In the recent case of R v Hopkins, 2011 ONCJ 349 Schwarzl J disposed of a peculiar section 9 argument in a quotable manner.
David Hopkins had attended the Midway Invader tavern in the middle of the afternoon on December 30, 2009. Unfortunately for him, PC Paul Haramis had decided to set up outside the tavern in the hopes of capturing impaired drivers; the officer was not part of an organized RIDE program but rather, was purposely set up outside the bar for the purpose of capturing impaired drivers [para 5]. At about 3:20 pm the officer observed Hopkins drive his car out of the bar parking lot. Ultimately Hopkins failed a roadside screening test and was charged with "over 80" after providing breath samples at the police station.
At trial Hopkins argued, inter alia, that his rights under section 9 of the Charter had been violated. In particular, he argued that although RIDE programs are constitutionally valid, the "stopping of people coming out of a bar, as opposed to all motorists at some intersection or other length of road, is too narrow a focus and is therefore a violation of section 9 of the Charter" [para 6]. In other words, Hopkins argued that random stops are permissible but "focussed" random stops are not.
In disposing of this argument Schwarzl J noted that the Highway Traffic Act provides an officer may stop any motorist to determine if there are grounds to make a demand under section 254(2) of the Code: see sections 48(1) and 216(1) HTA. It follows, Schwarzl J held, that the stop was not arbitrary as it was expressly provided for by law. Moreover, Schwarzl J held, the decision to focus police resources on an area or group of people more likely to be involved in drinking and driving did not make the stop arbitrary; he concluded with the following quotable quote:
The targeting of the driving population coming out of bars over the holiday season is entirely consistent with the purpose of RIDE programs, which is to detect, deter, and reduce drunk driving. By concentrating on a location such as a bar where there is a higher probability of detecting drunk drivers, P.C. Haramis was not only performing his lawful duty but he was also minimizing the inconvenience to the general motoring public. In other words, by zeroing in on those leaving drinking establishments, the officer's conduct was far less random than setting up at an intersection and stopping all drivers [para 9] [emphasis added].
DG Mack