R. v. Ladouceur, [1990] 1 SCR 1257

R. v. Ladouceur, [1990] 1 S.C.R. 1257

 

Gerald Jay Ladouceur   Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and

 

The Attorney General of Canada,

the Attorney General of Nova Scotia,

the Attorney General for New Brunswick and

the Attorney General of Manitoba                                                                                  Interveners

 

indexed as:  r. v. ladouceur

 

File No.:  20408.

 

1989:  November 6; 1990:  May 31.

 

Present:  Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law -- Charter of Rights  -- Random routine traffic checks -- Checks authorized by statute -- Driver stopped for no apparent reason -- Driver found to be driving while licence under suspension and convicted -- Whether or not random routine traffic checks violating ss. 7 , 8  and 9  of the Charter  -- If so, whether or not checks saved by s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9  -- Highway Traffic Act, R.S.O. 1980, c. 198, s. 189a(1).

 

    Appellant was stopped while driving his car in a random police search to ensure that his papers were in order and that he had a valid driver's licence.  The officers did not suspect that the appellant was acting unlawfully.  Appellant admitted that he knew that his driver's licence was suspended when he was asked for his driver's licence, ownership and vehicle insurance documents.  A Justice of the Peace found him guilty of driving while his licence was suspended contrary to s. 35 of the Highway Traffic Act and the Provincial Court (Criminal Division) and the Ontario Court of Appeal upheld the conviction.  The constitutional questions stated before this Court queried:  (1) if s. 189a(1) of the Highway Traffic Act was inconsistent with ss. 7 , 8  and 9  of the Canadian Charter of Rights and Freedoms  to the extent that it authorized the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds to believe that an offence had been committed when such stop was not part of an organized program; and (2) if so, whether s. 189a(1) could be justified pursuant to s. 1  of the Charter ?

 

    Held:  The appeal should be dismissed.

 

    Per Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.:  Appellant was detained in violation of s. 9  of the Charter .  The police officers assumed control over his movement by a demand or direction and the legal consequences of the detention were significant.  The detention was arbitrary in that the decision as to whether the stop should be made lay in the absolute discretion of the police officers.

 

    Sections 7  and 8  of the Charter  were not violated.  No "seizure" within the meaning of s. 8 occurred here.  It was unnecessary to decide whether these random stops infringed s. 7 since it has been determined that routine check random stops violate s. 9  of the Charter .

 

    Section 189a(1) of the Highway Traffic Act was saved by s. 1  of the Charter .  The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) of the Highway Traffic Act and is thus prescribed by law.  The authority also has been justified by this Court as a prescription of the common law.

 

    The statistics relating to the carnage on the highways substantiate a pressing and substantial concern which the government was properly addressing through the legislation in question and the random stops.  A more specific aspect of this concern related to areas where the probability of accidents can be reduced:  the mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver.  They are directly pertinent to the question of random stopping.

 

    The means chosen was proportional or appropriate to those pressing concerns.  The random stop is rationally connected and carefully designed to achieve safety on the highways and impairs as little as possible the rights of the driver.  It does not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights.  Indeed, stopping vehicles is the only way of checking a driver's licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.

 

    Deterrence is a critical aspect of the random routine check.  The suspension of the driver's licence for driving offences is important in that the court can impose lighter jail terms for the benefit of the offender and yet ensure that society is protected.  Licence suspensions, however, must be enforceable to be an effective means of punishment.  A real element of risk of detection of driving by unlicensed drivers is necessary for the suspension of a licence to be an effective remedy.  Random stops supply the only effective deterrent.

 

    To recognize the validity of the random routine check is to recognize reality.  This form of deterrent is a plausible response to the general difficulties of establishing such programs due to fiscal constraints and shortages of personnel and due to the impossibility of establishing an effective organized program in rural areas in particular.

 

    The random routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective.  Mechanisms are already in place to prevent abuse by law enforcement officers.  Officers can stop persons only for legal reasons -- in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.  Once stopped the only questions that may justifiably be asked are those related to driving offences.  Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.  Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2)  of the Charter .

 

    Similar powers have been legislatively conferred upon police officers in other free and democratic societies regarding the stopping of motor vehicles.

 

    Per Dickson C.J. and Wilson, La Forest and Sopinka JJ.:  The unlimited right of police officers to stop motor vehicles without any reason cannot be justified under s. 1  of the Charter .  The evidence here, however, should not be excluded under s. 24(2)  of the Charter .

 

    The random stop constituted an arbitrary detention.  The Crown's efforts to discharge its s. 1 onus must be viewed in the context of the s. 9 breaches sanctioned to date in meeting the objective of ridding the highways of dangerous drivers.  Police officers are entitled to stop motorists at organized check points as part of the R.I.D.E. program to provide a roadside screening test of sobriety and to check for licences, insurance and mechanical fitness.  The organized check point is available, therefore, as a means of detection of the unlicensed driver.  This case may be viewed as the last straw.  If sanctioned, a police officer could stop any vehicle at any time, in any place, without having any reason to do so.  For the motorist, this would mean a total negation of the freedom from arbitrary detention guaranteed by s. 9  of the Charter . 

 

    The Crown has not demonstrated that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available.  Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for.  It is somewhat more carefully designed to serve enforcement, and is less intrusive and not as open to abuse as the unlimited power sought to be justified.  The roving random stop, by contrast, would permit any individual officer to stop any vehicle, at any time, at any place.  The decision may be based on any whim.  The unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy.

 

Cases Cited

 

By Cory J.

 

    Considered:  Dedman v. The Queen, [1985] 2 S.C.R. 2; Hufsky v. The Queen, [1988] 1 S.C.R. 621; referred to:  R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Delaware v. Prouse, 440 U.S. 648 (1979).

 

By Sopinka J.

 

    Considered:  R. v. Hufsky, [1988] 1 S.C.R. 621; referred to:  Dedman v. The Queen, [1985] 2 S.C.R. 2; Delaware v. Prouse, 440 U.S. 648 (1979); R. v. Oakes, [1986] 1 S.C.R. 103.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 , 9 , 24(1) , (2) .

 

Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83, s. 3(1).

 

Constitution Act, 1982 , s. 52(1) .

 

Game and Fish Act, R.S.O. 1980, c. 182, s. 14.

 

Highway Traffic Act, R.S.O. 1980, c. 198, ss. 18(1), 19(1), 35, 189a(1).

 

Motor Car Act, 1958 (Victoria), ss. 22, 29, 40.

 

Motor Traffic Acts, 1909‑1957 (New South Wales), s. 5(1).

 

Motorized Snow Vehicles Act, R.S.O. 1980, c. 301, s. 15a.

 

Provincial Offences Act, R.S.O. 1980, c. 400.

 

Road Traffic Act, 1961 (South Australia), No. 50, s. 42.

 

Road Traffic Act, 1972 (U.K.), c. 20 s. 159.

 

Road Traffic Act, 1974‑1982, (Western Australia), s. 53.

 

Traffic Act, 1949‑1988 (Queensland), ss. 35, 39.

 

Traffic Ordinances, 1949‑59 (Northern Territory), ss. 46, 48, 55.

 

Transport Act, 1962 (New Zealand), No. 135, s. 66.

 

Authors Cited

 

Ontario.  Royal Commission on Civil Rights.  Royal Commission Inquiry into Civil Rights.  Report No. 1, vol. 2.  Toronto:  Queen's Printer, 1968.

 

Segal, Murray D.  "R. v. Hufsky:  Random Spot Check Programmes" (1989), 1 J.M.V.L. 34.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1987), 59 O.R. (2d) 688, 35 C.C.C. (3d) 240, 41 D.L.R. (4th) 682, 20 O.A.C.  1, 57 C.R. (3d) 45, dismissing an appeal from a judgment of the Provincial Court (Criminal Division) (Bordeleau Prov. Ct. J.) dismissing an appeal from conviction by Scott J.P.  Appeal dismissed.

 

    Morris Manning, Q.C., for the appellant.

 

    S. Casey Hill and R. H. MacDonald, for the respondent.

 

    Graham Garton, Q.C., for the intervener the Attorney General of Canada.

 

    Rheinhold Endres, for the intervener the Attorney General of Nova Scotia.

 

    Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

    Donna J. Miller, for the intervener the Attorney General of Manitoba.

 

//Sopinka J.//

 

    The reasons of Dickson C.J. and Wilson, La Forest and Sopinka JJ. were delivered by

 

    SOPINKA J. -- The appellant challenges his conviction for driving while his licence was under suspension on the basis that s. 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, pursuant to which the police officers stopped him and discovered the offence, violates ss. 7 , 8  and 9  of the Canadian Charter of Rights and Freedoms .  While I agree with my colleague Justice Cory that this appeal should be dismissed and that s. 189a(1) authorizes an arbitrary detention contrary to s. 9  of the Charter , I do not agree that the unlimited right of police officers to stop motor vehicles without any reason can be justified under s. 1  of the Charter .  I would dismiss this appeal, however, on the basis that the evidence in this case should not be excluded under s. 24(2)  of the Charter .

 

    The charge arose out of the following facts.  Two police officers were on a stake‑out when the appellant passed their vehicle.  They decided to stop the appellant as a matter of routine.  However, while citing s. 189a(1) of the Highway Traffic Act as authority for their actions, the police officers acknowledged that there was no basis of suspicion and no other reason to stop the appellant.  When the appellant was asked to produce his driver's licence, it was revealed that it was under suspension for failure to pay parking tickets.

 

    The Court of Appeal held that s. 189a(1) of the Highway Traffic Act did not authorize this type of random check.  Speaking for the majority, Tarnopolsky J.A. held that there was an arbitrary detention of the appellant and that to the extent that this was authorized by s. 189a(1), it was not a reasonable limit within s. 1  of the Charter .  The court sustained s. 189a(1), however, by reading it down to apply only when there is an articulable reason for stopping a motor vehicle.  The court further held, however, that the evidence should be admitted under s. 24(2) because the police were acting bona fide and did not have the benefit of the court's interpretation of s. 189a(1).

 

    I agree with my colleague that in light of this Court's decision in R. v. Hufsky, [1988] 1 S.C.R. 621, there can be no doubt that the random stop in this case constituted an arbitrary detention.  In Hufsky, the driver was stopped by a police officer on duty at a stationary check point, circumstances that are less arbitrary than those involved when a police officer randomly stops a vehicle from the position of a roving car.

 

    This Court in Hufsky, supra, held that the detention was justified under s. 1 in light of the statistics that were put before the Court relating to unlicensed driving and accidents.  Le Dain J. found that these statistics supported the conclusion that unlicensed drivers caused a significantly higher percentage of accidents than licensed drivers.  Therefore, extraordinary enforcement measures were justified to eliminate this hazard.  In the present case, the Court of Appeal invited the Crown to submit a new record to justify this additional inroad on the rights to be free from arbitrary detention.  The Crown submitted volumes of "statistical data, charts and comparable 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 at random in order to check whether they have a valid driver's licence, and the admittedly valid government objective of promoting safety on the highways.  The only statistical figures concerning unlicensed drivers and higher accident rates shows a correlation between uninsured vehicles and a higher rate of personal injuries, but a reverse correlation as far as property damage is concerned.

 

    The minority does not address the statistics except in a general way.

 

    Tarnopolsky J.A., writing for the majority, listed the three requirements that a limit must meet to satisfy s. 1, namely: (1) it must be reasonable; (2) it must be prescribed by law; and, (3) it must be demonstrably justified in a free and democratic society.  He found that the legislation failed on (1) and (3) and that he did not need to deal with (2).

 

    In deciding whether the Crown has satisfied the burden of proof of justifying a breach of s. 9, this case must be considered in the context of breaches of s. 9 that have been sanctioned to date in meeting the admittedly important government objective which seeks to rid the highways of dangerous drivers.  In this regard, police officers are entitled to stop motorists at organized check points as part of the R.I.D.E. program to provide a roadside screening test of sobriety, to check for licences, insurance and mechanical fitness.  See Dedman v. The Queen, [1985] 2 S.C.R. 2, and Hufsky, supra.  The organized check point is available, therefore, as a means of detection of the unlicensed driver.  This case may be viewed as the last straw.  If sanctioned, we will be agreeing that a police officer can stop any vehicle at any time, in any place, without having any reason to do so.  For the motorist, this means a total negation of the freedom from arbitrary detention guaranteed by s. 9  of the Charter .  This is something that would not be tolerated with respect to pedestrians in their use of the public streets and walkways.  It is in this light that the efforts of the Crown to discharge its s. 1 onus must be viewed.

 

    Although the statistics are voluminous, there is no evidence as to whether during the relevant period police officers were actually exercising the "roving random stop" power.  For example, was the percentage of accidents involving unlicensed drivers realized notwithstanding the fact that police officers were employing this method of enforcement?  If it was, presumably it is only since s. 189a(1) was enacted in 1981.  What were the percentages before this method was used?  How many motorists who were perfectly law‑abiding were stopped for every one that was committing some violation?  On the other hand, if the police have not been using this method and this case is an isolated incident, what is the evidence that police officers consider that this power is essential to effective enforcement?  The record is surprisingly devoid of any reference to police practice in this regard.  As pointed out by Tarnopolsky J.A., in the United States where the problem is equally pressing even a principled program of roadside checks is considered over‑inclusive.  In Delaware v. Prouse, 440 U.S. 648 (1979), White J., at pp. 659‑60, stated:

 

    The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations.  Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained.  Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves.  Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers.  If this were not so, licensing of drivers would hardly be an effective means of promoting roadway safety.  It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed.  The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best.... In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.

 

    Here we have the organized spot check to add to the balance on the side of enforcement.  In my view, it is crucial therefore for the Crown to persuade the court that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available.  In my opinion, Hufsky, supra, is not authority for this extension of police power.  That case is consistent with the view that in justifying random organized check points, the outer limits of s. 1 had been reached.  Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for.  The decision to locate the check point will be made either by a superior officer or by the decision of several officers.  While the decision as to which automobile will be stopped will be made by an individual officer, his conduct can be observed by other officers.  Since he has limited time to observe a vehicle, his decision will be either truly random or based on some objective basis.  The result is that this method of enforcement is somewhat more carefully designed to serve enforcement, less intrusive, and not as open to abuse as the unlimited power sought to be justified.  The judgment in Hufsky, supra, makes it clear, however, that the limit prescribed by law which is justified in that case is the organized spot check.  The reasons conclude as follows, at p. 637:

 

    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 a justified interference with the right not to be arbitrarily detained guaranteed by s. 9  of the Charter , and I would accordingly answer the third constitutional question in the affirmative.

 

    By contrast, the roving random stop would permit any individual officer to stop any vehicle, at any time, at any place.  The decision may be based on any whim.  Individual officers will have different reasons.  Some may tend to stop younger drivers, others older cars, and so on.  Indeed, as pointed out by Tarnopolsky J.A., racial considerations may be a factor too.  My colleague states that in such circumstances, a Charter  violation may be made out.  If, however, no reason need be given nor is necessary, how will we ever know?  The officer need only say, "I stopped the vehicle because I have the right to stop it for no reason.  I am seeking unlicensed drivers."  If there are bound to be instances where admittedly Charter  violations which cannot be justified will occur, can we overlook these and approve a practice even if in its general application Charter  breaches can be justified?  Moreover, the unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy.  Any perfectly law‑abiding citizen travelling late at night on a lonely country road must be prepared to have a police car approach, perhaps, from the rear, siren blaring, lights flashing, and must then and there come to a stop to prove his or her legitimacy on the roadway.  How many innocent people will be stopped to catch one unlicensed driver?  We have no information on this, but the statistics show that, in 1984, 1 in 37 drivers in Ontario was serving a licence suspension.  The ratio, therefore, of licensed drivers to those driving while their licences were under suspension will be 37 to some fraction of 1.  The probability is that in excess of 37 innocent motorists will be stopped for each offender.

 

    I am therefore in complete agreement with Tarnopolsky J.A. that the Crown has failed to satisfy requirements (1) and (3) of s. 1, referred to above, in accordance with R. v. Oakes, [1986] 1 S.C.R. 103.  I find particularly apt the following statement by Dickson C.J., at p. 139:

 

First, the measures adopted must be carefully designed to achieve the objective in question.  They must not be arbitrary, unfair or based on irrational considerations.

 

In view of the above, it is not necessary to deal with the third requirement, that is, whether s. 189a(1) is a limit prescribed by law.

 

    I agree, therefore, with Tarnopolsky J.A., at pp. 263-64, that s. 189a(1) must be interpreted as being limited

 

to an organized programme of stopping, like the R.I.D.E. programme, or road-blocks where all vehicles are required to halt, or to stopping for some articulable cause.

 

    I also agree that the evidence that the appellant was driving while under suspension should not be excluded pursuant to s. 24(2)  of the Charter  for the reasons given by Tarnopolsky J.A. and would therefore dismiss the appeal.

 

//Cory J.//

 

    The judgment of Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by

 

    CORY J. -- This case raises the issue of whether the so‑called "routine check" random stops of motorists by police violate ss. 7 , 8  and 9  of the Canadian Charter of Rights and Freedoms  and, if so, whether they can be justified pursuant to s. 1  of the Charter .

 

Factual Background

 

    On April 27, 1982, at 7:20 p.m., only ten days after the proclamation of the Charter , the appellant, Gerald Ladouceur, was stopped by two policemen while he was driving his car on St. Laurent Blvd. in Ottawa.  The two officers, Constable Brian Bell and Constable Michael Hudson, had been in the area maintaining surveillance on a house.  Just as they were leaving, they saw the appellant driving his car.  The officers followed the appellant's car along Donald St. and then pulled him over at the corner of St. Laurent Blvd. and Queen Mary St., across from a convenience store.

 

    The officers did not suspect that the appellant was acting unlawfully or that he was in any way connected with the house under surveillance.  Constable Bell testified that the sole purpose of the stop was to ensure that the appellant's papers were in order and that he had a valid driver's licence.  He said they had stopped several other vehicles in the area on the same night. When asked in cross‑examination whether the stops were "at random", he replied,  "Pretty well, yes."

 

    While Constable Hudson waited in the police car, Constable Bell asked the appellant for his driver's licence, ownership and vehicle insurance documents.  He then asked the appellant to accompany him to the police car, and the appellant agreed.  Once in the car, the appellant admitted to the police officers that he knew his driver's licence was suspended.  He was issued a summons under the Provincial Offences Act, R.S.O. 1980, c. 400, charging him with driving while his licence was suspended contrary to s. 35 of the Highway Traffic Act, R.S.O. 1980, c. 198.

 

    Constable Bell testified that the vehicle stop lasted about fourteen minutes (from 7:21 p.m. to 7:35 p.m.).  Constable Hudson stated that the appellant was in the police car for about four to five minutes.  The appellant was never placed under arrest, no threat of arrest was made, and the appellant appeared to understand that he was not under arrest.  Constable Bell testified that if the appellant had attempted to leave he would have arrested him, while Constable Hudson said that if the appellant had tried to leave he would have let him do so without arresting him.  There was no suggestion of any improper or coercive conduct on the part of the police.

 

The Courts Below

 

Provincial Court

 

    The appellant was tried on November 15, 1982 before Justice of the Peace Scott.  He was convicted of driving while his licence was suspended, contrary to s. 35 of the Highway Traffic Act and fined $2,000.  Scott J.P. held that, on the basis of s. 19 of the Highway Traffic Act, police officers have the authority to randomly stop automobiles without any suspicion of unlawful activity in order to require the driver to produce his driver's licence and identification.  He concluded that the appellant had not been detained and that his statement to the police officers was properly obtained.  It was revealed at the sentencing proceedings that the appellant had been convicted in November 1981, January 1982, and April 1982 of driving while his licence was under suspension.

 

Provincial Court (Criminal Division)

 

    In his appeal to Bordeleau Prov. Ct. J., the appellant argued that s. 189a of the Highway Traffic Act was unconstitutional because it violated ss. 7 , 8  and 9  of the Charter .  In a brief judgment released June 13, 1983, Bordeleau Prov. Ct. J. held that it was unnecessary to determine whether either ss. 7, 8 or 9 had been violated because s. 1  of the Charter  would apply in any event.

 

Court of Appeal

 

    This appeal was first heard in June 1985 by the Ontario Court of Appeal but adjourned until June 1986 so that the respondent could present fresh evidence to support its s. 1 arguments.  The Court rendered its judgment dismissing the appeal on April 8, 1987 (now reported at 35 C.C.C. (3d) 240).

 

    Tarnopolsky J.A., for the majority, held that the power of a police officer to stop motorists at random constitutes arbitrary detention and therefore violates s. 9  of the Charter .  He determined, moreover, that s. 189a(1) of the Highway Traffic Act did not meet the proportionality requirements enunciated by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, and therefore could not be justified under s. 1  of the Charter .  Tarnopolsky J.A. declined, however, to strike down s. 189a(1) as of "no force and effect" pursuant to s. 52(1)  of the Constitution Act, 1982 .  Instead, he read the provision down, requiring that it be "limited to an organized programme of stopping, like the R.I.D.E. programme, or road-blocks where all vehicles are required to halt, or to stopping for some articulable cause."  Finally, he held that although the random stop that had taken place in this case violated the Charter , the appellant's statement to the police officer admitting that he knew his licence was suspended should not be excluded pursuant to s. 24(2)  of the Charter .

 

    Brooke J.A., dissenting in part, held that although the random stop constituted arbitrary detention, it could be justified under s. 1  of the Charter .  In his opinion, the issues in this case were governed by Dedman v. The Queen, [1985] 2 S.C.R. 2, even though the facts of that case had occurred prior to the proclamation of the Charter .

 

Issues

 

    The constitutional questions were stated as follows by the Chief Justice in his order of January 24, 1989:

 

1.Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7 , 8  and 9  of the Canadian Charter of Rights and Freedoms  to the extent that it authorizes the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. program?

 

2.If the answer to question 1 lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. 1  of the Charter ?

 

Statutory and Constitutional Provisions

 

Highway Traffic Act, R.S.O. 1980, c. 198

 

    18.--(1)  No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him by the Minister.

 

    19.--(1)  Every driver of a motor vehicle shall carry his licence with him at all times while he is in charge of a motor vehicle and shall surrender the licence for reasonable inspection upon the demand of a constable or officer appointed for carrying out the provisions of this Act.

 

    189a--(1)  A police officer, in the lawful execution of his duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

 

Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83

 

    3.--(1)  An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

 

(a) an insurance card for the motor vehicle; or

 

(b)an insurance card evidencing that the operator is insured under a contract of automobile insurance,

 

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

 

Canadian Charter of Rights and Freedoms 

 

    1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

    7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

    8.  Everyone has the right to be secure against unreasonable search or seizure.

 

    9.  Everyone has the right not to be arbitrarily detained or imprisoned.

 

    24.--(1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

    (2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

Constitution Act, 1982 

 

    52.--(1)  The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

Previous Decisions by this Court on the Validity of Random Stops

 

    In Dedman v. The Queen, supra, and Hufsky v. The Queen, [1988] 1 S.C.R. 621, both the significance and consequences of the random stopping of motorists by the police were considered.

 

    In Dedman, the random stop was conducted as part of the Province of Ontario's R.I.D.E. campaign, a program in which police establish checkpoints at the side of the road and pull over motorists at random to check their sobriety.  It was acknowledged that police officers conducting these stops would ask to see motorists' licences in order to engage them in conversation.  In reality this was done to determine whether there were grounds for a reasonable suspicion that the driver had been drinking alcohol.

 

    The random stop at issue in Dedman was conducted in 1980, one year before s. 189a(1) of the Highway Traffic Act was enacted and two years before the Charter  came into effect.  Both the majority and minority judgments held that the police officer had no statutory authority to conduct a random stop.  Le Dain J., writing for the majority, held, however, that common law authority for the random stops conducted under the R.I.D.E. program could be derived from the general duties of police officers on the basis of the test laid down in R. v. Waterfield, [1963] 3 All E.R. 659.  Le Dain J. noted at pp. 34‑35:

 

    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 is convenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". . . . In assessing the interference with this right by a random vehicle stop, one must bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and control for the protection of life and property.

 

    The case of Hufsky, supra, was also concerned with the validity of an organized program of random stops which were carried out this time under a "spot check" program not part of the R.I.D.E. program.  These stops were ostensibly authorized by s. 189a(1) of the Highway Traffic Act.  The section was challenged on the grounds that it contravened the provisions of the Charter .  Unlike the R.I.D.E. program random stopping considered in Dedman, the spot check random stop at issue in Hufsky was more than a search for impaired drivers.  Instead, as in the case at bar, the stop had a broad range of purposes -- to check for sobriety, for licences, insurance and the mechanical fitness of cars.  The only guideline governing the random stops in Hufsky, supra, was that the vehicles engaged in the spot check duty were required to include at least one marked police car.

 

    Hufsky had been randomly stopped by a police officer in Metro Toronto.  The officer asked to see the appellant's driver's licence and proof of insurance and verified their validity.  While speaking to Hufsky, the officer detected alcohol on his breath and noticed that his speech was slightly slurred.  The officer asked Hufsky to accompany him to his police car to conduct a roadside breath test.  But when the officer made the breath demand, Hufsky refused to comply.  The officer then told Hufsky that he would be charged with failing to provide a breath sample and informed him of his right to retain and instruct counsel without delay.

 

    Le Dain J., writing for a unanimous Court, held that the random stops conducted under the spot check program and authorized by s. 189a(1) of the Highway Traffic Act did not violate the Charter .  He concluded that although the random stop constituted arbitrary detention in violation of s. 9  of the Charter  it was justified under s. 1.  He also held that the random stop did not constitute an unreasonable search and seizure in violation of s. 8  of the Charter .  In holding that the random stops, though violating s. 9, were justified under s. 1, he stated at pp. 636‑37:

 

    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 of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation 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 be arbitrarily 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, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served.

 

    There are few distinctions between the random stop under consideration in the case at bar and the random stop dealt with by this Court in Hufsky.  In both cases, the stop was conducted in order to check licences, insurance, mechanical fitness and, although never explicitly stated at the appellant's trial, the sobriety of the driver.  In both cases, the police actions were authorized primarily by s. 189a(1) of the Highway Traffic Act which granted them absolute discretion to stop motorists if in the lawful execution of their duties.  Finally, the respondent the Attorney General for Ontario relied on exactly the same extrinsic evidentiary material in each case to justify the random stops.

 

    It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of a routine check which was not part of any organized program.  It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program.  Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of a statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter .

 

Does a Routine Check Random Stop Violate ss. 7, 8 and 9 of the Charter ?

 

    In Hufsky, supra, Le Dain J. held that a random stop of a motorist for the purposes of the spot check procedure violated s. 9  of the Charter .  He found that a motorist stopped at a check point was detained as that term was defined in R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640.  He stated at p. 632:

 

By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by a demand or direction that might have significant legal consequence, and there was penal liability for refusal to comply with the demand or direction.

 

Le Dain J. also determined that the detention was arbitrary, since "there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure".  He stated at p. 633:

 

The selection was in the absolute discretion of the police officer.  A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.

 

    The conclusions reached in Hufsky, supra, determine the arbitrary detention issue raised in this case.  Although the police officers differed as to whether the appellant would have been arrested if he had attempted to flee, there can be no question that he was detained.  The police officers had assumed control over the movement of the appellant by a demand or direction.  In addition, while the detention involved only traffic offences rather than violations of the Criminal Code , the maximum penalties which provide for a $2,000 fine or six months' imprisonment, demonstrate that the legal consequences of the detention were significant.  The detention was arbitrary, since the decision as to whether the stop should be made lay in the absolute discretion of the police officers.  There can thus be no doubt that the routine check random stop constituted an arbitrary detention in violation of s. 9  of the Charter .

 

    The appellant's challenge under s. 8 is also governed by the decision in Hufsky.  There Le Dain J. stated at p. 638:

 

In my opinion the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute a search within the meaning of s. 8 because it did not constitute an intrusion on a reasonable expectation of privacy. Cf. Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  There is no such intrusion where a person is required to produce a licence or permit or other documentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of a right or privilege.

 

Section 8 might be brought into play in circumstances where the police, in the process of a random stop, found in the car marijuana or an item of stolen property.  But the police in this case did no more than request the appellant's licence and insurance papers.  The appellant quickly admitted that his licence was under suspension and as a result he was unable to produce these documents.  It follows that it cannot be argued that a "seizure" within the meaning of s. 8 occurred.  The action of the police in this case cannot be regarded as a violation of s. 8  of the Charter .

 

    Since it has been determined that routine check random stops violate s. 9  of the Charter , it is unnecessary to decide whether these random stops infringe s. 7.

 

Can the s. 9 Violation Be Justified Under s. 1 of the Charter ?

 

    Although a routine check under s. 189a(1) of the Highway Traffic Act constitutes a violation of the protection against arbitrary detention guaranteed by s. 9, it remains to be determined whether the provision can be saved by s. 1  of the Charter .  Section 1 provides:

 

    1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

This section requires the courts to attempt to achieve a proper balance between the fundamental rights of the individual and the legal restrictions which may be placed on those rights for the benefit of society as a whole.

 

    The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) of the Highway Traffic Act and is 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.

 

    The crux of the issue is whether the truly random routine check can be "reasonably and demonstrably justified in a free and democratic society".  It is at this stage that the delicate balancing process must be undertaken.  The test to be used to determine whether the law in question can be justified was set forth by Dickson C.J. in R. v. Oakes, supra, and was restated by him in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768‑69, in these words:

 

    Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society.  First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right.  It must bear on a "pressing and substantial concern".  Second, the means chosen to attain those objectives must be proportional or appropriate to the ends.  The proportionality requirement, in turn, normally has three aspects:  the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights.  The Court stated that the nature of the proportionality test would vary depending on the circumstances.  Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid the rigid and inflexible standards.

 

In order to succeed the respondent must show on a "preponderance of probabilities" that the proportionality test set out above has been met by s. 189a(1).

 

    There cannot be any serious doubt that the legislation in question deals with a pressing and substantial concern.  The statistics paint a depressing picture of the killing and maiming that results from the operation of motor vehicles on the streets and highways of the nation.  The evidence filed vividly demonstrates the validity of the pressing and substantial nature of the concern.

 

    It shows that between 1980 and 1984, the number of accidents reported in Ontario came within the range of 182,000 to almost 200,000.  These accidents resulted in the death of well over 1000 persons, as well as injuries to more than 90,000 others, in each of these years.  In 1984 alone, the amount of estimated property damage reached close to $500 million (Ontario Motor Vehicle Accident Facts:  1980, 1981, 1982, 1983 and 1984).  These excerpts highlight the potential for killing, for injury and for material destruction which is associated with the operation of automobiles.  It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways.  Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.

 

    The evidence also reveals a more specific pressing and substantial concern pertaining to particular and precise aspects of driving a motor vehicle.  These statistics relate to areas where the probability of accidents can be reduced.  They are therefore directly pertinent to the question of random stopping.  The mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver are the three primary and specific areas of concern.  Each of the three represents a significant component of the aggregate accident figures.  These factors, which are pre‑requisites to the safe operation of a motor vehicle, can be readily identified and, if they can be controlled, then accidents causing death and injury will be reduced.  It is therefore a very legitimate goal to strive by legislation to control and eradicate those dangerous factors thereby reducing the terrible toll of highway accidents.

 

    The mechanical fitness category comprises, among other things, the working condition of headlights, brakes and seat belts.  The statistics concerning the use of seat belts provide an interesting example.  The evidence indicates that both drivers and passengers have a much better chance of escaping injury in a car accident when wearing seat belts.  In 1984, the likelihood of escaping injury was almost 20 percent better for drivers wearing seat belts.  Moreover, the severity of injury was significantly lessened amongst those who did get injured (Ontario Motor Vehicle Accident Facts:  1984).

 

    In addition, significant weight must be given to the statistical evidence that demonstrates a positive correlation between unlicensed driving and an increased risk of serious highway accidents.  In 1984, for example, there were 330,000 reported automobile accidents in Ontario, 1500 of which resulted in fatalities.  Of the total of 330,000, over 6,000 (roughly 2 percent) involved unlicensed drivers.  However, in what I consider a truly astounding figure, of the 1,500 fatal accidents, over 100 (or roughly 7 percent) involved unlicensed drivers.  In other words, in accidents involving licensed drivers, the probability of fatalities was 214 to 1, while for unlicensed drivers the same probability was 59 to 1.  The same type of comparison for insured and uninsured vehicles involved in fatal accidents yielded results which were almost as marked.  To drive without proper insurance increases the chances of involvement in fatal accidents from 212 to 1 to 83 to 1 (Ontario Motor Vehicle Accident Facts:  1984).  The statistics for 1982 and 1983 reveal a comparable pattern.

 

    The only method of ensuring that the brakes and seat belts are operational is by stopping and checking vehicles.  Of even greater importance is to determine if a driver is licensed and insured.  Once again this can only be done by stopping vehicles.  The unlicensed driver is a statistically proven menace on the highways.  Moreover, such a driver has demonstrated a contempt for the law and an irresponsible attitude as well as a marked propensity to being involved in serious accidents.  All users of the highways have an interest in seeing that unlicensed drivers are apprehended and removed from the highway.  As well, society as a whole has an interest in reducing the cost of medical, hospital and rehabilitation services which must be provided to accident victims and in minimizing the emotional damage suffered by the victims' families.  Surely the preventive medication of requiring drivers to stop provided by s. 189a(1) is preferable to the incurable terminal tragedy represented by the fatal accident victim and the permanently disabled victim.  Surely it must be better to permit the random stop and prevent the accident than to deny the right to stop and repeatedly confirm the sad statistics at the morgue and hospital.  The majority reasons of United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 (1979), finding random stops unconstitutional, were specifically rejected in Hufsky.  However, the position on this issue was well put by Rehnquist J. (as he then was) in his dissenting reasons, at p. 666:

 

The State's primary interest . . . is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists.  The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed.  The [majority of the United States Supreme] Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.

 

    Another facet of the proper legislative goal of safety on the highways is the reduction of impaired driving.  The studies on this subject have been well publicized over recent years.  Once again, the evidence is overwhelming in its confirmation of the relationship between serious accidents and driving under the influence of alcohol or other drugs.  In 1984 the presence of alcohol and drug use as a percentage of the total number of accidents rose from 8 percent for all accidents to 10 percent for accidents involving injuries, and even higher to 31 percent in accidents involving fatalities (Ontario Motor Vehicle Accident Facts:  1984).  This correlation became the justification for widespread campaigns aimed at educating people about impaired driving, and at organized random stop programs like R.I.D.E. in larger centres aimed at reducing the incidence of impaired driving.

 

    In Hufsky, supra, at p. 636 Le Dain J. wrote these compelling words upon a consideration of this same evidence that was put forward to justify random spot checks:

 

    [It] reinforces the impression of the gravity of the problem of motor vehicle accidents in terms of the resulting deaths, personal injury and property damage, and the overriding importance of the effective enforcement of the motor vehicle laws and regulations in the interest of highway safety.  The charts or tables prepared by the respondent from the statistical data in the government reports stress the following points:  the relative importance of licence suspension and the effective enforcement of it; the relatively higher proportion of unlicensed and uninsured drivers, by comparison with the proportion of licensed and insured drivers, involved in motor vehicle accidents resulting in death or personal injury; and the relative importance of the motor vehicle offences, including driving without a licence or while under licence suspension or without insurance. . .

 

    In my view these remarks are equally applicable to the random routine checks under consideration in this case.  I am satisfied that the legislation at issue (s. 189a(1) of the Highway Traffic Act) and the random stops carried out pursuant to its provisions are designed to deal with and meet a very real "pressing and substantial concern".  It now must be seen whether the means chosen is proportional or appropriate to those pressing concerns.

 

    The means chosen is the incidental random spot check, not part of an organized program like R.I.D.E. and not a stop based on some articulable cause.  It is now well settled that these latter methods of stopping drivers are justifiable under s. 1.  (See Dedman, supra, Hufsky, supra, and the lower court judgment in this case, in particular the judgment of Tarnopolsky J.A. of the Court of Appeal.)

 

    In my view the random stop is rationally connected and carefully designed to achieve safety on the highways.  The stops impair as little as possible the rights of the driver.  In addition, the stops do not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights.

 

    To begin with, it has been observed that not only is the stopping of vehicles rationally connected to highway safety, it is the sole method of checking a driver's licence and insurance, or the mechanical fitness of a vehicle or whether the driver is impaired.  It should be remembered that when penalties are imposed for driving offences, the suspension of the driver's licence often plays a significant role.  In addition, with the suspension of the driver's right to drive, society remains protected when the court decides in appropriate cases to impose a lighter jail term to the benefit of the offender.  In order for licence suspensions to be effective as a means of punishment, they must be enforceable.  To permit those whose licence is suspended to drive creates both a danger to society and fosters a contempt for the law by the ease of infringement.  There must be a real element of risk of detection of driving by unlicensed drivers for the suspension of a licence to be an effective remedy.  Random stops supply the only effective deterrent.

 

    Deterrence is thus a critical aspect of the routine check.  As Rehnquist J. put it in Delaware v. Prouse, supra, at p. 666, "an unlicensed driver who is not deterred [merely] by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check."  In other words, while a driver might be willing to chance driving without a licence where the factors leading to being caught are more or less within the driver's control, a random routine check is outside of this controllable range and might deter the unlicensed driver from getting behind the wheel.

 

    The evidence indicates that, in 1984, 1 in 37 drivers in the province of Ontario were serving licence suspensions (Ontario Motor Vehicle Accident Facts:  1984).  With such a large number of suspended drivers in the province, the goal of deterring them from driving illegally necessitates more than just the organized random stop or stop for articulable cause.  R.I.D.E. locations are frequently well‑known or visible in advance, allowing an offender to avoid the organized stop.  Without random routine checks, impaired drivers could easily avoid the consequences of their dangerous misconduct.  One commentator has described the routine check as "the predominant pro‑active policing technique to deal with drinking drivers":  Segal, "R. v. Hufsky:  Random Spot Check Programmes" (1989) 1 J.M.V.L. 34, at p. 44.

 

    To recognize the validity of the random routine check is to recognize reality.  In rural areas it will be an impossibility to establish an effective organized program.  Yet the driving offences in these areas lead to consequences just as tragic as those that arise in the largest urban centres. Even the large municipal police force will, due to fiscal constraints and shortages of personnel, have difficulty establishing an organized program that would constitute a real deterrent.

 

    From the foregoing, it is readily apparent that there is a rational connection between the routine check and the goal of the empowering provision of the Highway Traffic Act.

 

    The next question is whether the routine check impairs the s. 9 right as little as possible.  Incompetent driving creates a serious and dangerous hazard to all who use the highways.  This has been recognized throughout Canada by legislation which makes it a condition of granting a licence to drive that the applicant demonstrate a minimum standard of competence.  It is only those holding a licence who may exercise the right to drive.  Even that right is regulated by the provisions of provincial traffic Acts and the Criminal Code .  If the right to drive can only be exercised by licence holders, then there must be a method by which society can ensure that this requirement is met by all who drive.  This same requirement is embodied in many statutes which seek to regulate other activities and products which raise concerns for the safety of others.  See for example, other acts of the Province of Ontario, such as the Game and Fish Act, R.S.O. 1980, c. 182, s. 14, and the Motorized Snow Vehicles Act, R.S.O. 1980, c. 301, s. 15a, where random stops are allowed without articulable cause.  This is also true of Acts regulating environmental protection, farm products, off‑road vehicles and potential violators of tobacco and fuel taxes.  Licensed activities must be carried out exclusively by licence holders who have demonstrated their competence and their willingness to comply with the fair and reasonable guidelines and requirements that govern all licence holders.  There would be no point to requiring licences for those who engage in activities that are potentially dangerous and require a demonstrated degree of skill if there was no means of ensuring that a driver holds a valid licence.

 

    Le Dain J. held in Hufsky, supra, at pp. 636‑37 that  "The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case . . . is proportionate to the purpose to be served."  This observation is equally applicable to the routine check made in this case.  These stops are and must be of relatively short duration, requiring the production of only a few documents.  There is a minimal inconvenience caused to the driver.  The Canada Police Information Centre (C.P.I.C.) data system accessible to police officers from their police cars ensures the speed and reliability of the process.  The driver generally is questioned in his or her own vehicle or at worst, when there is an infraction, in the police cruiser.  There is seldom a need to bring the driver to the police station.  Nor is there usually a need for intrusive searches of the driver or the vehicle.  If they were intrusive, they would probably be subject to challenge as infringing s. 8  of the Charter .  The routine check impairs the s. 9 guarantee against arbitrary detention as little as possible.

 

    Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective.  The concern at this stage is the perceived potential for abuse of this power by law enforcement officials.  In my opinion, these fears are unfounded.  There are mechanisms already in place which prevent abuse.  Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.  Once stopped the only questions that may justifiably be asked are those related to driving offences.  Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.  Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2)  of the Charter .

 

    There is, as well, ample evidence that similar powers have been legislatively conferred upon police officers in other free and democratic societies regarding the stopping of motor vehicles.  See, for example, the provisions in force in the United Kingdom, in the various states in Australia and in New Zealand which lend further support to the proposition that the legislation is not too broad in its scope:  Road Traffic Act, 1972 (U.K.), c. 20, s. 159; Transport Act, 1962 (New Zealand), No. 135, s. 66; Road Traffic Act, 1961 (South Australia), No. 50, s. 42; Traffic Ordinances, 1949‑59 (Northern Territory), ss. 46, 48 and 55; Road Traffic Act, 1974‑1982, (Western Australia), s. 53; Motor Traffic Acts, 1909‑1957 (New South Wales), s. 5(1); Motor Car Act, 1958 (Victoria), ss. 22, 29 and 40; and Traffic Act, 1949‑1988 (Queensland), ss. 35 and 39.

 

    In the result, I have concluded that routine checks are a justifiable infringement on the rights conferred by s. 9.  It is interesting to observe that McRuer C.J., in his capacity as chairman of the 1968 Royal Commission Inquiry into Civil Rights, came to the same conclusion 21 years ago.  At pp. 730‑31 of Report No. 1, vol. 2, he wrote:

 

    It might well be that the police should have greater powers to control and investigate the use of motor vehicles on the highway.  A motor vehicle is a dangerous machine.  If it is not carefully used, it is a lethal one.  It is a convenient vehicle for the commission of crimes of all sorts.  Those who take motor vehicles on the highway have no civil right to do so.  They may do so only if they hold a licence for that purpose.  That requirement is no invasion of civil rights.  There is no reason why anyone driving a motor vehicle while on the highway should not be required to show an officer of the law enforcement agencies that he has a licence to do so.  If the police have power to question the driver of a motor vehicle for the purpose of verifying his right to drive it, the ownership of the vehicle and the name and address of the owner and driver, there would appear to be little or no need for all the drastic powers of arrest that we have been discussing.

 

While the concept of what may constitute a violation of civil rights may today be somewhat different, the characterization by McRuer C.J. of the nature of driving and the need to control it are just as valid today as they were then.  In order to provide the proper control, society must be able to require that random stops be made without articulable cause and outside of any formal programs.

 

Conclusion

 

    While the routine check is an arbitrary detention in violation of s. 9  of the Charter , the infringement is one that is reasonable and demonstrably justified in a free and democratic society.  As a result, s. 189a(1) of the Highway Traffic Act is a valid and constitutional legislative enactment.  There is no need to read the section down as did Tarnopolsky J.A. in the Court of Appeal or to qualify it in any way.  Having come to this result, it is not necessary to deal with the arguments raised under s. 24(2).

 

    The answers to the constitutional questions posed are:

 

1.Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7 , 8  and 9  of the Canadian Charter of Rights and Freedoms  to the extent that it authorizes the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. programme?

 

Answer:Section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198 as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, is not inconsistent with ss. 7  or 8  of the Canadian Charter of Rights and Freedoms  but is inconsistent with s. 9.

 

2.If the answer to question 1 lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. 1  of the Charter ?

 

Answer:Section 189a(1) of the Highway Traffic Act can be justified pursuant to s. 1  of the Charter .

 

    The appeal is therefore dismissed.

 

    Appeal dismissed.

 

    Solicitor for the appellant:  Morris Manning, Toronto.

 

    Solicitor for the respondent:  The Attorney General for Ontario, Toronto.

 

    Solicitor for the intervener the Attorney General of Canada:  John C. Tait, Ottawa.

 

    Solicitor for the intervener the Attorney General of Nova Scotia: The Department of the Attorney General of Nova Scotia, Halifax.

 

    Solicitor for the intervener the Attorney General for New Brunswick:  The Attorney General for New Brunswick, Fredericton.

 

    Solicitor for the intervener the Attorney General of Manitoba:  The Attorney General of Manitoba, Winnipeg.