ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
L. Mehkeri, for the Crown/Appellant
Appellant
- and -
RYAN NIELD
K. Gowenlock, for the Respondent
Respondent
HEARD: June 25, 2015, at Kenora, Ontario
Mr. Justice J.S. Fregeau
REASONS ON APPEAL
Introduction
1On October 24, 2012, Ryan Nield (the “respondent”) was charged with operating a motor vehicle with a blood/alcohol level that exceeded 80 milligrams of alcohol per 100 ml of his blood contrary to s. 253(1)(b) of the Criminal Code of Canada (the “Code”).
2On April 4, 2014, the respondent was acquitted. The Learned Trial Judge held that the respondent had been arbitrarily detained by the investigating officer, resulting in a breach of the respondent’s right to be free from arbitrary detention pursuant to s. 9 of the Canadian Charter of Rights and Freedoms (the “Charter”).
3The Learned Trial Judge then excluded all evidence obtained as a result of the s. 9 breach pursuant to s. 24(2) of the Charter.
Facts
4On October 24, 2012, at approximately 1:22 a.m., Constable Jacko of the Kenora detachment of the Ontario Provincial Police was on duty and in his cruiser parked in the vicinity of a fast food restaurant in the City of Kenora.
5Constable Jacko observed the respondent running through the parking lot of a McDonald’s restaurant across the street. The respondent was observed running to and entering a vehicle parked in or near the parking lot of a hotel. The respondent started the vehicle and drove it onto Highway 17 East, travelling east within the City of Kenora.
6Constable Jacko testified that his suspicions were aroused by the fact that the respondent was running through a parking lot in the early morning hours. He therefore followed the respondent’s vehicle.
7The respondent drove approximately 300 metres east and then turned into the parking lot of another hotel where he parked his vehicle. Constable Jacko followed the respondent’s vehicle into the parking lot and parked his police vehicle behind the respondent’s vehicle blocking him in.
8Constable Jacko approached the driver’s side of the respondent’s vehicle and opened the driver’s door. Following a brief exchange, Constable Jacko formed a suspicion that the respondent had alcohol in his body and made a demand that the respondent provide a sample of his breath into an approved screening device.
9The respondent registered a fail on the screening device. He was arrested and eventually provided samples of his breath for the purpose of analysis. The respondent’s breathalyzer readings were 130 and 120 milligrams of alcohol per 100 ml of blood.
Decision of the Learned Trial Judge
10The Learned Trial Judge held that there “was no objective or subjective reasonable basis” for Constable Jacko to suspect the respondent of criminal activity prior to detention. The respondent was found to have been arbitrarily detained by Constable Jacko.
11The Learned Trial Judge held that the respondent was no longer a “driver” as defined in the Ontario Highway Traffic Act (the “HTA”) once he had parked his vehicle in the hotel parking lot. In turn, the Learned Trial Judge held that the HTA did not provide Constable Jacko with lawful authority to arbitrarily detain the respondent in the circumstances to check his sobriety.
12The Learned Trial Judge concluded that Constable Jacko’s arbitrary detention of the respondent was not authorized by law.
13The Learned Trial Judge found the s. 9 breach to be a serious Charter violation. Recognizing that exclusion of the breathalyzer readings would be fatal to the Crown’s case, the Learned Trial Judge nonetheless chose to exclude this evidence.
Issues
14The appellant advances two grounds of appeal:
The Learned Trial Judge erred in concluding that the respondent was not a “driver” within the definition of s. 1(1) of the Ontario Highway Traffic Act; and,
The Learned Trial Judge erred in excluding the respondent’s breathalyzer readings pursuant to s. 24(2) of the Charter.
15At trial, the Crown appellant did not submit, as an alternative to the HTA statutory authority to randomly stop drivers, that Constable Jacko was acting pursuant to common law authority when he randomly detained the respondent in a parking lot. This issue was therefore not considered by the Learned Trial Judge.
16The parties are in agreement that this issue should have been put before the Learned Trial Judge and adjudicated upon. The appellant and respondent agree that, in these circumstances, that issue can properly be put before this court on appeal. I agree. As a result, that issue is also before this court on appeal.
The Standard of review
17The leading case addressing the standard of review on appeal is Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for findings of fact is palpable and overriding error. The standard of review for inferences drawn from findings of fact is also palpable and overriding error. At para. 23 of Housen, the Supreme Court discussed the standard of review for inferences of fact:
We reiterate that it is not the role of appellate courts to second guess the weight to be assigned to the various forms of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts…
18In Housen, the Supreme Court instructed that on pure questions of law, the applicable standard of review is correctness. At para. 8, the court held:
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness.
Discussion
Issue #1
At the point at which he was detained, was the respondent a driver within the definition of the HTA?
19This issue is a matter of statutory interpretation and is therefore a question of law. The standard of review is correctness.
20Section 48(1) of the HTA reads as follows:
48(1) Determining whether to make a demand -- 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 254 of the Criminal Code (Canada).
21Section 216(1) of the HTA provides that:
216(1) Power of police officer to stop vehicle -- A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
22Section 216(1) of the HTA provides a police officer with the general power to stop a “driver” when the officer is acting in the lawful execution of his or her duties. Section 48(1) provides for a specific power to stop a “driver” to check for driver sobriety.
23The word “driver” is defined in section 1(1) of the HTA:
“driver” means a person who drives a vehicle on a highway.
24“Highway” is defined in the HTA as follows:
“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.
25In R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257 the Supreme Court of Canada held that random spot checks conducted pursuant to the statutory power provided in the HTA constituted arbitrary detention in violation of s. 9 of the Charter. The Court further held that such random stops were a reasonable limit prescribed by law and therefore justified pursuant to s. 1 of the Charter. If the respondent is found to be a “driver” within the definition provided in the HTA, Constable Jacko’s random stop was therefore lawful.
26For the respondent to be a “driver” within the meaning of the HTA, it must be found that he was driving a vehicle on a highway. At the time of being stopped, the respondent had parked his vehicle in the parking lot of a hotel. He was not driving his vehicle on a “highway” as defined in the HTA. The parking lot in which the respondent was detained was private property and the HTA therefore has no application. See R. v. Dillon, [2006] O.J. No. 1366 (Ont. Sup. Ct.) at para. 23.
27The issue was also considered by the Ontario Court of Appeal in R. v. Hajivasilis, 2013 ONCA 27. At issue in this case was whether the defined term “highway”, which appears in many but not all provisions of the HTA, can properly be read into sections of the act which do not use the word “highway” or some other word that incorporates the definition of “highway”.
28At paragraph 10 of Hajivasilis, Doherty J. held as follows:
The phrase “intended for or used by the general public for the passage of vehicles” limits the meaning of “highway”. If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of “highway”. Most privately owned parking lots are not “highways” as defined in the HTA: see R. v. Mansour, 1979 46 (SCC), [1979] 2 S.C.R. 916 (S.C.C.); Gill v. Elwood (1969), 1969 215 (ON CA), [1970] 2 O.R. 59 (Ont. C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of “highway” in the HTA.
29In my opinion, the Learned Trial Judge was correct in holding that the respondent was no longer a “driver” as defined in the HTA once parked in the hotel parking lot. Constable Jacko, at this point in time, did not have authority under the HTA to randomly detain him to check his sobriety.
30The first ground of appeal is therefore dismissed.
Issue #2
Was Constable Jacko acting within common law authority when he stopped and detained the respondent in the hotel parking lot?
31The issue of investigative detention at common law in the context of random spot checks was thoroughly reviewed by Molloy J. in Dillon in a fact situation very similar to that under appeal. In Dillon, police officers decided to investigate the sobriety of a driver parked in the parking lot of a bar located in a strip mall. The bar was a known trouble spot, with the police being called frequently for fights and drinking in the parking lot. Many complaints were received for impaired drivers leaving the parking lot. R.I.D.E. programs had been set up in the past to stop and check drivers leaving the parking lot.
32In Dillon, the stop occurred at 1:15 a.m. The accused was in the driver’s seat of his car with the engine running and the lights on. Officers drove onto the parking lot and parked behind the accused’s vehicle, stopping him from leaving. The only reason for the stop was to check for driver sobriety.
33Malloy J. held that the parking lot was private property to which the HTA did not apply. The police were therefore unable to rely on any statutory authority for the detention. In order to justify the detention, the Crown was required to show it was made pursuant to a common law power.
34Malloy J. reviewed the issue of investigative detention at common law in this context at paragraphs 24 – 49 of Dillon. The first stage of the two stage 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. It is not in issue that detecting impaired drivers and preventing them from operating cars on highways is within the scope of police officers’ duty to investigate crime and protect life.
35Molloy J. held that the investigative detention of Mr. Dillon was within the general scope of police duty. Officers were motivated by a concern about a potential impaired driver. The accused was in the parking lot of a bar that had just closed. Malloy J. found that it was a “reasonable inference that his entry onto the public roadway was imminent.” See para. 25.
36At the second stage of the analysis, the Crown must demonstrate that the police conduct was a justifiable use of the powers associated with the duty. This requires a balancing of interests where the court must consider the necessity and reasonableness of the interference with liberty, assessed in light of the nature of the liberty interfered with and the importance of the public purpose served. See Dillon at para. 26.
37Recognizing that R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 held that the investigative detention power of the police included the power to randomly detain drivers in order to check for sobriety in the context of a R.I.D.E. program and that Dedman survived the Charter, Molloy J. went on to consider if the case before her was distinguishable from Dedman on the facts.
38Molloy J. considered whether the Dedman rationale extended to a purely random stop on private property as was the case before her. She also considered whether R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), which imposed a requirement that there be an objectively reasonable basis for the suspicion giving rise to the detention, applied in the circumstances before her. Molloy J. referred to this latter requirement as the “Simpson gloss”.
39Molloy J., following Ladoucer, held that “a completely random stop by a police officer acting on his own was, under s. 1 of the Charter, a justifiable infringement of the right of motorists to be free from arbitrary detention.” In Ladoucer, at paragraph 40, the Supreme Court further stated that the authority of a police officer to stop motor vehicles at random “has been justified by this court in its decision in Dedman…as a prescription of the common law.”
40Molloy J. also concluded that there was no rationale for limiting the common law police powers to detain for investigative purposes based on the location of the detention in the case before her:
Accordingly, assuming the police had a valid common law power to detain Mr. Dillon for investigative purposes, I see no principled reason to find that in these circumstances such power would be lost because they were on a parking lot rather than a roadway.
41Finally, Molloy J. considered whether the police must demonstrate an objective basis for suspecting that the person detained is implicated in a particular criminal activity under investigation – the Simpson objective reasonable standard. Molloy concluded that the objective basis “gloss” developed in Simpson did not apply to the case before her.
42Molloy J. noted that in Simpson Doherty J. was careful to distinguish the established line of cases in which investigative detentions had been found to be valid in the absence of any “articulable cause” to suspect wrongdoing, including the cases of Ladoucer, Dedman and Hufsky 1988 72 (SCC), [1988] 1 S.C.R. 621. Those cases were distinguished because the detentions in them were “aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers”.
43As observed by Molloy J. in Dillon, the Court of Appeal in Simpson strictly limited the circumstances in which the police powers referred to in Dedman will apply. In order to randomly detain a motorist without reasonable grounds for suspecting that person has committed a crime, the police must be acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle. See para. 48 of Dillon.
44Molloy J. found that in the case before her, the officer’s only purpose in investigating Mr. Dillon was to ensure he was not impaired and that he did not pose a threat to the safety of the public in the operation of his car. This was held to be “squarely within the scope of the common law power as established in Dedman.”
45Molloy J. therefore concluded “that the police detention of Mr. Dillon was lawful and did not breach his (s. 9) rights under the Charter. See para. 51.
46The respondent submits that Dillon is distinguishable from the case under appeal. Mr. Nield had turned off the roadway and parked his vehicle in a hotel parking lot only a few metres away from a roadway at the time of detention. In these circumstances, the respondent submits that the appropriate inference to be drawn is that Mr. Nield had parked his car for the night and would not be returning to the highway. Recall that in Dillon, at paragraph 25, Molloy J. drew the inference that Mr. Dillon’s entrance from the parking lot onto the “public roadway was imminent.”
47Should I be persuaded to draw the suggested inference, the respondent submits that this court should find that the detention in this case was not directed at “reducing the terrible toll of death and injury so often occasioned by impaired drivers”. The respondent submits that the justification for the detention was not present once the risk of the driver being on a public roadway was eliminated.
48I do not accept the position of the respondent. I accept that Mr. Nield had left the roadway and parked in the hotel parking lot. I decline to draw the inference suggested by the respondent – that he had parked his vehicle for the night and would not be returning to the roadway.
49The transcript of evidence from the trial indicates that Constable Jacko “suspected” that the respondent had been drinking and that the officer formed the intention to check the respondent for sobriety at a point in time when the respondent was operating a motor vehicle on a highway. As was the case in Dillon, based on my review of the evidence of Constable Jacko, I am satisfied that his only purpose in investigating Mr. Nield was to check on his sobriety and to ensure that he did not pose an immediate or future threat to the safety of the public in the operation of his vehicle.
50In coming to this conclusion, I accept the reasoning of Molloy J. found at paragraph 41 of Dillon. Assuming the police had a valid common law power to detain Mr. Nield for investigative purposes, there is no principled reason to find that such power was lost because the detention occurred in a parking lot adjacent to a roadway from which the respondent had just left.
51I conclude that the detention of the respondent was lawful and did not breach his rights under s. 9 of the Charter. Having concluded that there was no s. 9 breach it is not necessary for me to deal with s. 24(2) of the Charter. All evidence obtained was legally admissible at trial.
52The Crown’s appeal is allowed. The finding of not guilty is set aside. The respondent indicated that he would have called evidence at the trial had the Charter application not been dispositive of the case. In these circumstances, pursuant to s. 686(4)(b)(i) of the Code, I remit this matter back to the Ontario Court of Justice for a new trial.
The Hon. Mr. Justice J.S. Fregeau
Released: September 17, 2015
COURT FILE NO.: CR-14-31-AP
DATE: 2015-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Ryan Nield
REASONS ON APPEAL
Fregeau J.
Released: September 17, 2015
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