Airport Nation? R v Rowat and When We Can Be Arbitrarily Stopped

While I enjoy my share of Ontario’s wonderful craft beer selection, I don’t get behind the wheel after drinking them. Unfortunately, others do, and sometimes tragedy results. Other times, such as in R v Rowat, one of the late Justice Leigh Gower’s last judgments before his tragic passing on October 29, a court provides us with useful information about how far our civil liberties extend. In our brief examination of R v Rowat, this involves an answer to a question I’ve had for some time before studying law: just how are RIDE Programs, or random roadside stops that may result in a breathalyzer test, constitutional?

The Yukon’s relevant law, which Mr. Rowat was stopped pursuant to, reads as follows:

106 Every driver shall, on being signalled or requested to stop by a peace officer in uniform, immediately

 (a) bring their vehicle to a stop;

 (b) furnish any information respecting the driver or the vehicle that the peace officer requires; and

 (c) remain stopped until they are permitted by the peace officer to leave.

Justice Gower notes that this is markedly similar to statutes in, at the very least, Ontario (Section 189(a)(1) of the Ontario Highway Traffic Act) and Alberta (Section 119 of the Alberta Highway Traffic Act). The careful reader will notice 106(c) in particular; “until they are permitted by the peace officer to leave.” This is detention, and in the case of a RIDE Program, you’re detained for, ostensibly, no real reason. You don’t have to be driving suspiciously to be stopped at one, and you could have not had a drink for years; you’re stopped and detained nonetheless.

“Wait a minute,” fans of the Charter will say, “what about our rights under Section 9?” Section 9 of the Charter reads as follows:

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

Seems straightforward enough! As with most aspects of the law, though, it’s more complicated than that. In a previous post, I briefly put forward an example of what constitutes the “reasonable suspicion” when it comes to the “search” of a breathalyzer test. This is not to be confused with the stop itself, which need not result in a breathalyzer test being administered unless the “reasonable suspicion” requirement is satisfied. I’ve been stopped at a routine RIDE Program before, and upon informing the officer that I hadn’t had a drink that night, I was free to leave.

With all of that considered, what reason is needed for the police to pull you over when you’re traveling on a public road? Justice Gower tells us that the Supreme Court of Canada has said “repeatedly” that arbitrary traffic stops are

justified under s.1 of the Charter because they help to ameliorate the pressing and substantial problem of death and destruction on our highways. They also facilitate the detection of highway safety offences, which are otherwise nearly impossible to investigate without stopping the drivers concerned.

What Does Section 1 Do?

Section 1 of the Charter reads as follows:

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

This means that the government can infringe a Charter right if that infringement 1) comes from a law or regulation accessible to the public; and 2) if that law’s end is rationally connected to the means, if that the law impairs the right or freedom only as much as reasonably possible, and that the good (salutary) effects of the law’s goal outweigh the bad (deleterious) effects of the law’s infringement of a Charter right on balance. This is the basic framework of what’s called “the Oakes test” (first formulated by the Supreme Court of Canada in R v Oakes), which courts will use to determine if a law which infringes a Charter right can be “saved” under Section 1. The Oakes test is a subject on which mountains of legal literature has been written, but my outline above should suffice for our purposes.

Does The Constitutionality of Arbitrary Stops Make Canada Vast, Sprawling Airport?

Fortunately, it does not. Citing Brown v Durham Regional Police Force, a leading Ontario Court of Appeals case on arbitrary stops, Justice Gower tells us that these arbitrary stops cannot be made on a discriminatory manner. A driver’s race or sex, for instance, cannot be used as a reason. More importantly, Justice Gower refers to R v Ladouceur, a leading Supreme Court of Canada Case, to outline what can and cannot be done once a driver is arbitrarily – and lawfully – detained on the roadside. The Supreme Court held that the detained driver can only be asked questions that would reasonably relate to a driving offence. The officer asking me if I’d had anything to drink when I was arbitrarily stopped fits firmly within the legal boundaries. Further, the passage cited by Justice Gower from Ladouceur says the following: “Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds [emphasis added].” This means arbitrary traffic stops cannot be used as grounds for unlimited interrogation power and cannot be used to investigate unrelated crimes. A breathalyzer test, which is a form of search which is a “more intrusive procedure” than mere questioning, could only be administered with reasonable suspicion that the driver was operating a vehicle under the influence. This squares up with the ruling in R v Sidney, the subject of a prior article of mine. The Officer smelling alcohol on a driver’s breath, or answering in the affirmative about drinking that night, would raise reasonable suspicion. While the police can arbitrarily stop any vehicles they choose to (at least in the Yukon, Ontario, and Alberta), any action that goes beyond questions specifically concerned with driving offences needs to meet, at least, the “reasonable suspicion” standard. This helps make sense of my initial question of how RIDE Programs could pass constitutional muster. The late Justice Gower provided a clear and helpful answer, albeit somewhat indirectly. May Justice Gower rest in peace, and may our thoughts and prayers be with his family and loved ones.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.