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 Arbitrary Detentions and Random Stops
Wayne Gorman*

Introduction
• . . it may be appropriateto observe that the Charterdoes not intend
a transformationof our legal system or the paralysisof law enforce-
ment. Extravagant interpretations can only trivialize and diminish
respectfor the Charter. ..

After the Supreme Court of Canada's decisions in R. v.

Dedman;2 R. v. Hufsky;3 R. v. Ladouceur4 and R. v. Thomsen,'
it was assumed by many that the police had lawful authority by
virtue of either the common law, or provincial statute (and s. 1
of the Charter) to stop motor vehicles at random regardless of
whether or not "articulable cause" existed.' This was a sane
and rational conclusion and approach. The stopping of a
* Special Prosecutions Office, Department of Justice, Province of Newfoundland and
Labrador.
1. R.v. Altseimer (1982), 1 C.C.C. (3d) 7, 29 C.R. (3d) 276, 17 M.V.R. 8 at pp. 14-15
(Ont. C.A.). See as well Watson J., "Waiting for the weight: Charter Detention at
Truck Stops - Give Me a Brake (or an Axle)" (1995), 6 J.M.V.L. 55; R. v. Gray
(1987), 35 C.C.C. (3d) 178 (P.E.I. Prov. Ct.), affd 39 C.C.C. (3d) 463, 67 Nfld. &
P.E.I.R. 141, 12 M.V.R. (2d) 315 (P.E.I.S.C.); R. v. Filip (1989), 8 W.C.B. (2d) 557
(Ont. Dist. Ct.).
2. (1985), 20 C.C.C. (3d) 97, 46 C.R. (3d) 193, [1985] 2 S.C.R. 2, affg 59 C.C.C. (2d)
97, 23 C.R. (3d) 228, 32 O.R. (2d) 641 (C.A.).
3. (1988), 40 C.C.C. (3d) 398, 63 C.R. (3d) 14, [1988] 1 S.C.R. 621.
4. (1990), 56 C.C.C. (3d) 22, 77 C.R. (3d) 110, [1990] 1 S.C.R. 1257.
5. (1988), 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, [1988] 1 S.C.R. 640.
6. In R. v. Ladouceur, supra, footnote 4, for instance, Cory J. at p. 45 S.C.C., stated that
"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": see R.
v. Rackow (1986), 30 C.C.C. (3d) 250,54 C.R. (3d) 185, 47 M.V.R. 154 (Alta. C.A.);
R. v. Spurvey (1986), 32 C.C.C. (3d) 439, 61 Nfld. & P.E.I.R. 323, 47 M.V.R. 111
(Nfld. S.C.); R. v. Whynacht (1987), 36 C.C.C. (3d) 533, 79 N.S.R (2d) 225, 2 M.V.R.
(2d) 299 (N.S.C.A.); R. v. MacMillan (1986), 63 Nfld. & P.E.I.R. 54, 45 M.V.R. 211
(P.E.I.S.C.); R. v. McCallum (1986), 45 M.V.R. 139 (P.E.I.S.C.); R. v. Burke (1988),
45 C.C.C. (3d) 434, 68 C.R. (3d) 73, [1989] 1 W.W.R. 234 (Sask. C.A.).
 CriminalLaw Quarterly [Vol. 41

motorist causes minor "inconvenience" compared to the lives

such stops can save and it is the only effective deterrent. As
stated by Stevenson J.A. in R. v. Rackow, supra, such stops
advance "the welfare of a large segment of our society". 7 What
system of justice would wish to discourage police activity that
has such significant societal benefits? What sober driver of a
motor vehicle would not be hoping the police are attempting to
catch impaired drivers before they kill someone?8 Unfortunate-
ly, many of our courts are approaching an analysis of s. 9 of
the Charter and random stops of motor vehicles in a techno-
cratic fashion which causes our legal system to lose its focus
and legitimacy. A determination of guilt or innocence based on
the quality and the quantity of evidence must continue to play
some role in our legal system. In my view the four Supreme
Court of Canada decisions referred to earlier legitimized the
use of random stops of motor vehicles by the police to deter
and apprehend impaired drivers. Somehow, however, the
notion that an "articulable cause" was also necessary has come
to dominate this area of the law. Unfortunately, the way it has
been interpreted resulted in the defeating of the purpose of ran-
dom stops in the first place. In my view these four Supreme
Court of Canada decisions have been seriously misinterpreted
and it is time to reconsider them. The articulable-cause test has
been applied in an overly -technocratic fashion. If the police
stop a vehicle because they feel or suspect the driver is
impaired, based on evidence or experience, the protection
afforded to society so outweighs the minor inconvenience
involved that such police activity should be allowed. If the
stop is for some improper purpose then let that allegation be

7. At p. 159 M.V.R.
8. In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, [1995] 3 W.W.R.
457 (S.C.C.), Cory J., at p. 204 C.C.C., points out that "drunk driving" has "a far
greater impact on Canadian society than any other crime . . . drunk driving is
clearly the crime which causes the most significant social loss to the country". See
as well South Dakota v. Neville, 459 U.S. 553 (1982), in which Madam Justice
O'Connor refers to the "carnage" caused by drinking and driving in the United
States. In R. v. Gray, supra, footnote 1, the damage done to highways by "over-
weight" trucks was held to be a sufficiently serious financial problem that random
stops of commercial vehicles was reasonable. If property damage can form a basis
for allowing random stops how is it that the continuous loss of life seems of such
little importance to so many of our judges?
1998] Arbitrary Detentions and Random Stops

established and dealt with. There is no need to hide behind the

articulable-cause test in a misguided attempt to prevent alleged
improper police conduct.

R. v. Dedman
In R. v. Dedman, supra, the accused's motor vehicle was
pulled over to the side of the road purportedly as part of a pro-
gram referred to as R.I.D.E. In reality it involved the "pulling
over of motor vehicles, on a random basis" to detect impaired
drivers.9 The police asked to see driver's licences for the pur-
pose of initiating conversation to determine if the driver had
consumed alcohol.10 There was nothing in the accused's man-
ner of driving to suggest he was under the influence of alcohol
and the police had no basis to suspect that he was impaired."
They had no articulable cause. As a result of this random stop
the accused was charged with refusal to comply with a road-
side demand.
The trial judge acquitted. The Ontario Court of Appeal set
aside the acquittal." The Supreme Court of Canada concluded
that the Highway Traffic Act (Ont.) did not provide a statutory
power authorizing the stop of the accused's motor vehicle and
therefore the stop was not authorized by statute and was prima
facie an unlawful interference with liberty. 3 However, the
court concluded that the stopping of the vehicle "fell within the
general scope of the duties of a police officer to prevent crime
and to protect life and property by control of traffic". 4 (In R.
v. Ladouceur, the majority of the Supreme Court of Canada
9. Dedman, supra, footnote 2, at p. 113 C.C.C.
10. Ibid., at p. 118 C.C.C.
11. See, ibid., p. 113 C.C.C.
12. (1985), 59 C.C.C. (2d) 97, 23 C.R. (3d) 228, 32 O.R. (2d) 641 (C.A.).
13. Supra, footnote 2, at p. 121 C.C.C.
14. Ibid. In reaching this conclusion Le Dain J. appears to place great reliance on s. 55
of the PoliceAct, R.S.O. 1970, c. 351 which refers to "all the duties and responsi-
bilities that belong to a constable". Section 8 of the Royal Newfoundland
ConstabularyAct, 1992, S.N. 1992, c. R-17, provides members of the constabu-
lary with the powers and "duties assigned to a constable at common law". This is
clearer language than the "Police Act" and therefore there should be little dispute
that in Newfoundland the Royal Newfoundland Constabulary have had their com-
mon law power to make random stops given clear statutory recognition. The Royal
CanadianMounted PoliceAct,R.S.C. 1985, c. R-10 (see, infra, footnote 70) is not
so clear.
44 CriminalLaw Quarterly [Vol. 41

subsequently interpreted these comments as standing for the

proposition that the common law provides authority for ran-
dom, R.I.D.E.-related stops.) 15.
In reaching this conclusion the majority of the court, per Le
Dain J., described the limited "interference" involved: 6
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
licenced activity that is subject to regulation and control for the pro-
tection of life and property.

R. v. Hufsky
In R. v. Hufsky, the accused's motor vehicle was stopped at
approximately 12:30 a.m. on Midland Avenue in Toronto. The
police officer involved conceded he had not noticed anything
unusual about the accused's driving nor did he have any rea-
son to suspect he was under the influence of alcohol. He had
no articulable cause. The police officer agreed he was making
random stops without any criteria involved. As a result of the
stop the accused was charged and convicted of failing to com-
ply with a roadside demand."
The Ontario Court of Appeal upheld the conviction. The
Supreme Court of Canada concluded that though the police
officer was "clearly acting in the lawful execution of his duties
and responsibilities"1 9 as authorized by stature, the stop was
20
arbitrary because":
... There were no criteria for the selection of the drivers to be stopped
...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.
However, the court concluded that s. 189a(1) of the
Highway Traffic Act,2 1 provided statutory authority for "the
15. Ladouceur, supra, footnote 4, at pp. 34 and 38.
16. Dedman (S.C.C.), supra, footnote 2, at p. 121 C.C.C.
17. Supra, footnote 3, at p. 402 C.C.C.
18. (1984), 33 M.V.R. 75, 14 O.A.C. 1 (C.A.).
19. Supra, footnote 3, at p. 406 C.C.C.
20. Ibid., at p. 407 C.C.C. The issue of whether a common law power existed was not
in issue.
21. R.S.O. 1980, c. 198.
1998] ArbitraryDetentions and Random Stops

random stop of motor vehicles"22 and such authority consti-

tuted a reasonable limitation on the rights conferred by s. 9 of
the Charter because of the increase in "both the detection and
the perceived risk of detection" generated by random stops.'
Whether or not this authority is generated by statute or the
common law does not affect its deterrent value.
As regards the limited interference involved (i.e., the tech-
nical nature of the breach of s. 9 that occurred) Le Dain J.
repeated the views he had earlier so passionately expressed in
R. v. Dedman in the following manner:24
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. 189(a)(1) of the Highway Traffic Act on the right not
be arbitrarily detained ... 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 . . . is proportionate to the purpose
to be served.

In other words, the random stopping of motor vehicles (even

in non-publicized R.I.D.E. programs) is to be encouraged.
Random stops strike a reasonable balance. They save lives and
create a minor inconvenience for those who have not been
drinking. Most of these people, in my view, would be glad to
know the police are attempting to catch impaired drivers
before they kill someone. Why so many Canadian judges find
this such a difficult concept is not clear.

22. In R. v. Hufsky, supra, footnote 3, the accused's car was parked outside a tavern.
The police officer approached the accused's vehicle because "usually its someone
consuming alcohol". Section 189(a)(1) stated: "A police officer may require the
driver of a motor vehicle to stop and the driver.., when signalled or requested to
stop by a police officer who is readily identifiable as such, shall immediately come
to a safe stop." Le Dain J. concluded that this general power to stop under the
Highway Traffic Act allowed for random stops even if the stop is unrelated to that
legislation.
23. Ibid., at p. 409 C.C.C. Le Dain J. points out that mere observation of driving is a
poor method of detecting impaired drivers.
24. Ibid.
 CriminalLaw Quarterly [Vol. 41

R. v. Thomsen
In R. v. Thomsen,' the Supreme Court of Canada (per Le
Dain J. once again) concluded that the limit imposed on the
right to counsel by roadside demands was a reasonable and
justifiable one because of the importance of "increasing the
perceived risk of detection" of impaired drivers.

R. v. Ladouceur
6 the court, by a five to four mar-
Finally, in R. v. Ladouceur,1
gin, appeared to settle this issue once and for all. It concluded
once again, that s. 189(a)(1) of Ontario's, Highway Traffic Act
provided statutory authority to make random stops of motor
vehicles and such random stops constituted a reasonable limi-
tation on the rights guaranteed by s. 9 of the Charter. The
minority strongly disagreed. It raised the vision of marauding
police officers randomly stopping drivers solely on the basis of
sex, race, etc. This minority view captured the imagination of
the Ontario Court of Appeal which, as will be seen, has
ignored the majority's decision and implemented the minor-
ity's view in Ontario. In the view of the majority it was irrele-
vant whether the stop was part of a R.I.D.E. program or even
whether it had anything to do with highway safety.27 The
absence of "articulable cause" did not alter the court's conclu-

25. Supra, footnote 5, at p. 422 C.C.C. The court accepted that the "detection of dri-
vers who are impaired at the moderate level of impairment through observations
by trained police officers is ineffective" and that "the most effective deterrent is
the strong possibility of detection". The police officer was involved in "spot
checks" and stopped the accused's vehicle because it had a "defective headlamp"
at p. 414 C.C.C.
26. R. v. Ladouceur,supra, footnote 4.
27. Ibid., at p. 36 C.C.C. The stopping of motor vehicle by the police in Ladouceur
was completely random and had nothing to do with highway safety. The police
were simply suspicious. They did not have an "articulable cause". See "Policing
Under the Charter" by Donald Stuart in "Police Powers in Canada" in The
Evolution and Practice of Authority, Macleod and Schneiderman, eds. (Toronto:
University of Toronto Press, 1994), p. 91: "The Supreme Court in Hufsky and
Ladouceur has, then, recognized an extraordinary wide power for police to stop
motorists at random." Yes they did. Why then have so many Canadian judges
ignored the majority opinion in Ladouceur and based their decisions on the minor-
ity's view?
1998] Arbitrary Detentions and Random Stops

sion because "random stops supply the only effective deter-

rent":'
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, and
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 recognize the validity of the random routine check is to recog-

nize 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 centers. Even the large municipal police force will, due to fiscal
constraints and shortages of personnel, have difficulty establishing an
organized programme that would constitute a real deterrent.
Clearer words have rarely been spoken by our highest court.
At first they were followed. Many academic writers felt the
court was wrong.

The InitialInterpretation
In R. v. Whynacht29 the Nova Scotia Court of Appeal inter-
preted R. v. Dedman, supra, as standing for the proposition
that the police have "the right at common law to randomly
stop" motor vehicles. 0
In R. v. KohlleppeP1 a police officer stopped the accused's
28. Ibid., at p. 41 and 42 to 3 C.C.C.
29. Supra, footnote 6.
30. See as well R. v. Doucette (1986), 33 C.C.C. (3d) 547, 76 N.S.R. (2d) 79, 34
M.V.R. 93 (C.A.). Murray Segal concluded that the effect of R. v. Hufsky, supra,
footnote 3, was the upholding of the "constitutionality of police random spot
checks" and that surprisingly "the police may have more flexibility in administer-
ing spot checks than they enjoyed prior to the Charter": "'R. v. Hufsky': Random
Spot Check Programs" (1989), 1 J.M.V.L. 34. See as well Julian Falconer,
"Hufsky v. The Queen and Leave in Ladouceur: What's Left?" (1988), 30 C.L.Q.
467.
31. (1988), 52 Man. R. (2d) 314, 13 M.V.R. (2d) 149 (Q.B.).
48 CriminalLaw Quarterly [Vol. 41

motor vehicle on a rural road at 2:40 a.m. The police officer

concluded that the accused, because of the time and location,
might be an impaired driver. Monnin J. concluded that based
on the Supreme Court of Canada's decision in R. v. Hufsky, the
accused's s. 9 argument had been made "academic" because if
it was arbitrary "it was also.., a reasonable detention that is
demonstrably justified in a free and democratic society".32

R. v. Wilson -A Major Step Backward

In R. v. Wilson,33 the Supreme Court of Canada changed
everything. It concluded that the stopping of the accused's
vehicle was not arbitrary because the police officer had an
"articulable cause". Following its earlier decisions, there
should have been no need to even consider whether the police
officer had an articulable cause. I doubt that the court appreci-
ated what they were unleashing. Cory J. described the officer's
34
reasons for stopping the accused's vehicle as follows:
On November 17th, 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 vehi-
cle 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

32. Ibid., at p. 153 M.V.R. One commentator (J. Ballerisby, Case Comment "Regina
v. Ladouceur" (1991), 3 J.M.V.L. 79), lamented the decision in Ladouceur,
because she concluded it had "constitutionalized a virtually limitless police power
to stop motorists". In her view the Supreme Court of Canada "has gone too far".
Professors Solomon and Usprisch in "Drinking/Driving Legislation and the
Charter: An Overview" (1989), 1 J.M.V.L. 226, concluded that the Supreme Court
of Canada"s decision in R. v. Hufsky, "clearly indicates that the police can continue
to use random stops as a valid enforcement measure" (at p. 247). They were right.
However, this is not the manner in which R. v. Hufsky (supra,footnote 3) has been
interpreted.
33. (1990), 56 C.C.C. (3d) 142, 77 C.R. (3d) 137, [19901 1 S.C.R. 1291: see J. Watson
"Random Stopping and Regina v. Mellenthin", Case Comment (1994), 5 J.M.V.L.
219 at pp. 222-4.
34. Ibid., at p. 1294 S.C.R.
1998] Arbitrary Detentions and Random Stops

the fashion commonly followed by police officers under Alberta's

Check-stop 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 particu-
lar 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."
A breathalyzer was subsequently administered which pro-
duced a blood-alcohol level of 130 mg of alcohol per 100 ml
of blood. Driving with 130 mg of alcohol per 100 ml of blood
creates a significant public danger.35 There was never any dis-
pute in R. v. Wilson that a criminal offence had occurred. The
case became a trial of the reason the police officer had for
stopping Mr Wilson's vehicle. The focus of the criminal trial
was lost. The actual guilt or innocence of the accused was
never an issue in our highest court.
A review of Constable McFarlane's reasons for stopping Mr
Wilson illustrate a complete lack of an "articulable cause" if
the police officer must have a reason beyond suspicion and
experience. Why the Supreme Court of Canada pretended it
existed rather than simply saying that random stops, that do
not involve an improper motive (stopping a motor vehicle
because of the race of the driver for instance) are reasonable,
legitimate police actions is not clear. The court's foray into the
"articulable cause" standard has, as will be been seen, effec-
tively destroyed its earlier attempts in R. v. Hufsky and R. v.
Ladouceur to create a reasonable balance and save lives.
Constable McFarlane stopped Mr Wilson's vehicle because
this is one of the most important roles of police on patrol in
small towns. The biggest danger to the citizens of Stettler,
Alberta, are impaired drivers. How does the number of people

35. See Mann, Leigh, Vingilis and DeGenova, "A Critical Review of the Effectiveness
of Impaired Driving Rehabilitation Programs" (1983), 15 Accident Analysis and
Prevention 441. A. Guppy, "At What Blood Alcohol concentration Should
Drinking-Driving Be Illegal?" (1984), 38 British Medical Journal 212, and R.J.
Wilson, "Drinking and Driving: In Search of Solutions to an International
Problem" (1993), Alcohol Health and Research World 1055.
50 CriminalLaw Quarterly [Vol. 41

in the front seat, for instance, lead to an articulable cause? It

does not. However, it was obvious from the evidence that there
was no ulterior or improper motive involved in the stopping.
This is what R. v. Wilson really stands for and this is how artic-
ulable cause should be applied.
Constable McFarlane was simply suspicious and using his
experience. He stopped the vehicle to determine if there was
any reason to investigate further. This of course could only be
achieved by stopping the vehicle. Why pretend otherwise?
This is the type of police activity that should be encouraged. It
saves lives.

Post Wilson
In R. v. Griffin,36 the Newfoundland Court of Appeal inter-
preted Hufsky and Ladouceur as standing for the proposition
that the police must have a reason for stopping the specific
vehicle beyond such circumstances as location and/or the time
of driving, i.e., the factors in R. v. Wilson which the Supreme
Court of Canada concluded established an "articulable cause".
The court summarized the7 reason Mr Griffin's motor vehi-
3
cle was stopped as follows:
In this case, Constable Earle could give no reason why the appellant
in particular, as opposed to any other driver on the road that night, was
stopped. The fact that in his experience there are drivers on the road at
that time who are impaired does not make the selection of the appel-
lant, whose driving gave no indication of impairmentand whose loca-
tion in relation to drinking establishments did not suggest he had been
drinking there, any less random.

Accordingly, the trial judge and the summary conviction appeal

judge erred in concluding that the stop in this case was not random.
The error flows from their conclusion that the fact that the police offi-
cer could give an explanation which was not related to the stopping of
the appellant, as opposed to others, meant that the stop was not ran-
dom. Such a test of randomness is contrary to the analysis employed
in Hufsky, and Ladouceur where the absence of any ability to explain

36. (1996), 111 C.C.C. (3d) 490, 146 Nfld. & P.E.I.R. 142, leave to appeal to S.C.C.
refused 113 C.C.C. (3d) vi, 149 Nfld. & P.E.I.R. 270n.
37. Ibid., at pp. 499-500 C.C.C.
1998] Arbitrary Detentions and Random Stops

why a particular driver in those cases was targeted was held to be a

random detention. [Emphasis added.]
Constable Earle, R.C.M.P., had testified that he was on
patrol in Grand Falls-Windsor (a small town). At 2:55 a.m. he
stopped a vehicle being driven by Mr Griffin. He noticed a
smell of alcohol and administered a roadside screening test. A
fail was registered and breath samples were subsequently
obtained and analyzed. The result was 110 and 100 mg of alco-
hol per 100 ml of blood. When asked why he had stopped the
accused's vehicle Constable Earle testified that he "suspected"
the accused may have been drinking and driving because of the
location of bars in the area and because of the close proximity
to "closing time". Constable Earle testified that he had stopped
approximately eight people, over the last year, close to closing
time and "all of them" had been drinking and driving. There
was no suggestion of improper motive. Constable Earle was
doing what the residents of Grand Falls-Windsor hoped for.
He was attempting to protect them from a crime which the
Supreme Court of Canada has concluded has a far greater
impact on most Canadians than any other. The reason for
police patrols in small towns at closing hours, is to detect and
apprehend impaired drivers before they kill someone.
The Newfoundland Court of Appeal has formulated a much
more stringent test than the one applied in Wilson. Not only
must the police have an "articulable cause", it must relate to
something that is peculiar to the person stopped, particularly
their manner of driving. The Court of Appeal's reference to the
fact that the accused's driving "gave no indication of impair-
ment" highlights their approach.
As regards a "common
38
law power" to stop motor vehicles,
Green J.A. wrote:
The discussion at this point in Cory, J.'s judgment [in Ladouceur]
occurred in relation to the power of a police officer to stop vehicles at
random generally without particularizing, at that point in the discus-
sion, whether the types of stops being talked about were organized or
roving. In that context, the reference to Dedman can only be taken as
a re-affirmation of what Dedman actually decided, namely, that orga-

38. Griffin, ibid., at p. 509 C.C.C.

 CriminalLaw Quarterly [Vol. 41

nized random stops were authorized at common law. [Emphasis

added.]

In other words, the combined effect of R. v. Dedman and R.

v. Ladouceur is that random stops are only permissible if part
of an organized program such as R.I.D.E. However, as stated
earlier, Cory J. had said just the opposite in Ladouceur. He
said that the establishment of such programs in "rural areas..
. will be [impossible]", and that to "recognize the validity of
the random routine check is to recognize reality". 39
It must also be recalled that the police officer in Ladouceur
had stopped the accused's motor vehicle on a completely ran-
dom basis. It had nothing to do with a R.I.D.E. program.' That
police officer did not have nearly the basis for stopping the
vehicle that Constable Earle had.
R. v. Wilson is simply not distinguishable from R. v. Griffin
and the Court of Appeal's interpretation of R. v. Ladouceur
misses the essence of Mr Justice Cory's decision. Mr Justice
Cory was simply saying that random stops are a minor incon-
venience in comparison to the "mayhem" caused by drinking
and driving. Therefore, they are a necessary and reasonable
balance. If they are used for improper purposes or extended to
conduct warrantless searches, these possibilities can be dealt
with.4 There is no need to adopt a worst-case scenario based
on an assumption or "suspicion" of improper police motiva-
tion which prevents all random stopping.
As stated earlier the stopping of the accused's vehicle in R.
v. Griffin took place at 2:55 a.m. In R. v. Seo, 2 Finlayson J.A.
points out that 90% of single vehicle accidents between 1:00
a.m. to 2:00 a.m. involved alcohol as did 64.8% of all other

39. At p. 42 C.C.C.
40. When asked if it was random Constable Bell said (in R. v. Ladouceur) "Pretty well,
yes" (at p. 30 C.C.C.). The trial judge in R. v. Griffin (Goulding Prov. Ct. J.) recog-
nized this aspect of Ladouceur. She concluded that Constable Earle had an "artic-
ulable cause" and that Ladouceur "makes it clear that ... there is no distinction
between a fixed check-point stop and random roving stops" (unreported judgment,
at pp. 89-90). She was correct.
41. See R. v. Mellenthin (1992), 76 C.C.C. (3d) 481, 16 C.R. (4th) 273, [1992] 3
S.C.R. 615.
42. (1986), 25 C.C.C. (3d) 385, 51 C.R. (3d) 1, 27 D.L.R. (4th) 496 (Ont. C.A.).
1998] Arbitrary Detentions and Random Stops

accidents during that time frame. 3 Therefore, common sense

suggests an increase in random stops during such time periods
is warranted and the statistics confirm the correctness of
Constable Earle's approach and reasons." As pointed out by L.
H. Leigh in "Police Powers In England and Wales", "a con-
stable can properly have regard to the pattern of crime in an
area".45
The lack of erratic driving that the Court of Appeal places
such emphasis on in R. v. Griffin is a very poor and dangerous
method for concluding that a driver of a motor vehicle is free
from the effects of alcohol. As pointed out by Le Dain J. (for
the entire court) in R. v. Thomsen: "'The detection of drivers
who are impaired at the moderate level of impairment through
46
observations by trained police officers is ineffective.'
Constable Earle would have been negligent in his duties if
he had allowed the accused to drive on. What if someone had
been killed? How would he have ever explained why he failed
to stop someone whom he thought might be drinking and dri-
ving? In R. v. Smith,47 the Ontario Court of Appeal pointed
out:48
Driving is a heavily regulated activity. The police are engaged, not so
much in after-the-fact investigations of completed crimes, but in pre-

43. The material from which these statistics were drawn was also considered by the
Supreme Court of Canada in R. v. Hufsky, supra, footnote 3. The conclusions
drawn by Finlayson J.A. in R. v. Seo, ibid., were adopted by the Supreme Court of
Canada in R. v. Thomsen, supra, footnote 5.
44. In R, v. Thomsen, ibid., the court adopted the conclusion in Seo that "'The highest
frequency of impairment is found late in the evening and in the early morning and
the degree of impairment and the severity of accidents is again almost in direct
relationship to the time of day."': supra, footnote 42, at p. 422 C.C.C. (quoting
from R. v. Seo, supra, footnote 42, at pp. 398-9 C.C.C.).
45. (London, U.K.: Butterworths, 1975), p. 135.
46. Supra, footnote 5, at p. 422 C.C.C. In R. v. Emke (1989), 49 C.C.C. (3d) 252, 70
C.R. (3d) 347, 74 Sask. R. 276 (C.A.), the Saskatchewan Court of Appeal makes
the rather silly suggestion that the police should follow motor vehicles around until
the driver's "conduct reveals grounds that would justify a stop" (at p. 265 C.C.C.).
47. (1995), 105 C.C.C. (3d) 58, 46 C.R. (4th) 222, 28 O.R. (3d) 75 (C.A.). In R. v.
Rackow, supra, footnote 6, Stevenson J.A. concluded that random stops do not
produce any "significant inconvenience" and asked whether "the state must wait
until damage is done".
48. Ibid., at p. 81 C.C.C.
 CriminalLaw Quarterly [Vol. 41

emptive investigations intended to avoid the serious harm caused by

those who are involved in dangerous ongoing criminal conduct. The
police's goal is to catch the drinking driver at the roadside and not at
the scene of the accident.
In R. v. Simpson, 9 the Ontario Court of Appeal concluded
that the Supreme Court of Canada's decisions in R. v. Dedman;
R. v. Ladoucer and R. v. Hufsky, provide the police with the
power to make random stops, as long as they are conducted for
purposes related to road safety:50
In my opinion, the "check stop" cases decide only that stops made
for the purposes of enforcing driving-related laws and promoting the
safe use of motor vehicles are authorized by s. 216(1) of the Highway
Traffic Act, even where those stops are random. These cases do not
declare that all stops which assist the police in the performance of any
duties are authorized by s. 216(1) of the Highway Traffic Act.
The Ontario Court of Appeal defined "articulable cause" as
requiring "a constellation of objectively discernible facts
which give the detaining officer reasonable cause to suspect
that the detainee is currently implicated in the activity under
investigation."51
What this means is far from clear. It appears to be a differ-
ent standard to that applied in R.v. Wilson. It is much closer to
"reasonable and probable cause" (see s. 66 of the Metropolitan
PoliceAct, 1839, 1839 (U.K.); and R. v. McGal 2 ) than "artic-
ulable cause". All that the articulable cause test attempts to do

49. (1993), 79 C.C.C. (3d) 482, 20 C.R. (4th) 1, 12 O.R. (3d) 182 (C.A.).
50. Ibid., at p. 493 C.C.C.
51. At p. 501 C.C.C. In Brown v. Durham Regional Police Force (1996), 106 C.C.C.
(3d) 302, 134 D.L.R. (4th) 177, 19 M.V.R. (3d) 207 (Ont. H.C.J.), Ferguson J.
points out that "this definition may well be satisfactory for a court of appeal to
apply ... but [it] is extremely difficult to apply in real life" (at p. 236 M.v.R.).
Ewaschuk, describes it as meaning that "mere suspicion or intuition may be arbi-
trary, whereas reasonable suspicion may not be": E. Ewaschuk, Criminal
Pleadingsand PracticeIn Canada, 2nd ed. (Aurora, Ontario: Canada Law Book
Inc., updated), p. 31-124.3). In R. v. Edwards(1994), 91 C.C.C. (3d) 123, 34 C.R.
(4th) 113, 22 C.R.R. (2d) 29, the Ontario Court of Appeal concluded that their
"articulable cause standard" was met even though the police stopped the accused's
vehicle based only on "information he was a drug dealer", the use of a "cell phone"
and having observed him swallow an unidentified object. The Supreme Court of
Canada affirmed the Court of Appeal's decision without reference to "articulable
cause": (1996), 104 C.C.C. (3d) 136, [1996] 1 S.C.R. 128, 33 C.R.R. (2d) 226.
52. [1974] R.T.R. 216.
1998] ArbitraryDetentions and Random Stops

is require that the police have a reason for stopping the vehi-
cle. To articulate is "to express in words" (the Oxford English
Dictionary, 2nd ed.) This reason can be based on suspicion,
hunches, experience etc. Reasonable and probable cause
requires a much higher standard. An observation of driving
which suggests the driver is impaired for instance. It makes
roving stops effectively impossible to carry out. Certainly in R.
v. Wilson the police had no such evidence, therefore this
appears to be a higher standard than the applied by the
Supreme Court of Canada. These type of vague generalities
which purport to regulate unwarranted police activity are not
at all helpful and are impossible to apply in any consistent
manner. In addition the Ontario Court of Appeal makes the
same mistake made in R. v. Griffin. It fails to recognize how
misleading an observation of driving can be.
In R. v. Nelson,53 the police stopped the accused's motor
vehicle because it was being driven "marginally below the
speed limit". 4 The Manitoba Court of Appeal's decision illus-
trates the difficulty with the approach taken in R. v. Simpson
and R. v. Griffin:5
From the public perspective it was reasonably necessary, in the cir-
cumstances of this case, for a police officer to interrupt the motorist's
journey momentarily. The accused had been travelling only margin-
ally below the speed limit, but there was something about the manner
of his driving which gave the police officer concern. The officer did
not articulatehis concern as well as one might wish, but it is clear that
the decision to stop the accused was not the result of random choice,
a whim or an inappropriatereason. I would not think an officer
derelict in his duty for failing to stop a vehicle when the only justifi-
cation for doing so is that the vehicle is travelling at a speed slightly
below the maximum limit, but it would circumscribe the authority of
a police officer unreasonably to say that, if he observes a vehicle trav-
elling slower than the norm and intuitively senses that his intervention
may be required in the public interest, he has no authority to direct the
vehicle to stop.

53. (1987), 35 C.C.C. (3d) 347, [19871 3 W.W.R. 144, 45 Man. R. (2d) 68 (C.A.): see
as well R. v. Kennon (1987), 63 Sask. R. 31, 7 M.V.R. (2d) 176 (Q.B.), in which
the stopping of a motor vehicle because it was travelling at 83 km/hr in a 100
km/hr zone was held not to be arbitrary; and R. v. Moore (1988), 45 C.C.C. (3d)
410, 67 C.R. (3d) 369, 89 N.S.R. (2d) 199 (C.A.).
54. Nelson, ibid., at p. 351 C.C.C.
55. Ibid., at p. 355 C.C.C.
 CriminalLaw Quarterly [Vol. 41

The Manitoba Court of Appeal is expressing the view that

we should encourage the police to use their experience as
Constable Earle did in R. v. Griffin. In Terry v. State of Ohio,56
Warren C.J. refers to "the specific reasonable inferences which
he [a police officer] is entitled to draw from the facts in lights
of his experience". The .facts in R. v. Nelson would have
caused the Newfoundland Court of Appeal to conclude that the
police action violated the Constitution to such an extent that
relevant reliable evidence should be excluded and the accused
effectively acquitted as a result. The approach taken by the
Manitoba Court of Appeal recognizes the requirement for a
balanced approach and of the value of encouraging the police
to use their experience. The court's statement that "it is clear"
that there was no "inappropriate reason" involved illustrates
the adoption of what R.v. Wilson was attempting to say. The
Court of Appeal declined to assume that an improper purpose
was involved. They wanted evidence.
In R. v. Simpson the Ontario Court of Appeal takes a dia-
metrically opposite approach to the Manitoba Court of Appeal.
A police officer's decision based on "experience
57
and intuition"
are deemed to be insufficient and suspect:
A "hunch" based entirely on intuition gained by experience cannot
suffice, no matter how accurate that "hunch" might prove to be. Such
subjectively based assessments can too easily mask discriminatory
conduct based on such irrelevant factors as the detainee's sex, color,
age, ethnic origin or sexual orientation. Equally, without objective cri-
teria detentions could be based on mere speculation. A guess which
proves accurate becomes in hindsight a "hunch". In this regard, I must
disagree with R. v. Nelson (1987), 35 C.C.C. (3d) 347 at p. 355, 29
C.R.R. 80... (Man. C.A.), where it is said that detention may be jus-
tified if the officer "intuitively senses that his intervention may be

56. 88 S.Ct. 1868 (1968) at p. 1883.

57. Supra, footnote 49, at pp. 501-2 C.C.C. See as well R. v. Iron (1987), 33 C.C.C.
(3d) 157, 55 C.C.C. (3d) 289, [1987] 3 W.W.R. 97 (Sask. C.A.); R. v. Burke
(1988), 45 C.C.C. (3d) 434, [1988] 1 W.W.R. 234, 70 Sask. R. 272 (C.A.); R. v.
Ironeagle (1989), 49 C.C.C. (3d) 339, 70 C.R. (3d) 164, 76 Sask. R. 253 (C.A.);
R. v. Haugen (1989), 79 Sask. R. 83 (Q.B.); R. v.Emke (1989), 49 C.C.C. (3d) 252,
70 C.R. (3d) 347, 74 Sask. R. 276 (C.A.); R. v. Brown (1990), 89 Sask. R. 89
(Q.B.); R. v. Quach (1993), 19 C.R.R. (2d) 324 (Ont. Ct. (Prov. Div.)); R. v.
Walker (1996), 26 W.C.B. 443 (Man. Q.B.); R. v. Green (1995), 132 Sask. R. 192
(Q.B.); R. v. Tulloch (1994), 22 C.R.R. (2d) 167, 4 M.V.R. (3d) 38 (Ont. Ct. (Prov.
Div.), affd unreported (October 10, 1995, Ont. C.A.).
1998] Arbitrary Detentions and Random Stops

required in the public interest". Rather I agree with Professor Young

in "All Along the Watch Tower", ibid. at p. 375:
"In order to avoid an attribution of arbitrary conduct, the state
official must be operating under a set of criteria that, at minimum,
bears some relationship to a reasonable suspicion of crime but not
necessarily to a credibility-based probability of crime. 58
59 the same court concluded that there was no
In R. v. Grafe
breach of the Charter when the police randomly stop pedestri-
ans. Their conclusion, set out below, should have been applied
in R. v. Simpson: 0
The Charterdoes not seek to insulate all members of society from
all contact with constituted authority, no matter how trivial the contact
may be. When one considers the full range of contacts in modern soci-
ety between state and citizen that which took place between the
respondent and Constables Kalan and Waite on the first occasion can-
not be characterized otherwise than as innocuous. Its occurrence was
not an invasion of any of the respondent's Charter rights. Accordingly
the evidence should not have been excluded.

In R. v. Chabot,6 the Nova Scotia Court of Appeal supplies

a very different analysis. In Chabot the police were conduct-
ing surveillance on an alleged "after hours club". They
observed the accused leave the residence and get into a vehi-
cle. They stopped him and he subsequently failed the breatha-
lyzer. "There was nothing unusual in the manner in which he
drove." This was held not to be an arbitrary detention because
"The grounds for the detention offered were reasonable and

58. In R. v. Dwyer (1986), 46 M.V.R. 292 (Ont. Dist. Ct.) the fact that the accused was
observed driving around a closed tavern was sufficient to establish articulable
cause. How Professor Young's test would be applied is difficult to predict. It is
cumbersome and technocratic; i.e., it formulates a test and rigidly applies it regard-
less of whether or not it "recognizes[s] reality". Professor Young, in "All Along
the Watch Tower: Arbitrary Detention and the Police Function" (1991), 29
O.H.L.J. 329, reaches the rather silly conclusion that "unjust [detentions] shatter
our tenuous sense of autonomy and self-determination" (at p. 329). The use of
experience can play no role because experience cannot be fitted into a formula that
ignores the purpose of random stops. The reference to "discriminatory conduct" is
designed to rationalize the court's approach. If there is evidence that the stop was
for an "inappropriate reason" let it be dealt with directly.
59. (1987), 36 C.C.C. (3d) 276, 60 C.R. (3d) 242, 22 O.A.C. 280 at p. 286.
60. Supra, footnote 49.
61. (1993), 86 C.C.C. (3d) 309, 26 C.R. (4th) 276, 126 N.S.R. (2d) 355 (C.A.).
58 CriminalLaw Quarterly [Vol. 41

clearly expressed",62 i.e., it was obvious that there was no

improper purpose involved. The Ontario Court of Appeal
assumes that unless a police officer can point to something
beyond his or her experience and intuition that an ulterior or
improper purpose is involved and the officer should not be
believed. Evidence does not appear necessary.

ProvincialTraffic Legislation
The Supreme Court of Canada took some very general word-
ing and purposely created a statutory authority to make random
stops out of it. This was done because of the court's belief that
such an interpretation contained "societal value". This aspect of
the court's approach has also been misinterpreted.
In R. v. Griffin, the Newfoundland Court of Appeal con-
cluded that s. 162 of the Highway Traffic Act, "does not per-
mit random stops". 63 The Court concluded, that the Legislative
Assembly "has apparently not considered the issue of suffi-
cient importance to call for the statutory provision of such
powers to police in Newfoundland."' Section 162 allows a
"traffic officer" to stop a motor vehicle on a highway to ensure
that the Act is complied with.
In R. v. Soucisse,65 the Quebec Court of Appeal held that s.
62. Ibid., at p. 283 C.R.
63. Supra, footnote 36, at p. 507 C.C.C. The Court of Appeal does not refer to the
Royal Canadian Mounted Police Act and the Royal Newfoundland Constabulary
Act was not applicable. If my earlier interpretation of that Act is correct then if Mr
Griffin's vehicle had been stopped by a member of the Royal Newfoundland
Constabulary, the conviction would have been upheld. See as well R. v. Burke
(1996), 137 Nfld.& P.E.I.R. 118 (Nfld. S.C.), affd as yet unreported court file No.
96/15 (July 18, 1997, Nfld. C.A.), and R. v. Adams (1994), 118 Nfld. & P.E.I.R.
258 (Nfld. Prov. Ct.), where LeBlanc Prov. Ct. J. makes a very compelling argu-
ment that s. 162, of the Highway Traffic Act (N.S.), does provide statutory author-
ity for the random stopping of motor vehicles.
64. Griffin, ibid., at p. 506 C.C.C. As noted earlier the Royal Newfoundland
ConstabularyAct does in fact provide such a power. In addition this statement
illustrates the inherent weakness, of the court's conclusion. What the court is say-
ing is if the legislature explicitly provides the police with the power to make ran-
dom stops such legislation will constitute a reasonable limitation on the right to be
free from arbitrary detention. If so, this is obviously not a particularly important
right. In R. v. Whitcombe (1986), 44 Alta. L.R. (2d) 194, 41 M.V.R. 194 at p. 205
(Prov. Ct.), McMeekin Prov. Ct. J. accurately described the breach of s. 9 which
occurs in random stops as "a relatively minor impairment of the right".
65. (1994), 63 Q.A.C. 71, 5 M.V.R. (3d) 207 (C.A.).
1998] ArbitraryDetentions and Random Stops

636 of the Highway Safety Code, provides the police with the
power to make random stops, "if done in the performance
' 66
of
[the officer's] duties under the Highway Safety Code
In R. v. Wilson,6 7 the British Columbia Court of Appeal
interpreted the Motor Vehicle Act in a similar fashion. Section
162 allows a "traffic officer" to "direct traffic according to his
or her discretion". The Court of Appeal concluded that this
"authorizes" the police "to detain motorists arbitrarily by con-
6s
ducting roving random stops.
In R. v. Ducanson, the Saskatchewan Court of Appeal con-
sidered ss. 40(8) and 20(1) of the Highway Traffic Act
(Sask.).69 It concluded the police could, as a result of this
provincial legislation, "stop a vehicle for any purpose".
Therefore, in some provinces random stops of motor vehicles
are permitted and any evidence gained as a result of a random
stop will be admissible. In other provinces such stops are
unlawful, even when a national police force is involved."
In R. v. MacLennan," the Nova Scotia Court of Appeal con-
72
cluded that in Nova Scotia:

66. Ibid., at p. 215 M.V.R. Section 636 allows a peace officer to "require the driver of
a road vehicle to stop his vehicle".
67. (1993), 86 C.C.C. (3d) 145, 26 C.R. (4th) 352, 86 B.C.L.R. (2d) 103 (C.A.).
68. Ibid., at p. 115 B.C.L.R.
69. (1991), 12 C.R. (4th) 86, 93 Sask. R. 193, 30 M.V.R. (2d) 17 (C.A.). Section 40(8)
empowers a police officer to stop a vehicle "while in the lawful execution of his
duties and responsibilities". The only qualification, apart from that, is that the
police officer be readily identifiable as such. Obviously, the duties and responsi-
bilities of police officers far exceed the enforcement of the Highway Traffic Act,
and so read in its ordinary sense, the section empowers a police officer to stop a
vehicle for any purpose connected with the lawful execution of his or her duties
and responsibilities generally, and however derived. The Court of Appeal inter-
preted R. v. Ladouceur (supra, footnote 4) as supporting a broad police power to
make random stops of motor vehicles. The Court of Appeal's decision was
affirmed by the Supreme Court of Canada (12 C.R. (4th) 98, [19921 1 S.C.R. 836,
36 M.V.R. (2d) 125) without reference to the s. 9 issue.
70. Section 18 of the Royal CanadianMounted PoliceAct, requires members of this
police force to perform all duties assigned to them "in relation to the prevention of
crime". In Newfoundland s. 8 of the Royal Newfoundland ConstabularyAct, 1992,
requires members of the constabulary to "prevent crimes" and to perform the
"duties assigned to a constable at common law". Therefore, in those provinces that
have more than one police force, their statutory authority to make random stops
could differ significantly.
71. (1995), 97 C.C.C. (3d) 69, 138 N.S.R. (3d) 369, 11 M.V.R. (3d) 42 (C.A.).
72. Ibid., at p. 51 M.V.R.
 CriminalLaw Quarterly [Vol. 41

While a randomly stopped driver cannot be conscripted against

himself by way of statements or unauthorized tests, he or she can be
properly asked to produce his licence, permit and insurance. This pro-
vides an opportunity for a police officer to make observations of the
indicia of impairment passively emanating from the driver.
73
The Nova Scotia Court of Appeal concluded:
Police in Nova Scotia are justified in stopping vehicles at random,
independently of any articulablecause or publicized enforcement pro-
gram, for the purpose of controlling traffic on the highway by inspect-
ing licensing, registration and insurance documents, the mechanical
condition of vehicles, and to detect impaired drivers. Random stops
are arbitrary detentions which infringe s. 9 of the Charter but which
are saved under s. 1. [Emphasis added.]
The legislation in each of these provinces is very similar.
The differences of opinion are not based on statutory interpre-
tation but on judicial philosophy. These various opinions cre-
ate an unacceptable situation. The police, from province to
province have varying degrees of authority to make random
stops. The solution is to get back to the basic public policy put
forward by Mr Justice Le Dain. Random stops are the only
effective deterrent. They are a reasonable limitation on the dri-
•ving of motor vehicles. As stated in R. v. Spurvey74 random
stops are reasonable and valid because "hopefully [they will]
prevent intoxicated drivers from injuring or killing people".
In R. v. Montour' the majority of the New Brunswick Court
of Appeal (Angers J.A. dissenting) reversed its earlier decision
in R. v. Cormier76 that the New Brunswick Highway Traffic Act
allowed the random stopping of motor vehicles "on a whim".
7
The New Brunswick Court of Appeal in Montour held:
Hunches, speculation, guesses and intuitive senses do not qualify as
objectively discernible facts. In essence, the trial judge found that

73. Ibid., at pp. 60-1 M.V.R.

74. (1986), 32 C.C.C. (3d) 439, 61 Nfld. & P.E.I.R. 323, 47 M.V.R. 111 (Nfld. S.C.).
75. (1994), 5 M.V.R. (3d) 250, 150 N.B.R. (2d) 7 (C.A.), affd [1995] 2 S.C.R. 416,
163 N.B.R. (2d) 157, 14 M.V.R. (3d) 1.
76. (1988), 94 N.B.R. (2d) 127, 10 M.V.R. (2d) 161 (Q.B.).
77. Supra, footnote 75, at p. 261 M.V.R. The court concluded, however, that the evi-
dence should not have been ruled inadmissible: see as well R. v. Daigle (1992), 37
M.V.R. (2d) 21 (N.B.Q.B.); R. v. Sekora (1992), 129 A.R. 276, 38 M.V.R. (2d)
198 (Prov. Ct.).
1998] ArbitraryDetentions and Random Stops

Constable Gervais did not have any articulable cause to support a rea-
sonable belief that Mr Longboat or Mr Montour were implicated in
unlawful activity that justified stopping the van. The evidence sup-
ports this determination with the result that there was no justifiable use
of a police power to stop the van. Accordingly, Constable Gervais did
not have a police power at common law to detain Messrs. Longboat
and Montour.
On appeal to the Supreme Court of Canada,"8 the court did
not deal with s. 9 of the Charter. It simply stated:79
Although we may differ with the trial judge in his characterizing the
Charterbreach here as a serious one, in our view, the trial judge made
proper findings of fact based on the evidence before him, and com-
mitted no error in stating and applying the governing principles of law.
We therefore see no reason why the New Brunswick Court of Appeal
intervened to reverse the decision of the trial judge.
In R. v. Inacio,80 the police officer stopped the accused's
motor vehicle because he had his window down on a very cold
night and his eyes appeared bloodshot. She testified the "open
window aroused her suspicions because . . .drinking drivers
sometimes tried to 'sober up' with cold air":8"
In this case, Cst. Dilts articulated the reasons why she stopped Mr
Inacio's van. She explained that her observations of the open driver's
window on a very cold night, coupled with the redness of the
accused's eyes and his strange expression, led her to suspect a poss-
ible drinking and driving offence. In my view, neither the absence of
anything unusual in the manner of driving, nor the officer's acknow-
ledgement that there could have been other explanations, detracted
from the "articulable cause" she did have to carry out her investiga-
tion. It was not suggested that the officer had any ulterior improper or
illegal purpose in mind when she stopped the accused, and I am satis-
fied that she was simply investigating his state of sobriety, which it
was her duty to do.
In R. v. Jacques," Major J., dissenting, described "articula-
ble cause [as] a standard equivalent to the requirements of s.
99(1) of the Customs Act". The majority had described these

78. Cited, supra, footnote 75.

79. Ibid., at p. 3 M.V.R., per lacobucci J.
80. (1995), 13 M.V.R. (3d) 57 (Ont. Prov. Div.).
81. Ibid., at p. 61 M.V.R.
82. (1996), 110 C.C.C. (3d) 1 at p. 21, 1 C.R. (5th) 229, [1996] 3 S.C.R. 312.
 CriminalLaw Quarterly [Vol. 41

''requirements" as requiring: "A reasonable suspicion of the

possibility of smuggling or even of the possibility of an
attempt to do so suffices."
In Jacques, the stopping of the vehicle was made as a result
of an investigation into alleged smuggling of tobacco into
Canada. The Supreme Court of Canada concluded that a very
low level of "expectation of privacy" applies to those crossing
borders:83
Travellers arriving in Canada, whether at an airport or through any
other point of entry, expect, if they do not relish, routine questioning
and inspection. It is not surprising, therefore that the appellant Jacques
in the instant appeal answered Constable Ward's questions about
where he had come from and what goods he was carrying just as he
would have, had he been questioned at the point of entry three min-
utes' drive away.
In my view the same reasoning applies to the operation of
motor vehicles. Anyone who is concerned about their safety
would hope the police will stop any vehicle that "might" be
driven by a person under the influence of alcohol. Though we
might not "relish" being stopped, the inconvenience involved
is minor and trivial. In R. v. Wise, Cory J. stated:"'
Society then requires and expects protection from drunken drivers,
speeding drivers and dangerous drivers. A reasonable level of surveil-
lance of each and every motor vehicle is readily accepted, indeed
demanded, by society to obtain this protection. All this is set out to
emphasize that, although there remains an expectation of privacy in
automobile travel, it is markedly decreased relative to the expectation
of privacy in one's home or office.
In R. v. Jacques,85 though the court concludes that "the ran-
dom stop cases do not govern this appeal". Gonthier J. does
state however that "an analogy may be drawn between these

83. Ibid., at p. 9 C.C.C. and see R. v. Drew (1991), 104 N.S.R. (2d) 115, 32 M.V.R.
(2d) 292 (C.A.), where driving out of a Canadian military base was considered to
be similar to going through customs.
84. (1992), 70 C.C.C. (3d) 193, 11 C.R. (4th) 253, [1992] 1 S.C.R. 527 at pp. 533-4:
see as well, R. v. Hundal (1993), 79 C.C.C. (3d) 97, 19 C.R. (4th) 169, [1993] 1
S.C.R. 867; R. v. Whyte (1988), 42 C.C.C. (3d) 97, 64 C.R. (3d) 123, [19881 2
S.C.R. 3; R. Pomerance, "The Unreasonable and the Arbitrary - Recent
Developments Under Sections 8 & 9 of the Charter" (1995), 6 J.M.V.L. 127.
85. Supra, footnote 82, at p. 10 C.C.C.
1998] Arbitrary Detentions and Random Stops

cases and the instant appeal to the extent that in each the state's
compelling interest either is highway safety and compliance in
the case of the former, or in sovereignty, in the case of the lat-
ter, is relevant in the constitutional calculus". One would hope
SO.
In R. v. Adams 6 the police received an "anonymous call"
that an individual was drinking and "might" be intending to
drive. The police waited outside of a lounge until the accused
left. They followed him; however, they did not notice any
signs of impaired driving. They did subsequently stop him and
a breathalyzer demand was made as a result.
The trial judge summarized
87
the police officer's evidence in
the following manner:
Constable LeBlanc testified that he noted nothing unusual or erratic
about the accused's driving manner as he followed the bus or in the
manner the accused conducted himself when outside the vehicle at the
Legion and the liquor store. The officer testified that aside from the
information he had earlier received, he stopped the accused as he felt
he had a right to make random stops of vehicles pursuant to the
Highway Traffic Act. He also testified that from his experience anony-
mous calls concerning impaired drivers usually proved to be legiti-
mate. He acknowledged that as he followed the bus he could not detect
any indications that the operator could possibly have been impaired.
In concluding that the stopping of the motor vehicle was not
88
arbitrary, the trial judge concluded:
Here Constable Leblanc's attention was directed to the accused's
vehicle by one or two anonymous calls made to the detachment
moments before, he found the vehicle as described at the location and
parked in a no parking zone, he observed the vehicle for some ten to

86. (1994), 118 Nfld. & P.E.I.R. 258 (Nfld. Prov. Ct.).
87. Ibid., at p. 260.
88. Ibid., at p. 266. In R. v. Pashovitz (1987), 1 M.V.R. (2d) 32 (Sask. C.A.), the police
officer had stopped the accused's vehicle because of an "unspecified" complaint
from the detachment. This was held not to be an arbitrary detention since there was
a complaint, and an unidentified car, the stop cannot be termed to be capricious, or
at the unfettered discretion of the officer. It was not arbitrary in that sense: see as
well R. v. Stang (1987), 49 M.V.R. 176 (Sask. Q.B.); R. v. Kennon (1987), 63 Sask.
R. 31, 7 M.V.R. (2d) 52 (Q.B.); R. v. Lee (1993), 16 C.R.R. (2d) 348 (B.C.S.C.);
R. v. L. (T.) (1990), 73 O.R. (2d) 267, 25 M.V.R. (2d) 303 (Dist. Ct.); R. v. Zammit
(1993), 81 C.C.C. (3d) 112, 21 C.R. (4th) 86, 13 O.R. (3d) 76 (C.A.); R. v. Farrar
(1993), 80 C.C.C. (3d) 381, 105 Nfld. & P.E.I.R. 267, 44 M.V.R. (2d) 27
(P.E.I.C.A.); R. v. Sheppard (1993), 107 Nfld. & P.E.I.R. 261 (Nfld. Prov. Ct.).
 CriminalLaw Quarterly [Vol. 41

fifteen minutes before the accused left, he obviously knew the Legion
was a drinking establishment, had prior knowledge of a conviction for
impaired driving for the owner of the vehicle and had some unspeci-
fied information obtained by the police detachment some days before.
Considering the fact that the vehicle in question was used for trans-
porting children to school, although empty at the time, and, as well,
the authority of the Chabot, Wilson and Arkinstall cases I find here
that the officer had articulable cause in the circumstances.
In my view LeBlanc Prov. Ct. J. is correct. However, I fail
to see what the nature of the vehicle involved has to do with
articulable cause. What LeBlanc Prov. Ct. J. is really saying is
that the police should investigate this before the bus is full of
children. In other words, a societal perspective which is
broader than an individual right analysis. Obviously in R. v.
Adams,89 there was no improper motive involved and there was
no need to assume otherwise.

Conclusion
Section 9 of the Charter must be applied according to the
type of police activity being considered. It is often impossible
to tell from observing a motor vehicle if the driver is impaired
or over the lawful blood-alcohol limit. Therefore the police
must rely on their experience in detecting possible or potential
impaired drivers. Allowing them sufficient leeway to use their
experience is necessary if the public is to be protected.
A balance must be struck between the "minor incon-
venience" of a random stop and the societal value of such
police activity. As noted by the Supreme Court of Canada in
Galaske v. O'Donnell,90 driving a motor vehicle is neither a
"God-given right" nor a constitutionally protected one.
In R. v. Seo, the Ontario Court of Appeal points out that
"Impairment of actual driving performance is not obvious to
the casual observer until high BAC [blood alcohol concentra-
tions] values are reached... These methods [random stops and
other] have allowed police to identify and arrest persons hav-
ing lower illegal BAC's even though they may have exhibited

89. Supra, footnote 86.

90. [1994] 1 S.C.R. 670, 112 D.L.R. (4th) 109, [1994] 5 W.W.R. 1.
1998] Arbitrary Detentions and Random Stops

no reckless or unusual deviations from norms of driving

behaviours, nor any obvious impairment due to alcohol".9"
In R. v. Nelson, Twaddle J.A. points out:92
The arbitrary detention of a citizen by the police is an exercise of
power which the Canadian Charter of Rights and Freedoms is
intended to suppress. There is a danger, however, that in our eagerness
to protect individual freedom we will curb the legitimate use of power
by the police to enforce the laws by which society is protected from
unlawful conduct. The judiciary walks a tightrope in its effort to bal-
ance the protection of individual freedom with the protection of soci-
ety.
In Brown v. Durham RegionalPolice Force, the court after
considering how s. 9 of the Charter has been variously applied
to the stopping of motor vehicles, the court concluded:93
It seems to me that where the police have highway traffic concerns
and other unrelated concerns, then the limit on their conduct should be
imposed by limiting their conduct after the stop. I recognize that this
means that any police officer merely has to say he or she wanted to
stop the motorist for highway traffic reasons in addition to any others;
however, that does not seem inappropriate because the courts have
already found random and arbitrary stops for highway traffic reasons
to be lawful. Indeed, I would think that in view of the courts' decisions
on this subject, officers will likely be instructed that whenever they
have a lawful interest in a motorist they should stop the motorist for
highway traffic purposes. This would seem to me to be a natural, ratio-
nal response to case law.
It went on to state:
.. . if random stops without any reasonable grounds or articulable
cause are justified under s. 1, then stops based on selective highway
traffic reasons must be. I note that the minority reasons of the Supreme
Court of Canada in Ladouceur adopted the position of the Court of
Appeal that the scope of authority conferred by the Highway Traffic
Act should 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. However,
that position was not adopted by the majority and it seems to me that

91. (1986), 25 C.C.C. (3d) 385 at p. 403, 51 C.R. (3d) 1, 27 D.L.R. (4th) 496.
92. (1987), 35 C.C.C. (3d) 347 at pp. 350-1, [1987] 3 W.W.R. 144, 45 Man. R. (2d)
68 (C.A.).
93. (1996), 106 C.C.C. (3d) 302, 134 D.L.R. (4th) 177, 19 M.V.R. (3d) 207 at p. 242
(Ont. H.C.J.). See as well, R. v. Hall (1996), 89 O.A.C. 43, 35 C.R.R. (2d) 183, 21
M.V.R. (3d) 85 (C.A.).

3 - 41 C.L.Q.
 CriminalLaw Quarterly [Vol. 41

when the majority concluded that arbitrary stops by roving vehicles

are acceptable they must by implication be taken to have found that
selective stopping at organized road check points is acceptable. As I
have already noted, the entire court was of the view that organized
stops were less arbitrary than roving stops.
In R. v. Heiber,94 the accused was stopped by the police
because they were "suspicious" and to "just see who it was and
to make sure everything was okay", and because of the loca-
tion of the vehicle in relation to a bank and other businesses.
After speaking with the driver a screening device demand was
made and failed. A breathalyzer demand was then made. At
trial and on summary conviction appeal this was ruled to be so
arbitrary that the results of the breathalyzer tests were
excluded and the accused acquitted.
There was no suggestion of improper motive on behalf of
the police. From the facts outlined in the case, they were doing
exactly what we should hope they would be doing. They saw
something suspicious and decided to investigate it. This
caused a brief stopping of the accused which led to lawful
grounds to proceed further. If the accused had not been drink-
ing and driving he would have been allowed to leave. What is
so wrong with such police conduct that an acquittal is war-
ranted? In my view, nothing. This case illustrates how we have
stopped thinking about any type of balance between individual
rights and societal protection from a dangerous problem.
In R. v. Mireau,95 the accused's car was parked outside a tav-
ern. The police officer approached the accused's vehicle
because to the officer "usually its someone consuming alco-
hol".96 In that case, he was right. Walker J. concluded:97
An officer cannot be detached from the rest of society in this fashion
and do the required job. In these circumstances, the officer was carry-

94. (1995), 18 M.V.R. (3d) 268 (Ont. Ct. (Gen. Div.)): see as well R. v. Stefanson
(1986), 45 M.V.R. 8 (Sask. Q.B.).
95. (1987), 63 Sask. R. 103, 7 M.V.R. (2d) 65 (Q.B.).
96. Ibid., at p. 67 M.V.R.
97. Ibid., at p. 71 M.V.R. In R. v. Pearce, unreported, court file No. 1996, No. 19
(November 5, 1997, Nfld. C.A.), Green J.A. concluded that the stopping of an
accused's vehicle was not arbitrary. The fact that the vehicle was stopped outside
a "drinking establishment" was a significant factor, though it was not in R. v.
Griffin, supra, footnote 36.
1998] Arbitrary Detentions and Random Stops

ing out his general duties to prevent crime and to prevent injury to per-
son or property. It would be a strained interpretation of the Charter
indeed to find that the action of the officer contravened the Charter as
an arbitrary detention . . .
In R. v. Archie deVilliers Prov. Ct. J. wrote:9"
The right of citizens to be free from arbitrary detention by agents of
the state is of the same vital importance in a free and democratic soci-
ety as their right to counsel. If motorists can be arbitrarily detained
with impunity, it would be a small next step to allow pedestrians to be
so detained, and then to allow them to be taken unwillingly to the
police station for interrogation. So the encroachment by increment,
large or small, would tend to continue inexorably, until the freedom
protected by the Charter has become meaningless.9 9
This is of course nonsense. We are talking about a huge
societal problem that daily causes death and heartbreak. As a
result of the four decisions referred to at the beginning of this
article, this country had a reasoned and balanced approach to
the use of random stopping of motor vehicles. Unfortunately,
we seem to have forgotten all of Mr Justice Le Dain's wise
words. It is time to read them again. If a police officer uses his
or her power to stop a vehicle for an improper purpose then
that officer should be dealt with. It is nonsensical to attempt to
prevent improper police activity by limiting proper police
activity. It is improper to assume the police have an improper
motive. Is it too much to ask that such an allegation be proven?

98. (1992), 16 C.R. (4th) 174, 46 M.V.R. (2d) 112 at pp. 118-19 (B.C. Prov. Ct.).
99. The police officer had stopped Mr Archie's vehicle to speak to a passenger in it.
He asked to see Mr Archie's driver's licence and discovered he was driving while
prohibited. He was charged under s. 259(4) of the CriminalCode and conceded he
had committed 'the offence. This of course was completely irrelevant.