COURT FILE NO.: 16-A9748
DATE: 2018/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Arun Adrian Ravindra
Appellant
Mr. M. Karimjee, for the Crown
Mr. Matthew B. Day, for the appellant
HEARD: Wednesday, May 9, 2018 (Ottawa).
REASONS FOR decision
C.T. Hackland J.
[1] This is an appeal by the accused from the Judgment of Justice Paciocco of the Ontario Court of Justice, as he then was, convicting him of having more than the legal limit of alcohol in his blood, contrary to section 253(1)(b) of the Criminal Code. At trial the accused unsuccessfully sought exclusion of the breath readings on a Charter motion based on the argument that he was arbitrarily detained contrary to section 9 of the Charter. The appellant pursues the same Charter argument on this appeal.
[2] The parties agree that they do not challenge and indeed specifically accept the trial judge’s findings of fact. However, the appellant submits that based on the trial judge’s findings, the stop pursuant to section 216(1) of the Highway Traffic Act, cannot properly be viewed as random as that concept is reflected in the jurisprudence. Counsel agree the point under appeal is a question of law.
[3] The trial judge found on the evidence which he chose to accept, that the officer’s “attention was drawn to the vehicle because of the U-turn, but his objective in stopping the vehicle was, as he claimed, to conduct a random compliance check for Highway Traffic Act compliance”. I would add that the U-turn witnessed by the officer was lawful and he (the officer) was aware of this.
[4] The key passage in the trial judge’s reasons, where he applies the applicable law is found at paragraph 10:
There is nothing wrong in an officer conducting a compliance check of a vehicle that has somehow been drawn to the officer’s attention. The authority to conduct spot checks is not lost simply because the officer selected the vehicle to check due to the manner of its operation. What is not permissible are pretense stops, where an officer chooses for purposes unrelated to traffic enforcement, or for discriminatory reasons, to stop a motor vehicle, but then falsely claims that he or she simply wanted to undertake a permissible traffic enforcement spot check. That is not what happened here, however. Cst. Conohan stopped a vehicle that came to his attention in order to check driving documentation and driver sobriety. The exercise of this authority was not a ruse.
[5] The appellant challenges the trial judge’s statement of law. He argues that there must be some articulable reason provided for the stop. The issue the appellant poses is “what is justifiably arbitrary or fair?” In particular, what is said to be required is that the selection process (in choosing to effect a traffic stop) must be based on some duty, program, or process (whether or not a moving or fixed position stop is involved) “where the methodology for selection is consistent with a proper investigative purpose”. The appellant further submits that what is required is some pre-determined criteria of an objective and fair nature.
[6] I do not accept this argument. In my respectful view, the trial judge was correct in accepting that the spot check here was not unlawful simply because the officer decided to carry out the stop because the vehicle had attracted his attention. As the trial judge properly observed, “What is not permissible are pretense stops, where an officer chooses for purposes unrelated to traffic enforcement, or for discriminatory reasons, to stop a motor vehicle, but then falsely claims that he or she simply wanted to undertake a permissible traffic enforcement spot check”.
[7] The appellant argues that a lawful stop must be based on some pre-determined fair criteria. This is not supported by the case law. Indeed, it is a proposition rejected by the Supreme Court of Canada in R v. Ladouceur 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257. Specifically, Cory J. held at paras. 34 and 62:
34 It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of a routine check which was not part of any organized program. It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program. Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of a statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter.
62… In order to provide the proper control, society must be able to require that random stops be made with articulable cause and outside of any formal programs.
[8] Courts have observed that stops which target an individual or particular groups must be carefully scrutinized to make sure that they are not what the trial judge referred to as “pretense stops”, i.e. stops which in reality are involving non-traffic enforcement or discriminatory objectives. The trial judge did exactly that in the present case (carefully scrutinized the facts) and concluded this was not a pretense stop. His factual findings are not challenged by the appellant.
[9] Moreover, based on the trial judge’s findings “articulable cause” did exist for the stop as that term is used in reference to stops under section 216(1) of the Highway Traffic Act. As explained by Doherty J.A. in Brown v. Durham (Regional Municipality) Police Force (1998) 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.) at para. 53:
The phrase “articulable cause” used in connection with stops made under s. 216(1) does not refer to factors which standing alone would justify interference with the liberty of the subject, but rather refers to the reasons behind the exercise of the statutory power to stop and detain. Articulable cause exists under s. 216(1) if the police have a reason for stopping the vehicle which is legitimately connected to highway safety concerns. In this context, articulable cause is used only to distinguish between those lawful stops which are random and, therefore, arbitrary and those lawful stops which are selective and not arbitrary.
[10] As I am of the view that the trial judge applied the proper legal principles in concluding that this was a lawful traffic stop and therefore not in contravention of the appellant’s section 9 Charter rights, this appeal is dismissed.
Mr. Justice C.T. Hackland
Released: May 23, 2018
COURT FILE NO.: 16-A9748
DATE: 2018/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Arun Adrian Ravindra
Appellant
REASONS FOR decision
Hackland J.
Released: May 23, 2018