(a) Arbitrary Detention?
There was a time when persons operating a vehicle could expect to drive
around free from interference by the police. But that was a time long ago
before to the advent of the R.I.D.E. (Reduce Impaired Driving Everywhere)
program. While there is no question that drinking driving exacts a heavy
human toll every year the issue remains to what extent the police are
empowered to randomly detain motorists for the purpose of combating the
social ill of carnage on our highways caused by people who shouldn’t be
behind the wheel.
One of the earliest and most significant Charter decisions dealing with the
tension between civil liberties and our supposed constitutional guarantees to
be free from arbitrary detention and unreasonable search is the Supreme
Court of Canada decision in R. v. Hufsky, [1988] 1 SCR 621. In that case
our highest court decided that random stopping of a motorist for the
purposes of a spot check procedure, even if of relatively brief duration,
results in a detention within the meaning of s. 9 of the Charter of Rights. The
court also concluded that such detention is arbitrary in violation of s. 9 even
though the stop is done pursuant to statutory [provincial] authority and for
lawful purposes since there are no criteria for the selection of the drivers to
be stopped and subjected to the spot check procedure. The court nevertheless
authorized such stops based on provincial legislation as being a reasonable
limit within the meaning of s. 1 of the Charter, having regard to 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. Finally, the S.C.C.
concluded that a demand by the police officer that the motorist surrender his
driver’s licence and proof of insurance for inspection as required by the
provincial legislation does not infringe the motorist’s right to be secure
against unreasonable search and seizure as guaranteed by s. 8 of the Charter.
(b) Unsanctioned Investigations:
Against that background however the courts have made it clear that the
police do not have an unfettered right to arbitrarily investigate drivers who
they stop in the course of a random check for drinking drivers. The
subsequent decision by the Supreme Court of Canada in R. v. Mellenthin,
[1992] 3 S.C.R. 615 makes that perfectly clear. In that case the police
directed the appellant’s vehicle into a check stop set up as part of a program
to check vehicles. One of the officers shone a flashlight in the interior of the
appellant’s vehicle, which was considered to be an appropriate action to
ensure the safety of the officers conducting the check point. The flashlight
inspection revealed an open gym bag on the front seat. The officer asked
what was inside the bag, was told food and shown a paper bag with a plastic
sandwich bag in it. When the officer noticed empty glass vials, of the type
commonly used to store cannabis resin, he asked the appellant to get out of
the car, searched the car and found vials of hash oil and some cannabis resin
cigarettes. The appellant later gave an incriminating statement at the police
detachment. At trial the judge excluded both the physical evidence of the
drugs and the statement and acquitted the accused. The Court of Appeal
overturned the acquittal and ordered a new trial. Our Supreme Court
emphatically restored the acquittal reasoning that although RIDE programs
are justified as a means aimed at reducing the terrible toll of death and injury
so often occasioned by impaired drivers or by dangerous vehicles their
primary aim must be to check for sobriety, licences, ownership, insurance
and the mechanical fitness of cars. The court authoritatively held that the
police use of check stops should not be extended beyond these aims and that
“random stop programs must not be turned into a means of conducting either
an unfounded general inquisition or an unreasonable search.”
(c) The Investigation of Passengers:
This restrictive analysis has now also been extended to the rights of
passengers questioned in the course of a RIDE check. Recently, a well
respected judge of this province had occasion to review the evolving law in
this regard and had no difficulty acquitting a passenger of a car who had
been questioned at the roadside and charged with breach of probation. In R.
- Dale, 2012 ONCJ 692 The arresting officers were questioned at trial how
it was that they discovered the alleged breach and they candidly testified that
“it was ‘common’ to collect identification from not only the drivers but also
passengers in vehicles stopped at a R.I.D.E. and run the names through
CPIC to see if anyone was in breach of any conditions”. The judge roundly
denounced this practice: “In the case at bar, I find the violations to be very
serious, in particular the violation of s.8. I say this because of the bad faith
of the officer. The officers were either aware of Mellenthin….or they should
have been. Mellenthin was decided in 1992….. The seizure of identification
from passengers at a R.I.D.E. program has been specifically denounced as a
violation by the highest court in this country and in this province. The OPP
must obey the law. They cannot ignore it. They are sworn to uphold it. But
they do not. This is bad faith because the violation is either deliberate or
through their ignorance. It is necessary to dissociate the Court from ‘the
fruits of this unlawful conduct’. Where the police are acting in bad faith and
continue to engage in conduct specifically denounced by the Court then the
violation is very serious.”
In conclusion although it is permissible for the police to arbitrarily detain
motorists in a RIDE program, that detention should be brief and directed
specifically to the issue of the sobriety of the driver. The police do not have
carte blanche powers to conduct any other type of criminal investigation in
relation to the driver and they have no legal authority to commence an
impromptu investigation regarding any of the passengers.
(d) Demand for Roadside Breath Sample:
Drivers who are stopped by RIDE may also face a demand to provide a
sample of their breath into a roadside screening device. The officer only
needs to entertain a “reasonable suspicion” that the driver has “alcohol in his
body”. Generally that would be established by the detection of an odour of
alcohol on a motorist’s breath coupled with an admission of consumption.
Although the police are entitled to ask “have you been drinking” an
informed motorist should know that an incriminating reply can supply the
grounds that the officer who is looking for to make the demand. If a roadside
demand is made, the motorist normally isn’t entitled to be informed of his
right to counsel unless there is a delay in administering the test in which case
the police must read him his rights or risk having any subsequent result
excluded. During the course of the test it is also necessary for the police to
advise as to the legal consequences for refusing to provide a sample (the
same jeopardy as if the detainee had been tried and convicted for an
impaired driving offence). A person faced with a demand to provide a
sample who is either reluctant or unable to provide a breath sample must
also be cautioned that after a number of unsuccessful attempts he is facing
his “last chance.”
(e) Related Administrative Consequences:
It is not a crime to take the roadside test and fail. This investigative result
simply provides grounds for the police to arrest on suspicion of “over 80”
when you must then be given your right to counsel and afforded a reasonable
opportunity to exercise that right. Motorists need to understand however that
even if they “pass” the test in the sense that they only blow a “warn”, which
means that they are actually under the legal limit, there are now serious
administrative consequences. Paradoxically, in Ontario your licence will be
immediately suspended (even though the machine has proven your
innocence) as follows:
First Time
- 3-day licence suspension
- $150 Administrative Monetary Penalty
Second Time (within 5 years)
- 7-day licence suspension
- Mandatory alcohol education program
- $150 Administrative Monetary Penalty
Third Time (within 5 years)
- 30-day licence suspension
- Mandatory alcohol treatment program
- Six-month ignition interlock licence condition
- $150 Administrative Monetary Penalty
Subsequent infractions (within 5 years)
- 30-day licence suspension
- Mandatory alcohol treatment program
- Six-month ignition interlock licence condition
- Mandatory medical evaluation
- $150 Administrative Monetary Penalty
To make matters worse, these suspensions cannot be appealed. The roadside
device in other words constitutes an essentially unreviewable legal regime
akin to judge, jury and executioner at the roadside. The end result of these
escalating legislative sanctions is that the present penalty imposed by the law
at the roadside, where no criminal offence has either occurred or been
charged, is far worse than the penalties drivers used to get in years gone by
after they had actually been tried and convicted of drinking and driving.
MERRY CHRISTMAS!
