R. v. Falconer, 2014 ONCJ 76

Citation: R. v. Falconer, 2014 ONCJ 76 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- CHRISTOPHER FALCONER REASONS FOR JUDGMENT Duncan J. 1. The defendant is charged with exceed 80, offence date March 13 2013. 2. The sole issue in the case is whether the defendant’s right to be free from arbitrary detention was violated when a police officerconducting sobriety checks targeted motorists, including the defendant, leaving a liquor store parking lot. It is argued that such targetingis constitutionally impermissible. Selective Random Stopping and

Section 9: 3. The police in Ontario are empowered by both common law and statute to stop vehicles for what may be broadly described ashighway regulation and safety purposes (s 216 HTA) and more specifically, to check driver sobriety (s 48 HTA).[1] These are commonlyreferred to as “random” stops though the word is not used in the sections. “Random” usually means without pattern, method, thought orchoice and in that sense seems to be almost the opposite of “targeted” or selected”.

On this reasoning, it has been held that a targeted stopcannot be a random stop authorized by these sections: R v Tulloch [1994] OJ No.4212 at Para 24. However, I think that the concept ofrandomness in this area of the law carries a different meaning and refers to vehicle stops made without any grounds for suspicion orbelief that the particular driver has committed or is committing any offence[2]. A stop may be truly random in both senses or it may berandom only in the sense of being groundless and, at the same time, be selective: Brown v Durham Police Force (ONCA), [1998] OJ No 5274 (CA). 4.

Selection or targeting is not in itself improper. It is inevitable that police with finite resources must make choices as to thedeployment of those resources. Targeting may be directed to the time, place or group upon which enforcement efforts will be focused. The targeting of individuals or groups treads on sensitive ground and, where it occurs, must be carefully scrutinized (Brown Para 41).Police must not make choices based on race, sex or other similar criteria – even if motivated by highway safety concerns (Brown para38).

But targeting individuals or groups (other than on racial grounds and the like) is permissible provided that there are identifiablehighway safety concerns associated with the targeted group. So for example, the targeting of bikers and their associates was consideredpermissible in Brown since it was reasonable to believe that the group’s general distain for the law and its fondness for drugs and alcohol

supported legitimate highway safety concerns (Brown para 42-43). 5. But this is not a case of group targeting. At issue here is only location targeting. It is not suggested that those stopped wereanything other than a cross-section of the general population. The concerns about improper discriminatory selection do not arise nor dothe same principles or the need for careful scrutiny apply. In my opinion, location targeting alone[3] raises no Charter issue or concern. 6. Obviously, police will usually choose locations where they suspect a high incidence of offending.

It has been suggested that if thechoice is misconceived or ill-informed, that the stop becomes a Charter infringing arbitrary detention[4]. I cannot agree. In my view, ifthe police are wrong in their predictive selection, their choice may be unwise and less productive than anticipated, but it is notunconstitutional. 7. If I am wrong in this view and if the targeted location must be scrutinized and justified in the same way as group targeting, I amof the opinion that the LCBO location choice in this case passes such scrutiny.

There is a rational connection between the purchase ofliquor and a heightened concern about possible impaired driving. It is not as if the officer had targeted a day care or a church. 8. The argument is rejected. There was no Charter violation. All else is proven. The defendant is found guilty. February 13 2014 B Duncan J.

J McCulligh for the defendant S Andersen for the Crown [1] The power is circumscribed by these purposes and does not authorize vehicle stopping in pursuit of investigations not connected withhighway safety, though the existence of such additional investigative interest does not invalidate a stop that is also made for legitimateHTA purposes. It does not authorize stops made for discriminatory or improper (ill motivated) reasons: Brown v Durham Police Force (ON CA), [1998] OJ No 5274 (CA).