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R. v. Wilson, [1990] 1 S.C.R. 1291

 

Jack William Wilson      Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. wilson

 

File No.:  20332.

 

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 alberta

 

    Constitutional law -- Charter of Rights  -- Traffic checks occurring outside of program for checking vehicles but within a certain informal pattern ‑‑ Statute requiring motorist to give specified information to officer on being stopped -- Driver stopped near hotel shortly after closing -- Driver found to be impaired -- Whether or not stop authorized by statute -- Whether or not traffic check violating s. 9  of the Charter  -- If so, whether or not saved by s. 1  -- Canadian Charter of Rights and Freedoms, ss. 1 , 9  -- Highway Traffic Act, R.S.A. 1980, c. H‑7, s. 119.

 

    A policeman stopped appellant, even though he had no reason to believe he was doing anything wrong.  The stop was not part of Alberta's Checkstop Programme but it was part of floating stopcheck in a given area on the part of the officer.  The vehicle was registered out-of-province and was a block away from a small town hotel whose bar had just closed; the officer did not recognize either the vehicle or any of the three men in the front seat.  Appellant showed signs of impairment, failed a breathalyzer test, and was charged with and convicted of impaired driving.  Appeals to the Alberta Court of Queen's Bench and to the Alberta Court of Appeal were dismissed.  At issue here is whether the officer had authority, statutory or at common law, to stop appellant's vehicle and, if so, whether his actions violated s. 9  of the Charter  and were justified under s. 1 .

 

    Held:  The appeal should be dismissed.

 

    Per Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.:  The police officer's actions in stopping the appellant were statutorily authorized by s. 119 of the Highway Traffic Act.  The section requires a driver not merely to surrender his licence on demand, but when "signalled or requested to stop", to "bring his vehicle to a stop and furnish any information respecting the driver or the vehicle that the peace officer requires".  The language of the section, while imposing duties upon motorists rather than conferring powers on the police, is broad enough to authorize random stops of motorists by police officers.

 

    The police stop here was not arbitrary and did not violate s. 9  of the Charter .  It was not random but based on the fact -- which merits consideration in a rural setting -- that appellant was driving away from a hotel shortly after closing time.  This police stop, even if it were to be considered a random stop and as such constitute an arbitrary detention in violation of s. 9 , was justified under s. 1  for the reasons given in R. v. Ladouceur, [1990] 1 S.C.R. 000.

 

    Per Dickson C.J. and Wilson, La Forest and Sopinka JJ.:  Section 119 on its face purports to authorize a random stop and, for the reasons given in R. v. Ladouceur, [1990] 1 S.C.R. 000, must be interpreted to permit a stopping of a motor vehicle when there is an articulable cause.  There was such cause in this case and the officer acted in accordance with statutory authority.  The detention was therefore not arbitrary and the evidence leading to conviction was properly admitted.

 

Cases Cited

 

By Cory J.

 

    Applied:  R. v. Ladouceur, [1990] 1 S.C.R. 000; referred to:  Dedman v. The Queen, [1985] 2 S.C.R. 2.

 

By Sopinka J.

 

    Applied:  R. v. Ladouceur, [1990] 1 S.C.R. 000.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 .

 

Highway Traffic Act, R.S.A. 1980, c. H‑7, s. 119.

 

    APPEAL from a judgment of the Alberta Court of Appeal (1987), 76 A.R. 315, dismissing an appeal from a judgment of Holmes J. dismissing an appeal from conviction by Schollie Prov. Ct. J.  Appeal dismissed.

 

    Kevin M. Sproule, for the appellant.

 

    Jack Watson, for the respondent.

 

//Sopinka J.//

 

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

 

    SOPINKA J. -- This appeal was heard together with R. v. Ladouceur, [1990] 1 S.C.R. 000, and judgments in these two appeals are being released concurrently.  The appellant challenged his conviction for impaired driving on the basis that the police officer who stopped him did not have the statutory authority to do so under s. 119 of Alberta's Highway Traffic Act, R.S.A. 1980, c. H‑7, and that in any case, such a stop was contrary to s. 9  of the Canadian Charter of Rights and Freedoms .  The police officer, while on patrol, stopped the appellant upon observing him late at night, in the vicinity of a bar, in a vehicle with out‑of‑province plates.

 

    In his reasons, Cory J. considered s. 119 and determined that it authorizes random stops.  While acknowledging that a random stop violates s. 9  of the Charter , Cory J. would uphold s. 119 under s. 1  for the reasons he gave in Ladouceur.  Cory J. also disposed of the appeal on the basis that the stop in this case was not arbitrary because the police officer in this case had an articulable cause for stopping the appellant.

 

    I agree that on its face, s. 119 purports to authorize a random stop.  For the reasons which I gave in Ladouceur, I am further of the opinion that it must be interpreted to permit a stopping of a motor vehicle when there is an articulable cause.  I agree with Cory J. that in this case, there was such cause and the officer acted in accordance with statutory authority.  The detention was therefore not arbitrary and the evidence leading to conviction was properly admitted.

 

    I would therefore dismiss the appeal.

 

//Cory J.//

 

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

 

    CORY J. -- This appeal was heard immediately following that of R. v. Ladouceur, [1990] 1 S.C.R. 000.  It raises the same issue as to the constitutional validity of unprogrammed random stopping of drivers by police officers.  It must be resolved in the same manner as Ladouceur for the reasons expressed in that case.

 

    On November 17, 1985 at about 12:40 a.m., a police officer stopped the appellant, Jack Wilson, who was driving his "four‑by‑four" pick‑up truck on a street in the town of Stettler, Alberta.  The officer, Constable Peter MacFarlane, testified that he had no reason to believe that the appellant was doing anything unlawful.  He stated that he stopped the appellant's vehicle for the following reasons:  the vehicle was a block away from one of the hotels; the bars at the hotels had just closed; there were three men in the front seat of the vehicle; the vehicle had out‑of‑province licence plates; and he recognized neither the vehicle nor its occupants.  Constable MacFarlane testified that, though he was looking for impaired drivers, he was not doing this in the fashion commonly followed by police officers under Alberta's Checkstop Programme.  He testified:

 

Certain individuals stop the police car, put up signs, Alberta Stopcheck, etc., and stop cars as they approach a stopped member and consider that to be a stopcheck.  Myself while on night patrol I will pick a certain area, let's say 51st Avenue for example and drive back and forth on that stopping individuals on that particular street, and I consider that myself to be a stopcheck, although I'm not in one permanent position, I'm more or less floating on that street.

 

    When signalled, the appellant pulled his pick‑up over to the side of the road, got out and approached Constable MacFarlane.  The constable detected signs of impairment, namely, the odour of alcohol on the appellant's breath, the difficulty the appellant had in removing his driver's licence from his wallet and his watery eyes.  The constable asked the appellant to accompany him to the police car and to provide a sample of his breath for the roadside A.L.E.R.T. device.  The appellant complied and twice registered a "fail" reading.

 

    As a result of the A.L.E.R.T. readings, Constable MacFarlane arrested the appellant, read him a breathalyzer demand and informed him of his right to retain and instruct counsel without delay.  At the police station, the appellant provided breath samples that tested at 130 milligrams of alcohol per 100 millilitres of blood.  The appellant was charged with driving over .08 and driving while impaired.

 

    On January 16, 1986, at his trial in Alberta Provincial Court, Schollie Prov. Ct. J. refused to accept the appellant's arguments that he had been arbitrarily detained and convicted him of driving while over .08.  His appeal was dismissed by Holmes J. of the Alberta Court of Queen's Bench on June 4, 1986.  He held that s. 119 of Alberta's Highway Traffic Act, R.S.A. 1980, c. H‑7, authorized the constable to stop the appellant and request information concerning the vehicle.  He noted that "there were some circumstances, albeit minor ones, for being suspicious that the driver might be impaired".  The Alberta Court of Appeal dismissed the appellant's appeal.  In a brief judgment handed down on February 3, 1987 it concluded:

 

We consider that the time and location of the incident justified the constable's action under the Police Act of this Province and under Section 119 of the Highway Traffic Act.

 

    The appellant based his appeal to this Court on two submissions.  First, he contended that Constable MacFarlane had no statutory or common law authority to stop his vehicle.  Second, he argued that even if Constable MacFarlane's actions were authorized by statute or common law, they violated s. 9  of the Charter  and could not be justified under s. 1 .

 

    With respect to the first point, the appellant argued that s. 119 of Alberta's Highway Traffic Act is similar to the statutory provisions considered in Dedman v. The Queen, [1985] 2 S.C.R. 2, and does not grant statutory authority for random stops.  I cannot accept that contention.  Section 119 of the Act reads:

 

119  A driver shall, immediately upon being signalled or requested to stop by a peace officer in uniform, bring his vehicle to a stop and furnish any information respecting the driver or the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer.

 

Though s. 119 imposes duties upon motorists rather than conferring powers on the police, the language of this section is broad enough to authorize random stops of motorists by police officers.  In contrast to the legislative provisions considered in Dedman, supra, s. 119 requires a driver not merely to surrender his licence on demand, but when "signalled or requested to stop", to "bring his vehicle to a stop and furnish any information respecting the driver or the vehicle that the peace officer requires".  Constable MacFarlane's actions in stopping the appellant were therefore statutorily authorized by s. 119 of the Highway Traffic Act.

 

    With regard to the second point, the appellant's arguments that the stopping was unconstitutional can be dismissed on two bases.  First, if the stopping of the appellant's vehicle is considered to be a random stop then for the reasons given in Ladouceur, supra, I would conclude that although the stop constituted an arbitrary detention, it was justified under s. 1  of the Charter .

 

    Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer.  While these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community.  In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random.  As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9  of the Charter .

 

    Unlike Ladouceur, supra, neither s. 7  nor s. 8  of the Charter  were raised in argument.  It follows that the question of an unreasonable search or seizure need not be considered in this case.

 

    I would therefore dismiss the appeal.

 

    Appeal dismissed.

 

    Solicitors for the appellant:  Grant, Alton & Sproule, Red Deer.

 

    Solicitor for the respondent:  The Deputy Attorney General of Alberta, Edmonton.

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