Docket: CACR2082 Linda Sophie Lux Appellant - v. -, 2012 SKCA 129

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 129 Date: 2012-12-21 Between: Docket: CACR2082 Linda Sophie Lux Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc C.J.S., Smith and Ottenbreit JJ.A. Counsel: James Streeton for the Appellan t Anthony Gerein for the Crown Appeal: From: 2011 SKQB 424

Heard: March 20, 2012 Disposition: Appeal allowed Written Reasons: December 21, 2012 By: The Honourable Chief Justice Klebuc In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Ottenbreit Klebuc C.J.S. I. Introduction [ 1 ] The appellant seeks leave to appeal and appeals from the decision of the

summary conviction appeals court which set aside the acquittal of her by the trial judge on the charge that she failed to provide a sample of her breath in contravention of s. 254(5) of the Criminal Code . [ 2 ] The following issues arose in this appeal. First, whether s. 209.1 of The Traffic Safety Act , S.S. 2004, c. T-18.1 authorizes peace officers to randomly stop vehicles in private parking areas, to check for traffic or safety violations, without reasonable cause to believe or suspect that any violation has occurred. Second, if the answer is “yes”, whether the encroachment on a driver’s rights pursuant to s. 9 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”) is a limit on such rights as can or cannot be justified under s. 1 of the Charter. Third, if the infringement of the appellant’s s. 9 rights during the random stop cannot be justified under s. 1 of the Charter, should the evidence obtained during the random stop be excluded pursuant to s. 24(2) of the Charter? [ 3 ]

Section 209.1 provides: Authority of peace officer to stop and request information 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signaled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of a peace officer pursuant to subsection (2). [ 4 ] For the reasons set forth below, I would grant the appeal and enter an acquittal on the s. 254(5) charge. II. Background [ 5 ] The Bella Vista Hotel is located in Humboldt, Saskatchewan and has a private parking area immediately adjacent to its premises.

The terms on which the public may use the parking area, its size, frequency of use, and the location of the exits from it onto a highway are unknown. [ 6 ] On October 18, 2009, Csts. Selinger and Jacquet (the “Officers”) were conducting a routine patrol and while driving near the Bella Vista Hotel observed a motor vehicle, identified as an “Escalade”, move in an uneventful manner along the parking area adjoining the hotel. Cst. Selinger, the driver of the police car, engaged its emergency lights for the purpose of signalling the driver of the Escalade to stop.

In his incident report he stated the purpose of the stop was to check for a driver’s licence and vehicle registration. [ 7 ] The appellant stopped the Escalade in response to the police car’s emergency lights at a point very close to the hotel and some distance back from the street in front of the hotel. Cst. Selinger then approached the driver’s door of the Escalade and, following a

conversation with the appellant, escorted her to the police car where he seated her on its rear seat. He then asked the appellant a series ofquestions including whether she had recently consumed any alcohol. After the appellant confirmed she had, he advised her that hesuspected she had alcohol in her body and demanded a sample of her breath for analysis by a roadside screening device pursuant to s.254(2) of the Criminal Code. [8] The appellant went through the motions of providing a sample of her breath but failed to produce a suitable one, eitherintentionally or due to a physical limitation. Cst.

Selinger then charged her with failing to comply with the demand by a police officer toprovide a sample of her breath, contrary to s. 254(5) of the Criminal Code. [9] Cst. Jacquet heard little of the conversation between Cst. Selinger and the appellant before they entered the police car. Nor didhe question the appellant at any time before Cst. Selinger made the aforementioned demand. III. Trial Court and

Summary Conviction Appeals Court Decisions [10] Based on his assessment of the evidence presented during a voir dire the trial judge, White P.C.J., held the general provisionsof The Traffic Safety Act, including 209.1, do not apply to private parking areas and, therefore the Officers were not authorized to detainand question the appellant. He went on to say: Therefore in this particular case I had concluded that the police did not have authority to detain and question the motorist, and thattherefore all evidence obtained by the police subsequent to that must be excluded.

My brother Judge Kalmakoff, in an erudite anddetailed decision recently came to the same conclusion on January 6th, 2011, in his decision in the Queen v. Jeffrey Anderson, Thecitation for that is 2011 SKPC 1 , 2011 SKPC 001. In this event, therefore, the evidence with respect to Ms. Lux in relation to the charge of failing to comply with a demand for a samplenecessary for proper analysis on an approved screening device must fail. And in the circumstances that evidence that the police obtainedfrom her that would otherwise justify a legal demand for a sample on the ASD is excluded. [Trial Transcript, Vol.

II, pp. 83-84] [11] In the appeal from the trial judge’s decision to the

summary conviction appeal court, the appeal judge held s. 209.1 authorizespeace officers to conduct random stops in private parking areas and to require the detained driver to provide information concerning hisor her sobriety. He further held the detention of the appellant by Cst. Selinger did not constitute a breach of her rights pursuant to s. 9 ofthe Charter without considering whether the limitation imposed by s. 209.1 on the rights of a driver of a vehicle on private property isdemonstrably justified in a free and democratic society. At paras. 17, 20 and 21 he said: [17] Although The Traffic Safety Act was passed by the legislature in 2004, it became effective as of July 1,

Section 209.1 wasadded to the Act by amendment to the legislation, S.S. 2006, c. 9, and became effective December 1, 2005 SKQB 3802006. At that timethere had been a series of cases including R. v. Schell, , 2005 SKQB 380 , 274 Sask. R. 28, and R. v. Houben, 2005 SKQB 179,263 Sask. R. 97, which questioned whether a stop of a motor vehicle for the purposes of checking on the sobriety of the operator wasauthorized by law. In my opinion, the intention of the legislature in passing the amendment was to give peace officers the further powerto stop vehicles to check for sobriety.

As previously noted, there is no limitation found in s. 209.1 as to where a motor vehicle must beoperating before it can be stopped, only that it is being operated. In my opinion, the object of the legislation was to reduce or preventaccidents caused by drinking and driving. In order to achieve that remedy, a fair, large and liberal

interpretation of the Act is mandated bys. 10 of The

Interpretation Act. . . . [20] I therefore conclude that the learned trial judge erred in law when he held that the Act did not apply in the circumstances of thiscase and that there had therefore been a breach of the respondent’s rights pursuant to s. 9 of the Charter not to be arbitrarily detained.The Crown’s appeal is allowed and the case is remitted to the Provincial Court for retrial. [21] The learned trial judge also determined that the circumstances of this case did not allow for an investigative detention becausethere was nothing about the mode of driving which would indicate that a criminal offence or a traffic violation was being committed orwould be committed.

In light of my determination as to the remainder of the appeal I would not want to be seen as confirming thisfinding. As the matter was not argued fully before me, I will not comment further except to refer to the cases: R. v. Wilson, (SCC), [1990] 1 S.C.R. 1291; R. v. Pearce (1997), (NL CA), 120 C.C.C. (3d) 467 (Nfld. S.C.); and R. v. Schell,2006 SKCA 128, 214 C.C.C. (3d) 62, 289 Sask.

R. 138, as cases in which the Court has held that a detention in very similarcircumstances was not arbitrary and not contrary to s. 9 of the Charter. [2011 SKQB 424] The appeal judge granted the appeal and sent the matter back to the Provincial Court for a retrial. IV. Issues [12] The following issues arise out of the facts, the submissions by the parties and the law applicable thereto. A.

Does s. 209.1 of The Traffic Safety Act authorize peace officers to randomly stop and detain a driver operating a vehicleon a private parking area for the purpose of checking for a driver’s licence, vehicle registration or the sobriety of the driver? B. If the answer to question “A” is “yes”, is the resulting infringement on the appellant’s s. 9 Charter rights a reasonablelimitation that can be demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter? C.

If the answer to question “A” or “B” is “no”, should the evidence obtained by the Officers be excluded pursuant tos. 24(2) of the Charter?

V. Relevant Legislation [ 13 ] The Traffic Safety Act received Royal Assent on November 30, 2004 but was not proclaimed until July 1, 2006. It essentially consolidated The Highway Traffic Act , S.S. 1986, c. H-3.1, The Vehicle Administration Act , S.S. 1986, c. V-2.1 and The Motor Carrier Act , S.S. 1986, c. M-21.2 into one statute, which deals with more than highway traffic safety matters. [ 14 ] When passed by the Legislature, ss. 209(10) and (11) of The Traffic Safety Act substantially carried forward the provisions of ss. 40(8) and (9) of The Highway Traffic Act (the “ Former Act ”) . Subsections 40(8) and (9) of the Former Act provided: 40(8) A peace officer who: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities; may require the person in charge of or operating a motor vehicle to stop that vehicle. 40(9) A person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (8), immediately bring that vehicle to a safe stop. [ 15 ] Shortly after the decisions in R. v. Orbanski ; R. v. Elias , 2005 SCC 37 , [2005] 2 S.C.R. 3 [ Orbanski ] were released, The Traffic Safety Amendment Act, 2006 , S.S. 2006, c. 9 was enacted and subsequently proclaimed in July 2006.

It replaced ss. 209(10) and (11) with s. 209.1. [ 16 ] The following provisions of The Traffic Safety Act are also relevant to aforementioned issues: 2(1)(k) “highway” means a road, parkway, driveway, square or place designed and intended for or used by the general public for the passage of vehicles, but does not include any area, whether privately or publicly owned , that is primarily intended to be used for the parking of vehicles and the necessary passageways on that area; [emphasis added] . . .

Driver’s licence required to drive a motor vehicle 32(1) No person shall drive a motor vehicle on a highway unless that person holds a valid driver’s licence permitting that person to drive that motor vehicle. . . . Prohibition on operation without registration of vehicle 57(1) No person shall operate a motor vehicle ... on a highway, unless a certificate of registration or registration permit is obtained pursuant to this Act with respect to the vehicle.. . . .

Rules re parking lots 211 No person shall, in or on any place that is not a highway and that the public is ordinarily permitted to use for the parking of vehicles, do anything that, if done on a highway, would be a contravention of: (a) subsection 199(2) [speed over an applicable speed limit]; (b) clause 209(6)(a) [stop at a stop sign]; (

c) sections 213 to 215 [driving without due care and attention, speeding and stunts prohibited, excessive noise prohibited]; (d) clause 217(1)(a) [keep right of centre of the highway]; (e) subsection 218(1) or (2) [rules on turning at an intersection]; (f) subsection 219(1), (3) or (5) [rules on yielding right of way]; (

g) section 221 or 222 [rules regarding one-way traffic and backing up]; (h) subsection 223(1) [yielding to pedestrians]; (i) subsection 225(1) [rules for following vehicles]; or (

j) section 234 or 235 [rules on signaling and obeying traffic lights].

VI. Leave to Appeal [17] As this appeal raises a significant question of law that has not been previously addressed by this Court, leave to appeal isgranted. VII. Analysis A. Does s. 209.1 of The Traffic Safety Act authorize peace officers to randomly stop and detain a driver operating a vehicleon a private parking area for the purpose of checking for a driver’s licence, vehicle registration or the sobriety of the driver? [18] The appellant advanced the following arguments in support of her position that s. 209.1 does not apply to parking areas onprivate property: (

a) by not including private parking areas in the definition of a highway in The Traffic Safety Act, as several otherprovinces have done in their traffic safety legislation, the Legislature demonstrated that it had no intention to authorize peace officers toconduct random stop checks on private parking areas; (

b) if the Legislature had intended to allow peace officers to infringe on the s. 9rights of a citizen, it was required to express its intention in clear terms, as several other provinces have done; (

c) the extent theLegislature intended specific provisions of The Traffic Safety Act to apply to private parking areas is set out in ss. 211(

a) through to (j);and (

d) the

interpretation of s. 209.1 by the appeal judge renders several provisions of s. 211 meaningless or redundant. [19] The Crown made the following submissions in response to the appellant’s arguments: (

a) this Court in R. v. Duncanson (1991), (SK CA), 93 Sask. R. 193 at paras. 18, 19 and 24 (aff’d (SCC), [1992] 1 S.C.R. 836) [Duncanson],confirmed that s. 40(8) [replaced by s. 209.1] provided peace officers with general investigatory powers, including the right to stop anddetain a driver for any purpose related to the performance of their duties and responsibilities; and (b), s. 209.1 was passed, firstly toovercome the limitation on the authority of a peace officer imposed by this Court in R. v. Houben, 2006 SKCA 129, [2007] 2 W.W.R.195 [Houben] and R. v.

Schell, 2006 SKCA 128, [2007] 3 W.W.R. 247 [Schell] and secondly, to confirm the authority of peace officersto conduct random stops is not limited to highways. [20] Although s. 209.1 does not expressly authorize peace officers to conduct random stops of vehicles operating on private property,the Crown would propose a broad reading of the provision that would not distinguish public from private property of whatever size orordinary use.

On this argument, police officers would be equally entitled to stop and detain a driver of a vehicle on the driveway of his orher private residence or a farmer operating a truck on his farm, randomly, without any cause to believe that any infraction had beencommitted. This, in my view, would be a far-reaching infringement of s. 9 of the Charter and should not be accepted as the properreading of this provision in the absence of compelling argument. [21] Accordingly, I turn to the rules and jurisprudence governing the

interpretation of statutes.

Section 10 of The

Interpretation Act,1995, S.S. 1995, c. I-11.2 incorporates the modern purposive approach as articulated in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. It provides: Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretation thatbest ensure the attainment of its objects. [22] Moreover, the large and liberal construction provisions of s. 10 is traditionally applied in the

interpretation of remediallegislation, meaning legislation directed at securing a social benefit; correcting a defect in the existing law; or alleviating a hardship, butnot in interpreting legislation that encroaches on the privacy or individual liberty of a person pursuant to the Charter, or at common law.

Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada, 2008) at p. 469 stated the rule in these words: “[l]egislation that invades privacy or takes away rights should be interpreted strictly—unless other, more compelling considerationsuggests otherwise.” [23] However, courts historically have applied the strict construction rule when interpreting legislation that prescribes a fine,forfeiture of a right or privilege, or imprisonment when a rule or regulation is breached. For example, many breaches of The TrafficSafety Act are prosecuted in Provincial Courts in the same manner as are

summary conviction criminal offences. See: The

SummaryOffences Procedure Act, 1990, S.S. 1990-91, c. S-63.1. [24] The purpose of the strict

interpretation rule is discussed in Marcotte v. Canada (Deputy A.G.), (SCC), [1976] 1S.C.R. 108 at 115 [Marcotte]; R. v. McLaughlin, (SCC), [1980] 2 S.C.R. 331 at 335; R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686 at paras. 38-39 [McIntosh]; R. v. Kelly, (SCC), [1992] 2 S.C.R. 170 at 203 [Kelly] and bySullivan on the Construction of Statutes at pp. 466 to 480.

In Marcotte, Dickson J. at p. 115 expressed the need for strict construction inthese words: … No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction andapplication of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the personagainst whom it is sought to be enforced.

If one is to be incarcerated, one should at least know that some Act of Parliament requires it inexpress terms, and not, at most, by implication. [25] In Kelly, McLachlin C.J. articulated the need for fair notice at p. 203:

It is a fundamental proposition of the criminal law that the law be certain and definitive. This is essential, given the fact that what is atstake is the potential deprivation of the person of his or her liberty and his or her subjection to the sanction and opprobrium of criminalconviction. This principle has been enshrined in the common law for centuries, encapsulated in the maxim nullum crimen sine lege, nullapoena sine lege–there must be no crime or punishment except in accordance with law which is fixed and certain.… [26] While in McIntosh, Lamer C.J. endorsed the five steps of statutory

interpretation suggested in Elmer A. Driedger’s Constructionof Statutes, 2nd ed. (Toronto: Butterworths, 1983), he confirmed that they are to be more narrowly applied when interpreting a penalstatute. At paras. 38-39 he said: [38] As stated above, the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved ina manner most favourable to accused persons. Moreover, in choosing between two possible

interpretations, a compelling considerationmust be to give effect to the

interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte, supra, whenfreedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115: If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, byimplication. Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes thateveryone knows the law. Yet we can hardly sustain such a presumption if courts adopt

interpretations of penal provisions which rely onthe reading-in of words which do not appear on the face of the provisions. How can a citizen possibly know the law in such acircumstance? [39] The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislativeenactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the CriminalCode requires an interpretive approach which is sensitive to liberty interests.

Therefore, an ambiguous penal provision must beinterpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in thecriminal law. [27] It is also to be presumed that legislation does not intend to abolish or interfere with the rights of a person. Justice Esteydescribed this presumption in Morguard Properties Ltd. et al v.

City of Winnipeg, (SCC), [1983] 2 S.C.R. 493 at p. 509: … [T]he courts require that, in order to adversely affect a citizen’s right, whether as a taxpayer or otherwise, the Legislature must do soexpressly.… The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presumeoversight or inarticulate intentions when the rights of the citizen are involved. [28] In Bhatnager v.

Canada (Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217 (at p. 228),Sopinka J. approved the following statement by Hogg J.A. in Re Gordon MacKay & Co. and Dominion Rubber Co., (ON CA), [1946] 3 D.L.R. 422 (Ont.

C.A.) at p. 425: The common law rights of the subject are not to be taken away or affected except only to such extent as may be necessary to giveeffect to the intention of Parliament when clearly expressed or when such result must follow by necessary implication, and if the rights ofpersons are encroached upon, this intention must be made manifest by the language of the statute, if not by express words then by clearimplication and beyond reasonable doubt. [29] Similar statements were made by Dickson J. in R. v. Riddle, (SCC), [1980] 1 S.C.R. 380 at p. 390, and byMajor J. in Amos v.

Insurance Corp. of British Columbia, (SCC), [1995] 3 S.C.R. 405. [30] With the aforementioned principle in mind, I turn to the

interpretation of s. 209.1 by the appeal judge. In my view, he erred byapplying a broad and liberal approach in interpreting the ambiguous provisions of s. 209.1 without regard to the penal sanctions involvedif a driver failed to comply with a demand by a peace officer.

Furthermore, he failed to consider the extent a random stop based on hisinterpretation of s. 209.1 materially encroaches on the rights of drivers and property owners in circumstances where the intention toencroach on such rights is not clearly expressed by words or by clear implication and beyond a reasonable doubt. [31] In my view, s. 209.1 falls far short of establishing by clear words or clear implication that peace officers are entitled to conductrandom stops anywhere on private property used as a parking area, where there is no basis to believe the driver is committing anyinfraction or poses a threat to public safety, or evidence or reason to believe that peace officers would be significantly hampered inperforming their duties if they waited until a vehicle exited from a private parking area onto a highway. [32] In the instant case, there is no evidence that the appellant was about to drive her vehicle onto a highway rather than stop withinthe bounds of the parking area, or that she could not have been safely intercepted upon entering a highway.

Nor was there any evidenceof the operation of vehicles on the subject parking area or similar parking areas statistically constituting a traffic safety concern. In theresult, the appeal judge based his conclusion that s. 209.1 authorizes random stops on private property on his assumption that materialtraffic safety concerns existed of the nature and kind addressed in R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621 [Hufsky] andR. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257 [Ladouceur (Can.)]. In addition, he based his

interpretation of s. 209.1on the submission by the Crown that the primary purpose of s. 209.1 is to override the limitation imposed by this Court in Houben and inSchell, which in my view is not correct for the reasons set forth below.

[33] I respectfully disagree with the

interpretation of s. 209.1 by the appeal judge and several submissions by the Crown, for thereasons hereinafter canvassed. I start with a brief review of the overarching objective of The Traffic Safety Act, which is to provide forthe safe operation of motorized vehicles on a “highway.” It seeks to accomplish this objective by legislated “rules of the road,” licensingand sobriety requirements.

To enforce compliance within these rules and regulations The Traffic Safety Act imposes a range of penaltiesincluding fines, suspension of driving privileges on highways, seizure of a driver’s vehicle and, in some instances, imprisonment.

In thisrespect, it is a penal statute. [34] The Traffic Safety Act also excludes from its definition of a “highway” any area “whether privately or publicly owned, that isprimarily intended to be used for the parking of vehicles and the necessary passageways on that area.” By this exception, the Legislatureconfirmed private parking areas are not to be treated as if they were highways save for the rules of the road prescribed by s. 211. Thoserules only apply to parking areas which the public is ordinarily permitted to use.

Furthermore, s. 211 does not require a driver to have adriver’s licence or the driver’s vehicle to be registered. [35]

Section 209.1 does not create a rule or regulation to be observed by drivers. Rather, its purpose is to authorize peace officers totemporarily detain a driver for the purpose of determining whether the driver is complying with a specific highway traffic safetyrequirement imposed by The Traffic Safety Act. It, therefore, follows that random stops pursuant to s. 209.1 may only be conducted inrelation to a requirement prescribed by The Traffic Safety Act, which would not include checking for a driver’s licence and vehicleregistration when a vehicle is operated on private property.

See: ss. 32(1) and 57(1) of The Traffic Safety Act. [36] In my view, when the words of The Traffic Safety Act are read in their entire context and in their grammatical and ordinarysense harmoniously with the scheme and object of the Act, they do not authorize peace officers to conduct random stops on privateparking areas. In this respect, my

interpretation is consistent with the

interpretation of comparable statutory provisions by the SupremeCourt and the courts of Ontario, Nova Scotia and New Brunswick. [37] Of particular relevance are the provisions of s. 48(1) and s. 216 of The Highway Traffic Act, R.S.O. 1990, c. H-8 (the “OntarioAct”) for, like s. 209.1(1), these sections authorize police officers to conduct random stops to check for sobriety: 48.

(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determiningwhether or not there is evidence to justify making a demand under

section 254 of the Criminal Code (Canada).

(2) Where, upon demand of a police officer made under

section 254 of the Criminal Code (Canada), the driver of a motor vehicle orthe operator of a vessel provides a sample of breath which, on analysis by an approved screening device as defined in that section,registers “Warn” or “Alert” or otherwise indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more ofalcohol in 100 millilitres of blood, the police officer may request that the person surrender his or her driver’s licence. … 216.

(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stopand the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shallimmediately come to a safe stop. Although the definition of a “highway” in the Ontario Act is broader than the definition of a “highway” in The Traffic Safety Act, OntarioCourts have consistently held the definition of a “highway” does not include shopping centre parking areas or other private parking areas.See: Gill v.

Elwood, (ON CA), [1970] 2 O.R. 59 (Ont. C.A.); R. v. Mansour, (SCC), [1979] 2 S.C.R.916 and R. v. Sergalis (2009), 90 M.V.R. (5th) 116 (Ont. S.C.J.) [Sergalis]. [38] In Mansour, the court held that a parking lot adjacent to an apartment building is not a highway within the meaning of theOntario Act. Therefore, a driver’s licence was not required to operate a motor vehicle on it. In Sergalis, the

summary appeal courtconfirmed that s. 48(1) of the Ontario Act does not authorize officers to conduct a random stop within the bounds of a shopping centrefor the purpose of a sobriety test. Simply stated, the appeal judge held a private parking area is not a highway and s. 48(1) does not applyby virtue of traffic safety concerns. A similar conclusion was arrived at in R. v. Tresham (1998), (ON SC), 52 C.R.R.(2d) 367 (Ont. Ct. J.). [39] In R. v. George, 2004 ONCJ 316 (Ont. Ct.

J.), the court held an officer was not entitled to stop the accused on his driveway andquestion him on whether he had recently consumed alcohol. Similar conclusions were arrived at by courts in other provinces. [40] The definition of a “highway” in The Traffic Safety Act, R.S.A. 2000, c. T-6, of Alberta includes private parking areas that are“open” for use by the public and specifically authorizes peace officers to conduct random spot checks on such parking areas.

Consequently, decisions dealing with random stops conducted on private parking areas in Alberta are not instructive. [41] The Crown maintains the ratios in the aforementioned decisions dealing with highway safety legislation of other provinces donot apply in Saskatchewan and cites this Court’s decisions in Pichler Ramsay Enterprises v. T & T Trucking, (SKCA), [1996] 8 W.W.R. 382 [Pichler Ramsay Enterprises] and in Duncanson in support of its submission.

It also maintains s. 209.1 waslegislated to overcome the limitation imposed by this Court in Houben and Schell on the right of peace officers to conduct random stops. I respectfully disagree with both submissions. [42] In Pichler Ramsay Enterprises, the issue was whether the one-year limitation imposed by s. 88(1)(

a) of the Former Act forbringing an action for damages occasioned by a motor vehicle applied to an action for damages occasioned by a vehicle that burnedwhile stored in a building on private property. The court below held that s. 88(1)(

a) only applied to damages occurring on a highway.This Court held that s. 88(1)(a), without ambiguity or uncertainty, applied to damage claims occasioned by a motor vehicle, including ina commercial off-highway building. In doing so, it noted that s. 88(1)(

a) did not conflict with the provisions of the Former Act for it doesnot deal with matters pertaining to the operation of a vehicle. [43] In my opinion, the ratio in Pichler Ramsay Enterprises is not applicable in the instant appeal where the issues involve the

operation of a vehicle by a driver, a violation of the driver’s s. 9 rights, and a potential penalty of a quasi-criminal nature. [44] In Duncanson, the police officers were informed that a person known as J.R. was involved in selling Talwin contrary to theNarcotic Control Act, R.S.C. 1985, c. N-1. As part of their investigation, they stopped the driver of a taxicab whom they suspected wasJ.R. and asked him to produce his driver’s licence and cab card.

Upon confirming the driver was the accused, the officer detained him,advised him of his right to counsel, searched him, found a prohibited substance in his jacket and charged him under s. 495 of theNarcotic Control Act. The trial judge held the detention contravened s. 8 of the Charter because it was not made for traffic safetypurposes, and therefore, was not authorized by the Former Act or any common-law authority.

On that basis, he excluded the evidenceobtained during the detention and acquitted the accused. [45] This Court concluded in Duncanson that ss. 40(8) and 20(1) entitled the peace officers to stop and detain the accused while hewas operating a vehicle on a highway and require him to produce a driver’s licence notwithstanding they had other reasons for detaininghim. It described the nature of a police officer’s authority pursuant to s. 40(8) at para. 18: [18] Section 40(8) empowers a police officer to stop a vehicle “while in the lawful execution of his duties and responsibilities”.

Theonly qualification, apart from that, is that the police officer be readily identifiable as such. Obviously, the duties and responsibilities ofpolice officers far exceed the enforcement of The Highway Traffic Act, and so read in its ordinary sense, the

section empowers a policeofficer to stop a vehicle for any purpose connected with the lawful execution of his or her duties and responsibilities generally, andhowever derived. [46] The Supreme Court dismissed the accused’s appeal based on the following reasons: This appeal comes to us as of right. Assuming without deciding that the narcotic was found in violation of the appellant’s rights underthe Charter, we are all of the view that, under the circumstances of this case and in applying the principles enunciated in R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, admitting the evidence would not bring the administration of justice into disrepute…. [ (SCC), [1992] 1 S.C.R. 836 at 836-37] [47] Based on Duncanson, Crown counsel maintained that s. 40(8), now s. 209.1, authorizes police officers to stop and question adriver at locations other than a highway in relation to any purpose connected with the lawful execution of their duties and responsibilitiesas police officers. [48] While the

interpretation of s. 40(8) in Duncanson appeared to be constitutionally valid in 1991, the Supreme Court in R. v.Mellenthin, (SCC), [1992] 3 S.C.R. 615 materially constrained the authority of peace officers to detain a citizen underlegislation similar to s. 40(8) by holding that detentions made pursuant to highway traffic legislation are only constitutionally valid whenused in relation to specific highway traffic safety requirements, including checks for sobriety, licences, ownership, insurance and themechanical fitness of vehicles. [49] Subsequent to Mellenthin, this Court interpreted the authority of peace officers under s. 40(8) more narrowly than in Duncansonin order to preserve the constitutionality of the section.

Justice Jackson described the reduced scope of s. 209.1 in Houben at paras. 64-67: [64] From this Court’s recent review of the law in Ladouceur (Sask.) and Schaeffer and the above review, I conclude that the law maybe expressed in this manner.

Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The HighwayTraffic Act any stop effected by the officer is a justifiable infringement of the individual’s rights under s. 1 of the Charter. [65] While the police officer acting under s. 40(8) need not have “reasonable grounds to detain,” it must be the police officer’sintention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The police officer need notsay expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, butthe trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for “sobriety, licences,ownership, insurance and the mechanical fitness of cars.” In sum, s. 40(8) cannot be used to create a general power of detention forinvestigative purposes. [66] The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of theCharter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of policestops beyond that articulated in those cases. [67] If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or shewould like to stop a motor vehicle, the suspicion must meet the test in Mann. [Footnotes omitted] It follows that Mellenthin clarified that random stops pursuant to s. 40(8) and similar legislation are limited to matters related to trafficmatters akin to those identified in Ladouceur (Can.). [50] I reject the Crown’s submission that s. 209.1 was passed to overcome a limitation on the right of peace officers to conductrandom stops for traffic safety purposes imposed in Houben and Schell.

In Houben, the trial judge found as a fact that the peace officershad not detained the accused pursuant to s. 40(8) of the Former Act in relation to highway traffic safety requirements, and therefore theirarbitrary detention of the accused was not authorized under s. 40(8) or justified under s. 1 of the Charter.

This Court went no further thanto confirm, based on Mellenthin, that arbitrary detention of a driver violates the driver’s s. 9 rights and is only justified if made for thepurposes articulated in Hufsky, Ladouceur (Can.) and Mellenthin. [51] In Schell, the trial judge found that the investigating officer had given no reason for stopping the driver pursuant to any statute

or common law right and therefore his detention of the accused was arbitrary and contrary to s. 9 of the Charter.

In the appeal to thesummary conviction appeal court, the appeal judge upheld the decision of the trial judge on the basis that the request by theinvestigating officer to see the accused’s driver’s licence and vehicle registration was insufficient to establish his purpose in detainingthe accused for the enforcement of The Highway Traffic Act. [52] This Court allowed the appeal from the appeal judge’s decision because the evidence confirmed the officer had stopped theaccused for the purpose of checking the sobriety of the accused and the resulting detention was justified under s. 1 on two bases: first,the random stop was to check the sobriety of the accused; and second, the officer had objective grounds for detaining the respondent incircumstances similar to those in R. v.

Wilson, (SCC), [1990] 1 S.C.R. 1291 [Wilson]. [53] As previously stated, when The Traffic Safety Act was enacted in 2006, ss. 209(10) and (11) thereof merely carried forward theprovisions of s. 40(8) of the Former Act. At this point in time, several courts questioned whether a peace officer had to comply with s.10(

b) of the Charter before questioning the driver on whether he or she had recently consumed alcohol. The question, as it related to theuse of a highway, was resolved by Charron J. in Orbanski where she stated at paras. 24 and 42: [24] First, we are concerned here with the use of a vehicle on a highway. This Court has recognized that, while movement in a vehicleinvolves a “liberty” interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual thatconstitutes one of the fundamental values of our democratic society.

Rather, it is a licensed activity that is subject to regulation andcontrol for the protection of life and property: see Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2, at p. 35. The needfor regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of the activity and itsinherent dangers. . . . [42] …Screening measures such as questioning drivers about prior alcohol consumption and requesting them to perform sobriety testswere found to be authorized under s. 48(1) of the Ontario Highway Traffic Act: see R. v. Saunders (1988), (ON CA), 41C.C.C. (3d) 532 (Ont.

C.A.) , and R. v. Smith (1996), (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.). [54] Shortly after the Supreme Court in Orbanski confirmed the use of a vehicle on a highway is a “licensed activity that is subject toregulation and control for the protection of life and property” and provinces may authorize peace officers to ask the driver during arandom stop whether she or he had recently consumed alcohol without contravening s. 10(

b) of the Charter, The Traffic SafetyAmendment Act was enacted and replaced ss. 209(10) and (11) of The Traffic Safety Act, 2006 with s. 209.1. Several other provincesmade similar amendments to their traffic safety legislation, including s. 48(1) of the Ontario Act in 2007. [55] In my opinion, neither the changes in s. 209.1 nor the ratio in Orbanski authorize peace officers to conduct random stops onprivate parking areas on private property.

Nor was s. 209.1 passed to overcome the limitation on the right of peace officers to conductrandom stops unrelated to traffic or safety violations. [56] In sum, I conclude that s. 209.1 does not authorize peace officers to conduct random stops for traffic safety purposes on privateparking areas. Consequently, the subject random stop constituted an arbitrary detention that infringed the appellant’s s. 9 rights. See:Ladouceur (Can.); Hufsky; Ladouceur (Sask.); and R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). [57] Given my conclusion, it is unnecessary to address question “B”. C.

If the answer to question “A” or “B” is “no”, should the evidence obtained by the Officers be excluded pursuant to s. 24(2)of the Charter? [58] The test to be applied is this: will the admission of evidence obtained by breaching the Charter bring the administration ofjustice into disrepute? In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [Grant], the Supreme Court identified three lines of inquiryrelevant to making the requisite determination. They are: (

i) the seriousness of the Charter-infringing conduct by the state, (ii) theimpact of the breach on the Charter-protected interests of the accused, and (iii) society’s interest in the adjudication of the case on itsmerits. This said, I will address each factor in turn. (

i) The seriousness of the Charter-infringing conduct by the state [59] With respect to this factor, I am to consider the nature of the infringement of the appellant’s Charter rights that led to theevidence upon which the s. 254(5) Criminal Code offence is founded. Furthermore, I am to consider whether the conduct of the Officersis the kind that a court should be concerned with and should disassociate itself from; the more serious the breach, the greater the need fora court to disassociate itself from such conduct.

Conversely, breaches of an insignificant technical nature or the result of anunderstandable mistake are of lesser concern and weigh in favour of the admission of evidence obtained by means of a breach of Charterstandards, but ignorance of Charter standards, wilful blindness and carelessness will not. [60] While I am satisfied that Cst. Selinger did not act in bad faith, he ought to have known that he was not entitled to detain theappellant and check for a driver’s licence or vehicle registration, neither of which was required to operate a vehicle off highway on aprivate parking area.

Furthermore, in the absence of anything unusual in the appellant’s driving there was no reason for Cst. Selinger notto wait until she drove onto a highway, assuming that proved to be her course of action. In my view, these factors significantly weigh in

favour of the conscripted evidence obtained by the Officers being excluded pursuant to s. 24(2). (ii) The impact of the breach on the Charter-protected interests of the appellant [61] This factor requires me to look at the seriousness of the subject infringement from the perspective of the appellant. In R. v.Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, Chief Justice McLachlin indicated the following are among the questions that arise whenundertaking the requisite analysis: [28]… Did the breach seriously compromise the interests underlying the right(

s) infringed? Or was the breach merely transient or trivialin its impact? [62] In this case, the detention, the demand for information and the sample of the appellant’s breath materially impacted on theappellant’s liberty and privacy interests. I reject the argument that the detention was trivial and of little impact because the appellantshould have had a low expectation of privacy given that she would have been required to provide the information requested by Cst.Selinger, including the sample of her breath, had the random stop check taken place on a highway.

The operation of a vehicle in a privateparking area is not a “licensed activity conducted on a highway” which contemplates minor intrusions on a driver’s Charter rights of thekind discussed in Orbanski. Nor do I accept the possibility that the appellant at some point in time may have driven her vehicle onto ahighway materially impacts upon the degree of privacy and freedom to which she was entitled. In this case, she may never have drivenher vehicle onto a highway.

If the approach advanced by the Crown were accepted, virtually all drivers of vehicles could be detained onprivate property based on the possibility they may drive the vehicle onto a highway without a licence or while impaired. [63] In sum, I conclude the deprivation of the appellant’s freedom and privacy by means of an unconstitutional detentionsignificantly weighs in favour of the evidence being excluded.

This does not mean that drivers cannot be stopped on private property toenforce the rules in s. 211. (iii) Society’s interest in the adjudication of the case on its merits [64] While the public has an interest in serious criminal charges being determined on their merits, it also wants a justice system thatis beyond reproach and fair trials. This is especially true when conscripted evidence is obtained for, as a general rule, it renders a trialunfair. See: R. v. Stillman (W.W.D.), (SCC), [1997] 1 S.C.R. 607 and Schaeffer.

With these objectives in mind, I turnto the evidence obtained by the Officers by arbitrarily detaining the appellant, demanding an admission as to whether she had recentlyconsumed a beverage containing alcohol and requiring her to provide a sample of her breath for analysis by a screening device.

Whileevidence of the appellant’s failure to provide a breath sample is important to the Crown’s case, it is conscripted evidence obtained bymeans of significant infringement of the appellant’s rights. [65] In my view, the aforementioned infringement factors favour the subject conscripted evidence being excluded pursuant to s.24(2) of the Charter. (iv) Balancing the factors [66] This leads to the final step of balancing the aforementioned factors in the manner articulated in Grant.

The nature of thebreaches and the manner in which they infringed on the appellant’s privacy and freedom outweigh the interests of the public in havingthe subject charge tried on its merits. Accordingly, I conclude the evidence obtained by Csts. Selinger and Jacquet during their detentionof the appellant should be excluded pursuant to s. 24(2). To do otherwise would bring the administration of justice into disrepute. VIII. Conclusion [67] I would grant leave to appeal and allow the appeal. Given the excluded evidence is essential to the Crown’s case, I would enteran acquittal rather than order a new trial.

DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of December, 2012. “Klebuc C.J.S.” Klebuc C.J.S. I concur “Klebuc C.J.S.” for Smith J.A.

I concur “Ottenbreit J.A.” Ottenbreit J.A.