly stop a motorist on private property to check on or to investigate the motorist’s sobriety under s. 48(1) of the H.T.A. had been held to be unlawful, would it also be unlawful for a police officer to enter onto a “private driveway” to stop and investigate a man asleep or passed out in a motor vehicle with its engine still running and for the police officer to ask for the man’s identification or driver’s licence for purposes under the H.T.A. that are related to road safety, such as checking for licences, ownership, insurance, and the mechanical fitness of the vehicle?

(1) The Supreme Court’s Decision In R. v. McColman

[30] 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 H.T.A. 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 enter 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 H.T.A. 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.

[31] 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 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. In addition, the Supreme Court had concluded that the definition of “driver” in Ontario’s 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 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, 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.

[32] 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) 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. The Supreme Court in McColman also confirmed that a detention not authorized by law is arbitrary and violates s. 9. 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.

[33] 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.

(2) For The Purposes Of The [H.T.A.](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html), Under What Situations Can A Police Officer Lawfully Enter Onto Private Property?

[34] 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 stopping drivers 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.

[35] 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 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 under the common law.

(3) Police Officers Also Have Authority To Randomly Stop The Driver Of A Motor Vehicle On A “Highway” Under S. 216(1) Of The [H.T.A.](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)

[36] In addition, a police officer, in the lawful execution of his or her duties and responsibilities, is empowered under s. 216(1) of the H.T.A. to randomly stop the driver of a vehicle and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop. And to reiterate, a “driver” is someone who drives a motor vehicle on a highway as defined under s. 1(1) of the H.T.A. [emphasis is mine below]:

Power of police officer to stop vehicles

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[37] Furthermore, Doherty J.A., writing for the Court of Appeal for Ontario, reviewed the statutory power given to the police to randomly stop motor vehicles under s. 216(1) of the H.T.A. in Brown v. Durham Regional Police Force, 1998 7198 (ON CA), [1998] O.J. No. 5274, and indicated that the detention of a motorist under that provision is circumscribed by its purpose and that the detention of the motorist must be brief and limited to the roadside, unless other grounds are established for a further detention. In addition, Doherty J.A. explained that the police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. Moreover, Doherty J.A. said that the police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards from outside of the vehicle, and make a visual examination of the interior to ensure their own safety in the course of the detention. Doherty J.A. also confirmed that more intrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of the H.T.A. [emphasis is mine below]:

Section 216(1) authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes. In describing the scope of this section's predecessor (s. 189(a)(i), R.S.O. 1980, c. 198), Cory J., in R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, 48 C.R.R. 112, said, at p. 1287:

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.

(Emphasis added)

In R. v. Simpson, supra, this court after referring to Ladouceur and related cases, said, at p. 193 O.R., p. 492 C.C.C.:

. . . the "check stop" cases decide only that stops made for the purposes of enforcing driving related laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Highway Traffic Act, even where those stops are random. These cases do not declare that all stops which assist the police in the performance of any of their duties are authorized by s. 216(1) of the Highway Traffic Act. (Emphasis added)

Other provincial appellate courts have reached the same conclusion when interpreting highway regulation provisions similar to s. 216(1) of the H.T.A.: R. v. Soucisse (1994), 5 M.V.R. (3d) 207 at pp. 214-15, 63 Q.A.C. 71; R. v. Wilson (1993), 1993 2875 (BC CA), 86 C.C.C. (3d) 145 at pp. 153-54, 20 C.R.R. (2d) 344 (B.C. C.A.); R. v. MacLennan (1995), 1995 NSCA 51, 97 C.C.C. (3d) 69, 138 N.S.R. (2d) 369 (C.A.); R. v. Montour (1994), 1994 17447 (NB CA), 5 M.V.R. (3d) 250, 150 N.B.R. (2d) 7 (C.A.), reversed on other grounds 1995 96 (SCC), [1995] 2 S.C.R. 416, 182 N.R. 154.

The detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention: R. v. Ladouceur, supra, at pp. 1286-87; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615 at pp. 623-24, 12 C.R.R. (2d) 65; R. v. E. (G.A.) (1992), 1992 12820 (ON CA), 77 C.C.C. (3d) 60 (Ont. C.A.). More intrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of the H.T.A.: R. v. Mellenthin, supra.

(4) Police Officers Are Also Permitted To Randomly Stop Motorists On A Highway Under The Common Law

[38] The Supreme Court of Canada 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.

[39] 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 charged or limited by the Supreme Court’s judgment in in R. v. McColman.

[40] 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.

[41] 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.

[42] 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.

[43] 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.

[44] 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, ...

[45] 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.

[46] 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.

[47] 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.

[48] 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.

[49] Therefore, in respect to the defendant, Christopher Rampersaud, if Officer Palmer had lawfully executed his 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.

(5) 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.

[50] 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. …

[51] 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. …

[52] 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.

[53] 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.

(6) Police Officers Do Not Need To Have Reasonable And Probable Grounds To Stop A Motorist Operating A Motor Vehicle On A Highway For The Purposes Of Enforcing Various Laws Related To Highway Safety.

[54] Moreover, in recapping the principles set out by the Supreme Court in their trilogy of decisions in Dedman, Hufsky, and Ladouceur, the Ontario Court of Appeal in R. v. Clarke, 2005 15452 (ON CA), [2005] O.J. No. 1825, at paras. 24 and 25, stated that the authority of the police to “randomly stop” motorists for the purpose of enforcing various laws relating to highway safety and the operation of a motor vehicle is not limited to situations where the motorist has committed an offence. Specifically, they confirmed that the police may also stop motorists at random for the purposes of enforcing highway traffic legislation with pressing and substantial objectives relating to safety, even when they do not have reasonable and probable grounds to believe that such legislation has been contravened [emphasis is mine below]:

… I am not persuaded that it follows that the police officers were acting outside the scope of their lawful authority when they demanded that the respondent stop. The authority of a police officer to demand that a motorist stop for the purpose of enforcing various laws relating to highway safety and the operation of motor vehicles is not limited to situations where the motorist has committed an offence. Indeed, the Supreme Court has held that police may stop motorists at random for the purposes of enforcing highway traffic legislation with pressing and substantial objectives relating to safety, whether or not they have reasonable and probable grounds to believe that such legislation has been contravened. R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621; R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257.

The respondent in this case was not pulled over at random. Rather, he was stopped by police officers who had observed him driving in a manner which was capable of giving them reasonable grounds to believe a Highway Traffic Act offence had been committed. Accordingly, even if, contrary to the findings of the trial judge, the respondent committed no offence when he failed to signal his turn, it is my view that as the police were acting within the lawful scope of their authority pursuant to s. 216(1) when they demanded that he stop.

[55] In sum, Officer Palmer did not need to have reasonable and probable grounds to believe that the defendant, Christopher Rampersaud, had contravened the H.T.A. before being able to randomly stop the defendant, if Rampersaud had been in the act of “drives a motor vehicle on a highway” within the meaning of the H.T.A. for the purposes of enforcing highway traffic legislation related to road or highway safety and in asking Rampersaud for his identification.

(7) Police Officers Cannot Use Their Statutory Powers Under Ss. 48(1) And 216(1) Of The H.T.A. To Randomly Stop Motorists Without Cause In A Parking Lot On Private Property.

[56] 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”)

[57] 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.

[58] 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.

(8) 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.

[59] 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 they 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. confirmed that the H.T.A. had no application to the parking lot on private property where the accused motorist had been detained. As such, Molloy J. had held that 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 [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.

[60] 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 that 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.

[61] 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.

(9) Police Officers May Have Multiple Purposes In Randomly Stopping Motorists On A Highway Under The Common Law.

[62] In Brown v. Durham Regional Police Force, 1998 7198 (ON CA), [1998] O.J. No. 5274, the Court of Appeal for Ontario held that in the case where the police had conducted a random roving check stop on a motorist for an improper purpose, then the improper purpose would take the random stop outside of the limits authorizing these stops. And, as an example of an improper purpose which could invalidate a traffic stop conducted under s. 216(1) of the H.T.A., the Court of Appeal said that it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. The Court also emphasized that s. 216(1) of the H.T.A. does not authorize discriminatory stops even where there is a highway safety purpose behind those stops. Furthermore, the Court reasoned that in reference to improper police purposes, they would include purposes that are illegal, purposes which involve the infringement of a person's constitutional rights, and purposes which have nothing to do with the execution of a police officer's public duty, such as where police officers stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, are all acts for an improper purpose. As such, the Court held that the police cannot rely on s. 216(1) of the H.T.A. to stop a motorist when the stop had been for an improper purpose, even if they also have highway safety concerns when making the traffic stop [emphasis is mine below]:

I do not read these words as holding that highway safety concerns can be the only purpose behind a stop and detention. However, as the last sentence in the passage indicates, a purpose which is in itself improper, e.g., to conduct an unconstitutional search, will take the stop outside of the limits of the legislation authorizing those stops. Cory J. recognized that s. 216(1) of the H.T.A. and similar legislation gave the police broad powers to stop motorists. He was alive to the potential abuse of that power and sought to minimize that potential by limiting the statutory power to situations in which the police had both legitimate highway safety concerns and did not have a co-existing improper purpose.

While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops.

When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the H.T.A. even if they also have highway safety concerns when making the stop.

The police purposes, when effecting a stop and detention, must be ascertained from the evidence of the officers involved, the persons detained, and other evidence concerning the conduct of the stops. If the police routinely searched every vehicle stopped it would be easy to infer that one of the purposes behind the stops was to facilitate the conduct of unreasonable searches. Similarly, if only people of colour were stopped at a checkpoint, the inference could be made that the stop was discriminatory and, therefore, improper.

Stops which are selective in the sense that a certain person or group is targeted must be carefully scrutinized. Depending on the basis on which the person or group is selected, the stop may be improper and not authorized by s. 216(1) of the H.T.A. The criteria used to establish the "target" groups may be germane to highway safety concerns. For example, the police may stop only trucks because of heightened concerns about the mechanical fitness of trucks. Where the criteria used are rationally connected to highway safety concerns, they promote the effective use of the power granted by s. 216(1) of the H.T.A. while, at the same time, limiting the state interference with motorists' freedom. The criteria may be arbitrary but neutral. For example, the police may elect to stop every third vehicle. Section 216(1) of the H.T.A. authorizes arbitrary stops and arbitrariness alone will not take the stop outside the purview of s. 216(1): R. v. Ladouceur, supra. Finally, the criteria used may reflect an improper purpose for the stop, as when the decision to stop is based on the sex or colour of the driver. As indicated above, I would hold that such stops were beyond the statutory power granted under s. 216(1) of the H.T.A.

[63] Furthermore, in R v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.), at paras. 22, 23, 25, 28, 29 to 39, Binnie J. held that a police officer may have multiple purposes for stopping a motorist, as long as one of the purposes is related to the H.T.A. and the other purposes are not improper or violate the Charter [emphasis is mine below]:

The appeal also engages s. 9 of the Charter ("the right not to be arbitrarily detained or imprisoned"). A random vehicle stop on the highway is, by definition, an arbitrary detention: Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2; R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257 (hereinafter "Ladouceur (Ont.)"); Mellenthin; and R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214. The detention will only be justified under s. 1 of the Charter (Hufsky, at p. 637) if the police act within the limited highway-related purposes for which the powers were conferred (Ladouceur (Ont.), per Cory J., at p. 1287).

A. The Initial Stop

Random roadside stops must be limited to their intended purposes. "A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over", per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana a couple of hours later as well as the follow-up "inventory search" the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. 8 or s. 9 of the Charter. A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.

The Court has ruled on a number of occasions that pursuant to statutory authority, the police officers can randomly stop persons for "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": Ladouceur (Ont.), at p. 1287. See also R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41; Mellenthin, at p. 624. The courts below held that the appellants' truck was stopped for the valid purpose of carrying out an H&TA document check, and this issue is no longer seriously in dispute. The stop was valid. On this basis, the case is readily distinguishable from our Court's recent ruling in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, where the accused had been pulled over for no valid purpose. The police equally exceed their powers in the Saskatchewan case of R. v. Ladouceur, 2002 SKCA 73, 165 C.C.C. (3d) 321 (hereinafter "Ladouceur (Sask.)"), where the officers set up a random stop program called "Operation Recovery" specifically to detect not only highway infractions but to "locate contraband being transported on our highways" (para. 69). For that purpose the Saskatchewan checkpoint was staffed not only with police, but on occasion customs and immigration officials, "tobacco people", wildlife officials and sniffer dogs (para. 44). The random stop program in Ladouceur (Sask.) was designed as a "comprehensive check for criminal activity" (para. 43) and was therefore fatally flawed from the outset.

In the present case, by contrast, the random stop program was directly related to legitimate highway purposes. Commercial trucking is regulated in every aspect from loads and load safety under The Motor Carrier Act to potentially dangerous cargo under The Dangerous Goods Transportation Act, S.S. 1984-85-86, c. D-1.2. As such, the initial stop, in this case under s. 40 of The Highway Traffic Act, did not violate the s. 9 rights of the appellants: Ladouceur (Ont.), at p. 1287; Orbanski, at para. 41.

C. The Highways and Transportation Act Power of Search and Seizure Was Properly Invoked

There is no doubt that, after the initial stop, the officer quickly obtained reasonable grounds to believe that the appellants were operating the truck in violation of the H&TA, having regard to the lack of a truck licence valid in Saskatchewan, the display of an expired fuel sticker and inconsistent entries in the driver's logbook. At the time the officer began to investigate the cab of the tractor unit, it was quite within his statutory authority to search for further evidence related to H&TA offences.

In these circumstances, the continued detention of the appellants was not arbitrary and the search of the tractor-trailer rig for relevant papers was authorized by s. 63(5)(b). At least initially, they were not unreasonable.

E. Did the Regulatory Search Authority Cease Because of Taint by an Impermissible Criminal Law Purpose?

As stated, this is not a case where the random stop was constitutionally flawed from the outset. The argument of the appellants is that an investigation lawful at the outset became unlawful when the police officer, based on information lawfully obtained from the appellants and the appearance of their vehicle, began to suspect criminal activity. The trial judge found, and the appellants contend, that the policeman's search of the duffle bag should be attributed predominantly to his interest in illegal criminal activity, and as such, they say it fell outside any valid regulatory purpose.

The officer made no secret at trial of his interest in finding contraband. It was part of his job to take an interest in contraband. In the nature of things, contraband is a bigger issue for police than trucking documents. However, he testified that it was only "at that point" of finding the money that he believed "there was a good possibility there was a secret compartment in the trailer" (A.R., vol. 2, at p. 204).

The first question is whether the police officer, in continuing the search, exceeded his s. 63(5) authority when he reached the point of suspicion. The second question is whether what he did, despite the authority of s. 63(5) to pursue regulatory offences, was unreasonable in relation to the protected Charter privacy interests of the accused in the sleeping area of the cab. The statutory authority for the search and the reasonableness of its exercise are two distinct issues.

As to the police powers issue, the trial judge agreed that notwithstanding that the officer had found "sufficient irregularities in a very short span of time to be concerned that there could be more" and that "it might be reasonable to conclude that the officer continued his investigation to check for further regulatory infractions", nevertheless, "given the totality of the circumstances, it does appear that the officer was more interested in looking for evidence of criminal activity than for contraventions of commercial trucking regulations" (para. 19 (emphasis added)). This led to a discussion about "dual purpose" searches, and whether a "dominant" criminal law purpose would invalidate an otherwise valid regulatory search or, on the contrary, a legitimate regulatory purpose could "sanitize" or "cleanse" an unlawful criminal law purpose.

In Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), the police used the Ontario equivalent H&TA powers to stop and question bikers attending a gathering of the Paradise Riders Motorcycle Club, suspected to be a criminal organization. The police took advantage of the stop to gather information about the individuals and the gathering. Doherty J.A., for the court, while upholding as valid the police conduct in that particular case, stated:

While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. [p. 238]

Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the "predominant purpose" test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.

(10) 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.

[64] 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.

[65] In the case at bar, there is no evidence that Officer Palmer had asked the defendant any questions that were unrelated to offences under the H.T.A.

(11) 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).

[66] 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.

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

[67] 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 (O.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 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.

[68] 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 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.

[69] 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 were 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, he did emphasize that in most cases the search and seizure threshold is not crossed until the breathalyzer demand is made. Furthermore, he 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, he 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 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.

[70] 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.

[71] Furthermore, in R. v. Lotozky, 2006 21041 (ON CA), 81 O.R. (3d) 335 (O.C.A.), at para. 45, Rosenberg J.A. had to consider whether a minor trespass by police officers on a private driveway would be grounds for finding a Charter breach and concluded that there would be no infringement if the police officers had exercised their powers under the H.T.A. as they were fully entitled to, for the purposes of highway safety, by checking for sobriety, licences, ownership, insurance, and the mechanical fitness of a vehicle [emphasis is mine below]:

To deal with the seriousness of the violation, the trial judge made no finding that the officers were acting in bad faith. Even [if] I am wrong and there was a violation of s. 8, it was because of a minor trespass on to a driveway. Had the officers exercised their powers under the Highway Traffic Act, as they were fully entitled to do, or had the respondent parked his vehicle at the curb instead of in the driveway, there would have been no violation of the Charter. The respondent did not dispute that the breathalyzer demand was otherwise properly made, the officers had reasonable grounds to make the demand, and before he was required to comply with the demand the respondent was informed of his right to counsel. In those circumstances, the seriousness of the violation factors would have strongly favoured admission of the evidence.

[72] Also, in R. v. Dillon, [2006] O.J. No. 1366 (Ont. S.C.J.), at para. 35, Molloy J. confirmed that police officers may enter onto private property for a legitimate reason under an implied licence to enter under the common law, subject to the police officers’ purpose for entry [emphasis is mine below]:

At common law, there is an implied license for any member of the public to enter onto private property for a legitimate reason. Thus, a homeowner is deemed to have given to others an implied license to approach his door and knock, provided the person entering the property has a lawful reason for doing so. A police officer on legitimate business has the same implied license to enter as any other member of the public, subject to that officer's purpose for entering: R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.); R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198, 77 O.A.C. 1 (Ont.C.A.). The Court of Appeal in Tricker quoted with approval the following excerpts from the English Court of Appeal decision in Robson v. Hallett, [1967] 2 All E.R. 407 on this point:

Per Lord Parker, Chief Justice at p. 412:

What is said in this case, and this is really the foundation of counsel for the appellants' argument, is that all three police officers were trespassers ab initio; having arrived at the garden gate, although up till then they were acting in the execution of their duty, making inquiries into an offence committed that night, yet the moment when they set foot onto the steps leading up to the front door they were all three trespassers. For my part, it is no doubt true that the law is sometimes said to be an ass, but I am happy to think that it is not an ass in this respect, because I am quite satisfied that these three police officers, like any other members of the public, had implied leave and licence to walk through that gate up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling-house, but of the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.

Per Lord Diplock at p. 414:

These appeals raise three simple points on the law of trespass on land which affect all members of the public as well as the police officers with whom this appeal is concerned. The points are so simple that the combined researches of counsel have not revealed any authority on them. There is no authority because no one has thought it plausible up till now to question them. The first is this, that when a householder lives in a dwelling house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business. Such implied licence can be rebutted by express refusal of it, as in this case the Robsons could no doubt have rebutted the implied licence to the police officers by putting up a notice on their front gate "No admittance to police officers"; but that was not done in this case.

(13) A Demand To A Motorist To Provide A Driver’s Licence, Ownership For The Motor Vehicle, And Proof Of Insurance For A Vehicle Is Not A Search Under S. 8 Of The Charter.

[73] Under ss. 7(5) and 33(1) of the H.T.A. and under s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, respectively, the defendant is required upon a demand of a police officer to provide the police officer with his driver’s licence, ownership permit or document for the motor vehicle he was operating, and proof of insurance for that vehicle [emphasis is mine below]:

H.T.A.:

7(5) Subject to subsection (6), every driver of a motor vehicle on a highway shall carry,

(a) the permit for it or a true copy thereof; and

(b) where the motor vehicle is drawing a trailer, the permit for the trailer or a true copy thereof,

and shall surrender the permits or copies for inspection upon the demand of a police officer.

33(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

Compulsory Automobile Insurance Act:

3(1) An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

(a) an insurance card for the motor vehicle; or

(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

[74] In R. v. Hufsky, 1988 72 (SCC), [1988] S.C.J. No. 30, at para. 23, the Supreme Court held that a demand by a police officer for a driver’s licence, ownership document for the motor vehicle, and proof of insurance for the vehicle as required under the H.T.A. and the Compulsory Automobile Insurance Act is not a search under s. 8 of the [Charter](https://www.canlii.