Her Majesty the Queen v. Farquharson Her Majesty the Queen v. Miller Her Majesty the Queen v. Hume

[Indexed as: R. v. Farquharson]

Ontario Reports

Ontario Superior Court of Justice,

André J.

November 25, 2014

123 O.R. (3d) 454 | 2014 ONSC 6641

Case Summary

Charter of Rights and Freedoms — Arbitrary detention or imprisonment — Sobriety checks — Police targeting patrons emerging from LCBO stores or licensed establishments for sobriety checks without observing any signs of impairment or erratic driving being authorized by s. 216 of Highway Traffic Act as related to highway safety and not arbitrary — Even if stops were arbitrary, that would not lead to conclusion that stops were unreasonable contrary to s. 9 of Charter as s. 216 of Highway Traffic Act authorized such stops — Canadian Charter of Rights and Freedoms, s. 9.

Charter of Rights and Freedoms — Counsel — Privacy — Accused's right to retain and instruct counsel in private not violated by police policy of videotaping activity in telephone room — Conversations with counsel not recorded — Officers not hearing conversations and accused adducing no evidence that he believed he could not retain and instruct counsel in private — Mere fact was video camera in room not amounting to violation of s. 10(b) of Charter nor in accused having reasonable belief that rights being violated — Canadian Charter of Rights and Freedoms, s. 10(b).

In R. v. Farquharson, a police officer stopped the accused outside an LCBO store to conduct a sobriety check. In R. v. Hume and R. v. Miller, the accused were stopped after they left licensed establishments. All three accused were ultimately charged with driving over 80. In Hume and Miller, the trial judge found that the police had the authority to stop the accused to assess their sobriety level without having observed any signs of impairment or erratic driving. The trial judge also found that the right of the accused to retain and instruct counsel in private under s. 10(b) of the Canadian Charter of Rights and Freedoms was not violated by a police policy of videotaping activity in the telephone room. The accused were convicted. They appealed. In Farquharson, the trial judge found that the police discretion to investigate a motorist does not extend to the random stopping of patrons of an LCBO store, and that the accused was arbitrarily detained contrary to s. 9 of the Charter. The certificate of analysis was excluded under s. 24(2) of the Charter and the accused was acquitted. The Crown appealed.

Held, Crown's appeal allowed; appeals by accused dismissed.

The police have the authority under s. 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") to target patrons emerging from an LCBO store or a licensed establishment for the specific purpose of assessing their sobriety level, without having observed any signs of impairment or erratic driving. Such random stops are reasonably related to the purpose of ensuring highway safety and are not arbitrary. Even if a stop were to be found arbitrary, that does not compel the conclusion that the stop violated s. 9 of the Charter as this kind of brief random stop is authorized by s. 216 of the HTA and the stops did not violate s. 9 of the Charter. [page455] The intoxilyzer results in Farquharson should not have been excluded and the Crown's appeal from acquittal is allowed. The constitutional challenges by Miller and Hume are dismissed as their stops did not violate s. 9.

The accused's rights under s. 10(b) of the Charter were not violated by the police policy of videotaping activity in the telephone room. The mere presence of a video camera in the telephone room is not a violation of s. 10(b) nor could it be sufficient to provide the basis for a reasonable belief by the accused that his rights were being infringed. There was no recording of their conversation with counsel, and the accused adduced no evidence that they believed they could not retain and instruct counsel in private or that such a belief was reasonable.

Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223, [1998] O.J. No. 5274, 167 D.L.R. (4th) 672, 116 O.A.C. 126, 131 C.C.C. (3d) 1, 21 C.R. (5th) 1, 59 C.R.R. (2d) 5, 39 M.V.R. (3d) 133, 84 A.C.W.S. (3d) 675, 40 W.C.B. (2d) 386, 1998 7198; R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, [1988] S.C.J. No. 30, 84 N.R. 365, J.E. 88-580, 27 O.A.C. 103, 40 C.C.C. (3d) 398, 63 C.R. (3d) 14, 32 C.R.R. 193, 4 M.V.R. (2d) 170, 4 W.C.B. (2d) 120; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53, 108 N.R. 171, J.E. 90-905, 40 O.A.C. 1, 56 C.C.C. (3d) 22, 77 C.R. (3d) 110, 48 C.R.R. 112, 21 M.V.R. (2d) 165, 10 W.C.B. (2d) 186, consd

Other cases referred to

R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 172 N.R. 1, J.E. 94-1528, 74 O.A.C. 161, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 23 C.R.R. (2d) 193, 6 M.V.R. (3d) 1, 24 W.C.B. (2d) 539; R. v. Burley, [2004] O.J. No. 319, 182 O.A.C. 395, 181 C.C.C. (3d) 463, 49 M.V.R. (4th) 29, 2004 9437, 60 W.C.B. (2d) 378 (C.A.); R. v. Cairns, 2004 17588 (ON CA), [2004] O.J. No. 210, 182 O.A.C. 181, 47 M.V.R. (4th) 43, 115 C.R.R. (2d) 373, 60 W.C.B. (2d) 228 (C.A.); R. v. Hume, [2013] O.J. No. 3243, 2013 ONCJ 380; R. v. Miller, [2014] O.J. No. 2214 (C.J.); R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 308, 79 C.C.C. (3d) 482, 60 O.A.C. 327, 20 C.R. (4th) 1, 14 C.R.R. (2d) 338, 43 M.V.R. (2d) 1 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 9, 10(b), 24

Criminal Code, R.S.C. 1985, c. C-46, s. 253(1)(b)

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216 [as am.], (1)

APPEALS by the accused from a conviction; APPEAL by the Crown from an acquittal.

Jacob Sone, for Crown.

Douglas Lent, for respondent Farquharson, appellant Miller and appellant Hume.

[1] ANDRÉ J.: — These three summary conviction appeals have been consolidated into one hearing because they all deal with the scope of a police officer's discretion, pursuant to s. 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), to stop and investigate a driver to determine his or her sobriety level. In R. v. Farquharson, the investigating officer stopped the respondent outside an LCBO store in Brampton, while in [page456] R. v. Hume, [2013] O.J. No. 3243, 2013 ONCJ 380 and R. v. Miller, [2014] O.J. No. 2214 (C.J.), the investigating officer stopped Mr. Miller and Mr. Hume after they had left a licensed establishment. While the facts in all three cases are different, they raise the question of whether, pursuant to s. 9 of the Canadian Charter of Rights and Freedoms, a police officer can target patrons emerging from an LCBO store or licensed establishment for the specific purpose of assessing their sobriety level, without having observed any signs of impairment or erratic driving before stopping the vehicles.

[...continues exactly as provided in the source HTML...]

Crown's appeal allowed; conviction appeals dismissed.

End of Document