



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mayor, 2019 ONCA 578

DATE: 20190708

DOCKET: C64272

Tulloch, van Rensburg and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Mayor

Appellant

Mark C. Halfyard, for the appellant

Jason A. Morische, for the respondent

Heard: April 12, 2019

On appeal from the
    conviction entered on April 28, 2017, by Justice Paul R. Sweeny of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

OVERVIEW

[1]

After the Hamilton Police Service received an
    anonymous tip that the appellant was dealing drugs from his car, their High
    Enforcement Action Team (HEAT) began an investigation of the appellant in
    December 2015. An officer with the team conducted surveillance on the appellant
    on four occasions without observing any signs of drug trafficking. In the
    course of the investigation, the officer learned that the appellants drivers
    licence was suspended.

[2]

On January 17, 2016, the appellants vehicle was stopped by that
    officer and another HEAT member.
They arrested him for driving
    with a suspended licence. The officer who had previously investigated the
    appellant rearrested him for impaired driving after observing signs of
    impairment. Another officer arrived to provide backup and searched the vehicle.
    The search revealed cocaine, cell phones, and drug-related paraphernalia. The appellant
    was then

charged with
    possession of a controlled substance for the purpose of trafficking.

[3]

The appellant brought a
Charter
application challenging the
    legality of his arrest and the search of his vehicle, and seeking to exclude
    the items seized. After the application was dismissed he was convicted of the
    drug offence.

[4]

The appellant appeals his conviction. He
    contends that the trial judge erred in dealing with his
Charter

application
    in two ways, both of which are related to the trial judges conclusion that the
    appellants arrest and the consequent search of his vehicle were legal.

[5]

First, the appellant says that the trial judge did not
    apply the proper test when he concluded that the police had
the authority
to arrest him under the
Highway Traffic Act
,
R.S.O. 1990, c. H.8,

rather
    than determining whether they used
this authority as a
    ruse to further
their drug investigation.

S
econd, the appellant argues
    that the trial judge reversed the onus of proof.

THE LAW

[6]

The Ontario Legislature has given the police
    broad powers to stop motor vehicles for highway regulation and safety purposes,
    and, in some circumstances, to arrest drivers of motor vehicles. Section 216(1)
    of the
Highway Traffic Act
gives an officer the power to stop a vehicle,
    even if the stop is random and the officer lacks reasonable and probable
    grounds or even reasonable suspicion:
R. v. Gonzales
, 2017 ONCA 543, 136
    O.R. (3d) 255, at para. 55. The Supreme Court upheld this power as
    constitutional in
R. v. Ladouceur
, [1990] 1 S.C.R. 1257. Likewise, s.
    217(2) of the
Highway Traffic Act
authorizes an officer to make a
    warrantless arrest of a person who the officer believes on reasonable and
    probable grounds to be driving while suspended. If the officer is satisfied
    that a person is driving while suspended, the officer also has the duty to
    detain and impound the vehicle:
Highway Traffic Act
, s. 55.2(1).

[7]

However, the existence of these powers does not
    automatically make motor vehicle stops lawful because the police are not free
    to use these powers for some other purpose, including to further a criminal
    investigation. The Legislature granted the police these powers for the purpose
    of ensuring road safety:
Brown v. Durham Regional Police Force
(1998),
    43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police
    use these powers in a manner consistent with this purpose. As a result, if the
    police do not have road safety purposes subjectively in mind, they cannot rely
    on the
Highway Traffic Act
powers to authorize the stop:
Gonzales
,
    at para. 60. If the police cannot point to any other legal authority for the
    stop, the stop will not be authorized by law and so will violate s. 9 of the
Charter
:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54. The court
    must thus determine whether the officer actually formed a legitimate
    intention to make the detention or arrest for road safety purposes:
R. v. Sandhu
,
    2011 ONCA 124, 268 C.C.C. (3d) 524, at para. 62.

[8]

A detention or arrest pursuant to a
Highway
    Traffic Act
power can be lawful if the officer has either only road safety
    purposes in mind or has both road safety and other legitimate purposes in mind.
    In
Brown
, Doherty J.A. accepted that as long as the police have a road
    safety purpose subjectively in mind, they may also have other legitimate
    purposes in mind: at p. 238. The investigation of criminal activity is one such
    legitimate purpose:
Brown
, at p. 240. Indeed, in
Brown
, Doherty
    J.A. found that motor vehicle stops which were partially motivated by a desire
    to investigate crime were lawful because the police also had road safety
    purposes in mind: at pp. 239-240. Doherty J.A. noted that a
Highway Traffic
    Act
stop where the police are furthering some other legitimate interest is
    lawful provided that the additional police purpose is not improper or pursued
    through improper means, and does not entail an infringement on the liberty or
    security of the detained person beyond that contemplated by the purpose
    animating s. 216(1) of the
Highway Traffic Act
: at p. 236. See also
Gonzales
,
    at para. 58. In many cases it will be unhelpful to take an either/or approach
    to whether a stop is for road safety or some other legitimate purpose. See for
    example
Sandhu
, at para. 59.  An officer may thus have a road safety
    purpose in mind even if the officer simultaneously has a criminal law purpose
    in mind:
Sandhu
, at para. 62.

[9]

However, if the officer does not have a
    legitimate road safety purpose in mind and is using the
Highway Traffic Act
authority as a mere ruse or pretext to stop a vehicle in order to investigate a
    crime, then the detention will be unlawful. As Doherty J.A. held in
Brown
,
    the
Highway Traffic Act
powers will not authorize police stops if the
    police use these powers as a ruse to justify a stop for another purpose: at
    p. 234. Likewise, in
R. v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at
    para. 36 (citations omitted), the Supreme Court emphasized that courts should
    not permit the police to invoke road safety detention powers as a plausible
    façade for an unlawful aim. Accordingly, in
R. v. Humphrey
, 2011 ONSC
    3024, 237 C.R.R. (2d) 109, at para. 88, Code J. held that using
Highway
    Traffic Act
powers as a mere ruse or pretext for a broad and unfounded
    criminal investigation would violate s. 9 of the
Charter
.

[10]

Consequently, the court must make a factual determination as to
    whether the officer had a road safety purpose in mind or whether the officer
    was using the
Highway Traffic Act
power as a ruse to conduct a criminal
    investigation. In determining the police purpose, the court must consider all
    the circumstances, including the evidence of the officers, the evidence of the detained
    person, the circumstances of the stop, and the police conduct during the stop:
Brown
,
    at p. 238;
Gonzales
, at para. 67.


APPLICATION

[11]

In this case, the trial judge summarized the
    evidence about the legality of the appellants arrest as follows:

The evidence of [the officers] was
    that this was an investigation into the suspended driving because the drug
    investigation had led nowhere. They are entitled to investigate for suspended
    driving. The HEAT unit laid 27 charges for driving while suspended in 2016.

[12]

After referring to the appellants position on
    the application and the relevant principles from
Brown
,

the trial judge
    noted that in this case the position of the police is stronger than a random
    stop and he stated that the flaw in the [appellants] analysis is that the
    officers had a valid purpose for the stop. The accused was arrested for driving
    while suspended. The trial judge then went on to consider the search.  He
    concluded his reasons by stating that he was satisfied the officers had
    authority to stop and arrest the appellant for driving while suspended, and
    therefore, there was no breach of ss. 8 or 9 of the
Charter
.

[13]

In our view, the trial judge did not resolve the
    central issue on the application, which was whether the police used

powers that the Legislature granted for a
    road safety purpose as a ruse to search the appellants vehicle as part of a
    drug investigation. Instead, he appears to have treated the existence of the
    power to arrest the appellant for suspended driving in s. 217(2) of the
Highway
    Traffic Act
as dispositive. He erred in law in so doing. It was incumbent
    on him to determine whether the officers subjectively formed an intention to
    arrest the appellant for the road safety purpose that motivates the s. 217(2)
    grant of authority to police. If the officers did not subjectively form this
    intention, then their reliance on s. 217(2) was a ruse and s. 217(2) could not
    authorize the arrest.

[14]

The Crown points out that there was evidence
    from the officers that the sole purpose of the stop was to investigate the
    appellant for driving with a suspended licence, and that the drug investigation
    at that time was closed. While this may well be the case, the trial judge did
    not engage with this evidence, nor did he make any necessary findings of fact.
    It was incumbent on him to do so.

[15]

Without expressing any view on the merits of the
    application, we note that the evidence included not only the officers
    explanations for the stop, but also all of the surrounding circumstances. These
    included the fact that the appellant was stopped by the same members of a
    specialized, plainclothes police unit who had been investigating him, without
    success, for a drug offence; that he had been placed under surveillance at
    midnight; that the officers disagreed about whether they set out to investigate
    the appellant for driving while suspended, or whether they decided to do so
    because it was a slow night; that the notes of one of the officers included a
    reference to the drug investigation; and that the police inventory of the
    contents of the vehicle listed only drugs, cell phones and drug paraphernalia. As
Brown
and
Gonzales
establish, the trial judge should have considered
    all of these circumstances to determine the legality of the appellants arrest,
    and in particular whether the traffic stop was a pretext to further a drug
    investigation.

[16]

The conclusion that the trial judge did not make
    the necessary findings and apply the proper test in considering whether the
    appellants arrest was lawful, is sufficient for the determination of the
    appeal. We therefore allow the appeal, set aside the appellants conviction,
    and direct a new trial before a different judge.

M. Tulloch J.A.

K. van Rensburg J.A.

Harvison Young J.A.


