R. v. Kuipers, 2010 ONCJ 755

COURT FILE No.: COURT FILE No.: City of Kawartha Lakes 4360 999 00 1720304A DATE: 2010·12·10 Citation: R. v. Kuipers , 2010 ONCJ 755 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen — AND — John Henry Kuipers Before Justice of the Peace Dianne J. Ballam Heard on October 23, 2009 Reasons for Judgment released on December 10, 2010 K. Page ......................................................................................................... for the prosecution The defendant John Henry Kuipers on his own behalf JUSTICE OF THE PEACE BALLAM: [ 1 ] Mr.

Kuipers, hereafter called the Defendant, is charged that on May 30, 2009, at Highway 35, City of Kawartha Lakes, did commit the offence of fail to wear a proper helmet on motorcycle, contrary to the H.T.A. section 104 (1). [ 2 ] Facts: [ 3 ] On May 30, 2009, the defendant was travelling on Highway 35 with a group of motorcyclists. P/C Hoogerdyk was travelling in the opposite direction in his police cruiser. Both parties were travelling between 80 – 90 km./hour.

P/C Hoogerdyk singled out the defendant and charged him with failing to wear a proper helmet on a motorcycle [ 4 ] Arbitrariness of the Stop [ 5 ] The question that hung over the trial was why the officer singled out the Defendant from the group of motorcyclists [ 6 ] The Prosecutor, Ms. Page, provided the court with the case of Brown et al . v. Durham Regional Police Force. (1998) 1998 CanLII 7198 (ON CA) , 43 O.R. (3d)223 That case involved a number of members of various motorcycle gangs being stopped by members of the Durham Regional Police.

In that case, the trial judge found that the highway safety concerns were one of the purposes behind the stops. This was a finding of fact. The Court of Appeal, referring to the finding of fact by a court, stated at page 8 of the decision: [ 7 ] “ Unless it can be said to be unreasonable or based on a material misapprehension of the evidence, it must be accepted in this court .” [ 8 ] It was noted that the stops in question were selective and only vehicles driven by persons believed to be motorcycle gang members or associates or friends of those members were stopped.

The Court found that it was reasonable to believe that the large social functions sponsored by the club which the motorcyclists were all attending had a “significant potential” for violence and public disruption and that the roadside checks would turn up evidence of highway traffic offences. The police stopped everyone who fit the profile of a motorcycle gang member. This was found to be a legitimate process by the Court, for the reasons already stated [ 9 ] In the case before me, there was no indication that the Defendant was in any way a motorcycle gang member or associate.

He was with a group of recreational motorcyclists travelling northbound on Highway 35. P/C Hoogerdyk saw the group of motorcyclists and determined to stop only the Defendant, allegedly to check his helmet. P/C Hoogerdyk testified he had no concerns about the other motorcyclists’ helmets – he was only concerned about the Defendant’s. He gave no reason(

s) why. He stated at page 8 of the transcript [ 10 ] “ I observed one motorcycle appeared to be not wearing a properly approved helmet, and as a result, I stopped this motorbike – motorcycle ”.

[ 11 ] The officer gave no reason in his testimony as to why or how he determined that the Defendant appeared to not be wearing “a properly approved helmet”. [ 12 ] It was only after the Defendant had pulled his motorcycle off the road and stopped, and removed his helmet and handed it to the officer for inspection, that the officer was able to determine that it did not possess, in the words of the officer, “a sticker”. This was clarified to be a certification sticker that is required under the Regulations for motorcycle helmets. It is affixed to the helmet.

It certifies that the helmet meets safety requirements, as determined by various approved safety organizations. Upon further examination of the helmet, P/C Hoogerdyk formed the opinion that the helmet had a “broken welt” and “cracks”. As a result of these findings and determinations, he decided the helmet was “illegal”, and seized it.

He issued the Provincial Offences Notice before the court to the Defendant. [ 13 ] The officer acknowledged in cross-examination that when he first observed the Defendant and determined that the helmet appeared to be not “properly approved”, he was in his police cruiser travelling southbound on Highway 35 at 80-90 km./hr., and met the group of motorcycles (of which the Defendant was one) travelling northbound at approximately 80-85 km./hr. The combined speed would therefore have been approximately 160 km./hr.

The officer testified that it was at that speed and those conditions that he determined the Defendant’s helmet was improper, which is the reason that he gave for stopping him. He did not ask to see any other motorcyclist’s helmet, even though the group had all pulled over and stopped. When P/C Hoogerdyk was asked by the Defendant how many “bikes” stopped, the officer replied he did not recall. The officer testified that the Defendant was with a group of other motorcyclists, “and I had no concern about their helmets, I was only concerned about yours.” (page 14 of the transcript).

He gave no reason for this selective concern. [ 14 ] I find as a fact that P/C Hoogerdyk could not, at the speeds and conditions stated, have determined that there was no “sticker” on the Defendant’s helmet. He could also not have seen the alleged broken welt and cracks. I examined the helmet, which was introduced as Exhibit # 1, and find there are only minor surface scratches, and one small area with a minor crack on the right side of the helmet.

These are not visible unless examined very closely, and could not have been seen by P/C Hoogerdyk when travelling down the highway in his police cruiser, at the speed testified to, in regards to one motorcyclist out of a group of motorcyclists [ 15 ] In Brown , et al . the Ontario Court of Appeal stated that: “Stops which are selective in the sense that a certain person or group is targeted must be carefully scrutinized. Depending on the basis on which the person or group is selected, the stop may be improper and not authorized by s.216 of the H.T.A .

Where the criteria used are rationally connected to highway safety concerns, they promote the effective use of the power granted by s.216 (1) of the H.T.A. while, at the same time, limiting the state interference with motorists’ freedom”. [ 16 ] The case of Brown et.al . further states at page 10: “ Section 216(1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops [ 17 ] Had the officer stated a reason in his testimony for singling out the defendant, or if he had questioned or examined any of the other members of the group of motorcyclists whom had pulled over and stopped with the Defendant, or if the stop was done as part of any organized program of traffic safety, it would have removed the discriminatory pall that hangs over this fact situation.

It is established law that police officers have the authority to pull a motorist over at random to check for highway traffic infractions. While the Supreme Court accepted that such stops are arbitrary, and thereby infringe

section 9 of the Charter , the various legislative sections authorizing such stops, in this case s.216(1) of the H.T.A. , are saved by

section 1 . The leading case for that authority is R.v. Ladouceur (S.C.C.) 1990 CanLII 108 (SCC) , [1990] 1 S.C.R. 1257 . What they cannot do, as stated in R. v. Brown, et al , is conduct discriminatory stops and attempt to cloak them with highway traffic concerns, thereby legitimizing them. [ 18 ] The Supreme Court in Ladouceur acknowledged at page 15 a concern regarding the perceived potential for abuse of this broad power by law enforcement officials. It should be noted that the decision in Ladouceur resulted in a 5/4 split of the court.

The minority was of the opinion that the unlimited right of police officers to stop motor vehicles without any reason cannot be justified under s.1 of the Charter .

The majority found the fears unfounded, as there was a remedy available, and stated: “ Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s.24 (2) of the Charter . ” [ 19 ] In the case at hand, I find that P/C Hoogerdyk could not have discerned any identifiable infractions regarding the Defendant’s helmet when they were travelling down the highway which caused the officer to target the Defendant out of a group of persons, but rather that the stop was clearly a selective, discriminatory stop.

It cannot be described as random, as the Defendant was specifically targeted from a group of motorcyclists travelling together. It does not pass the careful scrutiny required by the Ontario Court of Appeal. Officer Hoogerdyk provided no “articulable cause” why he singled out the defendant that would remove the arbitrariness of the stop. e.g. R.v. Wilson , 1990 CanLII 109 (SCC) , 56 C.C.C.(3d) 142 (S.C.C.) . It was discriminatory to the Defendant.

No evidence was presented to the court to explain why the Defendant was specifically targeted by the officer. [ 20 ] I find this stop was arbitrary and discriminatory, and therefore unlawful and not authorized by s.216 (1) of the H.T.A.

Section 9 of the Canadian Charter of Rights and Freedoms provides protection from unlawful arrest and detention. I find that the stop was unlawful, the defendant was arbitrarily detained, and his rights were violated. The remedy, as articulated by the Supreme Court, is to exclude the evidence gleaned by the stop under s.24 (2) of the Charter. [ 21 ] Seizure of Helmet and Failure to File a Return to a Justice [ 22 ] As a result of the stop, P/C Hoogerdyke seized the Defendant’s helmet. It was a warrantless seizure. The Prosecutor submitted that it was conducted (and authorized by the H.T.A. ) in the performance of the officer’s duties, as it was necessary for

evidentiary purposes to prove the offence charged against the accused, and to prevent tampering with the evidence.

Section 158.2(1)(ii) of the Provincial Offences Act provides the statutory authority. It reads: (

i) S.158.2(1)(

a) a person has, under a warrant issued under this or any other Act or otherwise in the performance of his or her duties under

an Act, seized any thing, …. (ii) that there are reasonable grounds to believe will afford evidence as to the commission of an offence (2) ---- The person shall, as soon as is practicable, take the following steps : 1. The person shall determine whether the continued detention of the think is required for the purposes of an investigation or proceeding . 2 . If satisfied that continued detention is not required as mentioned in paragraph 1, the person shall, i. return the thing, on being given a receipt for it, to the person lawfully entitled to its possession, and 3.

If paragraph 2 does not apply, the person shall i. bring the thing before a justice, or ii. report to a justice about the seizure and detention of the thing . [ 23 ] Ms. Page argued that seizure of the helmet did not require that s.159 (1) of the P.O.A. ( the

section requiring that the thing seized be either brought before a justice, or a report to a justice be filed) be complied with. She submitted at page 42 of the transcript that…” Section 158(1) of the P.O.A. deals with buildings, receptacles or places. We are dealing with a person in this matter.” And further…”so I would submit that this

section does not apply as a search warrant cannot be obtained in this particular matter, and therefore, there’s no requirement for a seized item to be brought before a justice as required in s.159 (1) of the P.O.A .” [ 24 ] I reject this submission. The helmet is most assuredly a “thing” which was seized, and therefore requires a report to a justice, as contemplated by s.158 (1) of the P.O.A .

Section 158.2 (2) imposes on the officer making a seizure a mandatory requirement that he either bring the thing seized before a justice or report to a justice. P/C Hoogerdyk did neither. This denied the defendant the right to have the seizure, detention and continued detention of his helmet judicially determined, as required by the Statute.

It also denied the defendant the right to have the judicial officer to whom the report should have been made, the opportunity to authorize “the examination, testing, inspection or reproduction of the thing seized” and “make any other provision that, in his or her opinion, is necessary for the preservation of the thing” ( Section 159(1.1) P.O.A .). [ 25 ] I find that the failure of the officer to comply with s.158.2 (2) infringed the Defendant’s rights against unlawful search and seizure, as guaranteed by s.8 of the Canadian Charter of Rights and Freedoms .

Any evidence gleaned from the illegal seizure of the helmet must therefore be excluded pursuant to s.24 (2) of the Charter of Rights and Freedoms. Decision [ 26 ] I find that the stop of the Defendant by P/C Hoogerdyk, was arbitrary, and not authorized by the H.T.A. This, coupled with the failure of the officer to comply with the statutory imperative of s.158.2 (2) of the H.TA. , requires me to find that the evidence, namely the helmet, and any evidence relating to it, must be excluded, pursuant to s.24(2) of the Charter .

To do otherwise would bring the administration of justice into disrepute. [ 27 ] The Prosecution has therefore not proven its case, and the charge against Mr. Kuipers is dismissed. His helmet is to be returned to him Released: December 10, 2010 Signed: “Justice of the Peace Dianne J. Ballam”