Brampton (City) v. Rampersaud, 2024 ONCJ 78

CITATION: Brampton (City) v. Rampersaud , 2024 ONCJ 78 DATE: February 9, 2024 IN THE MATTER OF the Highway Traffic Act , R.S.O 1990, c. C.8 Between Corporation Of The City of Brampton prosecutor and Christopher Rampersaud defendant Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Ex-parte trial held on: November 6, 2023. Judgment released: February 9, 2024. Charges: s. 53(1) H.T.A. – “driving while driver’s licence suspended”

Counsel: Biacco, M., municipal prosecutor Rampersaud, Christopher, defendant did not appear for trial Cases Considered or Referred To: Brown v. Durham Regional Police Force, (ON CA), [1998] O.J. No. 5274 (Ont. C.A.), per Doherty, Weiler, andGoudge JJ.A. Ontario (Ministry of Transportation) v. Balasubramaniam, [2017] O.J. No. 5007 (Ont. C.J.), per Quon J.P. Ontario v. Bharath, 2016 ONCJ 382 , [2016] O.J. No. 3416 (Ont. C.J.), per Quon J.P. R. v. Dedman, (SCC), [1985] S.C.J. No. 45 (S.C.C.). R. v. Clarke, (ON CA), [2005] O.J. No. 1825 (Ont. C.A.), per Sharpe, Simmons, LaForme JJ.A. R. v. Crowdis, [1985] S.J.

No. 273 (Sask. Q.B.). R. v. Dillon, [2006] O.J. No. 1366 (Ont. S.C.J.), per Molloy J. R. v. Elias, 2005 SCC 37 , [2005] S.C.J. No. 37 (S.C.C.). R. v. Hajivasilis, 2013 ONCA 27 , [2013] O.J. No. 253 (O.C.A.), per O'Connor A.C.J.O., Doherty, Sharpe, Epstein JJ.A. andCavarzan J. (ad hoc), rev'g R. v. Hajivasilis, [2012] O.J. No. 859 (O.C.J.), per Mocha J. and rev'g R. v. Hajivasilis, 2009 ONCJ 310, [2009] O.J. No. 2731 (O.C.J.), per Cremisio J.P. R. v. Hufsky, (SCC), [1988] S.C.J. No. 30 (S.C.C.). R. v. Jacobs, [1955] B.C.J. No. 95 (B.C.C.A.). R. v. Kazemi (2013), 2013 ONCA 585 , 117 O.R. (3d) 300, [2013] O.J.

No. 4300 (Ont. C.A.), per Laskin, Goudge and Watt,JJ.A.

R. v. Ladouceur, (SCC), [1990] S.C.J. No. 53 (S.C.C.). R. v. Le, 2019 SCC 34 , [2019] S.C.J. No. 34 (S.C.C.). R. v. Lotozky, (ON CA), 81 O.R. (3d) 335, (Ont.C.A.), per Weiler, Rosenberg, and MacPherson JJ.A. R. v. Lux , [2012] S.J. No. 796 (Sask. C.A.). R. v. MacDonagh, [1974] 1 All E.R. 257 (C.A.). R. v. McColman, 2023 SCC 8 , [2023] S.C.J. No. 8 (S.C.C.). R. v. Mellenthin, (SCC), [1992] S.C.J. No. 100 (S.C.C.). R v. Nolet, 2010 SCC 24 , [2010] S.C.J. No. 24 (S.C.C.). R. v. Petrovic, [2012] O.J. No. 4185 (O.C.J.), per Dechert J.P. R. v. Peuker, [2016] O.J. No. 7072 (O.C.J.), per Bonas J.P. R. v.

Russo, [2013] O.J. No. 3564 (O.C.J.), per Opalinski J.P. R. v. Ryan, [2007] N.J. No. 338 (N.L. Prov. Ct.). R. v. Sergalis, [2009] O.J. No. 4823 (Ont. S.C.J.), per Lauwers J. R. v. Srecko, [2016] O.J. No. 4329 (O.C.J.), per Kowarsky J.P. R. v. Tessling, 2004 SCC 67 , [2004] S.C.J. No. 63 (S.C.C.). R. v. Tresham, (ON SC), [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)), per Boyko J. R. v. Tricker (1995), (ON CA), 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198 (O.C.A.), per Galligan,Weiler and Austin, JJ.A. R. v. Vander Griendt, [2015] O.J. No. 5675 (Ont. S.C.J.), per Dawson J.; aff'g R. v.

Vandergriendt, [2014] O.J. No. 2943 (O.C.J.), perDuncan J. R. v. Waterfield, [1963] 3 All E.R. 649, 48 Cr. App. Rep. 42, 128 J.P. 48, [1964] 1 Q.B. 164, 107 Sol. Jo. 833, [1963] 3 W.L.R. 946

(C.C.A.). York (Regional Municipality) v. Tassone, 2007 ONCA 215 , [2007] O.J. No. 1109 (Ont. C.A.), per Sharpe, Simmons andCronk, JJ.A. Statutes, Regulations and Rules cited: Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 1, 8 and 9. Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 3(1). Highway Traffic Act, R.S.O. 1990, C. H.8, ss. 1(1), 7(5), 33(1), 53(1), 48(1), 48(18), 78.1, 106(3), 144(18), and 216(1). Trespass to Property Act, R.S.O. 1990, c. T.21, s. 3(2). Exhibits entered: Exhibit "1" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated July 18, 2023, whichindicates that a male person named CHRISTOPHER U.

RAMPERSAUD had his driver’s licence suspended effective March 11, 2022,for default of payment of fine and that this suspension was still in effect on June 3, 2023, and that a Notice of Suspension of Driver’sLicence dated March 11, 2022 had been forwarded by mail on March 11, 2022, to CHRISTOPHER UMESH RAMPERSAUD to anaddress located at [removed for privacy] in Brampton, Ontario, which was the latest address on the records of the Ministry [suspensionnumber: 2021327] (3 pages).

Exhibit "2" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated July 18, 2023, whichindicates that a male person named CHRISTOPHER UMESH RAMPERSAUD had his driver’s licence suspended effective October 26,2019, for failure to complete the remedial measures program and that this suspension was still in effect on June 3, 2023, and that a Noticeof Suspension of Driver’s Licence dated October 28, 2019 had been forwarded by mail on October 28, 2019, to CHRISTOPHERUMESH RAMPERSAUD to an address located at [removed for privacy] in Brampton, Ontario, which was the latest address on therecords of the Ministry [suspension number: 9144059] (3 pages). 1.

INTRODUCTION [1] For the purposes of highway safety, can a police officer in Ontario enter onto private property in order to investigate and questiona person that had been asleep or passed out in the driver’s seat of a motor vehicle, which still had its engine running and which had alsobeen partly stopped on a private driveway and partly stopped on a public roadway?

That question arose in the ex-parte trial ofChristopher Rampersaud, who had been observed by Officer Shawn Palmer to be asleep or passed out in the driver’s seat of a black-coloured 2018 Honda Civic motor vehicle, which still had its engine running and which had also been stopped partly on the driveway of a house and partly stopped on the roadway in the earning morning hours of June 3rd, 2023. The driveway was located at 348 SunnyMeadow Boulevard in the City of Brampton.

Rampersaud’s registered address in the Ministry of Transportation records is not at 348Sunny Meadow Boulevard, but at another address in Brampton. Moreover, Officer Palmer had received a call from his dispatcher toattend that address in regards to a man that was passed out in the driver’s seat of a motor vehicle at that address. Upon arriving at 348Sunny Meadow Boulevard, Officer Palmer had walked onto the driveway and approached the driver’s side door of the Honda Civicmotor vehicle and observed a man either asleep or passed out in the driver’s seat of that motor vehicle, with its engine still running.

Officer Palmer also observed the presence of Fire and Ambulance personnel that had been already there at the scene. Officer Palmerthen turned off the engine of the Honda Civic motor vehicle for reason of “officer safety”, and then woke up the male person sitting inthe driver’s seat of the motor vehicle. After asking the male person to step out of the vehicle and after obtaining the male person’sOntario Health Card as identification, and completing an investigation into the status of the male person’s driver’s licence, OfficerPalmer identified the man as “Christopher Rampersaud”.

In checking on the status of Rampersaud’s driver’s licence using police querytools, Officer Palmer also discovered that Rampersaud was a suspended driver in regards to two separate suspensions. Officer Palmerthen subsequently charged Christopher Rampersaud with committing the

Part III offence of “driving while driver’s licence suspended”,contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, H.8 (“H.T.A.”) and issued a summons to Rampersaud to appear in theBrampton Provincial Offences court. [2] The trial of the defendant Christopher Rampersaud’s charge of “driving while driver’s licence suspended” was eventually set down for trial for November 6, 2023. However, the defendant did not appear at his trial on November 6th and the trial commenced onan ex-parte trial basis.

The prosecution only called one witness and it was Officer Palmer who testified in the ex-parte trial. [3] The issues that arose at trial which have to be decided include: (1) whether Officer Palmer can lawfully enter onto privateproperty and request identification from a person that had been asleep or passed out in a motor vehicle with its engine running and thathad been stopped partly on a private driveway and stopped partly on a public roadway, in light of the Supreme Court of Canada’s rulingin R. v. McColman, 2023 SCC 8 , [2023] S.C.J.

No. 8, which had held that it is unlawful for a police officer to conduct arandom stop of a motorist on private property to check on sobriety under s. 48(1) of the H.T.A.; (2) whether the Honda Civic motorvehicle for the purpose of s. 53(1) of the H.T.A. was stopped on a “highway” or stopped on a private driveway, since the vehicle waspartly situated on the driveway and partly situated on a highway; and (3) if the motor vehicle had been stopped on a highway within themeaning of the H.T.A., whether the circumstances of Rampersaud being asleep or passed out in the driver’s seat of the motor vehiclewith its engine still running at a location which is not his registered address, would constitute the act of “drives a motor vehicle on ahighway” for the purposes of s. 53(1) of the H.T.A. [4] Consequently, after reviewing the common law, R. v.

McColman, and ss. 48(1) and 216(1) of the H.T.A., and the purpose forwhy Officer Palmer had been dispatched to 348 Sunny Meadow Boulevard, in the City of Brampton, in regards to a call about a personbeing passed out in the driver’s seat of a motor vehicle at that address, Officer Palmer had been in the lawful execution of his duties andresponsibilities in regards to protecting life and property, preventing offences, and ensuring public safety, when Officer Palmer hadapproached the Honda Civic motor vehicle with its engine still running and that had been stopped partly in the private driveway of 348Sunny Meadow Boulevard and partly stopped on the public roadway, when Officer Palmer had requested identification from the maleperson that had been in the driver’s seat.

As such, Officer Palmer’s entry onto a private driveway was not unlawful in the circumstances. [5] And, on the issue as to whether the Honda Civic motor vehicle that Rampersaud had been sitting in had been stopped on a“highway” or on a private driveway, the evidence establishes that a substantial portion of the vehicle had been stopped on the publicroadway. Specifically, Officer Palmer had observed that the rear two tires of the Honda Civic motor vehicle were sitting on theroadway, so that the motor vehicle was not completely off of the roadway and stopped entirely on the private driveway.

As this wasmore than just a trifling amount of the vehicle overhanging onto the roadway, and since there had been a significant and noticeableportion of the vehicle situated on the roadway, then for the purposes of the application of the H.T.A. the Honda Civic motor vehicle hadbeen situated on a “highway”. [6] In addition, in respect to the issue of what constitutes the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1)of the H.T.A., it is not limited or restricted to only situations or circumstances where a motorist is observed in a motor vehicle that is in“motion” on a highway.

Ergo, even though Officer Palmer did not observed Rampersaud in the driver’s seat of a “moving” motorvehicle on a highway, the circumstances of Christopher Rampersaud being asleep or passed out in the driver’s seat of a motor vehiclewith its engine still running and that was partly stopped on a private driveway and partly stopped on a public roadway, in which thedriveway is not at the registered address of Rampersaud; and there being the absence of any evidence that the Honda Civic motor vehiclehad been towed or mechanically lifted and placed at that location, as well as there being the absence of any evidence that Rampersaudhad not been the one who had driven the Honda Civic motor vehicle to 348 Sunny Meadow Boulevard, are sufficient indicia that thedefendant, Christopher Rampersaud, was still in the act of “drives a motor vehicle on a highway” [7] Ergo, as the prosecution has proven beyond a reasonable doubt that Christopher Rampersaud was a suspended driver (Exhibits #1and #2), and that Rampersaud was in a motor vehicle that was still running and situated on a “highway”, and that for the circumstances,Rampersaud was in the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A., then the prosecution hasmet its burden in proving beyond a reasonable doubt that Christopher Rampersaud has committed the offence of “driving while driver’slicence suspended”. [8] Lastly, the ex-parte trial of Christopher Rampersaud’s charge of “driving while driver’s licence suspended” under s. 53(1) of theH.T.A. had been held on November 6, 2023.

After the prosecution had completed its case, judgment was reserved and adjourned for thejudgment to be rendered. These, therefore, are the written reasons for judgment that are being released as of February 9, 2024:

2. BACKGROUND (

a) Testimony of Officer Shayne Palmer [ 9 ] Only one witness testified in the trial and that had been Officer Shayne Palmer, of the Peel Regional Police.

Officer Palmer had also been the police officer who had charged the defendant with committing the “driving while driver’s licence suspended” offence under s. 53(1) of the H.T.A. [ 10 ] As to what had occurred with the defendant, Officer Palmer had testified that the Peel Regional Police had received a call for service on Sunday, June 3, 2023, at approximately 1:16 a.m., to attend at 348 Sunny Meadow Boulevard in the City of Brampton for a male that had been passed out in the driver’s seat of a vehicle.

When Officer Palmer arrived at 348 Sunny Meadow Boulevard, Officer Palmer said he had observed a 2018 black-coloured Honda Civic, bearing marker “CDTW591”, on the driveway and parked nose in with the tail of the vehicle hanging just off the driveway. Officer Palmer then said that he had pulled his police cruiser behind the vehicle and then exited the cruiser and walked to the driver’s side door where he observed a male that appeared to be passed out in the driver’s seat of the Honda Civic motor vehicle.

Before waking the male up, Officer Palmer said he had shut off the motor vehicle for officer’s safety. [ 11 ] Furthermore, Officer Palmer also said, at that time, fire and ambulance were already at the scene. [ 12 ] After waking the male up and getting the male out of the vehicle, Officer Palmer then said that he had asked the male person for his identification. Officer Palmer said he then received an Ontario Health Card from the male person in the name of “Christopher Rampersaud” with a birthdate of [removed for privacy].

In addition, Officer Palmer said he had used his police query tools and obtained a residential address for the male which was [municipal address removed for privacy], in the City of Brampton. [ 13 ] In addition, Officer Palmer said that the male had also been wanted on a warrant by OPP Caledon. [ 14 ] Officer Palmer then said that the male driver was then taken into custody initially at 1:45 a.m. on the strength of that OPP arrest warrant. [ 15 ] Moreover, Officer Palmer testified that upon making further queries, Officer Palmer said that the male person was a prohibited driver with two driver’s licence suspensions numbered 22SUSP-2021327 and 19SUSP9144059. [ 16 ] Officer Palmer also said that after talking to OPP Caledon, the OPP were not going to return the male person to Caledon and the male person was then released unconditionally at 2:54 a.m. in respect to the OPP warrants.

Officer Palmer then said that the male person was then issued a

Part III summons for the offence of “drive while driver’s licence suspended”, contrary to s. 53(1) of the Highway Traffic Act . [ 17 ] In addition, when asked about the driver’s licence number for the male person, Officer Palmer said that he did not write it down in his notes. However, Officer Palmer did say that the male person had identified himself with his name and date of birth and his Ontario Health Card. Officer Palmer also said that he had run the name of “Christopher Rampersaud” and his birthdate that was on the Ontario Health Card on the police system.

Consequently, Officer Palmer said he had been satisfied with the identity of the male person that had been in the driver’s seat of the Honda Civic motor vehicle, which had been based on the picture of the person on the Ontario Health Card matching the likeness of the male person that was in the driver’s seat. [ 18 ] Furthermore, when specifically asked where the vehicle was located, Officer Palmer said that the Honda Civic motor vehicle was on the driveway of 348 Sunny Meadow Boulevard, but that the vehicle had been half-hanging out of the driveway with the tail end of that motor vehicle, specifically the back two tires, had not been completely in the driveway.

Instead, Officer Palmer said that the back two tires of the vehicle were on the roadway.

3. THE CHARGE [19] The defendant has been charged under a

Part III Information for committing the following offence: Information #6277: Christopher Rampersaud, of [residential address removed for privacy], Brampton, Ontario, on or about 3rd day of June, 2023 at the City of Brampton in the said region did commit the offence of at approximately 2:35 a.m. did unlawfully operate a motor vehicle, licence number CDTW591 on a highway, namely on SunnyMeadow Boulevard, when his driver’s licence was suspended by operation of the Highway Traffic Act, contrary to the Highway TrafficAct, section 53(1). 4.

ISSUES [20] In order to determine if the defendant has committed the H.T.A. offence of “driving while driver’s licence suspended”, contraryto s. 53(1) of the H.T.A., beyond a reasonable doubt, the following issues need to be resolved in this ex-parte trial:

(1) Has the Supreme Court of Canada’s ruling in R. v. McColman, 2023 SCC 8 , [2023] S.C.J. No. 8, which had held that it isunlawful for a police officer to “randomly stop” a motorist on private property to check for sobriety under s. 48(1) of the H.T.A., alteredor changed a police officer’s power under the common law to enter onto and investigate a motorist on private property for the purposes ofpublic or highway safety in respect to checking for licences, proof of insurance, and the mechanical fitness of vehicles?

(2) Was Officer Palmer acting lawfully when he entered onto private property to stop, request identification and documents, andquestion a motorist who had been asleep or passed out in a motor vehicle with its engine still running that had been stopped partly on aprivate driveway that is not at the motorist’s registered address and stopped partly on a public roadway?

(3) Was Officer Palmer in the lawful execution of his duties and responsibilities in regards to the protection of property, preventingoffences, and for purposes of public safety, when he had entered onto a private driveway and had asked the defendant, ChristopherRampersaud, for his identification?

(4) Was the Honda Civic motor vehicle in which the defendant was sitting in on a “highway” or situated on private property at the timein question?

(5) Would the circumstances of the defendant being asleep or passed out in a motor vehicle in which the engine is still running and

which is partly stopped on a highway and also partly stopped on a private driveway that is not at the defendant’s registered address,constitute the act of “drives a motor vehicle on a highway” for the purposes of s. 53(1) of the H.T.A.?

(6) Has the prosecution proven beyond a reasonable doubt that the defendant has committed the offence of “driving while driver’slicence suspended” contrary to s. 53(1) of the H.T.A.? 5. ANALYSIS AND DECISION [21] Subsection 53(1) of the Highway Traffic Act, R.S.O. 1990, c.

H.8, expressly requires that the “driving while driver’s licencesuspended” offence be committed on a “highway” within the meaning of the Highway Traffic Act and that the offence is committedwhen a person “drives a motor vehicle … on a highway” [emphasis is mine below]: Driving while driver’s licence suspended 53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act ofthe Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable, (

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both. … (

A) CHRISTOPHER RAMPERSAUD WAS A SUSPENDED DRIVER ON JUNE 3, 2023 [22] Based on the two certified Ministry of Transportation documents entered as Exhibits #1 and #2, the prosecution has provenbeyond a reasonable doubt that the defendant, Christopher Rampersaud, was a suspended driver on June 3, 2023, when Officer Palmerobserved the defendant in the driver’s seat of a running Honda Civic motor vehicle that had been stopped with its two rear tires on thepublic roadway known as Sunny Meadow Boulevard, in the City of Brampton, on June 3, 2023 at 2:35 a.m. (

B) DID OFFICER PALMER ACT LAWFULLY ON JUNE 3, 2023, WHEN OFFICER PALMER ENTERED ONTO APRIVATE DRIVEWAY ON PRIVATE PROPERTY AND ASKED CHRISTOPHER RAMPERSAUD FORIDENTIFICATION? [23] After the prosecution had completed its case, the court was concerned about the lawfulness of a police officer entering onto adriveway on private property to stop and investigate a motorist who was asleep or passed out in a motor vehicle that was partly stoppedon a private driveway, especially after the Supreme Court of Canada had ruled in R. v. McColman, 2023 SCC 8 , [2023] S.C.J.No. 8, on the unlawfulness of police officers following a motorist and entering onto a driveway on private property to “randomly” stop

and investigate a motorist for sobriety under s. 48(1) of the H.T.A. The unlawfulness had been because the police officers who had been following McColman’s all-terrain motor vehicle on a publichighway had not yet formed the opinion that they had reasonable and probable grounds about McColman’s sobriety when they hadfollowed McColman onto McColman’s parents’ driveway when McColman had driven off the public roadway. And, it was only whenthe police officers had approached McColman on the private property that the officers had first observed signs of intoxication onMcColman.

And, because the police were acting unlawfully when they had entered onto the private property, the Supreme Court hadheld that the police had violated s. 9 of the Charter in regards to McColman’s right not to be arbitrarily detained or imprisoned, when thepolice had randomly stopped and investigated McColman on that private property and had been able to observe signs of McColman’salcohol-based impairment. [24] It was on March 23, 2023, that the Supreme Court had released their judgment in R. v.

McColman, in which the Court hadunanimously held that police officers do not have the legal authority under s. 48(1) of the H.T.A. to conduct random sobriety stops of amotorist in a private driveway.

Furthermore, the Supreme Court reasoned, that because the H.T.A. had defined a “driver” as someonewho drives or has care or control of a vehicle on a highway and that a “highway” is defined as 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 forthe passage of vehicles”, the accused McColman, who had been operating the all-terrain motor vehicle was not a “driver” within themeaning of s. 48(1) because McColman had not been on a “highway” when the police had effected the “random” stop.

Ergo, theSupreme Court had concluded that the ”random stop” on private property by the police to check for McColman’s sobriety under s. 48(1)of the H.T.A. had been unlawful and resulted in McColman’s arbitrary detention and the violation of McColman’s s. 9 Charter rights. [25] However, even though the Supreme Court had found in R. v. McColman that police officers who conduct “random stops” ofmotorists on private driveways or private property for the purpose of a sobriety check under s. 48(1) of Ontario’s Highway Traffic Act,R.S.O. 1990, c.

H.8 (“H.T.A.”), would be acting unlawfully, the Court did also reason that a police officer is permitted to follow amotorist from a public roadway onto a private driveway, if the police officer prior to entering onto the private property had formed theopinion that he or she had reasonable and probable grounds to stop the motorist to check on their sobriety when the motorist was still ona public highway and before the motorist had driven onto the private property.

In other words, if the police officer had formedreasonable and probable grounds about a motorist’s sobriety in respect to s. 48(1) before the motorist had entered onto the privateproperty, then the Supreme Court had reasoned that the police officer would be permitted to follow a motorist onto the private propertyto then stop and investigate the motorist’s sobriety, and that this investigative stop of a motorist would not be unlawful under s. 48(1). [26] More importantly, the Supreme Court’s decision in R. v.

McColman had only related to limiting or restricting the police’s abilityto follow and “randomly” stop and investigate a motorist on private property for sobriety under s. 48(1) of the H.T.A., if a police officerhad not formed an opinion that they had reasonable and probable grounds in regards to sobriety of the motorist before the motorist droveonto private property.

The Supreme Court had also emphasized that they were only deciding the issue of the lawfulness of the policeconducting random stops of motorists on private property to check for sobriety under s. 48(1) of the H.T.A. and not for determiningwhether the police can lawfully enter onto private property to stop motorists under the common law, in order for the police to checkmotorists for licences, proof of insurance, the mechanical fitness of vehicles, and for sobriety, for the purpose of public safety. Ergo, theR. v.

McColman decision does not affect the authority of the police to conduct investigative stops of motorists on private property underthe common law, if the police had reasonable and probable grounds to conduct that investigative stop for the purposes of public safety. [27] Moreover, police officers may also conduct random stops of motorists under s. 216(1) of the H.T.A., which provides thestatutory power or authority for a police officer, while in the lawful execution of his or her duties and responsibilities, to conduct randomstops of drivers of motor vehicles on a “highway” within the meaning of the H.T.A., for the purpose of public safety to check licences,proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers. [28] In addition, under the common law, police officers may also randomly stop a motorist at any time on a “highway” for thepurposes of public safety, to check licences, proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers.

Thispower by the police to randomly stop motorists on highways has been held by the Supreme Court of Canada to violate s. 9 of the Charter,but the Court has also been found these random police stops of motorists to be justified under s. 1 of the Charter: R. v. Dedman, (SCC), [1985] S.C.J. No. 45, R. v. Hufsky, (SCC), [1988] S.C.J. No. 30, and R. v. Ladouceur, (SCC), [1990] S.C.J.

No. 53. [29] Now, in regard to the present charge of “drive while driver’s licence suspended” that had been laid against ChristopherRampersaud, who had been in a motor vehicle that had been partly stopped in a private driveway, and because of the issue in R. v.McColman that had been in respect to “impaired driving” charges laid under the Criminal Code and a police officer’s entry onto privateproperty to randomly stop a motorist on private property to check on or to investigate the motorist’s sobriety under s. 48(1) of the H.T.A.had been held to be unlawful, would it also be unlawful for a police officer to enter onto a “private driveway” to stop and investigate aman asleep or passed out in a motor vehicle with its engine still running and for the police officer to ask for the man’s identification ordriver’s licence for purposes under the H.T.A. that are related to road safety, such as checking for licences, ownership, insurance, and themechanical fitness of the vehicle?

(1) The Supreme Court’s Decision In R. v. McColman [30] In R. v. McColman, 2023 SCC 8 , [2023] S.C.J. No. 8, the Supreme Court of Canada had to decide whether the policecan conduct a “random sobriety stop on private property” using their authority under s. 48(1) of the H.T.A. In that case, an OntarioProvincial Police constable had formed the intention on a highway to “randomly stop” McColman, who had been operating an all-terrainmotor vehicle in order to ascertain his sobriety, and had followed McColman onto a private driveway to do so.

The OPP constable hadjust observed McColman leave an LCBO store and then drive the motor vehicle onto a highway. However, the constable had not yetformed the opinion that there were “reasonable and probable grounds” about McColman’s sobriety to stop and check McColman’ssobriety under s. 48(1) before McColman had driven off the highway and enter onto the private driveway of McColman’s parents’private property.

However, the constable had followed McColman’s vehicle onto the private driveway and it had been only when theconstable had approached McColman on that private driveway on private property, that the constable had observed McColman to haveobvious signs of intoxication. McColman had also indicated to the constable that McColman might have had 10 beers. Subsequently,two breathalyzer tests that were conducted on McColman had revealed that McColman’s blood alcohol concentration had been above thelegal limit.

McColman was then charged with impaired driving and with operating a motor vehicle with an excess of 80 milligrams ofalcohol in 100 milliliters of blood, contrary to the Criminal Code. McColman was convicted at trial, but on appeal the

summaryconviction appeal judge found that neither s. 48(1) nor s. 216(1) of the H.T.A. had permitted police officers to conduct random sobrietyor highway safety stops on private property absent reasonable and probable grounds. Eventually, the Crown brought an appeal to theSupreme Court of Canada. [31] The Supreme Court had also specified in R. v. McColman, at paras. 28 to 41, that police officers conducting “random vehicularstops” must exercise their powers vigilantly and not overstep the limits of their powers.

The Supreme Court also reiterated that randomstops constitute "arbitrary detention" and that the detention will only be justified under s. 1 of the Charter if the police act within thelimited highway-related purposes for which the powers were conferred. In addition, the Supreme Court had concluded that the definitionof “driver” in Ontario’s H.T.A. had placed sharp limits on police officers' authority to conduct “random sobriety stops” under s. 48(1) ofthe H.T.A.

In deciding whether McColman had been a "driver" for the purpose of s. 48(1) of the H.T.A. at the time of the randomsobriety stop, the Supreme Court held that the H.T.A. contains two

definitions for the word "driver" that may apply to McColman: (1)first, that s. 1(1) of the H.T.A. defines 'driver' as “a person who drives a vehicle on a highway" and (2) second, s. 48(18) of the H.T.A.states that a 'driver' includes “a person who has care or control of a motor vehicle". Furthermore, the Supreme Court had indicated thatexhaustive

definitions are generally introduced using the verb "means", while non-exhaustive

definitions are introduced with the verb"includes". Hence, the Supreme Court found that the definition of “driver” in s. 1(1) is exhaustive and that it also specifies the scope ofthe word "driver", whereas the definition of “driver” in s. 48(18) is non-exhaustive and expands the ordinary meaning of the definedterm. In addition, the Supreme Court also explained that the definition of "driver" in s. 1(1) is two-pronged, as it targets both an“activity” and the “locus of such activity”.

In other words, the Supreme Court noted that to be a driver, one must be driving a vehicle(activity) and that one must do so on a highway (locus). However, for the definition of “driver” in s. 48(18), the Supreme Courtconcluded that it seeks only to expand the activity prong of the definition and not the locus element. Moreover, the Supreme Court alsonoted that a non-exhaustive definition does not necessarily oust other

definitions and depending on the context, exhaustive and non-exhaustive

definitions can be read together. Ergo, the Supreme Court in using a harmonious reading of the two

definitions of "driver" forthe purpose of s. 48(1), held that the word "driver" refers to a person who is driving or has care or control of a motor vehicle on ahighway. Furthermore, the Supreme Court also reasoned that a person who has care or control of a motor vehicle, but who is no longeron a highway would not be a "driver" under the H.T.A. Accordingly, the Supreme found that McColman was not a "driver" for thepurpose of s. 48(1) when he was stopped by the police off of the highway and on private property.

Furthermore, even if it can be saidthat McColman had care or control of the all-terrain vehicle, the Supreme Court reiterated that McColman had not been on a “highway”when the OPP constable had effected the random stop. As such, the Supreme Court held that the random police stop of McColman onprivate property was not authorized by s. 48(1) of the H.T.A. [emphasis is mine below]: This case presents the first opportunity for this Court to address whether police officers can conduct random sobriety stops on privateproperty pursuant to s. 48(1) of the HTA.

On several occasions, this Court has stated that various forms of random vehicular stops violate s. 9 of the Charter but are justifiedunder s. 1. In R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621, this Court held that statutorily authorized spot checks -- randompolice checks conducted at stationary, predetermined locations -- violate s. 9 but are justified under s. 1. Shortly after, this Court held inR. v.

Ladouceur, (SCC), [1990] 1 S.C.R. 1257, that statutorily authorized roving stops -- random police stops to checklicences, proof of insurance, the mechanical fitness of vehicles and the sobriety of drivers -- violate s. 9 but are justified under s. 1. Police officers conducting random vehicular stops must exercise their powers vigilantly and ensure that they do not overstep the limits oftheir powers.

Since these random stops constitute "arbitrary detention", the "detention will only be justified under s. 1 of the Charter ifthe police act within the limited highway-related purposes for which the powers were conferred": R. v. Nolet, 2010 SCC 24, [2010] 1S.C.R. 851, at para. 22 (citations omitted). The question of whether police officers can effect random sobriety stops on private property has been addressed by various appellate

courts across the country under their versions of the HTA: see, e.g., R. v. Lux, 2012 SKCA 129, 405 Sask. R. 214; R. v. Anderson, 2014SKCA 32, 433 Sask. R. 255; Scott v. R., 2021 QCCS 3866. However, Ontario's HTA differs in important ways from the other provincialstatutes that regulate driving and drivers. In analyzing a provision of the HTA, a court must keep its focus on the text, context, andpurpose of the provision at issue. Both the appellant Crown and the Court of Appeal for Ontario drew heavily upon jurisprudence of the Court of Appeal forSaskatchewan.

In Lux, police officers observed a motor vehicle driving in a private parking area and conducted a random sobriety stopof the vehicle while it was still within the private parking area. The Court of Appeal held that s. 209.1 of The Traffic Safety Act, S.S.2004, c. T-18.1, did not authorize peace officers to conduct random sobriety stops on private property: para. 31.

Two years later, inAnderson, a case factually similar to the case at bar, the Court of Appeal held that a police officer who had formed his intention on ahighway to randomly stop the vehicle could lawfully complete the stop on private property pursuant to s. 209.1 of The Traffic Safety Act:paras. 24-25. Despite the seeming relevance of Lux and Anderson, Ontario's HTA differs in relevant respects from The Traffic Safety Act fromSaskatchewan.

Notably, the latter does not define the term "driver"; in contrast, as we shall discuss, the HTA's definition of driver placessharp limits on police officers' authority to conduct random sobriety stops under s. 48(1) of the HTA. Given that Lux and Anderson focusclosely on the specific wording of s. 209.1 of The Traffic Safety Act, neither judgment sheds much light on how this Court shouldapproach s. 48(1) of Ontario's HTA.

(1) The Meaning of Section 48(1) of the HTA We turn now to s. 48(1) of the HTA, which states: A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether ornot there is evidence to justify making a demand under

section 320.27 or 320.28 of the Criminal Code (Canada). Under the modern approach to statutory

interpretation, "the words of a statute must be read 'in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament'":Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 117, citing Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,[2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Canada v.

AltaEnergy Luxembourg S.A.R.L., 2021 SCC 49, at para. 37. In determining the meaning of the text, a court cannot read a statutoryprovision in isolation, but must read the provision in light of the broader statutory scheme: Rizzo, at para. 21. In its written submissions and during oral argument, the Crown placed great weight on the broader purposes underlying the HTA. But apurposive analysis does not grant the interpreter licence to disregard the clear meaning of the statute: see R. v. D.A.I., 2012 SCC 5,[2012] 1 S.C.R. 149, at para. 26. The key question in this case is whether Mr.

McColman was a "driver" for the purpose of s. 48(1) of the HTA at the time of the randomsobriety stop. The HTA contains two

definitions of the word "driver" that may apply to Mr. McColman. Section 1(1) of the HTA statesthat "'driver' means a person who drives a vehicle on a highway". By contrast, s. 48(18) provides that, within s. 48, "'driver' includes aperson who has care or control of a motor vehicle". In its factum, the Crown suggests that it is possible to interpret s. 48(1) such that itauthorizes police to conduct random sobriety stops whenever they see someone in the care or control of a motor vehicle, irrespective ofwhether they intended to check the person's sobriety on a highway.

In other words, the Crown submits that s. 48(18) sets out essentialelements of what constitutes a "driver". This argument must fail for two reasons. First, not all statutory

definitions are exhaustive: R. Sullivan, The Construction of Statutes (7th ed. 2022). Exhaustive

definitions"declare the complete meaning of the defined term and completely displace whatever meanings the defined term might otherwise bear inordinary or technical usage", whereas non-exhaustive

definitions "do not purport to displace the meaning that the defined term wouldhave in ordinary usage; they simply add to, subtract from or exemplify that meaning": pp. 69-70. Exhaustive

definitions are generallyintroduced using the verb "means", while non-exhaustive

definitions are introduced with the verb "includes": pp. 69-70. Here, the definition in s. 1(1) is exhaustive and specifies the scope of the word "driver", whereas the definition in s. 48(18) is non-exhaustive and expands the ordinary meaning of the defined term. Indeed, the definition of "driver" in s. 1(1) is two-pronged; it targets

both an activity and the locus of such activity. To be a driver, one must be driving a vehicle (activity) and must do so on a highway(locus). The definition in s. 48(18) seeks only to expand the activity prong of the definition and not the locus element. Second, this Court has stated that, while the relative effects of ordinary meaning, context, and purpose on the interpretive process mayvary, courts must seek to read the provisions of

an act as a harmonious whole: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,[2005] 2 S.C.R. 601, at para. 10. As stated above, a non-exhaustive definition does not necessarily oust other

definitions. Depending onthe context, exhaustive and non-exhaustive

definitions can be read together. Under a harmonious reading of the two

definitions of"driver", for the purpose of s. 48(1), "driver" refers to a person who is driving, or has care or control of, a motor vehicle on a highway.A person who has care or control of a motor vehicle but who is no longer on a highway would not be a "driver" under the HTA. In the present case, Mr. McColman was not a "driver" for the purpose of s. 48(1) when he was stopped by the police. Even if it can besaid that he had care or control of the ATV, he was not on a highway when the police effected the stop.

Therefore, the police stop wasunauthorized by s. 48(1) of the HTA. [32] Moreover, in comparing the legal authority of the police to conduct random stops of motorists on a highway, the Supreme Court,at paras. 42 to 51, in R. v. McColman, held that ss. 48(1) and 216(1) are not differing legislative choices since the two provisions do notneed not be read apart.

In addition, the Supreme Court had emphasized that the two provisions are often cited together to furnish thestatutory authority to conduct “random sobriety stops”: (1) first, that s. 216(1) sets out the mechanics of the general police power to stopvehicles, including the corresponding duty on drivers to stop "when signalled or requested to stop" and (2) second, that s. 48(1) sets outthe circumstances under which police are permitted to stop drivers without reasonable and probable grounds to ascertain sobriety.

Therefore, the Supreme Court held that the two provisions fit together to supply a police power “to conduct random sobriety stops onhighways” and a corresponding duty on drivers to stop when signalled or requested to stop. In particular, the Supreme Court noted that s.216(1) supplies a "communication" requirement, so that a police officer seeking to invoke the s. 48(1) authority must at a minimumsignal or otherwise request that the driver stop their vehicle on a “highway”.

But more importantly, the Supreme Court also recognizedthat “random sobriety stops” are not the only tool available to police to combat impaired driving, and reasoned that even though it isunlawful for police officers to conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the H.T.A., policeofficers are legally permitted to stop drivers if they have “reasonable and probable grounds”: R. v. Ladouceur, at p. 1287. As such, theSupreme Court stated that their judgment in R. v. McColman does not constitute a blanket ban on “police stops of drivers” on privateproperty.

To clarify, the Supreme Court had noted that despite s. 48(1) furnishing the police officers with the legal authority “to conductrandom sobriety stops” of drivers of motor vehicles, the OPP constable in R. v. McColman did not have the legal authority to stopMcColman because McColman had not been a "driver" within the meaning of the H.T.A. at the time of the random stop. And, becausethe random stop of McColman was unlawful, the Supreme Court held that the OPP constable had breached McColman's rights under s. 9of the Charter not to be arbitrarily detained or imprisoned.

The Supreme Court in McColman also confirmed that a detention notauthorized by law is arbitrary and violates s. 9. And, because the OPP constable did not have the legal authority to randomly stopMcColman, the Supreme Court found that McColman had been arbitrarily detained by the OPP constable [emphasis is mine below]: The Crown suggests that a core question in this appeal is whether police must communicate their intention to effect a random sobrietystop on a highway in order to fall under s. 48(1) of the HTA.

The Crown argues that s. 48(1) authority is triggered when police form theintention to effect a random sobriety stop of a driver who is on a highway, and not when police communicate that intention to the driver.The Crown maintains that this

interpretation is supported by s. 216(1) of the HTA. On the Crown's view, s. 216(1) exhibits a legislative choice to put communication of intent to stop a driver at issue. Since the legislaturechose not to include the language of "signalled or requested to stop" in s. 48(1), that

section does not require the police to communicatetheir decision to stop a driver. So long as the driver was on the highway at the time the police officer formed the subjective intention tostop them, the officer can avail themselves of s. 48(1) authority to carry out a random sobriety stop on private property. In our view, thisargument must also fail. Sections 48(1) and 216(1) do not speak to differing legislative choices because the two provisions need not be read apart. In fact, theprovisions are often cited together to furnish the statutory authority to conduct random sobriety stops: see, e.g., R. v.

Sivarasah, 2017ONSC 3597, 383 C.R.R. (2d) 1, at para. 108; R. v. Holland, 2017 ONCJ 948, at para. 11 ; R. v. Warha, 2015 ONCJ 214, atpara. 5 ; R. v. Vander Griendt, 2015 ONSC 6644, 331 C.C.C. (3d) 135, at paras. 4 and 21. Section 216(1) sets out themechanics of the general police power to stop vehicles, including the corresponding duty on drivers to stop "when signalled or requestedto stop". By contrast, s. 48(1) sets out the circumstances under which police can stop drivers without reasonable and probable grounds toascertain sobriety.

The two provisions fit together to supply a police power to conduct random sobriety stops on highways and acorresponding duty on drivers to stop when signalled or requested to stop. On this reading, the absence of the phrase "when signalled or requested to stop" in s. 48(1) does not speak to any legislative choice toprivilege the point in time when police form the intention to conduct a random sobriety stop. Section 216(1) supplies a "communication"

requirement, such that a police officer seeking to invoke s. 48(1) authority must, at a minimum, signal or otherwise request that the driver stop their vehicle on a highway. Moreover, the inclusion of the word "require" in s. 48(1) implies the communication of an expectation or order to someone. The Oxford English Dictionary (online) defines "require" as "[t]o order, instruct, or oblige (a person) to do something" (emphasis in original). One cannot require someone to do something by merely subjectively intending it, as the Crown is arguing. Here, the police waited until Mr.

McColman had pulled onto his parents' driveway before they signalled their intention to stop him. Accordingly, they did not properly invoke their authority to conduct a random sobriety stop under s. 48(1) . Finally, the Crown submits that maintaining the majority of the Court of Appeal's reading of s. 48(1) of the HTA would create a sanctuary problem. The sanctuary problem refers to the idea that in the future, impaired drivers will simply pull onto private property whenever they spot a police cruiser .

The dissenting judge below suggested that "[i]n many cases, this sanctuary will be fleeting, as the impaired driver will stay on the private property only for as long as the police cruiser is in the area. Once it is out of sight, the driver will be free to re-enter the public highway and continue to endanger public safety": para. 96, per Hourigan J.A. In our view, the sanctuary problem is overstated. First, random sobriety stops are not the only tool available to police to combat impaired driving.

While police officers may not conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the HTA , they may stop drivers if they have reasonable and probable grounds: Ladouceur, at p. 1287. This judgment does not constitute a blanket ban on police stops of drivers on private property . Various factual scenarios might give rise to reasonable and probable grounds. For example, if a driver is driving erratically, a police officer may have reasonable and probable grounds to pursue the driver onto private property.

In addition, as the majority at the Court of Appeal noted, a "true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances": para. 42. Thus, police officers are not barred from stopping drivers on private property in all circumstances. Second, absent a successful constitutional challenge, this Court must respect the will of the legislature as expressed in valid legislation. It is not this Court's role to rewrite the law or to ask what law it would have enacted itself.

When read contextually, s. 48(1) of the HTA does not authorize police officers to conduct random sobriety stops on private property. This Court is duty-bound to respect the legislature's will. If the legislature believes that police officers ought to wield wider powers under s. 48(1) , it may amend the provision.

(2) The Random Sobriety Stop Breached Mr. McColman's

Section 9 Charter Rights While s. 48(1) of the HTA furnished the police officers with the legal authority to conduct random sobriety stops of drivers of motor vehicles, they did not have the authority to stop Mr. McColman because he was not a "driver" within the meaning of the HTA at the time of the stop . Since the stop was unlawful, the police officers breached Mr. McColman's rights under s. 9 of the Charter , which proclaims that "[e]veryone has the right not to be arbitrarily detained or imprisoned".

This Court has affirmed that "a detention not authorized by law is arbitrary and violates s. 9": Grant, at para. 54. Given the above finding that the police officers did not have the legal authority to randomly stop Mr. McColman, it follows that they arbitrarily detained him. [ 33 ] Consequently, as a result of the Supreme Court’s finding in R . v.

McColman , it is unlawful for police officers to follow a motorist onto a private driveway to conduct a “random sobriety stop” under s. 48(1) of the H.T.A. , unless the police officers had formed the opinion that they had reasonable and probable grounds about the motorist’s sobriety before the motorist had driven off the highway onto the private property.

(2) For The Purposes Of The H.T.A. , Under What Situations Can A Police Officer Lawfully Enter Onto Private Property? [ 34 ] Despite not having the authority to conduct “random vehicular stops” on private property for a sobriety check under s. 48(1), the Supreme Court in R. v.

McColman , at para. 49 , did however recognize that a police officer can lawfully follow a motorist from a public roadway onto a private driveway for a sobriety check under s. 48(1) of the H.T.A. , if the police officer has formed the opinion that he or she has “reasonable and probable grounds” to stop and check a motorist for sobriety prior to the motorist leaving the roadway and driving onto the private driveway. Furthermore, the Supreme Court in R. v. McColman also noted that police officers are not barred from stopping drivers on private property in all circumstances [ emphasis is mine below ]:

First, random sobriety stops are not the only tool available to police to combat impaired driving. While police officers may not conductrandom sobriety stops of drivers on private property pursuant to s. 48(1) of the HTA, they may stop drivers if they have reasonable andprobable grounds: Ladouceur, at p. 1287. This judgment does not constitute a blanket ban on police stops of drivers on private property.Various factual scenarios might give rise to reasonable and probable grounds.

For example, if a driver is driving erratically, a policeofficer may have reasonable and probable grounds to pursue the driver onto private property. In addition, as the majority at the Court ofAppeal noted, a "true case of flight might well contribute to reasonable grounds to detain the accused, depending on the circumstances":para. 42.

Thus, police officers are not barred from stopping drivers on private property in all circumstances. [35] Hence, police officers are allowed to enter onto private property when the police officers are engaged in the lawful execution oftheir duties and responsibilities and that police officers may pursue a driver of a motor vehicle onto private property if the officers havereasonable and probable grounds to stop the driver by virtue of s. 48(1), s. 216(1), or under the common law.

(3) Police Officers Also Have Authority To Randomly Stop The Driver Of A Motor Vehicle On A “Highway” Under S. 216(1)Of The H.T.A. [36] In addition, a police officer, in the lawful execution of his or her duties and responsibilities, is empowered under s. 216(1) of theH.T.A. to randomly stop the driver of a vehicle and the driver of a vehicle, when signalled or requested to stop by a police officer who isreadily identifiable as such, shall immediately come to a safe stop.

And to reiterate, a “driver” is someone who drives a motor vehicle ona highway as defined under s. 1(1) of the H.T.A. [emphasis is mine below]: Power of police officer to stop vehicles 216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than abicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such,shall immediately come to a safe stop. [37] Furthermore, Doherty J.A., writing for the Court of Appeal for Ontario, reviewed the statutory power given to the police torandomly stop motor vehicles under s. 216(1) of the H.T.A. in Brown v.

Durham Regional Police Force, (ON CA),[1998] O.J. No. 5274, and indicated that the detention of a motorist under that provision is circumscribed by its purpose and that thedetention of the motorist must be brief and limited to the roadside, unless other grounds are established for a further detention. Inaddition, Doherty J.A. explained that the police may require production of the documents which drivers are required to have with themand may detain the vehicle and its occupants while those documents are checked against information available through the computerterminal in the police vehicle.

Moreover, Doherty J.A. said that the police may also assess the mechanical fitness of the vehicle,examine equipment for compliance with safety standards from outside of the vehicle, and make a visual examination of the interior toensure their own safety in the course of the detention. Doherty J.A. also confirmed that more intrusive examinations or inquiries directedat matters not relevant to highway safety concerns are not authorized by s. 216(1) of the H.T.A. [emphasis is mine below]: Section 216(1) authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes.

Indescribing the scope of this section's predecessor (s. 189(a)(i), R.S.O. 1980, c. 198), Cory J., in R. v. Ladouceur,(SCC), [1990] 1 S.C.R. 1257, 48 C.R.R. 112, said, at p. 1287: Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licenceand insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiablybe asked are those related to driving offences.

Any further, more intrusive procedures could only be undertaken based upon reasonableand probable grounds. (Emphasis added) In R. v. Simpson, supra, this court after referring to Ladouceur and related cases, said, at p. 193 O.R., p. 492 C.C.C.:

. . . the "check stop" cases decide only that stops made for the purposes of enforcing driving related laws and promoting the safe use ofmotor vehicles are authorized by s. 216(1) of the Highway Traffic Act, even where those stops are random. These cases do not declarethat all stops which assist the police in the performance of any of their duties are authorized by s. 216(1) of the Highway Traffic Act. (Emphasis added) Other provincial appellate courts have reached the same conclusion when interpreting highway regulation provisions similar to s.216(1) of the H.T.A.: R. v.

Soucisse (1994), 5 M.V.R. (3d) 207 at pp. 214-15, 63 Q.A.C. 71; R. v. Wilson (1993), (BCCA), 86 C.C.C. (3d) 145 at pp. 153-54, 20 C.R.R. (2d) 344 (B.C. C.A.); R. v. MacLennan (1995), 1995 NSCA 51 , 97 C.C.C.(3d) 69, 138 N.S.R. (2d) 369 (C.A.); R. v. Montour (1994), (NB CA), 5 M.V.R. (3d) 250, 150 N.B.R. (2d) 7 (C.A.),reversed on other grounds (SCC), [1995] 2 S.C.R. 416, 182 N.R. 154. The detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose. The detention is limited to the roadside and must bebrief, unless other grounds are established for a further detention.

The police may require production of the documents which drivers arerequired to have with them and may detain the vehicle and its occupants while those documents are checked against informationavailable through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examineequipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure theirown safety in the course of the detention: R. v. Ladouceur, supra, at pp. 1286-87; R. v.

Mellenthin, (SCC), [1992] 3S.C.R. 615 at pp. 623-24, 12 C.R.R. (2d) 65; R. v. E. (G.A.) (1992), (ON CA), 77 C.C.C. (3d) 60 (Ont. C.A.). Moreintrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of theH.T.A.: R. v. Mellenthin, supra.

(4) Police Officers Are Also Permitted To Randomly Stop Motorists On A Highway Under The Common Law [38] The Supreme Court of Canada noted at para. 27 in R. v. McColman, 2023 SCC 8 , [2023] S.C.J.

No. 8, that the SupremeCourt did not grant leave on the issue of whether the police had the common law authority to conduct the random stop of a motorist onprivate property [emphasis is mine below]: It must be noted that this Court did not grant leave on the issue of whether the police had the common law authority to conduct the stop. [39] Accordingly, the authority for police officers to conduct “random stops” of drivers of motor vehicles on private property under thecommon law has not been charged or limited by the Supreme Court’s judgment in in R. v.

McColman. [40] Moreover, the law on whether a police officer needs to have reasonable suspicion or to have reasonable and probable grounds tobelieve that an offence has been committed or being committed before being able to legally stop a motorist is well settled. It had beenheld by the Supreme Court of Canada that the police needs neither of these two standards of belief before they are legally permitted tostop and investigate a motorist operating a motor vehicle on a highway if the purpose of the traffic stop is related to road safety. Specifically, in the trilogy of cases of R. v. Dedman, (SCC), [1985] S.C.J.

No. 45; R. v. Hufsky, (SCC), [1988] S.C.J. No. 30; and R. v. Ladouceur, (SCC), [1990] S.C.J.

No. 53, the Supreme Court has held thatpolice officers may conduct “random stops” of motor vehicles being operated on a highway within the meaning of a specific provincialHighway Traffic Act without having to have any identifiable grounds or cause for the stop where the stop is authorized by law and thepurpose of the random stop is related to road safety to check for sobriety, licences, ownership, insurance, and the mechanical fitness ofthe vehicles. [41] In all three cases, the Supreme Court had considered whether police officers had the statutory power or power under the commonlaw to legally stop motor vehicles or the motorists operating motor vehicles without having to have any grounds of suspicion or beliefthat an offence had been committed or was being committed, and whether these random or groundless stops would be an infringement ofthe Charter. [42] The first of the random stopping of motor vehicles without cause cases was decided by the Supreme Court in R. v.

Dedman, (SCC), [1985] S.C.J. No. 45, which involved the police using R.I.D.E programs or stationary check stops to check forimpaired drivers and compliance with traffic laws in Ontario. At that time, there had been no statutory authority that the police could

rely on to randomly stop motor vehicles on a highway.

However, despite the lack of any statutory authority under the H.T.A. at that timeto randomly stop vehicles without cause, Le Dain J., writing for the majority of the Supreme Court, at paras. 65 to 69, found that thepolice had the authority to randomly stop motor vehicles without cause under their “ancillary police power” that had been derived fromtheir common law duty to preserve the peace, prevent crime, and to protect life and property, from which is derived the duty to control oftraffic on the public roads [emphasis is mine below]: It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, andthe protection of life and property, from which is derived the duty to control traffic on the public roads.

See Rice v. Connolly, [1966] 2Q.B. 414, at p. 419; Johnson v. Phillips, [1975] 3 All E.R. 682, at p. 685; Halsbury's Laws of England, 3rd ed., vol. 30, para. 206, p. 129. The common law basis of police power has been derived from the nature and scope of police duty. Referring to the "powers associatedwith the duty", Ashworth J. in R. v.

Waterfield, supra, at pp. 661-62, laid down the test for the existence of police powers at common law,as a reflection of police duties, as follows: In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the generalterms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what thepolice constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person'sliberty or property.

If so, it is then relevant to consider whether (

a) such conduct falls within the general scope of any duty imposed bystatute or recognised at common law and (

b) whether such conduct, albeit within the general scope of such a duty, involved anunjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have aduty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases thatwhen the execution of these general duties involves interference with the person or property of a private person, the powers of constablesare not unlimited. To cite only one example, in Davis v.

Lisle, [1936] 2 All E.R. 213; [1936] 2 K.B. 434, it was held that even if a policeofficer had a right to enter a garage to make inquiries, he became a trespasser after the appellant had told him to leave the premises, andthat he was not, therefore, acting thenceforward in the execution of his duty, with the result that the appellant could not be convicted ofassaulting or obstructing him in the execution of his duty.

The test laid down in Waterfield, while generally invoked in cases in which the issue is whether a police officer was acting in theexecution of his duties, has been recognized as being a test for whether the officer had common law authority for what he did. …… Thetest laid down in Waterfield was treated as authoritative and applied by this Court in R. v. Stenning, (SCC), [1970]S.C.R. 631, and in Knowlton v. The Queen, (SCC), [1974] S.C.R. 443, both cases in which the issue was whether apolice officer was in the execution of his duty.

In Knowlton, Fauteux C.J., delivering the judgment of the Court, said at p. 446, "Policeduty and the use of powers associated with such duty are the sole matters in issue in this appeal", and he concluded at p. 448, "I cannotfind in the record any evidence showing that Sergeant Grandish or other police officers resorted, on the occasion, to any unjustifiableuse of the powers associated with the duty imposed upon them." Leigh, Police Powers in England and Wales (1975), p. 33, refers to thedecision in Knowlton as reflecting a movement towards "an ancillary powers doctrine which would enable the police to perform suchreasonable acts as are necessary for the due execution of their duties." In The Wiretap Reference, (SCC), [1984] 2S.C.R. 697, Dickson J. (as he then was), dissenting, considered the Waterfield test under the heading "The Common Law Powers of ThePolice", which he referred to as "powers inherent in the execution of a police officer's duty".

In applying the Waterfield test to the random stop of a motor vehicle for the purpose contemplated by the R.I.D.E. program, it isconvenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". That is the way it was referred to inHoffman v. Thomas, supra, and in Johnson v. Phillips, supra.

In assessing the interference with this right by a random vehicle stop, onemust bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual, but alicensed activity that is subject to regulation and control for the protection of life and property. Applying the Waterfield test, then, andusing the word "liberty" in this qualified and special sense, it may be said that the random vehicle stop in this case was prima facie anunlawful interference with liberty and since it was not authorized by statute.

The first question, then, under the Waterfield test is whetherthe random stop fell within the general scope of the duties of a police officer under statute or common law. I do not think there can beany doubt that it fell within the general scope of the duties of a police officer to prevent crime and to protect life and property by thecontrol of traffic. These are the very objects of the R.I.D.E. program, which is a measure to improve the deterrence and detection ofimpaired driving, a notorious cause of injury and death.

Turning to the second branch of the Waterfield test, it must be said respectfully that neither Waterfield itself nor most of the cases whichhave applied it throw much light on the criteria for determining whether a particular interference with liberty is an unjustifiable use of apower associated with a police duty. There is a suggestion of the correct test, I think, in the use of the words "reasonably necessary" inJohnson v. Phillips, supra.

The interference with liberty must be necessary for the carrying out of the particular police duty and it mustbe reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by theinterference. Because of the seriousness of the problem of impaired driving, there can be no doubt about the importance and necessity ofa program to improve the deterrence of it. The right to circulate on the highway free from unreasonable interference is an important one,but it is, as I have said, a licensed activity subject to regulation and control in the interest of safety.

The objectionable nature of arandom stop is chiefly that it is made on a purely arbitrary basis, without any grounds for suspicion or belief that the particular driverhas committed or is committing an offence. It is this aspect of the random stop that makes it capable of producing unpleasant

psychological effects for the innocent driver. These effects, however, would tend to be minimized by the well-publicized nature of theprogram, which is a necessary feature of its deterrent purpose. Moreover, the stop would be of relatively short duration and of slightinconvenience. Weighing these factors, I am of the opinion that having regard to the importance of the public purpose served, therandom stop, as a police action necessary to the carrying out of that purpose, was not an unreasonable interference with the right tocirculate on the public highway.

It was not, therefore, an unjustifiable use of a power associated with the police duty, within theWaterfield test. I would accordingly hold that there was common law authority for the random vehicle stop for the purpose contemplatedby the R.I.D.E. program. [43] After the release of the Supreme Court’s decision in R. v.

Dedman, s. 189a of the H.T.A. [the precursor to the present s. 216(1) ofthe H.T.A.] was enacted in Ontario, which then provided the police the authority to stop motor vehicles being operated on Ontariohighways at any time without cause when it is for the purposes of road safety. [44] Then in the second case of the trilogy, the Supreme Court had to consider the police use of non-stationary or roving spot checkstops in R. v. Hufsky, (SCC), [1988] S.C.J. No. 30.

This particular type of “random check stop” was not like thestationary R.I.D.E. program setup where police officers and police vehicles were used at a fixed location to randomly stop and checkmotorists for sobriety and compliance with traffic laws. In these spot check stops the police were not guided by any criteria, standards,guidelines, or procedures to determine which vehicles should be stopped.

The only guideline for the police in using these spot checkstops to check motorists for sobriety, licences, insurance, and the mechanical fitness of vehicles was that there had to be at least onemarked police vehicle involved in the roving check stop. Therefore, it was left to the discretion of the police in choosing which vehicleto stop. As in R. v. Dedman, the Supreme Court in Hufsky held at paras. 20 and 21 that these roving check stops used by the police werearbitrary detentions that contravened s. 9 of the Charter.

However, the Court held that for the reason of highway safety and for thepurpose of increasing both the detection of and the perceived risk of being detected of motor vehicle offences, many of which cannot bedetected by mere observation of driving, police officers would be permitted to conduct a random stop of a motor vehicle without havingany suspicion that an offence has been committed or is being committed, which would be a reasonable limit that is demonstrably justifiedunder s. 1 of the Charter if the stop is conducted in respect to the H.T.A. [emphasis is mine below]: In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose ofincreasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mereobservation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to bearbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society.The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, rememberingthat the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to thepurpose to be served.

If the stopping of motor vehicles for such purposes is not to be seriously inhibited, it should not, in my respectfulopinion, be subjected to the kinds of conditions or restrictions reflected in the American jurisprudence (cf. Delaware v. Prouse, 440 U.S.648 (1979), and Little v. State, 479 A.2d 903 (Md. 1984)), which would appear seriously to undermine its effectiveness while notsignificantly reducing its intrusiveness.

As for publicity, which was referred to in Dedman in connection with common law authority for arandom stop for the purposes contemplated by the R.I.D.E. program, I think it may be taken now that the public is well aware of randomstop authority both because of its frequent and widespread exercise and its recognition by legislatures.

For the above reasons I am of the opinion that the random stop of the appellant for the purposes of the spot check procedure was ajustified interference with the right not to be arbitrarily detained guaranteed by s. 9 of the Charter, ... [45] For the last case in the trilogy of “random stop” cases, Cory J. for the majority in R. v. Ladouceur, (SCC),[1990] S.C.J. No. 53 (S.C.C.) had to consider the constitutionality of police officers using roving random check stops under the authorityof s. 189a(1) [now s. 216(1)] of the H.T.A. to stop motor vehicles as a matter of routine.

In that particular case, the accused motorist,who was later charged with drive while driver’s licence suspended, had been stopped by two police officers when there had been noreason or basis of suspicion to stop the motorist. At para. 40, Cory J. writing for the majority, held that the power of a police officer tostop motor vehicles at random is prescribed by law. He also explained that the authority to randomly stop motor vehicles is derived froms. 189a(1) [now s. 216(1)], as well as having been previously justified by the Supreme Court in R. v.

Dedman as a prescription of thecommon law [emphasis is mine below]: The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) [now s. 216(1)] of the Highway Traffic Act andis 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.

[46] In addition, Cory J. in R. v. Ladouceur, at para. 5, had confirmed Le Dain J.’s majority decision in R. v.

Hufsky that hadrecognized that unlicensed and uninsured drivers are more likely to cause accidents, and that the only way to protect the public from baddrivers and to stop these unlicenced and uninsured drivers from driving on public highways, is to allow the police to randomly stop thedrivers of motor vehicles without cause to check for sobriety, licences, insurance and the mechanical fitness of motor vehicles [emphasisis mine below]: This Court in Hufsky, supra, held that the detention was justified under s. 1 in light of the statistics that were put before the Courtrelating to unlicensed driving and accidents.

Le Dain J. found that these statistics supported the conclusion that unlicensed driverscaused a significantly higher percentage of accidents than licensed drivers. Therefore, extraordinary enforcement measures werejustified to eliminate this hazard. In the present case, the Court of Appeal invited the Crown to submit a new record to justify thisadditional inroad on the rights to be free from arbitrary detention. The Crown submitted volumes of "statistical data, charts andcomparable legislation".

The Court of Appeal analyzed this data and the majority judgment concludes, at p. 259, that: ... the material submitted does not show that there is a proportionality between the measure taken, i.e., a power to stop motorists atrandom in order to check whether they have a valid driver's licence, and the admittedly valid government objective of promoting safetyon the highways.

The only statistical figures concerning unlicensed drivers and higher accident rates shows a correlation betweenuninsured vehicles and a higher rate of personal injuries, but a reverse correlation as far as property damage is concerned. [47] Ergo, even though “random roving check stops” of motorists by police officers on a highway, where there is no suspicion ofunlawful activity, violates the motorist’s right against arbitrary detention under s. 9 of the Charter, it has been held by the Supreme Courtof Canada that it is a reasonable limit of the motorist’s rights under s. 1 of the Charter, if the purposes of the traffic stop is related to roadsafety and the random stopping of motor vehicles is authorized by law to check on such matters as sobriety, licensing, insurance, and themechanical fitness of the vehicle: Dedman, Hufsky and Ladouceur. [48] In short, police officers are permitted to stop any motor vehicle at any time on a highway without reason, as long as it is for roador highway safety purposes to check for sobriety, licensing, insurance, and mechanical fitness.

In addition, in R. v. Mellenthin, (SCC), [1992] S.C.J. No. 100 (S.C.C.) at paras. 10 and 15, Cory J. confirmed that the detention of a motorist in a randomcheck stop constituted an arbitrary detention which infringed s. 9 of the Charter, but was justified within the meaning of s. 1, as a meansof combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles onhighways.

However, aware that the police could improperly use or abuse the power to randomly stop motorists without cause, Cory J.limited that power by holding that the primary aim of these random check stop programs is to check for sobriety, licences, ownership,insurance and the mechanical fitness of cars, but that the police use of random stop programs should not be extended beyond these aimsnor turned into a means of conducting either an unfounded general inquisition or an unreasonable search [emphasis is mine below]: It was decided in Dedman v.

The Queen, (SCC), [1985] 2 S.C.R. 2, that stopping a vehicle as a part of a R.I.D.E.Program constituted detention. The case arose prior to the passage of the Charter, however the reasoning was relied upon in cases thatdid take into account Charter rights. In R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, it was determined that the detention of the motorist in a random check stop constituted an arbitrarydetention which infringed s. 9 of the Charter.

However, these decisions held that the random stops were justified pursuant to s. 1 as ameans of combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation ofvehicles on our highways. In those cases, it was deemed appropriate for the officers conducting a check stop program to pose questionsas to the mechanical condition of the vehicle and to require the production of a driver's licence, certificate of ownership and proof ofinsurance. This does not make a check stop any less a manifestation of police authority.

For even the most experienced and sophisticateddriver it will create an atmosphere of some oppression. This follows not simply from a consideration of the reasons in Dedman, Hufskyand Ladouceur but is a matter of common sense. There can be no question that the appellant

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