R. v. Ladouceur [1990] 1 S.C.R. 1257: 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 the Charter

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.

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