



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McColman, 2021 ONCA 382

DATE: 20210604

DOCKET: C68630

Feldman, Tulloch and Hourigan
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Walker McColman

Respondent

Davin M.
    Garg, for the appellant

Donald R.
    Orazietti, for the respondent

Heard: December 3,
    2020 by video conference

On appeal from the order of Justice
    Edward E. Gareau of the Superior Court of Justice, dated September 16, 2019,
    with reasons reported at 2019 ONSC 5359, 381 C.C.C. (3d) 375, allowing an
    appeal from the conviction entered on October 4, 2018, by Justice
    Robert P. Villeneuve of the Ontario Court of Justice.

Tulloch J.A.:

A.

INTRODUCTION

[1]

In the early morning hours of March 26, 2016,
    the police stopped the respondent, Walker McColman, for the purpose of
    determining whether he was driving under the influence of drugs or alcohol. The
    stop took place in a private driveway outside the respondents parents house.

[2]

Upon stopping the respondent, the police
    observed signs of intoxication and proceeded to arrest him. The respondent was
    subsequently charged with, and convicted of, impaired operation of a motor
    vehicle and operating a motor vehicle while over 80 pursuant to ss. 253(1)(a)
    and 253(1)(b) (since repealed) of the
Criminal Code
, R.S.C. 1985, c.
    C-46. The provincial court judge sentenced him to a 12-month driving
    prohibition, imposed a $1,000 fine, and conditionally stayed the s. 253(1)(a)
    conviction pursuant to
Kienapple v. R
., [1975] 1 S.C.R. 729.

[3]

On appeal, the summary conviction appeal judge
    overturned the s. 253(1)(b) conviction, finding that the trial judge erred in
    law by concluding that the stop was authorized under s. 48(1) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8 (
HTA
). The appeal judge found the
    stop to be unlawful, breaching the respondents right not to be arbitrarily
    detained under s. 9 of the
Canadian Charter of Rights and Freedoms
. He
    proceeded to exclude the evidence under s. 24(2) of the
Charter
and
    entered an acquittal.
[1]

[4]

The Crown subsequently brought a motion for
    leave to appeal the acquittal entered by the summary conviction appeal judge. The
    Crown sought to raise the following question of law:

If a police officer forms the lawful intention
    to stop a driver on a public street for a sobriety check, but the driver turns
    on to private property before the officer can effect the stop, does the officer
    maintain authority to conduct the stop?

The Crown relied on s. 48(1) of the
HTA
,
    or in the alternative, the powers of the police at common law for the authority
    to conduct a stop in these circumstances.

[5]

The issue on appeal equally can be framed as
    follows:

Should a police officer be authorized to stop
    and question a person on the persons own private property to determine if the
    person may have been driving while impaired, when that police officer has no
    reason to suspect that the person had been drinking?

[6]

A panel of this court granted leave on August
    25, 2020, finding that the questions raised in this appeal are significant to
    the administration of justice as they deal with the lawful scope of police
    powers.

[7]

For the reasons that follow, I would dismiss the
    appeal. In my view, neither the
HTA
nor the common law authorized the
    police conduct in this case. The stop violated the respondents s. 9
Charter
rights, and the evidence was properly excluded.

B.

FACTUAL OVERVIEW

[8]

The relevant facts of this case are important.
    At the outset, I note that this is not a case where the driver was swerving on
    the road. It is not a case where there was a broken taillight or any other
    obvious
HTA
infractions. It is a case of a driver who drove normally
    onto their own driveway and parked. With that said, this section provides a
    detailed review of what happened in this case.

[9]

At approximately 12:30 a.m. on March 26, 2016,
    Constable Jack Lobsinger, along with his partner, Constable Laura Hicks, were conducting
    general patrol in the area of the Thessalon First Nation. The officers observed
    a utility terrain vehicle (UTV) parked outside a restaurant and gas station.
    As the vehicle seemed like it was [going to] be leaving the parking lot, the
    officers decided to conduct a sobriety check of the driver.

[10]

The officers turned their car around and began
    following the UTV, which had exited the parking lot and was driving eastbound down
    a public road. About 200 metres down the road, the UTV turned right and
    then left onto the private driveway of the respondents parents house
. The driveway also provides a means of access to a
    neighbouring commercial business.
The police followed the UTV into the
    driveway and activated their lights to indicate to the driver that a police car
    was behind him. The officers exited their vehicle to speak with the respondent,
    who had walked around to the passenger side of the UTV. A second person was
    sitting in the passenger seat. This sequence of events occurred over the course
    of approximately one minute.

[11]

At this point, the officers did not have a
    reasonable suspicion that the respondent was connected to any particular crime.
    Constable Lobsinger testified that they did not see any signs of impairment
    prior to stopping the respondent and agreed with the suggestion of defence
    counsel that there was nothing unusual about the respondents driving. Rather,
    Constable Lobsinger explained that they were exercising their authority to
    conduct random sobriety checks pursuant to s. 48(1) of the
HTA
.

[12]

Immediately upon approaching the respondent, Constable
    Lobsinger noted that he was impaired. Specifically, he observed the following indicia
    of intoxication: the respondent was unsteady on his feet; he was hanging on to
    the side of the UTV; his knees were wobbly; his eyes were red and bloodshot;
    and there was a strong odour of alcohol on his breath. Constable Lobsinger
    testified that, when he asked the respondent if he had consumed any alcohol, the
    respondent admitted that he may have had ten beers.

[13]

The officers arrested the respondent for impaired
    driving, and then transported him to a police station. At the station, the
    respondent provided two breath samples with readings of 120 and 110 milligrams
    of alcohol in 100 millilitres of blood, respectively. In other words, both
    readings were over the legal limit of 80 milligrams of alcohol in 100
    millilitres of blood. While at the station, the respondent also vomited several
    times and continued to show signs of intoxication.

C.

DECISIONS BELOW

[14]

The respondent brought a
Charter
application, alleging, among other things, that the stop was unlawful and constituted
    a breach of his rights under s. 9 of the
Charter
. He argued that the
    police did not have authority to conduct the stop on private property.

[15]

The trial judge dismissed the application,
    finding that s. 48(1) of the
HTA
provided lawful authority for the
    stop for two reasons: (1) the officers intended to stop the respondents
    vehicle for the purpose of checking the drivers sobriety; and (2) they had
    formed the intention to enact the stop while the vehicle was being operated on
    a public highway. The trial judge reasoned that the mere fact that [Constable
    Lobsinger] did not effect this stop until the [respondent] had turned into a
    private driveway and was thus on private property did not eliminate or invalidate
    the officers authority under s. 48(1) of the
Highway Traffic Act
. In
    light of his conclusion on s. 48(1) of the
HTA
, the trial judge
    declined to consider whether the officers had authority under the common law to
    stop the respondent on his private driveway.

[16]

Because he considered the stop lawful, the trial
    judge concluded that the officers did not violate the respondents right under
    s. 9 of the
Charter
. Therefore, any evidence obtained as a result of
    the stop was admissible at trial.

[17]

Having dismissed the
Charter
application, the trial judge went on to convict the respondent of impaired
    driving and operating a motor vehicle over 80, contrary to ss. 253(1)(a) and
    253(1)(b) of the
Criminal Code
. He found that, based on the various
    indicators of intoxication, the respondent was clearly impaired by the
    consumption of alcohol. Both breath samples put him over 80 milligrams of
    alcohol in 100 millilitres of blood. As noted above, the s. 253(1)(a)
    conviction was conditionally stayed on sentencing pursuant to the principle in
Kienapple
.

(1)

Summary Conviction Appeal Judges Decision

[18]

On appeal to the Superior Court of Justice, the
    respondent argued, among other things, that the trial judge had erred in
    finding that a police officer could conduct a sobriety stop on private property
    pursuant to s. 48(1) of the
HTA
.

[19]

The summary conviction appeal judge allowed the
    appeal, finding that neither ss. 48(1) nor 216(1) of the
HTA
permit
    the police to conduct a sobriety or highway safety stop on private property
    absent reasonable and probable grounds. Once the respondents vehicle left the
    public roadway and entered the private driveway, he was no longer a driver within
    the meaning of the
HTA
and therefore the police did not have statutory
    authority to randomly detain him in order to check his sobriety. Additionally,
    the appeal judge found that the stop was not authorized by the common law police
    powers to protect the public, as the public did not require protection from
    the [respondent] once he was in his private driveway:
R. v. McColman,
2019 ONSC 5359, 381 C.C.C. (3d) 375, at para. 45. The stop was unlawful
    and thus constituted a breach of s. 9 of the
Charter
.

[20]

In his analysis under s. 24(2) of the
Charter
,
    the appeal judge found that the actions of the police were serious, as the
    officers pursued the appellant onto private property when they had neither the
    statutory or common law authority to do so: at para. 49. The impact of the
    breach was also significant, as the respondent had a high expectation of
    privacy on his own property. While society clearly had an interest in the
    adjudication of the matter on its merits, the balancing favoured exclusion.

[21]

The appeal judge thus allowed the appeal, set aside
    the conviction, and entered an acquittal.

D.

ISSUES ON APPEAL

[22]

The Crown raises three grounds of appeal:

(1)

the appeal judge erred in finding that s. 48(1)
    of the
HTA
did not authorize the sobriety stop;

(2)

the appeal judge erred in finding the common law
    did not authorize the sobriety stop; and

(3)

if there was a
Charter
breach, the
    appeal judge erred in excluding the evidence under s. 24(2) of the
Charter
.

[23]

I will address each issue in turn.

E.

ANALYSIS

(1)

Was the police stop authorized by s. 48(1) of
    the
HTA
?

(a)

Legal Principles

[24]

As noted above, the Crown argues that s. 48(1)
    authorized police to stop the respondent on his private driveway.

[25]

Section 48(1) of the
HTA
permits the
    police to stop drivers to determine whether the driver is impaired:

A police officer, readily identifiable as
    such, may require the driver of a motor vehicle to stop for the purpose of
    determining whether or not there is evidence to justify making a demand under
    section [320.27 or 320.28] of the
Criminal Code
.

[26]

In order for the police to invoke the statutory
    power under s. 48(1), three conditions must be met: (1) the police officer must
    be readily identifiable as a police officer; (2) the person being stopped must
    be a driver for the purposes of the
HTA
; and (3) the purpose of the
    stop must be to determine whether there is evidence to justify making a demand
    for a sample of breath or other means of testing the drivers sobriety.

[27]

Under s. 1(1) of the
HTA
, a driver is
    a person who drives a vehicle on a highway. Section 48(18) provides that in
    the context of s. 48, a driver includes a person who has care or control of a
    motor vehicle.

[28]

The
HTA
defines a highway as:

a common and public highway, street, avenue,
    parkway, driveway, square, place, bridge, viaduct or trestle, any part of which
    is intended for or used by the general public for passage of vehicles and
    includes the area between the lateral property lines thereof.

[29]

If the criteria set out above are satisfied, s.
    48(1) authorizes an officer to randomly stop a vehicle absent reasonable
    suspicion or reasonable and probable grounds:
R. v. Ladouceur,
[1990]
    1 S.C.R. 1257;
R. v. Hufsky,
[1988] 1 S.C.R. 621.

(b)

Application to this Case

[30]

The first precondition under s. 48(1)  whether
    the officers were identifiable as police  appears to be uncontested.

[31]

What is in dispute is whether this factual
    matrix satisfies the second precondition, which requires the respondent to be a
    driver within the meaning of the
HTA
.

[32]

As noted above, under the
HTA,
a
    driver is a person who drives a vehicle on a highway. Section 48(18) adds
    to this definition that a driver includes a person who has care or control of
    a motor vehicle. The question in this appeal is whether the respondent was
    still a driver, even though he was on a private driveway when he was stopped
    by police.

[33]

First, it is well established that a private
    driveway is not a highway as defined in the
HTA
. This court canvassed
    the scope of the
HTA
s definition of highway in
R. v.
    Hajivasilis
, 2013 ONCA 27, 114 O.R. (3d) 337. Doherty J.A. identified the
    limits of the meaning of highway at para. 10:

The phrase intended for or used by the
    general public for the passage of vehicles limits the meaning of highway.
If a vehicle is being driven on property to which the general
    public does not have access or if that access is for a limited purpose other
    than passage (such as parking), the property will not fall within the meaning
    of highway.
Most privately owned parking lots are not highways as defined
    in the
HTA
. It is accepted that the parking lot where the respondent
    allegedly struck the parked vehicle does not fall within the meaning of
    highway in the
HTA
. [Emphasis added.]

[34]

Based on this interpretation, a private driveway
    is not a highway as it is property to which the general public does not have
    access and it only has a limited purpose other than passage (i.e., parking).

[35]

Because a private driveway is not a highway for
    the purposes of the
HTA
, on the plain language of the
HTA
, a
    person in their private driveway cannot be a driver as they are not a person
    who drives a vehicle on a
highway
 (emphasis
    added).

[36]

The Crown does not seem to take issue with the
    fact that a private driveway cannot strictly be considered a highway under
    the
HTA
. This fact, according to the Crown, was not lost on the trial
    judge. Rather, the Crown argues that the officers conducted a lawful stop
    pursuant to the
HTA
because they crystallized the intention to stop
    the respondent while he was still on a public roadway. Put another way, the
    Crown contends that the officers intended to stop the respondent for a sobriety
    check while he was still a driver under the
HTA,
and therefore they
    were authorized to do so even though the stop occurred on private property.
    This view, according to the Crown, is consistent with a purposive and remedial
    interpretation of the
HTA.
The Crown relies on decisions from this and
    other courts which, according to the Crown, support taking a broad
    interpretation of the
HTA
.

[37]

I cannot accept this argument. The issue is
    whether the police were acting pursuant to lawful authority at the moment when
    they conducted the stop. That authority must be exercised within the confines
    stipulated by the
HTA,
including the precondition that the person
    subject to the stop is a driver on a highway
.
The officers
    intentions in the moments preceding the stop do not render an otherwise
    unlawful stop lawful.

[38]

As set out above, the plain language of s. 48(1)
    and the related definitions of driver and highway do not authorize random
    stops off the highway.

[39]

The Crown relies on the purpose and context of
    the
HTA
to argue in favour of its proposed interpretation. The Crown
    points to cases from this court, including
R. v. Boughen
,
    2002 CanLII 41476 (Ont. C.A.),
R. v. Clarke
, [2005] 196 C.C.C.
    (3d) 426, (Ont. C.A.), leave to appeal to S.C.C. refused, 31012 (September 29, 2005),
    and
R. v. Lotozky
[2006], 210 C.C.C. (3d) 509, (Ont. C.A.), as well as
    the decision of the Court of Appeal for Saskatchewan in
R. v. Anderson
,
    2014 SKCA 32, 308 C.C.C. (3d) 11, which suggests that prior approaches to the
    interpretation of the
HTA
justify the expansion of the police powers
    proposed in this case.

[40]

Respectfully, in my view, these cases do not
    assist the Crown. The Crown argues that
Boughen
and
Clarke
support the proposition that the
HTA
can authorize a stop on private
    property if the investigation commenced on the highway. These cases are
    distinguishable. In
Boughen
, the police observed an
HTA
infraction and as a result, had grounds to detain the accused under the
HTA
.
    In a brief endorsement, this court upheld the summary conviction appeal judges
    conclusion that the police were entitled to continue their
HTA
investigation onto private property. In
Clarke
, again, the police
    observed an
HTA
infraction, and they initiated a stop while the
    accused was still on the highway. The accused failed to stop, and only then 
    when the police had grounds to arrest the accused for failing to stop as
    required  did they follow him onto private property. These cases bear no
    similarity to the present case, which involved a random, groundless stop on
    private property.

[41]

The Crown relies on
Lotozky
in support
    of its argument that policy concerns should drive this courts interpretation
    of s. 48(1). In that case, Rosenberg J.A. commented, at para. 37, that it would
    not be good policy to interpret the law as encouraging motorists to avoid the
    reach of legitimate traffic investigations by heading for home and thus
    encouraging a high-speed police chase. He held that police officers
who
    have reasonable grounds to suspect that a motorist is impaired
are
    entitled to walk up a driveway to further their investigation. Again, an
    important distinction is that the police on
Lotozky
had reasonable
    grounds. They did not select the accused at random. Notably, Rosenberg J.A. was
    interpreting the common law, and was not dealing with explicit statutory
    language. The Court of Appeal for Saskatchewans decision in
Anderson
,
    while dealing with different statutory language, invoked similar concerns about
    escaping motorists to support the conclusion that police could pursue drivers
    off the highway and onto private property to conduct random stops: see para. 25.

[42]

There was no suggestion here that the respondent
    was attempting to evade the police. Indeed, it was accepted that he simply
    pulled into his driveway because he had reached his destination. A true case of
    flight might well contribute to reasonable grounds to detain the accused,
    depending on the circumstances.

[43]

While, as the Crown submits, pursuant to s.
    64(1) of the
Legislation Act, 2006
, S.O. 2006, c. 21, Sched. F, the
HTA
must be interpreted as being remedial and shall be given such fair, large and
    liberal interpretation as best ensures the attainment of its objects, this court
    does not have the power to read into the
HTA
police powers the
    legislature has not seen fit to provide. Looking at the broader context of the
HTA
,
    the legislature used the word highway and drafted provisions that incorporate
    that definition with care:
Hajivasilis
, at paras. 27 and 35. The
    legislature chose to limit the application of some provisions of the
HTA
to the highway, while extending others off the highway:
Hajivasilis
,
    at paras. 27-40. On its terms, the police power contained in s. 48(1) is
    confined to highways. As this court observed in
Hajivasilis,
at para.
    27: [T]he interpretive exercise must strive to give some meaning to the choice
    made by the legislature.

[44]

Accordingly, since one of the necessary
    conditions for invoking the power provided by s. 48(1) cannot be met in this
    case, the police did not have statutory authority to stop the respondent in a private
    driveway.

(2)

Was the police stop authorized by the common
    law?

(a)

Legal Principles

[45]

In carrying out their general duties as law
    enforcement, police officers are only entitled to interfere with the liberty of
    a citizen where such interference is authorized by law.

[46]

It is settled law that the police have a common
    law power to randomly stop vehicles in the course of protecting public
    roadways, absent reasonable suspicion:
Dedman v. The Queen,
[1985] 2
    S.C.R. 2. As the Supreme Court of Canada held in
Hufsky
, and
Ladouceur
,
    random stops for the purpose of investigating motor vehicle infringements on a
    public highway are an arbitrary detention, but are justifiable pursuant to s. 1
    of the
Charter.
However, this police power is not without its limits. As
    Cory J. noted in
R. v. Mellentin
,

[1992] 3 S.C.R. 615, at p.
    487, this power is constrained by the purpose for which it serves:

Check stop programs result in the arbitrary
    detention of motorists. The programs are justified as a means aimed at reducing
    the terrible toll of death and injury so often occasioned by impaired drivers
    or by dangerous vehicles. The primary aim of the program is thus to check for
    sobriety, licences, ownership, insurance and the mechanical fitness of cars.
The police use of check stops should not be extended beyond these
    aims. Random stop programs must not be turned into a means of conducting either
    an unfounded general inquisition or an unreasonable search.
[Emphasis
    added.]

[47]

Similarly, in contemplation of the scope of the
    common law police power recognized in
Dedman
, Doherty J.A. issued the
    following words of caution in
R. v. Simpson,
[1993] 79
    C.C.C. (3d) 482 (Ont. C.A.)
,
at p. 491:

In
Dedman
,
supra
, at pp.
    119-22, the court held that the common law ancillary police power justified
    random stops of vehicles in the course of the enforcement of laws relating to
    the operation of those vehicles.
This power to stop was,
    however, closely tied to the particular purpose of the stops, the dangers
    presented by the activity targeted by the stops, the qualified nature of the
    liberty interfered with by the stops, and the absence of other less intrusive
    means of effective enforcement of the relevant laws. The authority to stop
    described in
Dedman
was clearly
    not a general power to stop for all police purposes, but was limited to stops
    made in furtherance of the police duty to protect those who use the public
    roadways from those who use those roadways in a dangerous manner.
[Emphasis added.]

[48]


The question
    at issue in this appeal is whether the common law authorizes the police to
    conduct a random sobriety check on a private driveway, in circumstances not
    authorized by the
HTA
, where the person exited the highway after the
    officer decided to conduct the stop but before the officer initiated the stop,
    and there are no grounds to suspect that an offence has been or is about to be
    committed.

[49]

This court has not yet weighed in on whether the
    common law should recognize this police power. We must tread lightly in doing
    so, as [e]stablishing and restricting police powers is something that is well
    within the authority of legislatures:
Fleming v. Ontario,
2019 SCC
    45, 437 D.L.R. (4th) 220, at para. 41. As Iacobucci J. observed in
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 17: complex legal
    developments are best left to the experience and expertise of legislators. This
    is particularly so when the proposed expansion in police power would restrict
    lawful activities of individuals:
Fleming,
at para. 5. It is
    important to bear in mind the words of La Forest J. in
R. v. Wong,
[1990]
    3 S.C.R. 36, at p. 57, as cited in
Fleming,
at para. 4, that it
    does not sit well for the courts, as the protectors of our fundamental rights,
    to widen the possibility of encroachments on these personal liberties.

[50]

That being said, the Supreme Court has been
    clear that courts cannot abdicate their role of incrementally adapting common
    law rules where legislative gaps exist:
Fleming,
at para. 42. The
    court must be diligent in its role as a custodian over the common law, which,
    by its very nature is organic and must develop incrementally in tandem with a
    changing society.

[51]

In
Fleming,
the Supreme Court recently reiterated
    the test to determine whether the common law authorizes a particular police
    action that interferes with individual liberty
.
Writing for the court,
    Côté J. noted that this question requires an application of the ancillary
    powers doctrine; a framework originally set out in
R. v. Waterfield
,
    [1963] 3 All E.R. 659, at pp. 660-62 and adopted by the Supreme Court in
Dedman
.

[52]

The ancillary powers doctrine holds that police
    actions that interfere with individual liberty can be recognized under the
    common law if they are ancillary to the pursuit of recognized police duties,
    provided that the police action is reasonably necessary for the fulfilment of
    that duty:
Fleming,
at paras. 45-47.

[53]

At the outset, the court must clearly define the
    asserted police power and the liberty interests at stake:
Fleming,
at
    para. 46. The ancillary powers doctrine will apply where the power in issue
    involves a
prima facie
interference with liberty:
Fleming,
at
    para. 46. Once the police power and liberty interests are defined, the analysis
    proceeds in two stages:
Fleming,
at para. 46.

[54]

The first stage of the inquiry under the
    ancillary powers doctrine asks whether the police action at issue falls within
    the general scope of a statutory or common law police duty. The second stage asks
    whether the proposed expansion involves a justifiable exercise of the police
    powers associated with the general police duty or duties in question. At this second
    stage of analysis, the court must ask whether the police action is reasonably
    necessary for the fulfillment of that duty or duties:
Fleming,
at
    para. 47. As the Supreme Court put it in
Dedman
, at p. 35:

The interference with liberty must be
    necessary for the carrying out of the particular police duty and it must be
    reasonable, having regard to the nature of the liberty interfered with and the
    importance of the public purpose served by the interference.

[55]

The concept of reasonableness requires this
    court to consider whether other, less intrusive, measures are available and
    valid options in the circumstances:
Fleming,
at para. 54. If the
    police can fulfill their duties by an action that interferes less with
    liberty, the purported power is clearly not reasonably necessary:
Fleming
,
    at para. 54. In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37,
    at para. 37
,
the Supreme Court instructed courts to weigh three
    factors in this determination:

(1)

the importance of the performance of the duty to
    the public good;

(2)

the necessity of the interference with
    individual liberty for the performance of the duty; and

(3)

the extent of the interference with individual
    liberty.

[56]

The onus remains with the state to justify the
    existence of common law police powers that involve interference with liberty:
Fleming,
at para. 48.

(b)

Defining the Power and the Liberty Interests at
    Issue

[57]

As noted above, at the outset, we must define
    the asserted police power and the nature of the liberty interest at stake to
    determine whether the power in issue involves a
prima facie
interference
    with liberty. In my view, it does.

[58]

The power at issue, as defined by the Crown, is
    the power to pursue a vehicle off the highway and detain the driver to conduct
    a random sobriety check on a private driveway, where there are no grounds to
    suspect an offence has been or is about to be committed. Here, the officers
    intention to stop the vehicle crystallized before the vehicle left the highway
    but the officer did not initiate the stop before the vehicle left the highway.

[59]

The liberty interests engaged in this appeal include
    those protected by s. 9 of the
Charter
. An individual confronted by
    the police ordinarily has the option to simply walk away:
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 21. Detention is a limit on the
    broad right to liberty enjoyed both at common law and under the
Charter
:
Grant
, at para. 19. Section 9 of the
Charter
guarantees that when
    the state is permitted to interfere with individual autonomy, that power will
    not be exercised arbitrarily:
Grant
, at para. 21. A police power to
    detain necessarily interferes with an individuals liberty interest.

[60]

The context of this liberty interference is particularly
    significant. It involves limiting the freedom of individuals to move about
    freely on their own driveways. In this way, the liberty interests at stake differ
    from cases that recognized the common law power to conduct random stops on
    public roadways, such as
Dedman
and its progeny. Certainly, driving 
    whether it is on public or private property  remains a licensed activity
    subject to regulation and control in the interest of safety. This qualifies the
    relevant liberty interest.

[61]

However, I am satisfied that an individual has
    greater liberty to do as they wish at home than they do on a public highway.
    This liberty must be considered against the backdrop of ones reasonable
    expectation of privacy on their own private property. This privacy interest has
    long been considered paramount, with roots tracing back to the provenance of the
    common law: see
Semaynes Case
(1604), 77 E.R. 194, and
R. v.
    Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 13-16, 22.

[62]

The fact that driving is a regulated activity must
    be balanced against the heightened liberty interest at ones own private property.
Driving on highways is a highly regulated activity,
    and drivers expect that the rules of the road will be enforced. By contrast, at
    home, the individual has no expectation that the police, without any suspicion
    of wrongdoing or any particular safety concerns, may enter onto their driveway
    and arbitrarily detain them.

[63]

I am satisfied that the asserted police power
    represents a
prima facie
interference with the above-noted liberty
    interest.

(c)

The Random Stop on Private Property Falls Within
    the General Scope of the Duty to Prevent Crime and Protect Life and Property

[64]

In this case, the asserted police power falls
    within the general scope of the duties to prevent crime and protect life and
    property. Police officers have broad duties in relation to the public, as
    reflected in s. 42 of Ontarios
Police Services Act
, R.S.O. 1990, c.
    P. 15. Included within these duties, is the preservation of the peace, the
    prevention of crime, and the protection of life and property:
Dedman,
at
    p. 32. The power exercised in this case can be conceptualized as an extension
    of the police duties to prevent crime (impaired driving) and to protect life
    and property (the harms associated with impaired driving). Pursuing drivers off
    the highway onto private property to conduct random sobriety checks is related
    to these duties. The carnage of impaired driving knows no bounds when it comes
    to the difference between public and private property.

(d)

The Expansion of Power is Not Reasonably
    Necessary

[65]

Having met the requirements of the first stage,
    the inquiry now turns to the second branch of the ancillary powers doctrine.

[66]

There can be no doubt that impaired driving is a
    serious problem that demands innovative strategies to deter and detect the
    dangers posed to the public. It is clearly important to the public good that
    the police perform their duties in this regard. But in my view, the Crown has
    not met its onus of demonstrating that pursuing and detaining an individual on their
    own private property without any suspicion of wrongdoing is reasonable or necessary
    to pursue this objective.

[67]

There are many less intrusive,
Charter
compliant
    means of enforcement at the disposal of police in combatting impaired driving.
    For example, police have: (1) the common law power to conduct Reduced
    Impaired Driving Everywhere (R.I.D.E.) programs; (2) the statutory power
    under the
HTA
to stop drivers without any grounds for the purpose of
    checking their sobriety, so long as the statutory preconditions are met; and
    (3) the common law power to stop a driver for an investigative detention based
    on reasonable suspicion.

[68]

Considered in light of the powers the police
    already have at their disposal to combat impaired driving, and the greater
    intrusion on liberty posed by stops on private property, I cannot conclude that
    the power to conduct a groundless stop on private property is reasonably
    necessary. The police have extensive powers to combat impaired driving, and it
    is difficult to see the need for the courts to fill a legislative gap in this
    respect. The police can conduct a random stop under s. 48(1) as soon as the
    vehicle enters the highway. They also have the option to observe the driver
    without detaining them, and based on those observations, develop a reasonable
    suspicion that would give them a basis to detain.

[69]

I note that a key reason why random stops were
    considered justified in
Dedman
,
Hufsky
, and
Ladouceur
is because of their deterrent function. In those cases, the court reasoned that
    an expectation of being randomly stopped by police on highways would deter
    people from driving under the influence:
Dedman
, at pp. 35-36;
Hufsky
,

at pp. 636-637,
Ladouceur,
at p. 1284. Stated otherwise, the
    arbitrary nature of the stop was justified and necessary for its deterrent
    purpose. It is not clear that adding random stops on private property enhances
    the deterrent function of these stops in any meaningful way.

[70]

The Crown argues, and the minority accepts, that
    declining to authorize this police power will lead to an absurd consequence:
    drivers will be able to flee to private property to escape the enforcement of
    highway laws.
In my view, this
    concern is misplaced.
This is not a case of escape:
    there is no suggestion that the respondents actions were an artifice designed to
    evade police. In a true case of escape, the police may well have the authority
    to continue pursuing that person. It is important to bear in mind that the
    question is whether the police are entitled to stop someone on private property
    without any cause for suspicion.

[71]

The police officers in this case did not
    immediately stop the respondent after forming the intention to conduct a random
    stop to determine whether or not there was evidence to justify making a demand.
    They followed the respondent for about a minute as he made a turn and then
    another turn into his driveway. The police lights were not activated until the
    respondent was safely on his driveway.

[72]

Certainly, drivers should not be entitled to
    escape onto private property to avoid culpability. However, police officers
    should not be allowed to follow drivers onto private property to investigate
    their driving where there are no grounds to suspect any wrongdoing.

[73]

A police officer may choose to follow a driver
    along a highway to see if the manner of driving gives rise to a reasonable
    suspicion that the driver is intoxicated. Alternatively, the police officer may
    immediately stop the driver to see if there is evidence to support making a
    demand.  However, where there is no indication from the manner of driving that
    the driver is intoxicated, police officers should not be entitled to follow a
    driver, after forming a crystallized intention to effect a stop, and wait to do
    so until after the driver has entered onto private property. This would allow
    the police to enter private property and detain people based on a claimed prior
    intention to stop the car, formed in the absence of any actual suspicion of
    impairment. The potential for abuse of such a power dictates against the
    recognition of the existence of such a power.

[74]

When considering whether an expansion of a police
    power is reasonably necessary, caution must be taken when it comes to low
    visibility encounters with police, which may leave some marginalized
    individuals at particular risk:
Grant
,

at para. 154. In its
    role as an arbitrator between the state and individual liberty, the court must
    remain vigilant of the unfettered expansion of police powers.

[75]

I note as well that the proposed police power
    would be difficult to review. The random nature of the stops means that the
    power to detain would generally not result in the laying of charges, [and] the
    affected individuals would often have no forum to challenge the legality of
    the detention:
Fleming
, at para. 84. Further, since the valid exercise
    of the proposed police power depends entirely on whether, in the officers own
    mind, the officer intended to stop the vehicle before it pulled off the
    highway, judicial oversight of this power could prove challenging.

[76]

While the liberty interests at stake are
    qualified by the driving context, randomly detaining an individual on their own
    driveway is a non-trivial interference with liberty. In this case, the officers
    testified that the purpose of the stop was to conduct a random sobriety check.
    At the time of the stop, the driver was no longer on a public highway, nor was
    he even operating the motor vehicle. He had reached his destination  his home.
    He had parked the UTV on his private driveway, and he was standing outside the
    vehicle. It is undisputed that at this point the officers had no reason to
    think he was impaired, nor did they have reasonable suspicion to believe that
    an offence was being, or had been, committed. Nor was there any sign of a further
    driving issue.

[77]

I am satisfied that the proposed expansion of
    police power is not reasonably necessary and thus fails under the second branch
    of the ancillary powers doctrine.

(3)

Did the police stop breach the
Charter?

[78]

Given my conclusion that police did not have the
    authority to randomly check the sobriety of the respondent on his private
    property, the stop was unlawful. Therefore, the stop breached the respondents
    s. 9 rights. The next question is whether the evidence obtained in the course
    of the
Charter
breach should be excluded under s. 24(2).

(4)

Should the evidence be excluded under s. 24(2)
    of the
Charter
?

[79]

The trial judge did not find a
Charter
breach and did not conduct an analysis under s. 24(2). On appeal, the summary
    conviction appeal judge found a s. 9 breach, conducted a s. 24(2) analysis, and
    excluded the evidence. For the reasons that follow, I am of the view that the
    summary conviction appeal judge was correct in his conclusion under s. 24(2).
    The evidence was rightly excluded.

[80]

Section 24(2) of the
Charter
states
    that:

Where, in proceedings under subsection (1), a
    court concludes that evidence was obtained in a manner that infringed or denied
    any rights or freedoms guaranteed by this
Charter
, the evidence shall
    be excluded if it is established that, having regard to all the circumstances,
    the admission of it in the proceedings would bring the administration of
    justice into disrepute.

[81]

Here, there is no question that the evidence was
    obtained in a manner that breached the respondents s. 9 rights. It was only
    after the police followed the respondent onto his property and effected the arbitrary
    stop that they noticed indicia of impairment.

[82]

Where it is found that evidence was obtained in
    a manner that infringed an individuals
Charter
right, the court must
    determine whether the admission of the impugned evidence would bring the
    administration of justice into disrepute. The test was summarized by the
    Supreme Court in
Grant
, at para. 71:

A review of the authorities suggests that
    whether the admission of evidence obtained in breach of the
Charter
would bring the administration of justice into disrepute engages three avenues
    of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in
    a long-term, forward-looking and societal perspective. When faced with an
    application for exclusion under s. 24(2), a court must assess and balance the
    effect of admitting the evidence on societys confidence in the justice system
    having regard to:

(1) the seriousness of the
Charter
-infringing
    state conduct (admission may send the message the justice system condones
    serious state misconduct),

(2) the impact of the breach on the
Charter
-protected
    interests of the accused (admission may send the message that individual rights
    count for little), and

(3) societys interest in the adjudication
    of the case on its merits.

[83]

The courts role on a s. 24(2) application is to
    balance the assessments under each of these lines of inquiry to determine
    whether, considering all the circumstances, admission of the evidence would
    bring the administration of justice into disrepute.

[84]

In addressing the first factor, the court must
    evaluate the seriousness of the state violation, with an eye to how the conduct
    bears on public confidence in the rule of law and its processes. While I am not
    prepared to find that the police acted in bad faith, their conduct in this case
    was brazen in the sense that they pursued the respondent onto his own private
    property when they had neither the statutory nor common law authority to do so.

[85]

I reject the Crowns argument that the summary
    conviction appeal judge failed to consider that the law on this point was
    unsettled. Any lack of clarity in the law on this point does not give officers
    free licence to assume that they have authority. Moreover, the law around
    arbitrary detentions is well settled, and the officers ought to have been aware
    that they were entering dangerous territory by effecting a random stop, off the
    highway, without any suspicion of wrongdoing. I am reminded of the words of
    Trotter J.A., albeit in a different context, in
R. v. Pileggi,
2021
    ONCA 4, 153 O.R. (3d) 561,

at para. 72: This situation called for
    caution, not hubris. The state violation was serious, and the court would do
    well to disassociate itself from this overreach by law enforcement.

[86]

In assessing the second factor, the court must
    evaluate the extent to which the breach actually undermined the interests
    protected by the right infringed:
Grant
, at para. 76. The protected
    interests include liberty. I am of the view that the impact was significant, as
    the police questioned the respondent and obtained evidence against him in the
    course of his unlawful detention. This occurred on his private property, where
    he had a reasonable expectation of privacy. I am satisfied that the breach significantly
    undermined the respondents protected interests. As noted in
Grant,
at
    para. 77, the more serious the incursion, the greater the risk that admission
    of the evidence would bring the administration of justice into disrepute.

[87]

On the third and final factor, the court must
    determine whether the truth-seeking function of the criminal trial process
    would be better served by admission of the evidence, or by its exclusion:
Grant
,
    at para. 79. This means that the court must be alive both to the negative
    impact of admission of the evidence on the repute of the administration of
    justice and to the impact of
failing to admit
the evidence:
Grant,
at para. 79 (emphasis in original).

[88]

In conducting the analysis under this factor,
    the court must balance the factors in favour of admission and the factors in
    favour of exclusion of the evidence.

[89]

In addressing the factors in favours of
    admission of the evidence, the following facts have to be considered: (1) there
    is no evidence the police officers were acting in bad faith; (2) if the stop
    had occurred thirty seconds earlier, while on the highway, there would be no
    issue; (3) the respondent was intoxicated and there is a public interest in combatting
    drinking and driving; and (4) the evidence obtained is reliable and essential
    to the Crowns case. These factors weigh in favour of inclusion.

[90]

The factors in favour of exclusion are as
    follows: (1) the police could have stopped the respondent 30 seconds earlier,
    while he was still on the highway, but they did not; (2) while the respondent
    was driving on the highway, the police did not observe any indicia of
    impairment to justify forming a reasonable suspicion to investigate him, nor
    was there any evidence of another
HTA
infraction;
[2]
and (3) the intrusive
    nature of a police power to arbitrarily stop and question people on their own
    property, in the absence of reasonable suspicion of impairment, overrides the
    public interest in the admission of evidence.

[91]

While there is no question that the exclusion of
    the evidence would undermine the truth-seeking function of the trial, society has
    a vital interest in having a justice system that is above reproach. As I
    alluded to above, officers are not above the law, and conduct that tests the
    limits of their authority should not be condoned by this court. On balance, I agree
    with the summary conviction appeal judge that inclusion of the evidence would
    bring the administration of justice into disrepute. I would exclude the
    evidence and uphold the respondents acquittal.

F.

DISPOSITION

[92]

I would dismiss the appeal.

M.
    Tulloch J.A.

I
    agree. K. Feldman J.A.


Hourigan J.A. (dissenting):

A.

INTRODUCTION

[93]

Impaired driving is a scourge in our society.
    Despite concerted efforts for approximately the last 40 years to eradicate the
    practice, drivers continue to operate motor vehicles while impaired by alcohol
    or drugs. They selfishly and recklessly engage in this high-risk behaviour and
    leave in their wake death, injuries and destruction. Given this pressing
    societal concern, the Supreme Court has ruled that the random stopping of
    vehicles on public streets by the police is constitutionally permissible
    because such a minimal restriction of liberty is demonstrably justified in a
    free and democratic society: see
R. v. Ladouceur
, [1990] 1 S.C.R.
    1257.

[94]

The case at bar involves an egregious example of
    impaired driving. When the police were able to catch up with the respondent and
    ask him whether he had been drinking, according to one of the police officers
    involved, he offered an honest but frightening answer, Ive had a few beers.
    Well, I might've had 10." After his arrest, but before the police were
    able to test his blood-alcohol level, the respondent vomited due to his
    excessive alcohol consumption. When the tests were ultimately administered,
    they showed blood alcohol levels well above the legal limit.

[95]

Yet, according to the majority reasons, the
    respondent is immune from investigation or prosecution because he pulled onto
    the shared driveway that leads to his parents' house and a commercial
    establishment (a store). In effect, by pulling over to private property, the
    respondent moved into an area of legal sanctuary. The policy implications of
    the majority's decision are both evident and far-reaching.

[96]

The sanctuary finding means that an impaired
    driver who the police intended to stop on a public highway is free to pull onto
    private property when the driver spots a police cruiser. This property need not
    be a place to which they have any connection or even a legal right to visit. It
    matters not that a police officer wished to conduct the random stop on a public
    highway. As long as the driver gets their vehicle onto a stretch of private
    property, sanctuary applies, and they are "home free." For drivers
    who are in the process of being pulled over as part of a random stop, if they
    can pull onto private property as the safe spot to stop their vehicle, arguably
    they too will have reached sanctuary. In many cases, this sanctuary will be
    fleeting, as the impaired driver will stay on the private property only for as
    long as the police cruiser is in the area. Once it is out of sight, the driver
    will be free to re-enter the public highway and continue to endanger public
    safety.

[97]

The majority engages in a strict construction of
    the powers of a police officer to undertake a random traffic stop under the
Highway
    Traffic Act,
R.S.O. 1990, c. H.8 (
HTA
). That construction
    leads to its sanctuary finding, which prevents the police from effectively
    carrying out their duties. This is a statutory interpretation that is contrary
    to the public safety policy imperative that animates the
HTA
.

[98]

The majoritys approach also stands in sharp
    contrast to the reasoning of the Court of Appeal for Saskatchewan and the
    Ontario Superior Court in nearly identical cases: see
R. v. Anderson
,
    2014 SKCA 32, 433 Sask. R. 255, affirming 2013 SKQB 219, 422 Sask. R. 130;
R.
    v. Alrayyes
, 2013 ONSC 7256. Those courts took a purposive and
    common-sense approach to the issue and rendered decisions that facilitated the
    public safety purposes of the relevant legislation. They permitted the police
    to conduct a random stop of a driver on private property in restricted
    situations where the police formed an intention to make a stop while the
    vehicle was on a public highway.

[99]

I also cannot accede to the majoritys
    conclusion that the police did not have the common law power to conduct a
    random check. Under the ancillary powers doctrine, the common law has long been
    used to fill gaps in legislation. As the Supreme Court has stated in the
    context of legislation enacted to combat impaired driving, the common law
    should be used to provide sufficient flexibility in an enforcement scheme to ensure
    that it is effective:
R. v. Orbanski
;
R. v. Elias
, 2005 SCC
    37, [2005] 2 S.C.R. 3, at para. 45.

[100]

Finally, this case is another example of the cursory application of
    the test mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, in
    determining whether evidence should be excluded under s. 24(2) of the
Canadian
    Charter of Rights and Freedoms
. The appeal judge's reasons on this
    critical issue are one paragraph in length, and are factually and legally
    flawed. As will be discussed, the focus of s. 24(2) is societal; it aims to
    preserve the integrity of the justice system in a manner that is reflective of
    societal values. Courts should not lose sight of the fact that the Grant test
    requires careful consideration of its lines of inquiry to determine whether,
    considered objectively, the overall repute of the justice system will be
    adversely impacted by the admission of the impugned evidence. When courts do
    not engage in a meaningful s. 24(2) analysis and automatically exclude evidence
    because there has been a
Charter
breach, they fail in their duty to
    protect the integrity of the justice system. In this case, on a proper
    application of the
Grant
test, the evidence should not have been
    excluded.

B.

FACTS

[101]

On March 25, 2016, at approximately 12:30 a.m., Constable Jeff
    Lobsinger, who was on general patrol with Constable Laura Hicks, spotted an
    all-terrain vehicle (ATV) parked outside a convenience store at the Thessalon
    First Nation. The respondent, Walker McColman, was the driver.

[102]

As the ATV left the parking lot, Constable Lobsinger directed
    Constable Hicks to U-turn the police cruiser and followed the ATV on the public
    highway. The trial judge found as a fact that while the respondent was driving
    on a public highway, Constable Lobsinger decided to conduct a random sobriety
    stop pursuant to s. 48(1) of the
HTA
. At trial, the officer fairly
    conceded that there were no signs of impaired driving that otherwise warranted
    a stop.

[103]

When the officers caught up to the respondent, he had pulled off the
    public highway and stopped in the middle of a driveway that served a commercial
    property and the respondents parents home. There was no suggestion at trial
    that the respondent pulled into the shared driveway to avoid the police. The
    police activated the cruisers roof lights and approached the respondents
    vehicle. From the time of spotting the vehicle to the time of the stop,
    approximately one minute had elapsed.

[104]

At the stop, Constable Lobsinger spoke to the respondent and
    observed obvious signs of impairment, including trouble standing despite
    hanging on to the side of the vehicle, a strong odour of alcohol, bloodshot
    eyes, and mumbling speech. As noted above, according to Constable Lobsinger,
    the respondent told him that he had consumed excessive amounts of alcohol that
    evening. Constable Lobsinger arrested the respondent for impaired driving at
    12:36 a.m. A breathalyzer test was delayed at the police station because the
    respondent vomited due to his alcohol consumption. Two breathalyzer tests were
    eventually conducted, which recorded his blood alcohol concentration level at
    120 and 110 milligrams of alcohol in 100 millilitres of blood.

C.

PROCEEDINGS BELOW

[105]

The respondent brought an application alleging breaches of ss. 8, 9,
    and 10(b) of the
Charter
. That application was dismissed by the trial
    judge, who found in regard to the alleged s. 9 breach that Constable Lobsinger
    formed his intention to stop the respondent on the public highway and, as a
    result, the officers authority under the
HTA
to stop the vehicle
    continued after the respondent turned onto the shared driveway. In reaching
    this conclusion, the trial judge rejected the defence theories that Constable
    Lobsinger did not subjectively intend to stop the respondent on the highway for
    a sobriety check and was instead motivated by animus due to an interaction with
    the respondent some three years earlier. The trial judge did not consider any
    common law authority to stop the vehicle.

[106]

The respondent was found guilty of both impaired driving and over 80 operation
    of a motor vehicle. The trial judge conditionally stayed the impaired driving
    conviction under s. 253(1)(a) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, and sentenced the respondent to the mandatory minimums of a $1,000 fine
    (plus a $300 victim surcharge) and a 12-month driving prohibition.

[107]

On appeal to the Summary Conviction Appeal Court, the appeal judge
    held that the officer had no statutory or common law authority to stop the
    respondent on the shared driveway. Consequently, he found a breach of s. 9 and
    then excluded all evidence that resulted from the sobriety check under s.
    24(2). After excluding the evidence, he acquitted the respondent.

D.

SUMMARY OF THE ISSUES

[108]

As I will explain, I believe that the appeal judge erred in his
    statutory interpretation of the
HTA
. Specifically, he failed to take a
    purposive approach to the legislation and instead interpreted it in a manner
    contrary to the public safety protections that underlie the statute. I am also
    of the view that the appeal judge erred in his consideration of the officers
    common law powers, and would find that the officers had the common law power to
    conduct the stop if they were not permitted to do so under the
HTA
.
    Finally, the appeal judge engaged in a cursory and error-filled s. 24(2)
    analysis, which this court owes no deference. On a proper
Grant
analysis, the evidence should not have been excluded. Each of these issues will
    be considered in turn below.

E.

ANALYSIS

(1)

Power Under the
HTA

(a)

Section 48(1) of the
HTA

[109]

The statutory authority for random sobriety checks is found in s.
    48(1) of the
HTA
, which provides:

48(1) A police officer, readily identifiable
    as such, may require the driver of a motor vehicle to stop for the purpose of
    determining whether or not there is evidence to justify making a demand under
    section 320.27 or 320.28 of the
Criminal Code
(Canada).

[110]

The Supreme Court found that a provision in a previous iteration of
    the
HTA
requiring motorists to stop when directed to do so by a police
    officer was constitutionally valid under s. 1 of the
Charter
because
    random sobriety checks are reasonably and demonstrably justified in a free and
    democratic society. In reaching this conclusion, the court found overwhelming
    evidence of the direct connection between serious accidents and driving under
    the influence of alcohol or drugs:
Ladouceur
, at p. 1282. It also
    found that the absence of spot checks means that impaired drivers could easily
    avoid the consequences of their dangerous misconduct:
Ladouceur
, at
    p. 1285.

[111]

Instructive for present purposes are the court's comments regarding
    the limited nature of the privacy intrusion occasioned by these stops. The
    court noted that driving is a licensed activity, the stops are relatively
    short, the driver is minimally inconvenienced, and the officer's investigation
    is restricted to the purpose of the check:
Ladouceur
, at pp. 1285-87.

[112]

The Crown submits that the appeal judge erred in taking a narrow and
    restrictive interpretation of the random stopping powers of the police under
    the
HTA
. It argues for a police power under the
HTA
to check
    sobriety on private property provided that the following elements are present:
    (i) the police officer observes the driver operating on a highway; (ii) the
    police officer forms the intention to stop the driver for a sobriety check
    while the driver is still on the highway; and (iii) although the driver leaves
    the highway and enters private property before the stop is conducted, the
    events constitute one continuous investigative transaction. It is necessary to
    undertake a statutory interpretation analysis of the
HTA
to consider
    this submission.

(b)

Principles of Statutory Interpretation

[113]

The law regarding the correct approach to statutory interpretation
    is well settled and need not be considered in detail here. As Côté J. recently
    stated in
1704604 Ontario Ltd. v. Pointes Protection Association
, 2020
    SCC 22, 449 D.L.R. (4th) 1, at para. 6:

[6] Indeed, this Court has reiterated on
    numerous occasions that the modern approach to statutory interpretation
    requires that the words of a statute be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament (E. A. Driedger,
Construction
    of Statutes
(2nd ed. 1983), at p. 87, quoted in
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21).

See also
Bell ExpressVu Limited
    Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[114]

Proper statutory interpretation cannot be founded on the wording of
    the legislation alone:
Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1
    S.C.R. 27, at para. 21. Watt J.A. in
R. v. Stipo
, 2019 ONCA 3, 144
    O.R. (3d) 145, at para. 176, described the preferred statutory interpretation
    approach this way:

[176] This preferred approach recognizes the
    significant role that context must play when courts construe the written words
    of a statute. No statutory provision is an island in itself. Its words take their
    colour from their surroundings:
Bell ExpressVu
, at para. 27. All
    issues of statutory interpretation involve the fundamental question of what
    Parliament intended. To discover what Parliament intended, we look at the words
    of the provision, informed by its history, context and purpose:
R. v.
    Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.

[115]

Thus, even where the words of the statute appear to be clear on
    their face, the reviewing court must examine whether the words truly reflect
    the intention of the legislature. It is well established in the jurisprudence
    of this court and the Supreme Court that it is necessary to consider the entire
    context before settling on what appears, at first blush, to be the plain
    meaning of a legislative provision: see
Solar Power Network Inc. v.
    ClearFlow Energy Finance Corp.
, 2018 ONCA 727, 426 D.L.R. (4th) 308, at
    para. 75, leave to appeal refused, [2018] S.C.C.A. No. 487. See also
Keatley
    Surveying Ltd. v. Teranet Inc.
, 2019 SCC 43, 437 D.L.R. (4th) 567, at
    para. 96,
per
C
ô
t
é
and Brown (dissenting);
Rooney v.
    ArcelorMittal S.A.
, 2016 ONCA 630, 133 O.R. (3d) 287, at para. 13; and
Toronto
    Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical
    Contracting Inc.
, 2014 ONCA 696, 377 D.L.R. (4th) 369, at para. 37.

[116]

To be clear, I do not take issue with the conclusion of the appeal
    judge and the majority in this court that, at first blush, an operator of a
    motor vehicle on private property does not meet the definition of a driver in
    the
HTA
because a driver is defined as a person who drives a vehicle
    on a highway, and the definition of a highway does not include private
    property. The difficulty I have with their interpretation is that after
    considering the plain meaning of the words used in the
HTA
, they
    stopped their analysis. That is a legally unsound practice when undertaking
    statutory interpretation. It divorces context and purpose from the exercise and
    may lead, as in this case, to a restricted analysis that reaches a conclusion
    contrary to the legislative purpose underlying the legislation.

(c)

Purpose of the
HTA

[117]

The purpose of the
HTA
has been canvassed in this courts
    jurisprudence. Doherty J.A., writing for a five-judge panel in
R. v.
    Hajivasilis
, 2013 ONCA 27, 114 O.R. (3d) 337, at paras. 50-51, described
    the purpose of the
HTA
as follows:

[50] Bearing that caution in mind, the case
    law does identify in broad terms the object of the
HTA
. In
R. v.
    Raham
(2010), 99 O.R. (3d) 241, [2010] O.J. No. 1091, 2010 ONCA 206, at
    para. 33, the court refers to the
HTA
as "public welfare
    legislation designed to protect those who use the roads of the province.
    Earlier, in
Ontario (Hydro-Electric Power Commission) v. Bruell Float
    Service Ltd.
(1974), 3 O.R. (2d) 108, [1974] O.J. No. 1841 (C.A.), at p.
    114 O.R., affd on other grounds, [1976] 1 S.C.R. 9, [1975] S.C.J. No. 22, this
    court said:

[T]he general purpose of the
Highway
    Traffic Act
is the regulation of the use of the highways by persons on
    foot and in vehicles; that is not to say that certain provisions of the statute
    will not apply to the use of vehicles other than on a highway, but in an
    over-all sense the Legislature is directing itself to the regulation of
    vehicular traffic and not to commerce conducted in or by means of vehicles.

[51] In my view, regulation to protect the
    public using the province's roads is not necessarily limited to roads that fall
    within the meaning of "highway" in the Act. Public safety concerns
    might well demand regulation in respect of traffic in large private parking
    facilities even though those facilities are not used by the general public for
    "the passage of vehicles". Similarly, public safety concerns might
    well demand the regulation of private parking facilities as incidental to
    regulations maintaining the safety of the "highway" leading into and
    out of that facility.

[118]

Both the majority and the appeal judge ignore the purpose of the
HTA
.
    Instead, they focus only on what they say is the plain meaning of the statute's
    text. That methodology violates s. 64 of the
Legislation Act
, 2006, S.O.
    2006, c. 21, Sched. F, which requires that "[a]n Act shall be interpreted
    as being remedial and shall be given such fair, large and liberal
    interpretation as best ensures the attainment of its objects."

(d)

R. v. Anderson

[119]

Contrast the majoritys approach with the reasoning of the Court of
    Queens Bench for Saskatchewan and the Court of Appeal for Saskatchewan in
    Anderson. In that case, a police officer observed no driving infractions,
    mechanical issues, or any other noteworthy activity, but decided to stop a
    vehicle to check the drivers sobriety. After the officer formulated the
    intention to stop the vehicle, but before doing anything to carry out the stop,
    the accused turned off the public highway and entered a private lot. The
    officer followed and activated his emergency lights as he entered the private
    lot.

[120]

In
Anderson
, the Saskatchewan equivalent of the
HTA
was considered, being
The Traffic Safety Act
, S.S. 2004, c. T-18.1,
    which provided, in part:

209.1(1) A peace officer may require
    the person in charge of or operating a motor vehicle to stop that vehicle if
    the peace officer:

(a) is readily identifiable as a
    peace officer; and

(b) is in the lawful execution of
    his or her duties and responsibilities.

(2) A peace officer may, at any time
    when a driver is stopped pursuant to subsection (1):

(a) require the driver to give
    his or her name, date of birth and address;

(b) request information from the driver
    about whether and to what extent the driver consumed, before or while driving,
    alcohol or any drug or other substance that causes the driver to be unable to
    safely operate a vehicle; and

(c) if the peace officer has reasonable
    grounds to believe that the driver has consumed alcohol or a drug or another
    substance that causes the driver to be unable to safely operate a vehicle,
    require the driver to undergo a field sobriety test.

[121]

The trial judge found that although the investigating officer
    formulated the intention to stop the accuseds vehicle pursuant to s. 209.1
    while he was operating his motor vehicle on a public highway, the stop was
    arbitrary because the officer did not take steps to carry out the stop before
    the accused crossed onto private property. On appeal to the Court of Queens
    Bench for Saskatchewan, that decision was overturned. Popescul C.J.Q.B.,
    reasoned, at paras. 31-34:

[31] The defendant was on a public highway.
    The investigating officer did form the intention to check the defendant for
    legislatively authorized purposes prior to him turning onto a private lot. The
    police must be allowed "sufficient flexibility to be effective.

[32] Further, entering onto the private lot to
    complete the check stop was reasonably necessary having regard to the nature of
    the liberty interfered with and the public purpose served. The interference was
    minimal. In the event, for example, that the defendant had not been driving
    after consuming alcohol, the episode would have been over.

[33] The public purpose served is significant.
    Giving the police the authority to stop vehicles randomly in order to, among
    other things, check for sobriety is intended to reduce the carnage on our roads
    by preventing and deterring those who might be inclined to drive after drinking
    too much alcohol.

[34] To restrict that police power merely
    because a driver happens to have turned onto a private lot does not make sense
    or advance the administration of justice. As recognized by the trial judge:

[30] ... This is not to say that a driver
    becomes untouchable and immune from investigation and police inquiries by
    simply breaking the plane of the goal line, so to speak, and crossing onto
    private property. ... .

I agree. There is no home free zone in
    circumstances such as this.

[122]

The Court of Appeal for Saskatchewan affirmed the decision of the
    Queens Bench. They did not give effect to the same argument advanced in this
    case,
viz.
, that the power of the police officer to stop the vehicle
    was eliminated once it entered private property. In rejecting that argument,
    the court reasoned, at paras. 24-25, as follows:

[24] It is a fact found by the trial judge
    that the police officer formed the intention to stop the appellant prior to the
    appellant turning onto private property. In my view, the police officer must be
    allowed sufficient flexibility in carrying out his duties to complete that
    lawful activity. Interference with the appellant here was minimal and the entry
    onto private property, to complete the check stop, was reasonably necessary,
    having regard to the nature of the liberty interfered with and the public purpose
    served by the interference.

[25] To decide otherwise would encourage
    drivers to seek the sanctuary of private roadways if they suspected they were
    about to be stopped by police. In the circumstances of this case, where a
    police officer has formed the intention to stop a driver on a public highway
    pursuant to s. 209.1 of
The

Traffic Safety Act
, the police
    officer is acting within the statutory authority by following the driver onto
    private property in order to complete his investigation.

[123]

In my view, the Court of Appeal for Saskatchewan took the correct
    approach to the issue before this court. It considered not only the words of
    the legislation, but the purpose of the statute and the policy implications of
    simply giving effect to what, at first blush, appears to be the plain meaning
    of the text. Similarly, the
HTA
must be interpreted in a manner that is
    consistent with its purpose.

(e)

R. v. Alrayyes

[124]

The decision of the Court of Queens Bench for Saskatchewan in
Anderson
was followed by Justice Giselle Miller, sitting in Summary Conviction Appeal
    Court, in
Alrayyes
.
[3]
This case is not mentioned in the reasons of the appeal judge or the majority,
    but it has facts and issues that are very similar to the case at bar. Given
    these similarities, a detailed discussion of the case is warranted.

[125]

In
Alrayyes
, a police officer observed the accused driving
    a motor vehicle leaving the parking lot of a strip mall. The officer followed
    the vehicle, watching as it entered the highway, drove some distance, then
    exited the highway into a gas station. The trial judge found that the officer
    formed the intention to stop the vehicle pursuant to s. 48 of the
HTA
before the vehicle pulled off the highway into the gas station, but delayed
    signalling the vehicle to stop as he was at an intersection and did not want to
    confuse other drivers. Before the officer was able to activate the lights on
    his police cruiser at a safe location, the accuseds vehicle had already turned
    into the gas station. The officer carried out the random stop at the gas
    station.

[126]

Thus, the circumstances are nearly identical to the situation in the
    present case. The police officer formed an intention to conduct a random stop
    of a driver on a public highway, and before he was able to activate his
    emergency lights, the driver pulled onto private property. Miller J. then put
    the issue in its proper legal context as follows:

[12] It is clear from the Supreme Court of
    Canada decision in
R. v. Mansour
, [1979] S.C.J. No. 77, that a
    "highway" under the
Highway Traffic Act
does not include a
    parking lot.

[13] The Ontario Court of Appeal in
R. v.
    Hajivasilis
, [2013] O.J. No. 253, recently considered whether all
    provisions of the
Highway Traffic Act
are applicable only to
    "highways." The Court concluded that each provision has to be
    considered according to the way in which it is worded. Doherty, J.A. indicated
    at paragraph 13 that, for example, a "driver" under s. 48 of the
Highway
    Traffic Act
means "a person who drives a vehicle on a highway. A
    person driving a motor vehicle on a private parking lot is at least arguably
    not a driver for the purposes of the
HTA
.

[14] Both the Appellant and the Respondent
    agree that paragraph 13 of
Hajivasilis
is obiter, and that the word
    "arguably" leaves open whether a "driver" may be stopped
    pursuant to s. 48 of the
Highway Traffic Act
once the driver has left
    a "highway" on which he or she was previously observed to be driving,
    and entered onto private property.



[21] There is no issue that if police have
    reasonable grounds to believe an offence is being committed they may pursue a
    vehicle, and the driver of that vehicle onto private property in order to
    continue their investigation and/or to effect an arrest if in hot pursuit.
R.
    v. Macooh
, [1993] 2 S.C.R. 802;
R. v. Boughen
, [2002] O.J. No.
    4060 (C.A.) There is no suggestion that either situation existed here.

[22] There is no issue that reasonable grounds
    to stop a vehicle, except under the authority of s. 48(1) of the
Highway
    Traffic Act
, are necessary otherwise the detention resulting from the stop
    would be arbitrary and therefore contrary to s. 9 of the
Charter
.

[23] There is no issue that s. 48(1) of the
Highway
    Traffic Act
does not give police authority to stop a vehicle being driven
    solely on private property.
R. v. Campbell
, [2009] O.J. No. 1534
    (O.C.J.);
R. v. Cordeiro
, [2009] O.J. No. 4923;
R. v. Tresham
,
    [1998] O.J. No. 1744 (G.D.).

[24] The question is whether s. 48(1) of the
Highway
    Traffic Act
authorises police, who have observed a vehicle to be driving
    on a highway, to effect a stop of that vehicle once it has entered onto private
    property.

[127]

Miller J. went on to summarize the parties' positions, which are
    similar to the submissions made on this appeal. The defence argued that since
Ladouceur
found that the power to randomly stop vehicles was only saved by s. 1 of the
Charter
as rationally and proportionally addressing the pressing and substantial
    concern in relation to the safe operation of vehicles on our highways, once the
    vehicle left the highway, that safety concern was no longer engaged.

[128]

The Crown argued that to require the police to stop a vehicle
    driving on a highway only while it remains on the highway would be illogical
    and contrary to the object of the
HTA
as "public welfare
    legislation designed to protect those who use the roads of the province"
    per para. 33 of this courts decision in
R. v. Raham
, 2010 ONCA 206,
    99 O.R. (3d) 241.

[129]

In the end, Miller J. agreed with the approach of the Court of
    Queens Bench for Saskatchewan in
Anderson
, and concluded, at para.
    31, as follows:

[31] [P]olice must be given reasonable
    flexibility in carrying out their duties. I am satisfied that if a vehicle is
    observed by police to be driving on a highway as defined by the
Highway
    Traffic Act
, their authority to stop that vehicle pursuant to s. 48(1) of
    the
Highway Traffic Act
does not come to an end simply because the
    vehicle enters onto private property.

[130]

I concur with her analysis and conclude that she interpreted s.
    48(1) in a manner that ensured that the police power granted therein could be
    effectively used.

(f)

Purposive Interpretation

[131]

In my view, the interpretation favoured by the appeal judge and the
    majority in this court is contrary to the public protection purpose of the
HTA
.
    It allows motorists, like the respondent, to avoid the power of the police to
    conduct random stops by pulling their vehicle onto private property. The
    majority's sanctuary finding means that impaired drivers will be encouraged to
    drive onto private property any time they see a police cruiser in the area,
    even though a police officer formed an intention to conduct a random stop of
    them on a public highway. As noted above, the impaired driver need not have any
    connection to the private property, and in many cases, the sanctuary will be
    short-lived.

[132]

For drivers who are in the process of being pulled over as part of a
    random stop, s. 216(1) of the
HTA
requires them to pull over to a safe
    place. With the majority's sanctuary ruling, impaired drivers will undoubtedly
    select a spot on private property as the safe place to stop their vehicle. Once
    they have done so, they too will arguably have reached sanctuary and will be
    immune from investigation. Again, when the police cruiser leaves the area, they
    will be free to continue to put public safety at risk.

[133]

Can it credibly be argued that these results were what the
    legislature intended in enacting the
HTA
? My view is that the
    sanctuary finding, which will inevitably endanger public safety, could not have
    been intended by a legislature passing a statute enacted to protect public
    safety. It is also essential to recognize that the Crown is not submitting that
    the random stop power should be expanded to private property in all situations.
    Its reasonable and sensible position is restricted to situations where the police
    officer formed the intention to make the random stop on a public highway, and
    the stop is carried out on private property as part of one continuous
    transaction.

(g)

Summary

[134]

In summary, I agree with the Crowns interpretation of the
HTA
.
    It makes practical sense, gives effect to the legislature's intention, and
    provides sufficient flexibility for the legislation to be effective. I would
    adopt the Crowns interpretation of the
HTA
and find that the officers
    in this case had the authority to make the stop on the shared driveway.

(2)

Common Law Power

(a)

Legal Principles

[135]

The Crown submits that if the respondents move to private property
    extinguished the police officers ability to conduct the check under the
HTA
,
    then the common law should fill the gap because the police should not be
    rendered powerless to make an already-intended lawful stop. There is no
    question that the common law can be adapted through the ancillary powers
    doctrine to fill legislative gaps:
Fleming v. Ontario
, 2019 SCC 45,
    437 D.L.R. (4th) 220, at para. 42;
R. v. Kang-Brown
, 2008
    SCC 18, [2008] 1 S.C.R. 456, at para. 50.

[136]

The detention in the instant case is a
prima facie
interference with liberty and will be authorized under the ancillary powers doctrine
    if two requirements are met: (i) the police must have been acting within the
    general scope of a statutory or common law police duty; and (ii) the conduct in
    question must involve a justifiable exercise of police powers associated with
    that duty:
Fleming
, at para. 46. This test, which has long been
    employed in determining the validity of police action, was first articulated in
    the English case,
R. v. Waterfield
, [1963] 3 All E. R. 659.

[137]

In reviewing the second requirement - that the police conduct was
    justifiable - the court asks whether the police action is reasonably necessary
    for the fulfilment of the duty. This involves the consideration of three
    factors: (i) the importance of the performance of the duty to the public good;
    (ii) the necessity of the interference with individual liberty for the
    performance of the duty; and (iii) the extent of the interference with
    individual liberty:
Fleming
, at para. 47;
R. v. MacDonald
,
    2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37.

[138]

Molloy J. in
R. v. Dillon
(2006), 141 C.R.R. (2d) 1 (Ont.
    S.C.), undertook a comprehensive review of the law in this area in
    circumstances where the police investigated the driver of a vehicle sitting in
    the parking lot of a bar. She found that the officers had no power to investigate
    the vehicle under the
HTA
. In considering their common law powers,
    Molloy J. relied on the Supreme Court's decision in
Dedman v. The Queen
,
    [1985] 2 S.C.R. 2, in concluding that the police had the common law power to
    detain the accused for a spot check.
Dedman
, which involved a traffic
    stop under the Reduce Impaired Driving Everywhere (R.I.D.E.) program, was
    decided before the enactment of s. 48(1) of the
HTA
. Therefore, the
    validity of the random check in that case was dependent on whether the police
    had a common law power to stop the vehicle.

[139]

In
Dedman
, Le Dain J., writing for the court, held that
    there was common law authority to randomly stop a vehicle for the purpose
    contemplated by the R.I.D.E. program. His conclusion on the second branch of the
Waterfield
test, at pp. 35-36, was as follows:

Because of the seriousness of the problem of
    impaired driving, there can be no doubt about the importance and necessity of a
    program to improve the deterrence of it. The right to circulate on the highway
    free from unreasonable interference is an important one, but it is, as I have
    said, a licensed activity subject to regulation and control in the interest of
    safety. The objectionable nature of a random stop is chiefly that it is made on
    a purely arbitrary basis, without any grounds for suspicion or belief that the
    particular driver has committed or is committing an offence. It is this aspect
    of the random stop that makes it capable of producing unpleasant psychological
    effects for the innocent driver. These effects, however, would tend to be
    minimized by the well‑publicized nature of the program, which is a
    necessary feature of its deterrent purpose. Moreover, the stop would be of
    relatively short duration and of slight inconvenience. Weighing these factors,
    I am of the opinion that having regard to the importance of the public purpose
    served, the random stop, as a police action necessary to the carrying out of
    that purpose, was not an unreasonable interference with the right to circulate
    on the public highway. It was not, therefore, an unjustifiable use of a power
    associated with the police duty, within the
Waterfield
test.

[140]

The decision of Molloy J. in
Dillon
was applied in
R.
    v. Nield
, 2015 ONSC  5730, leave to appeal refused, 2017 ONCA
    722, 393 C.R.R. (2d) 314. There, the court was concerned with a situation where
    a police officer observed the accused running through a parking lot at 1:22
    a.m. and hopping into the driver's seat of a vehicle. The officer followed the
    accused on a public highway and parked behind his vehicle when it stopped in a
    hotel parking lot. On the officers investigation of the accused in the parking
    lot, he determined that the accused had been drinking and made a demand for a
    breath sample. The accused failed the roadside test, and breathalyzer readings
    over the legal limit were subsequently recorded.

[141]

The trial judge in
Nield
found that the stop was arbitrary
    because the accused was no longer a driver under the
HTA
when he
    parked his vehicle. The trial judge excluded the evidence and acquitted the
    accused. On appeal to Fregeau J., sitting in the Summary Conviction Appeal
    Court, the appeal judge upheld the trial judges ruling regarding the
HTA
.
    However, he went on to find that the police officer was acting within his
    common law authority when he stopped and detained the respondent in the hotel
    parking lot.

[142]

Fregeau J. observed that in order to randomly detain a motorist
    without reasonable grounds for suspecting that person has committed a crime,
    the police must be acting legitimately out of a concern for the protection of
    the public in relation to the operation of a motor vehicle:
Nield
, at
    para. 43. He accepted Molloy J.s conclusion that assuming the police had a
    valid common law power to detain the accused for investigative purposes, there
    is no principled reason to find that such power was lost because the detention
    occurred in a parking lot adjacent to a roadway from which he had just left:
Nield
,
    at para. 50.

(b)

Application of Legal Principles

[143]

There can be little doubt that the first requirement of the
    ancillary powers doctrine has been satisfied in this case. A police officer's
    general scope of duties includes preserving the peace, preventing crime, and
    protecting life and property:
Fleming
, at para. 69. Where, as in the
    instant case, there has been a finding of fact that the purpose of the stop was
    to ensure that a driver was not impaired, the police are acting in the exercise
    of a lawful duty:
Dillon
, at para. 49.

[144]

Turning to the second requirement, the effort to prevent impaired
    driving is unquestionably important to the performance of the duty to the
    public good. The significant role of random stops in combating impaired driving
    has been accepted since
Dedman
and has been recognized in subsequent Supreme
    Court jurisprudence, including in
Ladouceur
, at p. 1282, and
R. v.
    Hufsky
, [1988] 1 S.C.R. 621, at p. 636.

[145]

In undertaking his analysis on the second requirement, the appeal
    judge found that public safety was no longer a relevant consideration because the
    respondent had reached the driveway of his residence, and there was no evidence
    that he intended to return to the highway. I agree with the Crown that this
    finding is problematic for three reasons.

[146]

First,
it ignores the public benefit from the
    deterrent effect of random sobriety checks. There is an overall benefit to
    public safety when drivers cannot avoid random sobriety checks by simply
    leaving the highway.

[147]

Second
, the appeal judge failed to properly
    apply the evidence from the trial in undertaking his analysis. That evidence
    did not support that the police knew that the respondent had reached his residence
    at the time of the stop. On the contrary, Constable Lobsinger testified that he
    believed that the respondent had entered the driveway of another convenience
    store.

[148]

Third, this argument - that any public safety concern ends when a
    driver reaches private property - has been rejected in the jurisprudence: see
Nield
,
    at paras. 46-50. Further, as Rosenberg J.A. stated in
R. v. Lotozky
(2006), 81 O.R. (3d) 335 (C.A.), at para. 37, the police do not need to wait
    and see if a driver on private property will return to the highway:

[37] [U]ntil the impaired driving complaint
    was investigated there was a risk that an impaired driver would re-enter the
    vehicle and drive while impaired. It is not reasonable to expect the police to
    devote resources to waiting outside the motorists house until he or she returns
    to the street.

[149]

Regarding the necessity of the interference with individual liberty
    for the performance of the duty, it is obvious that a vehicle must be stopped,
    and that the officer must have some interaction with the driver for the
    screening process to be effective. In this regard, the comments of Charron J.
    in
Orbanski
, at para. 45, are apt:

[45] The screening of drivers necessarily
    requires a certain degree of interaction between police officers and motorists
    at the roadside.The scope of justifiable police conduct will not always be
    defined by express wording found in a statute but, rather, according to the
    purpose of the police power in question and by the particular circumstances in
    which it is exercised. Hence, it is inevitable that common law principles will
    need to be invoked to determine the scope of permissible police action under
    any statute. In this context, it becomes particularly important to keep in mind
    that any enforcement scheme must allow sufficient flexibility to be effective.
    The police power to check for sobriety, as any other power, is not without its
    limits; it is circumscribed, in the words of the majority of this Court in
Dedman
by that which is necessary for the carrying out of the particular police
    duty and it must be reasonable, having regard to the nature of the liberty
    interfered with and the importance of the public purpose served by the
    interference (p. 35).

[150]

Finally, a random stop occasions minimal interference with
    individual liberty. Driving is not a fundamental liberty, like the ordinary
    right of movement of the individual. Rather, it is a licenced activity that is
    subject to state control to protect life and property:
Dedman
, at p.
    35. Further, as noted by the Supreme Court in
Ladouceur
, at pp.
    1286-87, random stops are brief, minimally inconvenience the driver, and are
    restricted to the purpose of the check.

[151]

In my view, if the officers did not have authority under s. 48(1) of
    the
HTA
to make the stop on the shared driveway, they had the common
    law authority to do so. This is an instance where any gaps in the legislative
    scheme should be filled by the common law to ensure that the screening regime
    is effective.

(3)

Section 24(2) of the
Charter

(a)

Appeal Judges Analysis

[152]

The trial judge did not undertake a s. 24(2) analysis because he
    found no
Charter
violation. The appeal judges s. 24(2) analysis, in
    its entirety, is as follows:

The actions of the police are serious. They pursued
    the appellant onto private property when they had neither the statutory nor
    common law authority to do so. The
Charter
-protected interest to be
    protected is one of privacy. The expectation of privacy on ones own property
    is a high one. As to the third test set out in
Grant
, clearly society
    has an interest in having the matter adjudicated on its merits. Having said
    that, when all three factors are balanced, the balance favours the exclusion of
    evidence.

[153]

This cursory s. 24(2) analysis is consistent with a pattern we see
    in this court where lower courts undertake a detailed review of whether there
    has been a
Charter
breach and then treat the
Grant
test as a
    required, but ultimately meaningless, ritual to be undertaken on the road to
    the inevitable exclusion of evidence. In short, it is not sufficient to recite
    the lines of inquiry from
Grant
, make some conclusory statements, and
    then exclude the evidence. As I will explain, the proper application of the
Grant
lines of inquiry is as important as the analysis of whether there has been a
Charter
breach.

(b)

Purpose of s. 24(2)

[154]

It is helpful at this juncture to take a step back and consider the
    purpose of s. 24(2). It was designed to ensure that the
Charter
appropriately balanced individual and societal interests when it came to the
    exclusion of evidence obtained through state misconduct.

[155]

Prior to the enactment of the
Charter
, Canadian courts
    rarely excluded evidence, regardless of the extent of police misconduct in
    obtaining the same. As one commentator put it, [t]he courts search for the
    truth trumped any interest in procedural fairness or in protecting the rights
    of an accused.
[4]
Consistent with this jurisprudence, an early draft of the
Charter
contained
    an express provision that prohibited the exclusion of evidence on the basis
    that it was obtained pursuant to a
Charter
breach. Some members of the
    legal community protested this draft provision. Ultimately, a Special Joint
    Committee of the House of Commons and the Senate determined that an exclusion
    clause should be included in the
Charter
.
[5]


[156]

In creating an exclusion clause, the drafters of the
Charter
developed a compromise approach, which balanced individual and societal rights.
    Dickson C.J. described it this way in
R. v. Simmons
, [1988] 2 S.C.R.
    495, at p. 532:

The final question in this appeal is whether
    the evidence should be excluded under s. 24(2) of the
Charter
. As
    Lamer J. noted in
R. v. Collins
, [1987] 1 S.C.R. 265, the
Charter
enshrines a position with respect to evidence obtained in violation of
Charter
rights that falls between two extremes. Section 24(2) rejects the American rule
    that automatically excludes evidence obtained in violation of the Bill of
    Rights (see, for example,
Weeks v. United States
, 232 U.S. 383 (1914),
    and
Mapp v. Ohio
, 367 U.S. 643 (1961)). It also shuns the position at
    common law that all relevant evidence is admissible no matter how it was
    obtained (see
R. v. Wray
, [1971] S.C.R. 272). Evidence may be excluded
    under s. 24(2) if having regard to all the circumstances, it is established
    that the admission of it would bring the administration of justice into
    disrepute. The person seeking to exclude the evidence bears the burden of
    persuading the Court, on a balance of probabilities, that admission of the
    evidence could bring the administration of justice into disrepute in the eyes
    of a reasonable person, "dispassionate and fully apprised of the
    circumstances of the case" (
Collins
,
supra
, at p. 282).

[157]

Clearly, in rejecting the American approach, the drafters of the
Charter
wanted to avoid situations where serious charges were not determined on the
    merits because of technical, minor, or good faith mistakes by police. Thus, when
    judges undertake a s. 24(2) analysis, their role is to uphold the delicate
    balance that underlies the
Charter
. They abrogate that responsibility
    when they default to the American approach rejected by the drafters of the
Charter
.
    Judges must not lose sight of the fact that s. 24(2) not only provides an
    effective remedy for the accused, it also serves to preserve the integrity of
    the justice system in a manner that is reflective of societal values.

(c)

The
Grant
Test

[158]

It is also helpful to consider what the Supreme Court was trying to
    achieve in
Grant
when it formulated a new test for the exclusion of
    evidence under s. 24(2). It has been twelve years since the decision was
    released, and cases like the one at bar suggest that the thinking behind the
    test has become obscured over time.

[159]

Prior to
Grant
, the jurisprudence under s. 24(2) had
    developed rigid rules for the exclusion of certain types of evidence: see
R.
    v. Collins
, [1987] 1 S.C.R. 265;
R. v. Stillman
, [1997] 1 S.C.R.
    607. The court in
Grant
found that these rules were inconsistent with
    s. 24(2), noting, at para. 65:

[65] It is difficult to reconcile trial
    fairness as a multifaceted and contextual concept with a near-automatic
    presumption that admission of a broad class of evidence will render a trial
    unfair, regardless of the circumstances in which it was obtained.

[160]

A new approach was necessary to ensure that the circumstances of the
Charter
breach were fully explored and weighed in determining whether
    to exclude evidence. The court stressed that s. 24(2) is aimed at protecting
    the integrity of, and public confidence in, the justice system. It instructed
    that a court considering s. 24(2) must look objectively at whether the overall
    repute of the justice system, viewed in the long term, will be adversely
    affected by the admission of the impugned evidence:
Grant
, at para.
    68.

[161]

Consistent with the comments of Dickson C.J. in
Simmons
,
    the court in
Grant
emphasized, at para. 70, that at its core, this
    exercise is societal in its focus:

[70] Finally, s. 24(2)'s focus is societal. Section
    24(2) is not aimed at punishing the police or providing compensation to the
    accused, but rather at systemic concerns. The s. 24(2) focus is on the broad
    impact of admission of the evidence on the long-term repute of the justice
    system.

[162]

Under
Grant
, the court is mandated to consider the interest
    of society in having an adjudication on the merits. This interest is balanced
    against the seriousness of the
Charter
-infringing state misconduct,
    and the impact of the breach on the
Charter
-protected interests of the
    accused. It is not every
Charter
breach that trumps the legitimate
    societal interest in seeing criminal cases determined on their merits. The
Grant
analysis is designed to determine whether a
Charter
breach is one that
    is excusable in the circumstances, or one that requires the court to dissociate
    itself with the state misconduct because to do otherwise would bring the
    administration of justice into disrepute.

[163]

The point I am making is that
Grant
calls for a thoughtful
    and nuanced balancing of factors. A judge on a s. 24(2) application is required
    to carefully review the circumstances of the case and consider the relevant
    lines of inquiry in undertaking the ultimate balancing exercise to determine
    whether the evidence should be excluded: see
R. v. Shinkewski
, 2012
    SKCA 63, 399 Sask. R. 11, at para. 38. To properly complete this exercise, the
    court should engage in a methodical analysis of all of the lines of inquiry and
    should not let one factor trump or overwhelm the others:
R. v. Archambault
,
    2012 QCCA 20, 307 C.C.C. (3d) 151, at para. 69, leave to appeal refused, [2012]
    S.C.C.A. No. 426;
R. v. Fan
, 2017 BCCA 99, 352 C.C.C. (3d) 280, at
    para. 68. By that standard, the analysis undertaken by the appeal judge does
    not suffice.

[164]

Normally, where a trial judge has considered the proper factors
    under
Grant
and has not made any unreasonable finding, their determination
    is owed considerable deference on appellate review:
R. v. Côté
, 2011
    SCC 46, [2011] 3 S.C.R. 215, at para. 44. However, where a trial judge commits
    a legal error, makes unreasonable findings, or fails to properly engage in a
    meaningful s. 24(2) analysis, on appeal, that judge's decision is not entitled
    to deference, and the appeal court may conduct the s. 24(2) analysis afresh:
R.
    v. Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 54;
R. v.
    MacMillan
, 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 87 to 93; and
R.
    v. Gonzales
, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 166.

(d)

Application of the
Grant
Test

[165]

With that background in mind, I turn now to a consideration of the
    three lines of inquiry mandated by
Grant
and the overall balancing
    exercise to determine whether the evidence in this case should be excluded.

(i)

Seriousness of the
Charter
-infringing state misconduct

[166]

The appeal judge found that the misconduct of the officers was
    serious because they did not have the statutory or common law power to make the
    stop on private property. That conclusion is nothing more than a bald statement
    that the respondents
Charter
rights were breached. It misses the
    point of the exercise entirely because it does not advance the analysis of the
    seriousness of state misconduct.

[167]

It is a given that the respondents rights were breached; that is
    why a s. 24(2) analysis was being undertaken. As Miller J.A. stated in
R.
    v. Jennings
, 2018 ONCA 260, 45 C.R. (7th) 224, it is a legal error to
    conclude that the state misconduct must be serious because there has been a
Charter
breach. Rather, as he said, at para. 26, of that case, "there must be
    some examination of the police conduct and a determination of where it fits on
    a spectrum from mere technical breaches at one end to bad faith violations at
    the other."

[168]

It is worth reiterating that the whole purpose of the
Grant
test is to move away from exclusions of evidence based on rigid categories and
    instead to evaluate the circumstances of the case to determine whether the
    admission of the evidence would bring the administration of justice into
    disrepute. On this prong of the test, a judge hearing a s. 24(2) application
    must carefully consider the seriousness of the states misconduct in breaching
    the
Charter
and place that misconduct on a spectrum from serious to
    trivial. The appeal judge failed to do that.

[169]

As the Supreme Court stated in
Grant
,
Charter
-infringing
    state misconduct varies in seriousness. Inadvertent or minor violations of the
Charter
will have a minimal impact on public confidence in the rule of law, whereas
    evidence obtained through willful or reckless disregard of
Charter
rights poses a very serious risk of bringing the administration of justice into
    disrepute. Such willful or reckless disregard sends the message that courts
    "effectively condone state deviation from the rule of law":
Grant
,
    at paras. 72-75.

[170]

On a proper review of the evidence in the instant case there is
    nothing to suggest that the officers were not operating in good faith. In this
    regard, I note that the trial judge rejected the defence argument that
    Constable Lobsingers actions were motivated by personal animus against the
    respondent.

[171]

Another relevant factor in evaluating the seriousness of state
    misconduct is uncertainty regarding the state of the law. Where a police
    officer ignores established legal principles or is willfully blind to the same,
    our courts will not countenance this conduct: see
Grant
at para. 75;
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59; and
R. v.
    Tsekouras
, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 109, leave to
    appeal refused, [2017] S.C.C.A. No. 225.
Charter
rights are of limited
    value if police officers are permitted to ignore them or remain willfully
    ignorant of those rights.

[172]

Notwithstanding the foregoing, the Supreme Court has consistently
    held that legal uncertainty is a factor that a court may take into account in assessing
    the seriousness of a
Charter
breach resulting from police misconduct. As
    Moldaver J. stated in
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R.
    202, at para. 92:

[92] Where the law is evolving or in a state
    of uncertainty, and where the police are found to have acted in good faith,
    without ignorance or wilful or flagrant disregard of an accuseds
Charter
rights, the seriousness of the breach may be attenuated: see
R. v. Cole
,
    2012 SCC 53, [2012] 3 S.C.R. 34, at paras.
86-89;
R.
    v. Aucoin
, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 50;
R. v. Vu
,
    2013 SCC 60, [2013] 3 S.C.R. 657, at paras.
69 and 71;
R.
    v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 77; and
R. v. Fearon
,
    2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 93-95.

[173]

Contrary to the assertion made by the majority in this case, the
    limits on police authority to continue the traffic stop on the shared driveway
    were not well settled. However, to the extent that there was applicable
    jurisprudence, such as
Anderson
and
Alrayyes
, it supported
    the officers authority to make the stop on the shared driveway.

[174]

In addition to those cases, in
R. v. Calder
, [2002] O.J.
    No. 3021 (S.C.), affd [2004] O.J. No. 451 (C.A.), the Summary Conviction
    Appeal Court judge considered whether s. 48(1) of the
HTA
applied to a
    parking lot behind a bank. There, the officer observed a vehicle on the road
    and then approached the car in a parking lot because it was "oddly
    parked." The trial judge held that the police officer had no legal
    justification for approaching the appellant's vehicle absent some basis for
    thinking that the appellant violated the
HTA
or some other
    legislation. In allowing the Crown appeal, Killeen J. held, at para. 57:

[57] In leading cases such as
R. v.
    Mansour
(1979), 47 C.C.C. (2d) 129 (S.C.C.) and
Gill et al. v. Elwood
(1970), 9 D.L.R. (3d) 681 (Ont. C.A.) it has been held that driving conduct on
    a parking lot cannot give rise to an
HTA
or
Code
driving
    charge, but these cases have not held that the police investigative powers set
    out in s. 33(1), 48(1) and 216(1) are magically suspended or exhausted at the
    curb of a public street.

[175]

Calder
was followed in
R. v. Warha
,
    2015 ONCJ 214, affd 2016 ONSC 93, which involved a situation where a police
    officer watched a vehicle on the road, but did not observe any signs of
    impairment. He followed the car to the parking lot of a plaza, walked up to the
    driver, and detected alcohol on his breath. In rejecting an assertion by the
    defence that this interaction violated the driver's ss. 8, 9 and 10
Charter
rights, the court found, at para. 7, that [t]he law does not require him to
    have observed any improper driving or be suspicious that Mr. Warha might be
    impaired." The fact that the driver was on private property was found not
    to restrict the authority of the officer to conduct an
HTA
investigation. That finding was upheld on appeal:
Warha

(2016)
,
    at para. 3. A similar finding was made in
R. v. McGregor
, 2015 ONCJ
    692, at paras. 10-14.

[176]

As noted above, in
Nield
, the court held that the
HTA
does not provide authority to undertake a sobriety check on private property.
    However, as discussed, in that case, the court found that the police did have
    the common law power to do so.

[177]

While police officers cannot ignore
Charter
rights or
    established limitations on their authority, they are also not expected to weigh
    debatable constitutional niceties in the context of a dynamic interaction with
    a member of the public. In this case, if the officers could have stopped time
    and inquired of a constitutional expert whether they had the authority to
    continue the traffic stop, they may well have received an answer that,
    according to the two cases closest to their fact situation, being
Anderson
and
Alrayyes
, they had the authority to make the stop on the shared
    driveway. Given the state of the law, the officers' actions do not even rise to
    the level of negligence.

[178]

In my view, the state misconduct was minor or technical in nature.
    This was a dynamic situation where there was jurisprudence that supported the
    officers authority to make the stop on the shared driveway.
Put another way, if the police officers in this case made a mistake
    about the legality of the random stop on the shared driveway, so too did the
Court of Appeal for S
askatchewan and Miller
    J. of the Ontario Superior Court.
This line of inquiry,
    properly considered, militates against the exclusion of the evidence.

(ii)

Impact of the breach on the Charter-protected interests of the
    respondent

[179]

Turning to the impact of the breach on the
Charter
-protected
    interests of the respondent, the more serious the impact on the accuseds
    protected interests, the greater the risk that admission of the evidence may
    signal to the public that
Charter
rights, however high-sounding, are
    of little actual avail to the citizen, thereby breeding public cynicism and
    bringing the administration of justice into disrepute:
Grant
, at para.
    76.

[180]

The appeal judges consideration of this factor does not advance the
    analysis. His statement that the
Charter
-protected interest was
    privacy and that [t]he expectation of privacy on ones own property is a high
    one is flawed. The stop took place on the shared driveway that leads to the
    respondent's parents' home and a store. The shared driveway was not solely for
    the respondent's parents property. It was also a means of access to the
    commercial business. In these circumstances, there was an implied licence for
    members of the public, including the police, to enter the shared driveway, and
    any privacy expectation held by the respondent would be minimal:
Dillon
,
    at para. 40. This is hardly comparable to the police kicking down the door of a
    private residence. Yet, the appeal judges analysis makes no distinction
    between these two disparate situations.

[181]

In addition, the investigation started on a public highway, a domain
    where the respondent had a minimal privacy right. Further, as stated by the
    Supreme Court in
Ladouceur
, driving is a licensed activity, random
    stops are relatively short, the driver is minimally inconvenienced, and the officer's
    investigation is restricted to the purpose of the check. In this case, the
    traffic stop was not invasive, as the indicia of impairment was evident as the
    officer approached the respondent. In my view, taking into account all of these
    facts, this factor militates against the exclusion of the evidence.

(iii)

Societys interests in an adjudication on the
    merits

[182]

The third
Grant
factor considers societys interests in an
    adjudication on the merits. This line of inquiry asks whether the
    truth-seeking function of the criminal trial process would be better served by
    admission of the evidence, or by its exclusion:
Grant
, at para. 79.
    The reliability and importance of the evidence are crucial factors in this line
    of inquiry:
Grant
, at paras. 81-83.

[183]

This factor favours the admission of the evidence. Society has a
    legitimate interest in seeing cases of impaired driving adjudicated on the
    merits. The excluded evidence, which included the respondents statement about
    his alcohol consumption, the officers observation of his obvious signs of
    impairment, and the results of the breathalyzer tests, was reliable. It was
    also overwhelming proof of the respondents guilt beyond a reasonable doubt on
    both counts. The exclusion of this reliable evidence resulted in the acquittal
    of the respondent.

(iv)

Balancing the
Grant
factors

[184]

In balancing the
Grant
factors, all three lines of inquiry
    favour the admission of the evidence. Viewed objectively, any breach was done
    in good faith and was minor or technical in nature, the impact on the
    respondents
Charter
protected rights was minimal, and the evidence
    was reliable and crucial in the convictions registered by the trial judge.

[185]

With the admission of the evidence, a reasonable person, informed of
    all relevant circumstances and the values underlying the
Charter
,
would not lose faith in the criminal justice system or believe that
    the administration of justice had been brought into disrepute. On the contrary,
    the exclusion of reliable and crucial evidence based on a restrictive and
    technical view of police power would likely cause the public to lose faith and
    confidence in our criminal justice system
. I would,
    therefore, not exclude the evidence.

F.

Disposition

[186]

For the foregoing reasons, I would allow the appeal, set aside the
    appeal judge's order, and restore the convictions and the stay entered by the
    trial judge.
I would grant leave to appeal sentence,
    eliminate the victim surcharge, but otherwise not interfere with the sentence
    imposed.

Released: June 4, 2021 K.F.

C.W.
    Hourigan J.A."





[1]

An acquittal was also entered for the s. 253(1)(a)
    conviction that was initially conditionally stayed, though this occurred at a
    separate proceeding on October 2, 2019.



[2]
While the respondents blood alcohol level was above the legal
    limit, it was not enough to visibly affect his driving.



[3]
At the time of the decision in
Alrayyes
, the Court of Appeal
    for Saskatchewan had not yet released its decision in
Anderson
.



[4]
Patrick
    McGuinty, Section 24(2) of the Charter; Exploring the Role of Police Conduct
    in the
Grant
Analysis (2018) 41:4 Man. L.J. 273, at p. 277.



[5]
Peter Sankoff, The Application of Section 24(2) of the Charter of
    Rights and Freedoms in a Civil Action (2004) 28 Adv. Q. 103, at p. 104.


