CITATION: R. v. Vander Griendt, 2015 ONSC 6644
COURT FILE NO.: SCA(P) 415/14
DATE: 20151028
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Sonya Anderson, for the Respondent
Respondent
- and -
DAVID VANDER GRIENDT
Damien R. Frost, for the Appellant
Appellant
HEARD: May 19, 2015 at Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of B. Duncan J.
dated June 18, 2014]
F. Dawson J.
[1] David Vander Griendt appeals his conviction by Justice Bruce Duncan of the Ontario Court of Justice on June 18, 2014 of operating a motor vehicle with a concentration of alcohol in his blood which exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.
[2] This appeal raises the question of whether a police officer has the power to randomly stop a driver operating a motor vehicle on a privately owned parking lot for the purpose of determining whether the driver has been consuming alcohol and may be committing a drinking and driving offence.
[3] The appellant submitted at trial and again on appeal that he was arbitrarily detained contrary to s. 9 of the Canadian Charter of Rights and Freedoms because the motor vehicle stop that led to his arrest was made randomly without reasonable grounds to suspect that he had committed an offence. In other words, he submits that he was arbitrarily detained because there was no reasonable suspicion to support an investigative detention. He submitted below, and on appeal, that the alleged violation of s. 9 should lead to the exclusion of the evidence pursuant to s. 24(2) of the Charter.
[4] The trial judge accepted the appellant’s submission that the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, ss.48 and 216, which empower the police to conduct random stops on a highway, have no application on a private parking lot. In addition, he found that prior to stopping the appellant the police had no reasonable suspicion that the appellant was committing an offence. However, he ruled there was no arbitrary detention in contravention of s. 9 of the Charter because he rejected the appellant’s submission that recent Supreme Court of Canada judgments have engrafted a “reasonable suspicion” requirement onto the common law police power to randomly stop drivers to check their sobriety, that was found to exist by the Supreme Court of Canada in the pre-Charter case of R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2.
[5] The trial judge concluded that he was bound by the decision of Molloy J. of this court in R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.), sitting as a Summary Conviction Appeal Court. The trial judge said that he also agreed with the reasoning in Dillon. In Dillon, Molloy J. held that the common law power to stop described in Dedman applies to random stops conducted on privately owned parking lots to which the public has access. She concluded that the “reasonable suspicion” requirement for a constitutionally sound investigative detention, as outlined by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, has no application in the case of investigative stops of motor vehicles carried out on the authority of Dedman.
[6] The appellant renews his submissions on appeal and contends that both the trial judge and Molloy J. in Dillon made the same errors.
[7] For the reasons that follow, I am in essential agreement with the reasons of the trial judge and of Molloy J. in Dillon. I would dismiss the appeal.
The Facts
[8] The facts are not in dispute. On December 10, 2012 Cst. Kayla Hemmell and a trainee officer, Keivan Campbell, were conducting mobile sobriety spot checks as part of a seasonal RIDE program targeting impaired drivers within the Brampton area. The mobile spot checks were to take place near licensed establishments being targeted under a “last drink program”.
[9] In this capacity Cst. Hemmell was in her vehicle driving through a large parking lot open to the public adjacent to a Boston Pizza restaurant and a “big box” home improvement store, located just off of Steeles Avenue.
[10] Cst. Hemmell’s attention was attracted to a pickup truck which was being driven through the parking lot by the appellant. Because the truck appeared to brake abruptly Cst. Hemmell decided to stop it. However, the trial judge found that Cst. Hemmell had no basis for the formation of a reasonable suspicion that the appellant was committing an offence prior to the stop. That finding is not challenged on appeal.
[11] There were passengers in the appellant’s vehicle. Upon speaking with the appellant Cst. Hemmell could smell the odour of alcoholic beverages inside the truck. The appellant admitted to having consumed some alcohol.
[12] Cst. Hemmell demanded and obtained a sample of the appellant’s breath for testing by means of an approved screening device. When that device registered a “fail” the appellant was arrested. Two subsequent breath tests conducted on the appellant by means of an Intoxilyzer at a police station resulted in readings of 130 and 120 milligrams of alcohol in 100 millilitres of blood. This is the evidence the appellant applied to exclude.
The Reasons of the Trial Judge
[13] The trial judge held on the authority of R. v. Tresham, 1998 CanLII 14756 (ON SC), [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)) that the power to stop a vehicle pursuant to ss. 48 and 216 of the Highway Traffic Act does not apply in private parking lots. While the trial judge accepted the legal reasoning described in Tresham, he was doubtful that the legislature intended that result and said it was difficult to imagine a policy or civil liberties concern that would support such a conclusion. He observed that this accepted interpretation might “encourage or require police to wait until a drunk hits the street – and possibly something else…” before acting. However, in a footnote he observed that the “parking lot issue” had been around since the 1970s without clarification or amendment of the Act.
[14] The trial judge then held that, apart from statute, the police have a common law authority to stop and detain motorists. Relying on the judgment of Molloy J. in Dillon, and on Dedman and subsequent cases, he held that such authority “has no spatial limitations”, and that it applied in parking lots. He noted that Dillon had been followed in another case, citing R. v. McClelland, [2012] O.J. No. 6022 (S.C.J.), per Tulloch J. (as he then was).
[15] The trial judge held that he could add little to the analysis in Dillon. He noted that the appellant took the position, based on R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291, that whenever the police relied on their common law power to stop a vehicle, “articulable cause” (as it was referred to in Wilson) was always required. The trial judge explained why he did not think Wilson had that effect. He explained that he rejected the further argument that R. v. Mann had engrafted a “reasonable suspicion” requirement onto the common law test. As had Molloy J. in Dillon, the trial judge held that “legal developments on detention and reasonable suspicion occurring subsequent to the check-stop trilogy do not modify those cases but rather recognize that there are two different streams with two separate rules, depending on the purpose for which the stop is made.” The trial judge’s reference to the “check-stop trilogy” was a reference to the decisions of the Supreme Court of Canada in Dedman, R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621 and R. v. Ladouceur, [1998] 1 S.C.R. 621.
[16] The trial judge rejected the alternative argument advanced at trial (but not on appeal) that assuming there is a “generally applicable random stop power” it does not extend to parking lots because the public safety concerns which justify random stops on a highway do not apply in parking lots. The trial judge held that the same public safety concerns apply in parking lots and noted that being randomly stopped in a parking lot is no greater infringement on a motorist’s liberty or privacy interests than is being stopped on the road. The trial judge held that there was no Charter violation.
Arguments on Appeal and Analysis
The Respondent’s Argument that the Highway Traffic Act Provisions Apply
[17] At trial the Crown conceded that there was no statutory authority for the stop in this case (Transcript; submissions, p. 134). Given that concession it is difficult to see why the Crown should be permitted to take a different position on appeal.
[18] In any event, I conclude I am unable to accept the Crown’s submission on appeal that the provisions of s. 48(1) of the Highway Traffic Act apply on a parking lot. That is the only section of the Act the Crown points to as a basis for the stop. Section 48(1) reads as follows:
- (1) 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). 2007, c. 13, s. 10.
[19] The respondent submits that although the Act focusses on conduct and issues associated with highways as defined in the Act, some provisions of the Act are intended to apply elsewhere. The respondent submits that in R. v. Hajivasilis, 2013 ONCA 27, at para. 4, the court held that nothing in the overall structure of the Act or its purpose compels the reading of the word “highway” into sections in which it does not appear. The respondent submits that I should conclude that Hajivasilis is an authority which supports the proposition that s. 48(1) of the Act applies on a private parking lot.
[20] I am unable to accept this submission. In Hajivasilis five judges of the Court of Appeal sat in order to reconsider the correctness of the court’s previous obiter comment in Shah v. Becamon, 2009 ONCA 113, 94 O.R. (3d) 297 that “the entire HTA, including the graduated licensing system, is limited to ‘highways’.” Writing for the court, Doherty J.A. held that the comment that the entire HTA is limited to highways was wrong. He held that while many sections of the Act are applicable only to highways as defined in the Act, not all sections of the Act refer to a highway or incorporate the definition of highway into their provisions. The court held that whether a provision of the Act applies only on a highway will depend on whether the section in question makes direct reference to a highway or uses a word which is itself defined in the Act by further reference to the definition of “highway” as contained in the Act.
[21] Justice Doherty made reference to s. 48 of the Act at para. 13 of his judgment. He observed that s. 48 allows police officers to “require the driver of a motor vehicle to stop”. He also observed that “driver” is defined in the Act as “a person who drives a vehicle on a highway”. Therefore, Justice Doherty observed that a person who is driving on a parking lot “is at least arguably not a driver for the purposes of the HTA.” Applying this reasoning I would hold that s. 48 applies only on a highway as defined by the Act. It cannot serve as the basis for stopping a vehicle being driven on a privately owned parking lot. I would add these reasons to those of the trial judge on this point. The same reasoning applies to the power to stop described in s. 216 of the Act and I conclude it also has no application on a privately owned parking lot.
The Main Arguments
[22] As the appellant’s arguments vary slightly from those advanced at trial and from those dealt with by Molloy J. in Dillon I will summarize them and deal with them. However, I point out that Justice Molloy’s judgment in Dillon is comprehensive and I substantially agree with her reasoning. I will attempt to restrict my comments to those necessary to deal with the arguments placed before me and to indicate why I disagree with them. My purpose is to add to the discussion started by Molloy J. while resolving the current appeal.
[23] The appellant first submitted that both the trial judge and Molloy J. in Dillon started their analysis by asking themselves the wrong question. It is submitted that both jurists started by asking whether the common law authorized a vehicle stop when they should have started their analysis by asking themselves whether there was an arbitrary detention. The submission is that by asking themselves the wrong question at the outset both jurists blurred the issue and fell into error.
[24] According to the appellant, asking the wrong question first took both jurists immediately to Dedman, a pre-Charter case which justified random vehicle stops on the basis of the ancillary police powers doctrine described in the English case of R. v. Waterfield, [1964] 1 Q.B. 164, [1963] 3 All E.R. 659. However, the appellant submits that in all post-Charter cases where random vehicle stops have been considered, the Supreme Court of Canada has found such stops to be arbitrary. The appellant refers to Hufsky, Ladouceur and Wilson in particular. The appellant notes that the statutory random stopping provisions found to result in arbitrary detention in Hufsky and Ladouceur were only upheld on the basis of the application of s. 1 of the Charter. In Wilson, the court also upheld the legitimacy of the stop in that case on the basis of “articulable cause”.
[25] From the foregoing, the appellant advances three propositions related to his allegations of error. First, he submits that a random stop under Dedman must surely be arbitrary for the same reasons the statutory powers authorizing stops at issue in Hufsky and Ladouceur were found to be arbitrary – there were no identifiable grounds or cause for stopping the vehicle. The appellant emphasizes that as Dedman was decided prior to the Charter, s. 9 was not in issue.
[26] Second, and of critical importance, the common law power described in the pre-Charter case of Dedman was based on the “Waterfield test”. The appellant submits that neither Dedman nor the Waterfield test have ever been subjected to a s. 1 Charter analysis.
[27] Third, in the case at bar the trial judge found that there was no articulable cause or reasonable grounds to suspect that an offence had been committed. The appellant submits that on the basis of Hufsky and Ladouceur alone the trial judge accordingly erred in failing to find that there was an arbitrary detention. Furthermore, he submits that the only way the random stop could have been upheld in this case was on the basis of a s. 1 Charter analysis of the common law power which was not conducted by the trial judge. The appellant further submits that I am in no position to conduct a s. 1 analysis as the Crown did not rely on s. 1 of the Charter at trial.
[28] The appellant contends that what the trial judge and Molloy J. have done is to recognize a wider power to stop a vehicle on private property pursuant to common law than there is based on statute to stop a motor vehicle on a public roadway. He submits this is anomalous and that it assists in demonstrating the errors he alleges.
[29] The appellant reinforces his arguments by reference to the Supreme Court of Canada’s decisions in Mann and R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, and by reference to the Court of Appeal for Ontario’s precursor decision to those judgments, R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 308. He contends that Mann conclusively establishes that all detentions are arbitrary in the absence of a reasonable suspicion that the detainee has committed or is committing a specific offence.
[30] Finally, the appellant renews the submission made to the trial judge that in Wilson the Supreme Court of Canada held that if the stop in that case was random it was justified under s. 1 of the Charter for the reasons given in Ladouceur, but went on to further hold, on the facts of that case that the stop did not constitute an arbitrary detention because there were articulable grounds to support it. The appellant submits that Wilson stands for the proposition that these are the only two bases which can justify a vehicle stop which amounts to an investigative detention.
Did the Trial Judge Start His Analysis by Asking the Wrong Question?
[31] I am unable to accept the appellant’s submission that the trial judge and Molloy J. in Dillon fell into error by asking themselves the wrong question. In Mann, at para. 20, the court stated:
It is well recognized that a lawful detention is not “arbitrary” within the meaning of [s. 9 of the Charter]. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.
[32] I will come back to the important question of whether the second sentence in the passage just quoted limits a finding of lawfulness to requiring the existence in all circumstances of a reasonable suspicion that an offence has been or is being committed. For the moment, the point is that an examination of whether a detention is lawful is at least a first logical step in determining whether a detention is arbitrary.
[33] This point was restated and expanded upon in R. v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. At para. 52 the court held:
A lawful detention is not arbitrary within the meaning of s. 9 (Mann, para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.
[34] 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.
The Wilson Argument
[35] I will deal briefly with the appellant’s argument based on Wilson. Wilson was heard by the Supreme Court of Canada together with Ladouceur. The appellant had been convicted of impaired driving in Alberta. He challenged his conviction on the basis that he had been arbitrarily detained. First, he argued that the police officer who stopped him had no statutory or common law authority to do so. The court disagreed, finding that s. 119 of the Alberta Highway Traffic Act authorized the stop. Significantly, the court placed no reliance on the common law power described in Dedman. The appellant in the present case overlooks this significant factor. Second, Wilson argued that even if the officer’s actions were authorized by law, they violated s. 9 of the Charter and could not be saved by s. 1. See Wilson, at paras. 10-11.
[36] The appellant’s submission in the present case is based on how Cory J. dealt with the second argument advanced in Wilson. Justice Cory said that Wilson’s second argument could be dismissed on two bases. The first was that if the stop was considered to be random, and therefore arbitrary, the reasoning in Ladouceur applied. In other words, the stop was justified on the basis of s. 1 of the Charter. The second basis for dismissing the argument was that Cory J. concluded that on the facts there was articulable cause to support the officer’s stopping of the appellant’s vehicle. Wilson was stopped while driving away from a bar in a small town shortly after closing time and the officer did not recognize the occupants of the vehicle. Cory J. effectively found that this articulable cause undermined Wilson’s argument that the stop was random.
[37] In the present case the appellant submits that, by logical extension, Wilson establishes that whether a vehicle stop is based on a statutory provision or the common law, in the absence of articulable cause (the words used in Wilson), the stop will be arbitrary and in violation of s. 9 of the Charter unless the law authorizing the random stop is upheld pursuant to s. 1.
[38] I am not able to accept this submission. In Wilson the court was simply giving two reasons for dismissing the appeal. One was factual and one was legal. As Duncan J. put it, at para. 13 of his judgment: “On the facts, there were grounds; if not, on the law, it was still lawful.”
[39] It must also be borne in mind that in dismissing the appellant’s first argument the court found that s. 119 of Alberta’s Highway Traffic Act authorized the stop, not the common law. I do not think it can be said that the court was in any way commenting with respect to a stop based on the common law power described in Dedman. While reference was made to Dedman, that was in the context of comparing the provision in Ontario’s Highway Traffic Act, which was found in Dedman not to authorize a random stop, to s. 119 of Alberta’s Highway Traffic Act, which the court found did authorize such a stop. The reference to Dedman cannot be taken as an indication that any of the comments in the judgment in Wilson were made in relation to a stop based on the common law power to stop identified in Dedman.
[40] Moreover, if the court was intending to limit or overrule its conclusion in Dedman that the random stop of a motor vehicle is permissible based on the common law, a clear statement to that effect would be expected. I simply cannot accept that Wilson stands for the proposition the appellant submits it does.
The Post-Charter Application of Dedman and s. 1 of the Charter
[41] The trial judge had to determine whether the common law power described in Dedman applied post-Charter having regard to the cases that were cited to him. He relied on Molloy J.’s decision in Dillon. In Dillon Molloy J. gave fulsome reasons explaining why she was of the view that if Dedman had been decided in a post-Charter context the result would have been the same.
[42] At para. 31 of Dillon, Molloy J. noted that in upholding the legislated power to stop motorists which was found to violate s. 9 of the Charter in Hufsky and Ladouceur pursuant to s. 1 of the Charter, the court applied an analysis virtually identical to that employed in Dedman to justify the common law power to conduct random vehicle stops at the second stage of the Waterfield test. In all three of its judgments in Dedman, Hufsky and Ladouceur the court emphasized that the liberty interest at stake was the licensed and regulated activity of driving a motor vehicle. Pursuant to the Waterfield test (in Dedman) and pursuant to s. 1 of the Charter (in Hufsky and Ladouceur) the court held that some brief interference with that licensed activity had to be balanced against the need to protect lives and property by deterring impaired driving. In all three cases that balance favoured upholding the validity of the power to randomly stop motor vehicles.
[43] I take Molloy J. to have concluded that even if random stops pursuant to Dedman are considered to be arbitrary, they are, in essence, justifiable under s. 1 of the Charter because the analysis at the second stage of the Waterfield test employed in Dedman was so similar to the s. 1 analysis carried out in Hufsky and Ladouceur that the result would be the same. I agree with that conclusion.
[44] Further support for the correctness of this conclusion can, I believe, be found in the judgment of Cory J. for the majority in Ladouceur, at para. 40. That paragraph is found near the beginning of Cory J.’s s. 1 analysis. That introductory paragraph reads as follows:
The power of a police officer to stop motor vehicles at random derives from s. 189a(1) of the Highway Traffic Act [now s. 216] 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.
[45] In the following paragraph Cory J. succinctly identifies the issue as “whether the truly random routine check can be ‘reasonably and demonstrably justified in a free and democratic society’.” In view of this introduction it seems to me that in what follows Justice Cory is effectively subjecting both the statutory power found in that case to authorize an arbitrary detention and the corresponding common law power described in Dedman, to a s. 1 Charter analysis. The only logical conclusion is that both sources of power were upheld pursuant to s. 1 of the Charter. It is inconceivable to me that if Justice Cory saw any reason to distinguish between the statutory power and the common law power, both of which he identified with precision at the outset of his s. 1 analysis, he would not have made express reference to such distinction during the course of his analysis.
[46] Additional support for the conclusion that a finding that a detention pursuant to a police power which meets the Waterfield test is lawful, and therefore not arbitrary, can be found in the recent decision of the Court of Appeal in Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208. In that case the court was concerned with whether the police acted lawfully within the scope of their powers when they dealt with a particular protester walking down the street during the 2010 G20 summit in Toronto. Writing for the court, Rouleau J.A. held that the determination had to be made by applying the Waterfield test.
[47] At para. 49 Rouleau J.A. observed that Waterfield was imported into Canadian law pre-Charter in Dedman. He went on to explain that the Supreme Court of Canada has “effectively integrated the analysis of the impact of police conduct on Charter rights into the Waterfield analysis”. At paras. 51 and 52 he commented that the Supreme Court of Canada continues to use the Waterfield test to define limits on police powers consistent with Charter values. He noted that the Waterfield test has been integrated into some Charter analysis to the point where some commentators contend that the court has incorporated the s. 1 Charter analysis described in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 into the Waterfield test.
[48] After referring to a number of authorities, and to ss. 8, 9 and 10 of the Charter, Rouleau J.A. held, at para. 52: “As a result, when police act in accordance with their common law ancillary powers, the internal limits of these sections are respected, and there is no Charter breach that must be justified by s. 1.” This stands as a considerable impediment to the success of the appellant’s argument.
[49] For the foregoing reasons I am not persuaded the trial judge or Molloy J. in Dillon made any error in concluding that the common law power described in Dedman remains alive and well in the post-Charter era.
Does Mann Engraft a Requirement of Reasonable Suspicion onto Dedman?
[50] I now turn to the argument that Mann imposes a requirement of reasonable suspicion upon the common law test described in Dedman and that because the trial judge found no such reasonable suspicion to exist he necessarily erred in concluding that there was no violation of s. 9 of the Charter.
[51] Almost the same argument was made in Dillon. In rejecting the argument there Molloy J. noted that Mann relied on Simpson as the main foundational case for the principle that reasonable suspicion is a prerequisite to a valid investigative detention of the type described in Mann. Molloy J. pointed out, at para. 45, that in Simpson Doherty J.A. was careful to distinguish an established line of cases where detention had been found to be valid based on common law police powers, absent “articulable cause”. As Molloy J. also noted at para. 45, those cases included Dedman and other cases aimed at reducing the carnage associated with drinking and driving.
[52] I note that in Simpson, at para. 25, Doherty J.A. stated: “The authority to stop described in Dedman was clearly not a general power to stop for all police purposes, but was limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner.” The court in Simpson was concerned about the nature and limitation upon police powers to stop and detain for investigative purposes in a completely different context than road safety. This provides considerable support for the conclusion of the trial judge and of Molloy J. in Dillon, that there are two different streams of cases.
[53] The point is that the context for the exercise of a police power to stop and detain is important to determining what the required prerequisites to the constitutionally valid exercise of that police power are.
[54] The importance of context to the constitutional validity of a police power to stop and detain for investigative purposes is evident in Mann. At para. 17 of the majority judgment, Iacobucci J. expressed the need for the court to respect the role of Parliament and to exercise caution in creating police powers by the development of the common law. He said that for that reason he did not believe it was appropriate for the court “to recognize a general power of detention for investigative purposes”. He concluded the paragraph by indicating that in Mann the court’s duty was “to lay down the common law governing police powers of investigative detention in the particular context of this case” (emphasis added). This is an important limitation on the statements of principle laid down in Mann that the appellant fails to recognize in his argument.
[55] The context in Mann was very different from that in the drinking and driving cases we are concerned with here. In Mann the issue was whether the police had the power to conduct an investigative detention of a person walking down a street. The appellant in that case was not engaged in the licensed and highly regulated activity of driving a motor vehicle.
[56] The emphasis on the importance of context appears in the judgment in Mann before the court stated, at para. 20, that “an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.” In view of the previous reference at para. 17 to laying down the law of investigative detention in the particular context of the case, I do not agree with the appellant’s submission that the reasonable suspicion requirement, which is undoubtedly the critical component of the power of investigative detention recognized in Mann, applies in the very different context of the licensed and regulated activity of driving a motor vehicle. Recent cases, such as Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 highlight the distinctive nature of that licensed and regulated activity.
[57] I also observe that in developing the reasonable suspicion requirement for investigative detention in the context of the facts in Mann, Iacobucci J. made extensive reference to the reasons of Doherty J.A. in Simpson. He did so without any disapproval or adverse comment about Doherty J.A. distinguishing cases dealing with random stops of motor vehicles, such as Dedman. This adds further support to my conclusion.
[58] These considerations flow through into the application of the Waterfield test. In Mann, as in Dedman, the court relied upon and applied the Waterfield test in developing the power of investigative detention. I note that the Waterfield test has two branches. Under the first branch the court enquires into whether the police are acting within the scope of a recognized police duty. Under the second branch the court considers whether the police conduct involved an unjustifiable use of police powers.
[59] It is often the second branch of the test that attracts the most attention because it is where the liberty interests that are at stake in a particular case are weighed, together with a myriad of other factors, to determine whether the power being exercised is valid. However, when context is important, as Mann says it is, the nature of the recognized police duty under the first branch of the test is also very important. The driving cases, including Dedman, Hufsky and Ladouceur, demonstrate that when police officers randomly stop drivers to check for sobriety and regulatory compliance they are primarily pursuing their duty to protect the public from serious harms that are known to arise from the licensed activity of driving. They are not, as in Mann, investigating a specific person in relation to a known crime. While it is well recognized that police powers are not necessarily co-extensive with their duties, the nature of the duty pursuant to which a police power is exercised obviously impacts on the weighing and balancing which occurs at stage two of the Waterfield test: see Mann, at para. 26; Simpson, at para. 57.
[60] Contrary to the appellant’s submission, I find further support for the conclusion that Mann did not have the effect of engrafting a reasonable suspicion requirement onto all common law police powers to stop and detain, in the decision of the Supreme Court of Canada in Clayton. That judgment postdates the decision of Molloy J. in Dillon.
[61] In Clayton the police were responding to a 911 call. The caller reported that about ten black males were openly displaying handguns in the parking lot of a strip club. The caller provided some description of four vehicles, including their make and model. The police responded immediately, set up a perimeter around the club and established roadblocks at all exits from the parking lot. The accused, Clayton and Farmer, were stopped at a roadblock although their vehicle did not match the descriptions of the vehicles provided by the 911 caller. That stop was found to constitute a detention. Subsequent developments led to the successful prosecution of Clayton and Farmer for firearms offences.
[62] In the Court of Appeal for Ontario, Doherty J.A. held that stopping the vehicle Clayton and Farmer were riding in resulted in their arbitrary detention because the vehicle did not come close to matching the description of the four vehicles thought to be involved: R. v. Clayton (2005), 2005 CanLII 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.), at paras. 60, 61 and 64. He made this determination in the course of considering whether a roadblock stop of all motorists leaving the parking lot could be justified under the ancillary police powers doctrine pursuant to the Waterfield test.
[63] Ultimately, Doherty J.A.’s concern was that the police had ignored part of the information they had received in the 911 call concerning the descriptions of the vehicles. He held (at para. 63) that a roadblock stop of all persons leaving the parking lot, regardless of whether their vehicles matched the description provided, went beyond what could be justified under the ancillary powers doctrine. This flowed from his concern that because the vehicle Clayton and Farmer were riding in did not even come close to matching the descriptions of the involved vehicles, there was a lack of individualized reasonable suspicion to justify the stop of their vehicles (para. 61). This led to the conclusion that the stop was unlawful and that the resulting detention was therefore arbitrary and in violation of the Charter.
[64] This reasoning was rejected by Abella J. writing for the majority of the Supreme Court of Canada. She held that a correct application of the Waterfield test led to the conclusion that the police were fully justified in stopping everyone who was leaving the parking lot (para. 24). No individualized reasonable suspicion was required. Justice Abella made that determination after she had reviewed the development and application of the Waterfield test in Dedman, Simpson, R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 and Mann. Consequently, I do not think it can be said that a reasonable suspicion that a detainee has committed an offence, which was required due to the particular context in Mann, is, as the appellant here submits, always required before a detention is lawful and accordingly not arbitrary. Such individualized reasonable suspicion was ultimately not required in Clayton.
[65] Abella J. emphasized the importance of a consideration of all of the circumstances. This is a further indication that determinations in this area of the law are context specific. How the balance will be drawn and what is determined to be a justifiable use of police power will vary with the circumstances.
[66] In reaching her conclusion, at para. 33, Abella J. said the following:
The police were entitled to take reasonable measures to investigate the offence without waiting for the harm to materialize and had reasonable grounds for believing that stopping cars emerging from this parking lot would be an effective way to apprehend the perpetrators of the serious crime being investigated.
[67] I note that the use of the words “reasonable grounds” in this passage relate to whether the investigative methodology or technique employed would be effective in pursuing the particular duty the police were pursuing. This was not a reference to a requirement for individualized suspicion. Thus, Clayton supports the conclusion that in some circumstances vehicle stops may be justified even in the absence of reasonable individualized suspicion.
[68] For the foregoing reasons, I reject the appellant’s submission that Mann has had the effect of engrafting an individualized reasonable suspicion requirement onto the common law police power to randomly stop motor vehicles for the purpose of checking driver sobriety.
Other Cases Referred to to Support the Appellant’s Submissions
[69] The appellant has referred me to two decisions of the Ontario Court of Justice which held that the reasonable suspicion requirement described in Mann must be applied in relation to motor vehicle stops initiated in a private parking lot. Those cases are R. v. Cordeiro, 2009 ONCJ 29 and R. v. Campbell 2009 ONCJ 157. In both cases the learned trial judges purported to distinguish Dillon, an authority which would otherwise have been binding upon them, on the basis that Dillon was decided prior to the judgment of the Supreme Court of Canada in Clayton. That approach is made expressly clear in Campbell at para. 25. It is implicit in Cordeiro at paras. 18-20.
[70] In neither of those cases is a detailed analysis of Clayton undertaken. Neither jurist recognized that the decision in Clayton is itself a case where it was found that individualized reasonable suspicion was not required. Nor did those jurists discuss the significant differences between the context of checking on driver sobriety and administrative compliance arising within the highly regulated activity of operating a motor vehicle and that of protecting the public and investigating criminal activity not immediately associated with the operation of a motor vehicle. Consequently, and with respect, I do not find the reasoning in those cases to be persuasive and I would not follow it.
[71] The appellant also makes reference to the judgment of Tulloch J., made as a member of this court, in McClelland. As previously mentioned, the trial judge relied upon McClelland as a case in which Dillon had been recognized and applied. At para. 23 of McClelland Tulloch J. held that Dillon had not been overtaken by subsequent higher authority and remained good law. The appellant acknowledges this but points out that Tulloch J. went on to apply Mann and Simpson and to base his decision in that case on a finding that there was articulable cause or reasonable suspicion. I note that he did that by undertaking his own Waterfield analysis. He concluded that on the evidence in the record before him that two pronged test had been met because in the circumstances there was reasonable suspicion to support the vehicle stop.
[72] I see what occurred in McClelland as akin to what occurred in Wilson, which I have already dealt with. In the result, I do not see McClelland as being of much assistance to the appellant in the present case.
CONCLUSION
[73] For the foregoing reasons the appeal is dismissed.
F. Dawson J.
Released: October 28, 2015
CITATION: R. v. Vander Griendt, 2015 ONSC 6644
COURT FILE NO.: SCA(P) 415/14
DATE: 20151028
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DAVID VANDER GRIENDT
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: October 28, 2015