Court File and Parties

Newmarket Court File No.: CR-15-03713-00AP Date: 20181231 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Robert Strmota Appellant

Counsel: B. McCallion, for the Crown G. Lafontaine, for the Appellant

Heard: November 2, 2018

Reasons for Decision On appeal from the decision of The Hon. Mr. Justice N.B. Dwyer dated October 17, 2016

Casullo J.:

Introduction

[1] On May 6, 2015, Robert Strmota was charged with driving a motor vehicle with a blood alcohol content exceeding 80 mg in 100 ml of blood. The trial was heard October 17, 2016. At the outset, Mr. Strmota applied for a ruling that his right to be free from arbitrary detention was violated, in contravention of s. 9 of the Canadian Charter of Rights and Freedoms. Justice N.B. Dwyer dismissed the Charter application, and a conviction followed shortly thereafter. Mr. Strmota appeals this conviction. I note parenthetically that on December 19, 2016, Justice Boswell granted Mr. Strmota’s application for a stay, pending this appeal, of the driving prohibition imposed by Justice Dwyer.

Facts

[2] On May 6, 2015, York Regional Police Officers Handford and Rutherford were operating a R.I.D.E. program near East Beaver Creek Road and Highway 7, in Richmond Hill. Officer Rutherford testified that Officer Handford radioed him to advise that a white pick-up truck might be “cutting through”. Officer Rutherford took this to mean a white pick-up truck might be trying to avoid the spot check.

[3] From his cruiser, Officer Rutherford observed a white pick-up truck driving through a parking lot. Officer Rutherford drove into the parking lot, following the pick-up truck for a short period before pulling it over. When he spoke with the driver, Mr. Strmota, Officer Rutherford could smell a strong odor of alcohol on his breath. A demand for a breath sample was made, which registered a fail, ultimately leading to the charge and conviction which Mr. Strmota now appeals.

Decision of the Learned Trial Judge

[4] The trial judge found that the officers were operating a R.I.D.E. program and that Officer Rutherford, upon receiving information from his partner that a vehicle was cutting through the parking lot, made a reasonable inference that the pick-up truck was trying to evade the R.I.D.E.

[5] The trial judge, citing Justice Molloy in R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.), held that despite that the stop occurred on a private lot, and not on a highway, Officer Rutherford was entitled to stop Mr. Strmota’s vehicle to do a sobriety check.

[6] It was found that this stop, which was a detention of a driver for safety purposes, fell in the category described in R. v. Ladouceur, [1990] 1 S.C.R. 1257 and R. v. Dedman, [1985] 2 S.C.R. 2.

[7] The trial judge held that there was no breach of either s. 8 or s. 9 of the Charter.

Issues

[8] The grounds for Mr. Strmota’s appeal are twofold: (a) That the trial judge erred in not finding a breach of s. 9 of the Charter; and (b) That the trial judge erred in applying a subjective test, rather than a subjective and objective test, in determining whether the police officer had sufficient grounds to stop his vehicle.

[9] The appellant argues the trial judge erred by applying the line of reasoning from Dedman, regarding the ability to arbitrarily detain drivers at R.I.D.E. stops, to allow his arbitrary detention in the hotel parking lot. The appellant submits the Dedman exception is not applicable because he was not stopped on a roadway.

The Standard of Review

[10] The standard of review on an appeal of a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the Court stated that there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error: Perrelli v. Richmond Hill (Town), 2018 ONSC 6414 at para 37.

Discussion

Issue #1

[11] The main thrust of Mr. Strmota’s appeal is that if Officer Rutherford did not personally observe Mr. Strmota pull off the highway into the parking lot, there was no evidence he was trying to evade the spot check. Without this evidence, Officer Rutherford would have needed reasonable suspicion upon which to pull him over in the parking lot. If Officer Rutherford did not have reasonable suspicion, then Mr. Strmota’s s. 9 Charter right to be free from arbitrary detention was violated. With respect, this argument cannot stand.

[12] Driving while impaired is a serious problem. One of the measures employed to combat those who choose to drink and drive is Ontario’s R.I.D.E. Program.

[13] In Dedman, our highest court held that in the absence of statutory provisions, police officers have a common law power to detain motorists for a short period to check their sobriety. The Supreme Court of Canada held this to be a minimal infringement on a driver’s rights, when viewed in the broader context of keeping our highways free of impaired drivers.

[14] Although Dedman was decided pre-Charter, Molloy J. in Dillon, held at para. 30, that if Dedman had been decided post-Charter, the result would have been the same.

[15] Section 48 of the Highway Traffic Act, R.S.O. c. H.8 (“HTA”) empowers police officers to stop vehicles for lawful purposes. However, the HTA applies only to highways. What happens when an officer stops a driver on private property to conduct a sobriety check, and the smell of alcohol is observed? If Mr. Strmota’s argument prevails, nothing happens unless the police officer has an objective reason for pulling the driver over.

[16] This ‘private property’ zone of immunity has been rejected by this court, most recently in R. v. Vander Griendt, 2015 ONSC 6644, a decision strikingly on point. There, as here, the issue was whether a police officer, without reasonable suspicion, had the power to randomly stop a driver on a privately-owned parking lot to conduct a sobriety test. I acknowledge that Vander Griendt did not occur in the context of a R.I.D.E. spot check.

[17] However, Vander Griendt confirmed that there are two streams of cases governing the propriety of police officers carrying out their common law powers of detention: those where the officer is concerned about road safety, and those where other considerations are at play. For the former, random stops are permitted without the need for “reasonable suspicion”.

[18] I agree with the trial judge in Vander Griendt, who found 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.

[19] In this case, Officer Rutherford was concerned with road safety. He was operating a R.I.D.E. program. His partner advised him that a white truck might be trying to avoid the spot check. He followed a white truck, pulled it over, and conducted a sobriety test of the driver. This was all in the course of conducting the R.I.D.E. program, the greater goal of which is to protect users of the roads from intoxicated drivers. As stated in R. v. Grant, 2009 SCC 32 at para. 52, a “lawful detention is not arbitrary within the meaning of s. 9” (citing R. v. Mann, 2004 SCC 52 at para. 20). There was no violation of Mr. Strmota’s s. 9 right to be free from arbitrary detention.

[20] I find that Officer Rutherford’s partner advised him about Strmota’s vehicle based on his own observations, and therefore, no reasonable suspicion was required. Officer Rutherford was acting within the confines of the R.I.D.E. program when he pulled Strmota over.

Issue #2

[21] In light of Vander Griendt, the trial judge was not required to apply a subjective and objective test in determining whether Officer Rutherford had sufficient grounds to stop Mr. Strmota’s vehicle.

Conclusion

[22] For the reasons stated above, the appeal is dismissed.

Casullo J.

Released: December 31, 2018