R. v. Vandergriendt, 2014 ONCJ 295

Citation: R. v. Vandergriendt , 2014 ONCJ 295 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- DAVID VANDERGRIENDT REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date December 10 2012. The issue in this case centres on the fact that the defendant was stopped by police as he drove in a shopping plaza parking lot. 2 . A police officer and her trainee officer were conducting mobile sobriety spot checks, focusing on vehicles in the vicinity of drinking establishments.

Her attention was drawn to the defendant’s pick-up as it drove near a pizza place in a large plaza parking lot. She stopped it, still in the lot. A smell of alcohol and an admission of drinking lead to a failed ASD, an arrest, demand and breath samples betraying an excess of alcohol in the defendant’s blood (130; 120) The Issues: 3 . The issue raised can be stated as this: Does the Ontario Highway Traffic Act or the common law authorize police to conduct random check-stops of vehicles in parking lots? 4 . The issue can be broken down into sub-issues: 1.

Does the HTA authorize check-stops in private parking lots? 2. Does the common law authorize check-stops in parking lots? 3. Does the common law authorize random check stops in parking lots? Analysis:

HTA and parking lots: 5. I accept, at least for the present case, that the law in Ontario is that the stopping power conferred by sections 48 and 216 of theHighway Traffic Act does not apply in private parking lots. The path of reasoning was described in R v Tresham (ONSC), [1998] OJ 1744 and need not be repeated here. However it must be said that, while the reasoning based on statutory constructionseems sound enough, it is doubtful that such a result was ever intended by the legislators. Certainly it seems like a very circuitous andoblique way to express an intention to exclude parking lots.

Moreover, it is difficult to imagine any policy reason or civil libertiesconcern that could motivate creation of such a distinction. To the contrary, a distinction that might encourage or require police to waituntil a possible drunk driver hits the street – and possibly hits something else- seems unwise, to say the least.[1] Common law and parking lots: 6. Apart from statute, the police have common law authority to stop and detain motorists for purposes related to highway safetyconcerns. The authority has no spatial limitations.

It may be lawfully exercised in locations excluded from the scope of a statutorystopping power, including parking lots: R v Dillon [2006] OJ N0 1366 (Sup Crt Molloy J). 7. The Dillon case is binding on me. In any event I agree with it, as have other courts: R v Mclelland [2012] OJ No 6022 (Sup CrtTulloch J). No case to the contrary has been brought to my attention.

While counsel has cited R v Tresham supra and R v Sergalis (2009) 90 MVR 5TH 116 (Ont Sup Crt) and the Saskatchewan case of R v Lux 2012 SKCA 12, none of these cases makes any reference topossible common-law authority and therefore, having not considered the point, do not support any view that conflicts with Dillon.[2] 8. I can add little to the analysis in Dillon except the observation that police officers in Ontario have the duties and powers ascribedto a constable at common law (Police Services Act s 42(3). Their common law and statutory powers are cumulative.

The enactment ofstatutory authority in sections 48 and 216 did not supplant or remove the common law authority that had been recognized before thoseenactments. Are random stops authorized? 9. The stop in this case was random in the sense that it was made without any grounds to believe or suspect the commission of anyoffence. I did not understand the officer to claim otherwise. Rather, I took her description of the vehicle’s movements to be merelynarrative explaining why the vehicle came to her attention, rather than a statement of or claim to grounds for suspicion. 10. Counsel Ms.

Rosenberg argues that, even assuming as per the above that there is common law authority to stop a vehicle in aparking lot, the stop cannot be random but rather must be based on articulable cause or reasonable suspicion. While the argument hasbeen well presented, I am unable to accept it for two reasons; first because I am bound by Dillon which specifically decided that randomstops in parking lots were authorized by common law and secondly, even if I was not so bound, I do not think that the argument iscorrect. 11.

Dealing with the merits, the first submission in support of this argument goes beyond parking lots to include the broader contentionthat the law does not authorize random stops anywhere – that articulable cause is always required.[3] . But in my view, the trio of casesfrom the Supreme Court: Dedman, Hufsky, and Ladouceur made it crystal clear that the Court was recognizing common law andstatutory authority for random “check stops,” meaning stops for purposes of traffic safety made without any grounds to believe orsuspect the commission of any offence. That was the point of those cases.

All three cases on their facts involved groundless stops, thougheach was of a different type, and in all three cases convictions were imposed or affirmed. In those cases, a random stopping power wasrecognized and then found to pass constitutional muster under

section 1. 12. It is argued however that in Wilson, a companion case to Ladouceur, the Court examined and discussed whether the officer hadarticulable cause. Why would the Court feel it necessary to engage in this exercise, if such cause was not required? Ms. Rosenberg is notthe first to ask this question. Wayne Gorman (now Gorman J.) “Arbitrary Detentions and Random Stops” (1999) 41 Crim Law Q P 41 atP 48 wrote that Wilson “changed everything” and that the “Court’s foray into the articulable cause standard effectively destroyed” whathad been decided in Hufsky and Ladouceur. 13.

With respect, I think there is really no confusion or erosion of these cases by Wilson. While it is true that the Court did not have todeal with the question of whether grounds for the stop existed, courts do not always confine themselves to the narrowest basis on which acase can be decided. This is particularly so when one basis is factual and the other legal. In Wilson the brief judgment gave two reasonswhy the stop was lawful. On the facts, there were grounds; if not, on the law, it was still lawful.

Cory J for the majority concluded: … if the stopping of the appellant's vehicle is considered to be a random stop then for the reasons given in Ladouceur, supra, I wouldconclude that although the stop constituted an arbitrary detention, it was justified under s. 1 of the Charter. 14. It is further argued that developments since the random stop trilogy have qualified those cases and imposed an articulable cause orreasonable suspicion standard for investigative detentions applicable to both pedestrian and vehicle stops: R v Mann 2004 SCC 52, [2004] 3 SCR 59; R v Simpson (1993) (ON CA), 79 CCC 3d 482.

Again, this argument was rejected by thebinding case of Dillon. Beyond that, these subsequent developments did not qualify the holding of the motor vehicle safety “check-stop”cases but rather dealt with and declared the standard for stops made for other purposes. It was made clear in the check stop trio andemphasized soon thereafter in R v Mellenthin (SCC), [1992] 3 SCR 615, that the random stopping power was confined tostopping related to highway regulation and safety and that the power was not to be used generally or in pursuit of other kinds ofinvestigations.

In such situations, later cases declared, articulable cause or reasonably grounded suspicion must be present, including where motor vehicles are involved: R v Simpson supra; R v Bryce (2009) 87 MVR 5th 259(Ont Sup Crt Hill J.). In my view, legaldevelopments on detention and reasonable suspicion occurring subsequent to the check-stop trilogy do not modify those cases but rather

recognize that there are two different streams with two separate rules, depending on the purpose for which the stop is made. 15. The second part – and really the core of the defendant’s argument - is that, assuming a generally applicable random stop power, itdoes not extend to parking lots. This is because, it is argued, the same public safety concerns motivating the random stop rule do notapply in parking lots. Random stops were found to be a reasonable limit under

section 1 on a balancing of the great harm done bydrinking drivers, the ineffectiveness of grounds-predicated enforcement and the minimal inconvenience to those engaged in the heavilyregulated activity of driving. Take away or substantially reduce the safety/harm component, and the balance changes to the point where itcannot be said that the infringement on liberty is justified either under the Waterfield test or

section 1. 16. Again I can’t accept the argument. In my view there is substantially the same safety concern in parking lots as on the road. Suchlots are not always or often wide open deserted places where no harm can be done. They can contain hundreds of other cars andpedestrians moving about. Impaired driving is as much a crime there as on the road. Beyond that there is the potential danger. Cars inparking lots are just seconds away from going on the road and frequently their drivers intend to do just that. A stop in a parking lot issafer for both police and the detained motorist.

On the other side of the equation, there is no heightened privacy or mobility interestattaching to a motorist in a parking lot. His being randomly stopped in a lot is no greater infringement on his liberty than if it occurred onthe road. 17. In sum, it is my view that the rationale for permitting random safety check-stops applies equally to vehicles in parking lots. Conclusion: 18. There was no Charter violation. The breath test results are admissible. They prove the offence. The defendant is found guilty ascharged June 18 2014 B Duncan J Ms D Rosenberg for the defendant Ms.

Scully for the Crown [2] In Sergalis the argument at trial turned exclusively on

section 48 HTA and on appeal the Crown conceded “arbitrary detention” (para14) that is, did not rely on common law. Dillon, then 3 years old, was not referred to. Further Sergalis was a case where the defendanthad been seen driving on the highway before pulling into the parking lot. Its holding on such facts conflicts with the more recent decisionof Miller J in R v Heer 2013 ONSC 2757 and the Court of Appeal in R v Calder (ON CA), [2004] OJ No 451 [3] I base this understanding on the fact that counsel places substantial reliance on R v Wilson (SCC), [1990] 1 SCR1291 (SCC) – not a parking lot case.