Dedman v. The Queen, [1985] 2 S.C.R. 2
Robert B. Dedman Appellant;
and
Her Majesty The Queen Respondent;
and
The Attorney General for New Brunswick and the Attorney General for Alberta Interveners.
File No.: 16726.
1984: October 9; 1985: July 31.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for ontario
Police‑‑Powers and duties‑‑R.I.D.E. program‑‑Vehicles randomly stopped in spot check program to detect impaired drivers and deter impaired driving‑‑Exercise of police power must be authorized by statute or at common law‑‑No statutory authority for random stop‑‑Random stop for purpose of R.I.D.E. program authorized at common law.
Criminal law‑‑Roadside breathalyser testing‑‑Failure to provide breath sample after vehicle randomly stopped in spot check program to detect impaired drivers‑‑Random stop of motor vehicle authorized at common law‑‑No reasonable excuse for non‑compliance with the demand for a breath sample‑‑Criminal Code, s. 234.1(1), (2).
Appellant voluntarily complied with a police officer's request to stop his vehicle. There was nothing improper about his driving or the condition of his car. The stop was ordered as part of a spot check program, known as R.I.D.E., whose principal aim is to detect, deter and reduce impaired driving. The police go to a location where they believe there has been a high incidence of impaired driving and, on a random basis, request motorists to pull over and stop. They then ask for a valid driver's licence and proof of insurance to initiate conversation with the goal of detecting the otherwise undetectable drinking driver.
The officer, while checking appellant's licence, smelled a strong odour of alcohol on his breath and made a demand pursuant to s. 234.1 of the Criminal Code that he supply breath samples for analysis in a roadside screening device. Appellant, despite repeated attempts, failed to provide a sample of his breath sufficient to give a proper reading on the device. He was charged with failing, without reasonable excuse, to comply with a demand to supply a breath sample, pursuant to s. 234.1(2) of the Code. Appellant's acquittal before the Provincial Court judge was confirmed by the Ontario Supreme Court but set aside by the Court of Appeal. This appeal is to determine whether, in the circumstances, the police officer possessed authority, either statutory or at common law, to require the appellant to stop his motor vehicle; and if not, whether appellant could be convicted of failing or refusing, without lawful excuse, to provide a breath sample.
Held (Dickson C.J. and Beetz and Chouinard JJ. dissenting): The appeal should be dismissed.
Per McIntyre, Lamer, Wilson and Le Dain JJ.: The random stop by police of appellant's vehicle was lawful at common law and the appellant accordingly had no reasonable excuse for his non‑compliance with the demand for a breath sample.
Police officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority either conferred by statute or derived from their duties at common law. The ambit of police authority, as distinct from police liability, is not to be determined by the limits of a police officer's criminal or civil responsibility.
The appellant's compliance with the signal to stop cannot alter the legal basis which must exist to justify the random stop. Having regard to the coercive nature of police action and uncertainty over the extent of police powers, compliance with a request to stop at a roadside check point cannot be regarded as voluntary in any meaningful sense.
No statutory authority for the signal to stop may be found in either the Criminal Code or the relevant provisions of the Ontario Highway Traffic Act.
Common law authority for the random vehicle stops, for the purpose contemplated by the R.I.D.E. program, may be derived from the general duties of police officers on the basis of the test laid down in R. v. Waterfield, [1963] 3 All E.R. 659. The right to circulate in a motor vehicle on the public highway may be described as a liberty; however, when assessing the interference caused by a random vehicle stop, it cannot be regarded as a fundamental liberty like an individual's right of movement, since it is a licensed activity subject to regulation and control for the protection of life and property.
Applying the Waterfield test, the random vehicle stop was a prima facie unlawful interference with liberty since it was not authorized by statute. The random stop does fall within the general scope of police duties to prevent crime and to protect life and property by the control of traffic as these are the very objects of the R.I.D.E. program, a measure intended to improve the deterrence and detection of impaired driving.
The random vehicle stop was not an unjustifiable use of police power because it was both necessary to the execution of police duty and reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. Random stops for the R.I.D.E. program do not unreasonably interfere with the right to circulate on the highway because of the importance of deterring impaired driving, the necessity of random stops to effective detection, the fact that driving is already subject to regulation and control in the interests of safety and the minor inconvenience experienced by innocent motorists.
Per Dickson C.J. and Beetz and Chouinard JJ., dissenting: The police only act lawfully when they exercise authority conferred upon them by statute or at common law. Having regard to the authoritative and coercive character of police requests, submission to a police officer's exercise of apparent authority, such as a demand to stop at a roadblock, cannot be characterized as voluntary, unless it was clear to the person at the time that he or she was free to refuse to comply.
It has always been a fundamental tenet of the rule of law that the police, in carrying out their general duties as law enforcement officers have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. It is necessary to distinguish the duties of police officers from the power, or lawful authority, they possess to execute those duties. The fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends.
In the criminal law, the rules and principles relating to arrest establish justifiable limits upon a citizen's liberty. Short of arrest, the police have never possessed legal authority at common law to detain any one against his or her will for questioning or to pursue an investigation. Under the R.I.D.E. program, the police are stopping and detaining motorists arbitrarily to investigate whether or not they might be committing a criminal offence. These random stops by the police under the R.I.D.E. program are indistinguishable from detention for questioning or investigation and, without validly enacted legislation to support them, are unlawful. It would be contrary to the long standing protection accorded individual liberty by the common law and detrimental to the individual's fundamental right to be free from arbitrary interference to conclude that this action of the police was authorized and lawful. It is the function of the legislature, not of the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law.
Since the police officer randomly stopped the appellant and arbitrarily detained him, he was not acting lawfully at the time of the demand under s. 234.1(1) and it was not lawfully made. Accordingly, the s. 234.1(1) demand was invalid and the appellant cannot be convicted of failing or refusing without reasonable excuse to comply with a demand for a breath sample contrary to s. 234.1(2).
Cases cited
By the majority
R. v. Waterfield, [1963] 3 All E.R. 659, applied; Hoffman v. Thomas, [1974] 2 All E.R. 233, considered; Johnson v. Phillips, [1975] 3 All E.R. 682; Knowlton v. The Queen, [1974] S.C.R. 443; R. v. Stenning, [1970] S.C.R. 631; Rice v. Connolly, [1966] 2 Q.B. 414; Wiretap Reference, [1984] 2 S.C.R. 697; Brownridge v. The Queen, [1972] S.C.R. 926; Morris v. Beardmore, [1980] 2 All E.R. 753, referred to.
By the minority
Morris v. Beardmore, [1980] 2 All E.R. 753; R. v. Waterfield, [1963] 3 All E.R. 659; Wiretap Reference, [1984] 2 S.C.R. 697; Knowlton v. The Queen, [1974] S.C.R. 443; Hoffman v. Thomas, [1974] 2 All E.R. 233; R. v. Stenning, [1970] S.C.R. 631; Johnson v. Phillips, [1975] 3 All E.R. 682; Moore v. The Queen, [1979] 1 S.C.R. 195; Albert v. Lavin, [1981] 3 All E.R. 878; Rice v. Connolly, [1966] 2 Q.B. 414; Samuel v. Payne (1780), 1 Doug. K.B. 359, 99 E.R. 230; Christie v. Leachinsky, [1947] A.C. 573; R. v. Biron, [1976] 2 S.C.R. 56; Brownridge v. The Queen, [1972] S.C.R. 926; Rilling v. The Queen, [1976] 2 S.C.R. 183; Taraschuk v. The Queen, [1977] 1 S.C.R. 385.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 118 [am. 1972 (Can.), c. 13, s. 7], 234.1(1), (2) [as en. by 1974‑75‑76 (Can.), c. 93, s. 15], 449 and 450 [rep. & subs. R.S.C. 1970 (2nd Supp.), c. 2, s. 5].
Highway Traffic Act, R.S.O. 1970, c. 202, s. 14 [as am. by 1979 (Ont.), c. 57, s. 2].
Highway Traffic Act, R.S.O. 1980, c. 198, s. 189a.(1) [as en. by 1981 (Ont.), c. 72, s. 2].
Interpretation Act, R.S.O. 1970, c. 225, s. 27(b).
Police Act, R.S.O. 1970, c. 351, s. 55 [now R.S.O. 1980, c. 381, s. 57].
Authors Cited
Bailey, S.H. and D.J. Birch. "Recent Developments in the Law of Police Powers," [1982] Crim. L.R. 475.
Butler, T.R.F. and M. Garsia. Archbold Criminal Pleading, Evidence and Practice, 36th ed., London, Sweet & Maxwell, 1966.
Cohen, S. "The Investigation of Offences and Police Powers" (1981), 13 Ottawa L. Rev. 549.
Devlin, P.B. The Criminal Prosecution in England, New Haven, Yale University Press, 1958.
Halsbury’s Laws of England, vol. 30, 3rd ed., London, Butterworths, 1959.
Halsbury’s Laws of England, vol. 36, 3rd ed., London, Butterworths, 1961.
Honsberger, J. "The Power of Arrest and the Duties and Rights of Citizens and the Police," [1963] L.S.U.C. Special Lectures: Arrest and Interrogation 1.
Humphrey, D.G. "Abuse of Their Powers by the Police," [1979] L.S.U.C. Special Lectures: Abuse of Power 557.
Lanham, David, "Arrest, Detention and Compulsion," [1974] Crim. L.R. 288.
Leigh, L.H. Police Powers in England and Wales, London, Butterworths, 1975.
Salhany, R.E. Canadian Criminal Procedure, 3rd ed., Toronto, Canada Law Book Ltd., 1978.
Smith, J.C. and B. Hogan. Criminal Law, London, Butterworths, 1965.
APPEAL from a judgment of the Ontario Court of Appeal (1981), 59 C.C.C. (2d) 97, 122 D.L.R. (3d) 655, 32 O.R. (2d) 641, 23 C.R. (3d) 228, 10 M.V.R. 59, which allowed an appeal from the judgment of Maloney J. (1980), 55 C.C.C. (2d) 97, 118 D.L.R. (3d) 425, 30 O.R. (2d) 555, 23 C.R. (3d) 203, 8 M.V.R. 142, dismissing an appeal by way of stated case from the judgment of Charles Prov. Ct. J. (1980), 55 C.C.C. (2d) 97 at 98, 118 D.L.R. (3d) 425 at 427, 30 O.R. (2d) 555 at 557, 15 C.R. (3d) 261, 6 M.V.R. 233, acquitting the appellant on a charge of failing to comply with a demand to supply breath samples contrary to s. 234.1(2) of the Criminal Code. Appeal dismissed, Dickson C.J. and Beetz and Chouinard JJ. dissenting.
Morris Manning, Q.C., and Joseph Favaro, for the appellant.
Murray D. Segal, for the respondent.
John H. Evans, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., and Richard Taylor, for the intervener the Attorney General for Alberta.
The reasons of Dickson C.J. and Beetz and Chouinard JJ. were delivered by
1. The Chief Justice (dissenting)‑‑This appeal arises out of a random stop of a motorist by the police as part of the program in Ontario to reduce impaired driving known as R.I.D.E. (Reduce Impaired Driving Everywhere). It raises important questions concerning police powers and the appropriate balance between the interest of the community in law enforcement and the interest of the individual in being free from arbitrary interference with his or her liberty.
I. Facts and Procedural History
2. The aim of the R.I.D.E. program in Ontario is to reduce impaired driving by detecting the impaired motorist and deterring others from driving after drinking. The police go to a location where they believe there has been a high incidence of impaired driving or alcohol related accidents. Motorists passing through this location are requested, on a random basis, to pull over and stop. Police officers ask the driver for a valid driver's licence and proof of insurance and they note the condition of the vehicle and the driver. The demand for a licence and proof of insurance is made for the purpose of initiating conversation with the ultimate goal of allowing the police to detect the drinking driver whom they might otherwise be unable to detect. R.I.D.E. officers are equipped with approved road‑side screening devices to permit them to make demands for breath samples, pursuant to s. 234.1 of the Criminal Code, if they form the requisite grounds during their conversation with the driver.
3. The appellant was signalled to stop by a police officer participating in the R.I.D.E. program on February 4, 1980. The only reason he was requested by the police to stop was the R.I.D.E. program. There was nothing improper about his driving or the condition of his car. The police did not have reasonable and probable grounds for believing he had committed or was committing a criminal offence under any statute, either provincial or federal. The officer did not, at the time of the stop, have any reasonable suspicion that the appellant had alcohol in his body.
4. The appellant complied with the request to stop his vehicle. During conversation, the police officer formed a reasonable suspicion that the appellant was driving with alcohol in his body and demanded that he provide a sample of his breath. The appellant, following instruction and despite repeated attempts, failed to furnish a sample of his breath sufficient to give a proper reading on the A.L.E.R.T. (Alcohol Level Evaluation Roadside Tester) device. An appearance notice was issued on a charge of failing or refusing to comply with a road‑side demand contrary to s. 234.1(2) of the Criminal Code and the appellant departed.
5. The appellant was acquitted at trial before Provincial Court Judge Charles: (1980), 55 C.C.C. (2d) 97 at 98, 118 D.L.R. (3d) 425 at 427, 30 O.R. (2d) 555 at 557, 15 C.R. (3d) 261, 6 M.V.R. 233. An appeal by stated case was dismissed by Maloney J. of the Ontario Supreme Court: (1980), 55 C.C.C. (2d) 97, 118 D.L.R. (3d) 425, 30 O.R. (2d) 555, 23 C.R. (3d) 203, 8 M.V.R. 142. A Crown appeal to a five‑member panel of the Ontario Court of Appeal was unanimously allowed: (1981), 59 C.C.C. (2d) 97, 122 D.L.R. (3d) 655, 32 O.R. (2d) 641, 23 C.R. (3d) 228, 10 M.V.R. 59. The Court ordered that the case be remitted to the trial judge for consideration of the question whether the appellant's seeming attempts to comply with the demand were genuine or feigned.
6. The appellant was granted leave to appeal to this Court.
II. Issues
7. This appeal raises two issues:
1) whether, in the circumstances, the police officer possessed statutory or common law authority to require the appellant to stop his motor vehicle;
2) if not, whether the appellant may be convicted of failing or refusing, without lawful excuse, to provide a sample of his breath.
8. I have had the opportunity of reading the reasons for judgment prepared by Le Dain J. and I agree with him, for the reasons he has given, that police officers only act lawfully when they exercise authority conferred upon them by statute or at common law. The apparent voluntary compliance by a citizen with a police request to stop a motor vehicle cannot alter the legal basis which must justify such police action when it is challenged in later proceedings.
9. Having regard to the authoritative and coercive character of police requests, submission to a police officer's exercise of apparent authority, such as a demand to stop at a roadblock, cannot be characterized as voluntary or consensual unless it was clear to the person at the time that he was free to refuse to comply.
III. Lawfulness of Random Vehicle Stops
A. Statutory Authority
10. The R.I.D.E. program was not, at the time the appellant was stopped, expressly authorized by statute, either federal or provincial. I agree with Le Dain J. that none of the provincial statutory provisions relied upon can be interpreted to grant police officers authority to request a motorist stop for the purposes of the R.I.D.E. program. In particular, s. 14 of The Highway Traffic Act, R.S.O. 1970, c. 202, as amended by 1979 (Ont.), c. 57, s. 2 (now R.S.O. 1980, c. 198), does not provide statutory authority for the signal to stop. It is unnecessary to express any opinion as to the constitutional validity of s. 14. Section 14 is not being applied to confer authority to make a random vehicle stop for the purpose contemplated by the R.I.D.E. program. The constitutional question set in this case need not therefore be answered.
B. Common Law Authority
11. With respect, I am unable to agree with Le Dain J. that the general duties of police officers provide the foundation for common law authority to stop a motor vehicle for the purpose and in the manner contemplated by the R.I.D.E. program.
12. It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Laskin C.J. dissenting, in R. v. Biron, [1976] 2 S.C.R. 56, made the point at pp. 64‑65:
Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.
Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully.
13. Martin J.A., in the case at bar, accurately summarized the rights of the citizen and the power of the police as follows:
In carrying out their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of the citizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to be subjected to imprisonment, arrest, or physical restraint that is not justified by law, and every invasion of the property of the citizen is a trespass unless legally justified.... On the other hand, when a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence. [Authorities omitted.]
14. The common law duties of police have been described as the preservation of the peace, the prevention of crime and the protection of life and property; from this latter duty flows the duty to control traffic on the public roads. A statutory statement of the traditional common law duties of the police may be found in s. 57 of the Police Act, R.S.O. 1980, c. 381.
15. I do not think it is open to question that action to detect and prevent people from driving while impaired by alcohol, an offence under the Criminal Code, falls within the general duties of the police described above. It is, however, necessary to distinguish the duties of police officers from the power, or lawful authority, they possess to execute those duties. The fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends. The question raised by this appeal is whether the police have the power at common law, in other words the lawful authority, to execute their general duties by means of random stops of motorists when they have no reason to believe, prior to the stop, that the motorist has committed, is committing or will commit a criminal offence. In my opinion, they possess no such authority.
16. The distinction between the scope of a police officer's duties and the ambit of his or her power is well stated by L. H. Leigh, Police Powers in England and Wales (1975), at p. 29:
The police have long functioned under a regime of wide duties but limited powers. That is to say, that while they are under general duties to prevent crime, and breaches of the peace and to detect criminals, they do not have all those powers which, it might be thought, would be reasonably necessary for them to do so. Historically, there is no warrant for an ancillary powers doctrine of this sort. Police interferences with individual liberty must, if they are to be valid, be founded upon some rule of positive law.
17. In the criminal law, the rules and principles relating to arrest establish justifiable limits upon a citizen's liberty. The basic powers of a private citizen or a police officer to arrest without warrant are found in ss. 449 and 450 of the Criminal Code. Additional powers of arrest without warrant also exist under various federal and provincial statutes in relation to specific offences. See, R. E. Salhany, Canadian Criminal Procedure (3rd ed. 1978), at p. 31.
18. At common law, police possessed authority to arrest without warrant (a) where they reasonably suspected (i) a felony had been committed and (ii) the party to be arrested was guilty of the felony or (b) to prevent the commission of a felony. Samuel v. Payne (1780), 1 Doug K.B. 359, 99 E.R. 230; Christie v. Leachinsky, [1947] A.C. 573 (H.L.); Smith and Hogan, Criminal Law (1965), at pp. 278‑79; Butler and Garsia, Archbold Criminal Pleading, Evidence and Practice (36th ed. 1966), at paragraph 2808.
19. Short of arrest, the police have never possessed legal authority at common law to detain anyone against his or her will for questioning, or to pursue an investigation. Moore v. The Queen, [1979] 1 S.C.R. 195, at p. 203; Albert v. Lavin, [1981] 3 All E.R. 878 (H.L.); Rice v. Connolly, [1966] 2 Q.B. 414 (C.A.), at p. 419; Leigh, supra, at p. 29; Devlin, The Criminal Prosecution in England (1958), at p. 82; Honsberger, "The Power of Arrest and the Duties and Rights of Citizens and the Police," [1963] L.S.U.C. Special Lectures: Arrest and Interrogation 1; Cohen, "The Investigation of Offences and Police Powers" (1981), 13 Ottawa L. Rev. 549; Lanham, "Arrest, Detention and Compulsion," [1974] Crim. L.R. 288, at p. 289; Bailey and Birch, "Recent Developments in the Law of Police Powers," [1982] Crim. L.R. 475, at p. 481.
20. R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), is often relied upon as enunciating the test for the common law basis of police power. The English Court of Appeal stated at p. 661:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited.
21. Waterfield has been applied by this Court in R. v. Stenning, [1970] S.C.R. 631, and Knowlton v. The Queen, [1974] S.C.R. 443, and in two English cases of note, Hoffman v. Thomas, [1974] 2 All E.R. 233 (Q.B.D.), and Johnson v. Phillips, [1975] 3 All E.R. 682 (Q.B.D.)
22. I had occasion to review the Waterfield, Stenning and Knowlton cases recently in my dissenting reasons in the Wiretap Reference, [1984] 2 S.C.R. 697. As I noted, at p. 717, these cases all involved charges of assaulting or obstructing a police officer in the execution of his duty. Charges were laid as a result of altercations with the police and the defence was raised that the police were not acting in the execution of their duty at the time.
23. In the Wiretap Reference it was argued, in reliance upon Waterfield, that the common law recognizes certain powers inherent in the execution of a police officer's duty and that these powers would, in the circumstances, permit the police to engage in acts necessary to the fulfilment of their duty even though they involved an otherwise unlawful interference with a person's liberty or property. After noting that the police have never been entitled to exercise a general right of entry as part of the powers accorded them at common law, I stated, in dissenting reasons, that Waterfield does not stand for the proposition that the power of entry to private property for the purpose of installing a listening device can arise simply by virtue of a police officer's general duty to detect crime and enforce the law.
24. I concluded that the Waterfield test provides no support for police conduct, where the conduct is unlawful at common law (at pp. 718‑19):
I cannot accept that conduct of itself unlawful and initiated with full knowledge of its potential illegality could ever fall within the general scope of a policeman's duty.
...
The fact that police officers could be described as acting within the general scope of their duties to investigate crime cannot empower them to violate the law whenever such conduct could be justified by the public interest in law enforcement. Any such principle would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual's rights. For the Waterfield principle to apply, the police must be engaged in the lawful execution of their duty at the time of the conduct in question.
(Emphasis added.)
25. A police officer is not empowered to execute his or her duty by unlawful means. The public interest in law enforcement cannot be allowed to override the fundamental principle that all public officials, including the police, are subject to the rule of law. To find that arbitrary police action is justified simply because it is directed at the fulfilment of police duties would be to sanction a dangerous exception to the supremacy of law. It is the function of the legislature, not the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law.
26. Since police lack legal authority to detain a person for questioning or for purposes of investigation at common law, even on suspicion, short of arrest, I am unable to find any basis for the power to stop and detain a motorist asserted in the circumstances of this case.
27. It is vital to characterize correctly the powers the police have exercised here and not allow them to be obscured by the desirable objective the R.I.D.E. program is designed to attain. The police are stopping motorists on an entirely arbitrary basis to question them and determine if they have been drinking. As Professor Cohen notes in "The Investigation of Offences and Police Powers", supra, at p. 562, note 47: "The exercise is no less random because it requires the procedure to be carried out in specific locations noted for alcohol‑related accidents or frequent impaired driving. It is random insofar as it relates to each stopped motorist."
28. As stated above, the police had no grounds to reasonably suspect that the appellant had committed, was committing or was about to commit a criminal offence before he was requested to stop. Indeed, the police did not observe anything suspicious or improper about the appellant's driving or the condition of his car. The only reason for the random stop of the appellant was the fact that he happened to be passing through a location where the police believed there was a high incidence of drinking and driving. It is inescapable that, in essence, the police stopped and detained the appellant arbitrarily to investigate whether he might be committing a criminal offence.
29. In my opinion, the police were not authorized to stop the appellant at random for the purposes of the R.I.D.E. program. A random stop of a motorist is indistinguishable from detention for questioning or investigation against a person's will, something the courts have long recognized that police lack the power to do at common law. The vice is increased and the invasion of individual autonomy magnified when the individual is detained, not under any suspicion directed at the driver personally, but on the simple chance of where he or she happens to be driving. To conclude that this action of the police was authorized would run contrary to the long‑standing protection accorded individual liberty by the common law and erode the individual's fundamental right to be free from arbitrary interference.
30. With respect, the majority of the Court departs firm ground for a slippery slope when they authorize an otherwise unlawful interference with individual liberty by the police, solely on the basis that it is reasonably necessary to carry out general police duties. The objection to a random stop made without any grounds for suspicion or belief that the particular driver has committed or is committing an offence goes far beyond the unpleasant psychological effects produced for the innocent driver. Even if these would tend to be minimized by the well‑publicized nature of the R.I.D.E. program, the erosion of individual liberty with its ultimately detrimental effect on the freedom of all members of society would remain.
31. Furthermore, the fact that driving a motor vehicle is a licensed activity subject to regulation and control in the interests of safety is irrelevant to police power if the conditions for licensing have been met and are adhered to; the curtailment of liberty by the police in no way flows from the fact of licensing or any other regulation. The right to circulate on the highway is not limited to freedom from unreasonable interference by the police; it exists unfettered except in so far as it is curtailed by law.
32. The conclusion that random stops by police under the R.I.D.E. program are illegal at common law is supported by academic comment on the point. Professor Cohen in "The Investigation of Offences and Police Powers", supra, has stated at p. 562:
In theory, then, the police have no general power which permits them to stop and detain individuals at random, whether such action be for the purpose of conducting a search, proceeding with an interrogation, or compelling citizens to identify themselves. The exercise of the power must pertain to a specific investigation and be based upon reasonable grounds, or it must be expressly and specifically authorized by legislation. These constraints are the mechanism whereby the state ensures that official action will not be arbitrary.
Viewed in this fashion, an administrative scheme to validate random discretionary intrusions upon individual liberty such as those "authorized" under Ontario's R.I.D.E. programme cannot be characterized as other than arbitrary. No legislation expressly conferred a power upon police officers to stop motor vehicles at random in order to search out intoxicated motorists. A laudable social purpose is not enough to clothe the exercise with legality.
See also Humphrey, "Abuse of Their Powers by the Police," [1979] L.S.U.C. Special Lectures: Abuse of Power 557; Honsberger, "The Power of Arrest and the Duties and Rights of Citizens and the Police," supra, at p. 25.
33. It follows from what I have said that the appellant, when requested to stop his motor vehicle by a signal from the police officer, was under no duty to stop and submit to investigation: see Moore v. The Queen, supra, Rice v. Connolly, supra, and Hoffman v. Thomas, supra. The absence of a duty to stop turns upon the fact that, in the circumstances of this case, the police lacked lawful authority, either statutory or common law, for the request to stop.
34. It would be a mistake, however, to interpret this opinion as suggesting that motorists or other members of the public are free to disregard the directions of police officers. As Maloney J. noted, there are innumerable valid reasons, perhaps unapparent at the time, for which the police may quite properly stop a motor vehicle or a person, both under statute and at common law. Even where a member of the public questions the authority of the police, it will generally be in the interests of public order and all concerned that he or she obey the police command. Any doubt which remains may be resolved in later proceedings, if necessary. Society as a whole bears responsibility for the maintenance of law and order; co‑operation between the public and the police is essential to the effective fulfilment of the already difficult tasks performed by the police.
35. I conclude that, without validly enacted legislation to support them, the random stops by the police under the R.I.D.E. program are unlawful. In striving to achieve one desirable objective, the reduction of the death and injury that occurs each year from impaired driving, we must ensure that other, equally important, social values are not sacrificed. Individual freedom from interference by the state, no matter how laudable the motive of the police, must be guarded zealously against intrusion. Ultimately, this freedom is the measure of everyone's liberty and one of the corner‑stones of the quality of life in our democratic society.
IV. The Charge Under Section 234.1(2)
36. Since, in my view, the random vehicle stop was unlawful for lack of statutory or common law authority, it is necessary to consider whether the appellant may nonetheless be convicted of the offence under s. 234.1(2) of the Criminal Code with which he was charged. Subsections 234.1(1) and (2) read:
234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved roadside screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.
(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
37. On appeal to the Ontario Supreme Court, Maloney J. held that the random stop was unlawful. In his opinion, this gave the appellant a reasonable excuse for failing to comply with the s. 234.1(2) demand. His conclusion, reached after reviewing the relevant authorities, including Brownridge v. The Queen, [1972] S.C.R. 926, Rilling v. The Queen, [1976] 2 S.R.C. 183, and Taraschuk v. The Queen, [1977] 1 S.R.C. 385, is best expressed in his own words:
After anxious consideration I hold that in the circumstances of this case, in which the police officer made a wholly arbitrary and random stop as part of the R.I.D.E. programme, there exists a reasonable excuse for failing to comply with the demand made under s. 234.1 of the Criminal Code. The best of intentions on the part of the police cannot authorize an act which is not otherwise permitted in law. I have found that the stop involved an unjustified interference with the personal liberty of the accused. The police officer was acting in excess of his powers and was not acting in the execution of his duty when he required the accused to stop his motor vehicle. A refusal to conclude that such circumstances afford a reasonable excuse within the meaning of s. 234.1(2) of the Criminal Code would rob these findings of any legal significance and would result in mere lip service being paid to the right of a law abiding citizen who is above reproach to peacefully go about his own affairs free from being stopped, questioned and interfered with by the police for no apparent reason.
38. In the Ontario Court of Appeal, Martin J.A. dealt briefly with the charge under s. 234.1(2). He held that the demand to provide a breath sample was validly made and therefore the appellant had no reasonable excuse for failure to comply. This conclusion followed from his earlier conclusion that the police officer, in enforcing the R.I.D.E. program, was lawfully carrying out his general duties because the appellant had stopped voluntarily.
39. The appellant argues that, absent statutory and common law authority to stop motor vehicles at random, a motorist who has been stopped at a random spot check has, in law, a reasonable excuse for failing or refusing to supply a sample of his breath within the meaning of s. 234.1(2). The appellant's submission is that the police officer lacked reasonable and probable cause to make a demand for a sample of breath and this constituted a reasonable excuse.
40. The respondent replies that, even absent statutory or common law authority for the random stop, the appellant may still be found guilty for failing or refusing to comply with the s. 234.1(2) demand. In particular, the Crown submits that the appellant had no reasonable excuse for failing or refusing to comply with the demand. While the stop may have been random, the demand was not. Section 234.1(1) speaks of a reasonable suspicion of alcohol in the body, not reasonable and probable cause for the demand. The relevant facts are that as a result of smelling alcohol on the accused's breath, the officer formed a reasonable suspicion that the accused, who was then driving or in care or control of his motor vehicle, had alcohol in his body. Furthermore, the respondent urges, there is no requirement, as there is in the English road traffic legislation, that the suspicion of alcohol in the body exist prior to the vehicle being stopped, bearing in mind the wording of s. 234.1(1): "whether it [the motor vehicle] is in motion or not".
41. In my opinion, this case is indistinguishable in principle from the cogent and persuasive decision of the House of Lords in Morris v. Beardmore, [1980] 2 All E.R. 753, and should be resolved in the same manner. The Law Lords concluded that the police officer was not acting lawfully when he required Beardmore to undergo the breath test, since the Road Traffic Act 1972 (U.K.), which empowered the police officer to request the sample, did not expressly empower him to trespass to make the demand. Thus, the requirement to provide a sample of breath had not been lawfully made and was invalid. As a result, Beardmore could not be convicted of refusal. See page 756 per Lord Diplock; pp. 759‑60 per Lord Edmund‑Davies.
42. In the case at bar, the random stop was not authorized by statute, either federal or provincial. I have already given my reasons for concluding it was equally unauthorized at common law and that the police officer could not have been acting in the lawful execution of his duty. While I have not considered whether the conduct of a police officer who detains a motorist under the R.I.D.E. could be characterized as tortious, as the conduct of the police was considered to be in Morris v. Beardmore, it was nonetheless unlawful, due to the absence of legal authority.
43. In my opinion, applying the reasoning of the House of Lords in Morris v. Beardmore, the demand for a sample of breath was not lawfully made because the police officer, having randomly stopped the appellant and arbitrarily detained him, was not acting lawfully at the time of the demand. Accordingly, the demand under s. 234.1(1) was invalid and the appellant cannot be convicted of failing or refusing, without reasonable excuse, to comply with a demand for a sample of breath contrary to s. 234.1(2).
44. It is not necessary to examine the question of reasonable excuse under s. 234.1(2) or the authorities on the point in this Court: see Brownridge v. The Queen, supra; Rilling v. The Queen, supra; and Taraschuk v. The Queen, supra. The demand in the present case was unlawful and invalid. The most fundamental condition for the section's operation, namely, that the police officer be acting lawfully in the execution of his duty at the time of the demand, is absent and the appellant need not adduce any excuse for failing to comply. See Morris v. Beardmore, supra, at p. 764 per Lord Scarman; also Lord Edmund‑Davies at p. 761 and Lord Roskill at pp. 766‑67.
45. The charge under s. 234.1(2) should be dismissed.
V. Conclusion
46. I would allow the appeal and restore the appellant's acquittal. The appellant should have his costs in the Ontario Supreme Court, as ordered by Maloney J., on a solicitor and client basis. He should also have his costs in the Ontario Court of Appeal and in this Court on both the application for leave to appeal and on the appeal.
The judgment of McIntyre, Lamer, Wilson and Le Dain JJ. was delivered by
47. Le Dain J.‑‑This appeal raises the following questions:
1. Whether the random stop by a police officer of the appellant's motor vehicle, as part of a program to reduce impaired driving, was unlawful as having been made without statutory or common law authority, despite the appellant's compliance with the signal to stop, and
2. If so, whether the unlawful character of the stop required the dismissal of the charge that the appellant failed or refused, without reasonable excuse, to comply with the demand, made after he stopped and was engaged in conversation by the police officer, that he provide a sample of breath into a roadside screening device, pursuant to s. 234.1(1) of the Criminal Code.
48. The appeal is by leave of this Court from the judgment of the Ontario Court of Appeal on May 19, 1981, 59 C.C.C. (2d) 97, 122 D.L.R. (3d) 655, 32 O.R. (2d) 641, 23 C.R. (3d) 228, 10 M.V.R. 59, allowing an appeal from the judgment of Maloney J. on December 19, 1980, 55 C.C.C. (2d) 97, 118 D.L.R. (3d) 425, 30 O.R. (2d) 555, 23 C.R. (3d) 203, 8 M.V.R. 142, which dismissed an appeal by way of stated case from the judgment of Provincial Court Judge Charles on May 15, 1980, 55 C.C.C. (2d) 97 at 98, 118 D.L.R. (3d) 425 at 427, 30 O.R. (2d) 555 at 557, 15 C.R. (3d) 261, 6 M.V.R. 233, acquitting the appellant of the charge of failing or refusing, without reasonable excuse, to comply with a demand to supply a sample of breath, contrary to s. 234.1(2) of the Criminal Code.
49. Subsections (1) and (2) of s. 234.1 of the Criminal Code provide:
234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road‑side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.
(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
I
50. On February 4, 1980 the appellant was signalled by a police officer to stop his vehicle. The stop was ordered, not because of the manner in which the appellant was driving or because of reasonable suspicion that he had alcohol in his body or reasonable and probable grounds for believing that he had committed or was committing a criminal offence, but as part of a random vehicle stop program referred to as "R.I.D.E." and described in the stated case as follows:
The R.I.D.E. programme involves police officers going to a location where they believe there has been a high incidence of impaired driving or alcohol‑related accidents. Vehicles are requested to pull over on a random basis. Drivers are asked to produce valid driver's licences. Police officers are also told to ask for proof of insurance, note the condition of the vehicle and the driver.
R.I.D.E. officers are equipped with approved road‑side screening devices to permit them to make demands for breath pursuant to s. 234.1 of the Criminal Code if they form the requisite grounds for a demand under that section. The device used here was an A.L.E.R.T. device.
The R.I.D.E. programme was started a few years ago in Etobicoke. R.I.D.E. originally stood for Reduce Impaired Driving in Etobicoke. In the last year it has been expanded across the Province of Ontario.
The R.I.D.E. programme's principal aim is to detect, deter and reduce impaired driving. Although police officers ask for valid driver's licences, they only do so to initiate conversation or contact to detect the drinking driver that they may not otherwise be able to detect.
On the 4th day of February, 1980, at 9:01 p.m., P.C. Feeney signalled the accused to stop his vehicle. There was nothing improper about the accused's driving or his vehicle. The only reason he was stopped was as part of the R.I.D.E. programme.
51. What took place after the appellant was signalled to stop his vehicle is indicated in the following findings of fact by the Provincial Court judge, as set out in the stated case:
The accused voluntarily complied with the request to stop his vehicle.
The officer asked the accused for his driver's licence. While the two were speaking, the officer smelled a strong odour of alcohol on the accused's breath.
As the result of smelling the alcohol on the accused's breath, the officer then formed a reasonable suspicion that the accused, who was then driving or in care or control of his motor vehicle, had alcohol in his body.
Prior to smelling the alcohol on the breath while checking the licence, the officer had no reason to suspect that the accused had alcohol in his body.
The officer then made a properly worded demand for a sample of breath to be provided for testing on the A.L.E.R.T. device.
The officer, after having satisfied himself that the device was operating properly, instructed the accused how he should blow air into the device.
The accused made four attempts to blow into the device, all of which were insufficient to give a proper reading of fail, pass or warn.
The accused was then issued an appearance notice at the scene in regards to a charge of failing or refusing to comply with a roadside demand pursuant to s. 234.1(2) of the Criminal Code. The accused left the scene at 9:25 p.m.
Up until the time of the alleged failure or refusal to comply with the roadside demand, the officer had no reason to believe on reasonable and probable grounds that the accused had committed, or was committing, an offence under any statute, provincial or federal.
At no time was the accused under arrest.
52. The Provincial Court judge held that the police officer had neither statutory nor common law authority to signal the appellant to stop; that at the time he made the s. 234.1(1) demand he did not have the reasonable suspicion required by that provision since he had acquired the suspicion as a result of an unauthorized act; and that since the appellant was not a person upon whom a s. 234.1(1) demand could be made, the appellant's failure to comply with the demand was not an offence.
53. In the Supreme Court of Ontario, Maloney J. also held that there was neither statutory nor common law authority for the signal to stop, but the effect of this lack of authority, in his view, was to give the appellant reasonable excuse for the failure or refusal to comply with the demand for a sample of breath.
54. In allowing the appeal from the judgment of Maloney J. and setting aside the acquittal of the appellant, the Ontario Court of Appeal, in a unanimous judgment delivered by Martin J.A., held that the voluntary compliance of the appellant with the signal to stop made it immaterial whether the officer was exercising a police power for which there was statutory or common law authority, or was merely exercising a legal liberty‑‑that is, doing something which he might do without any breach of law. The Court concluded that in signalling the appellant to stop the police officer was not committing a crime or a tort, and that since the officer had reasonable suspicion at the time the s. 234.1(1) demand was made that the appellant had alcohol in his blood and had not placed himself in a position to make the demand by the commission of a crime or a tort, the demand was valid.
II
55. The appeal therefore involves consideration of the legal foundation of police action, where the issue is the effect of an allegedly unlawful act on the validity of subsequent action and where there has been compliance with the allegedly unlawful act.
56. Martin J.A. appears to have taken the view that it was unnecessary in this case to decide whether there was statutory or common law authority for the signal to stop because that would only be relevant if there was an issue as to whether a refusal to comply with the signal to stop would have constituted the offence of wilful obstruction of a police officer in the execution of his duty, contrary to s. 118 of the Criminal Code. He did consider the submissions as to whether there was statutory or common law authority for the signal to stop and did make certain observations on the nature and legal foundation of police powers, but he relied in the end, as I have indicated, on the view that because of the voluntary compliance of the appellant with the signal to stop it was sufficient that the police officer was exercising a legal liberty involving no breach of law in the sense that it was neither criminal nor tortious.
57. With respect to the distinction between a police power and a legal liberty Martin J.A. said, with particular reference to the leading case of R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.):
It is important to correctly characterize what occurred here. The respondent was signalled or requested to stop and he complied with the request. A distinction must be made between a legal liberty, that is, something that a person may do without breach of the law, and a legal right, which the law will enforce, to do something or not to be prevented from doing something. In everyday speech the word "right" is sometimes used to connote rights in the strict sense as well as legal liberties: see Thorne v. Motor Trade Ass'n, [1937] A.C. 797 (H.L.) per Lord Wright at pp. 821‑3. The action of the police officer here on the facts found by the stated case was neither criminal nor tortious. Professor P.J. Fitzgerald, the distinguished editor of the 12th edition of Salmond on Jurisprudence (1966), argues that it is not clear that the actions of the police officers in R. v. Waterfield, supra, were either criminal or tortious: (see "The Arrest of a Motor‑Car" by P.J. Fitzgerald, [1965] Crim.L.Rev. 23). He suggests that the police officer had a legal liberty to stand in front of the appellant's car and signal him to stop. The driver, Lynn, however, had a legal liberty to move forward. He further suggests that the accused in R. v. Waterfield, supra, may have been guilty of an assault in using excessive force in maintaining his liberty to drive the car away. Whatever the true view may be, on the facts of that case, manifestly it could not be said that if the police officers had requested Waterfield to leave his car in order to permit them to examine it, and Waterfield had complied with the request, that there had been an unjustifiable exercise of police power.
58. With great respect, I do not think that the issue of the lawfulness of the signal to stop in this case can be properly disposed of by reliance on the notion of legal liberties which a police officer as an individual enjoys in company with other citizens. For reasons which I shall indicate, I do not think that the appellant's compliance with the signal to stop altered the legal basis on which it must be justified. In my opinion, police officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties. The reason for this is the authoritative and coercive character of police action. An individual knows that he or she may ignore with impunity the signal to stop of another private individual. That is not true of a direction or demand by a police officer. It is for this reason, in my opinion, that the actions of police officers must find legal justification in statutory or common law authority. The ambit of their authority, as distinct from their liability, is not to be determined by the limits of criminal or civil responsibility. Police action may be unlawful for lack of statutory or common law authority although neither criminal nor tortious. The issue in the present case may be likened to one of vires. The contention is that the allegedly unauthorized and hence unlawful nature of the signal to stop affected the validity of the subsequent demand for a sample of breath.
59. This issue cannot be affected, in my opinion, by the appellant's compliance with the signal to stop. A person should not be prevented from invoking a lack of statutory or common law authority for a police demand or direction by reason of compliance with it in the absence of a clear indication from the police officer that the person is free to refuse to comply. Because of the intimidating nature of police action and uncertainty as to the extent of police powers, compliance in such circumstances cannot be regarded as voluntary in any meaningful sense. The possible criminal liability for failure to comply constitutes effective compulsion or coercion. It is, moreover, in the interest of public order that a person should comply with the signal to stop of a police officer. In some cases such a signal may be for the protection of the individual, as, for example, to give a warning of some danger. A person should not be penalized for compliance with a signal to stop by having it treated as a waiver or renunciation of rights, or as supplying a want of authority for the stop.
III
60. The statutory provision that was relied on as a basis of authority for the signal to stop in this case is s. 14 of The Highway Traffic Act, R.S.O. 1970, c. 202, which, as amended by 1979 (Ont.), c. 57, s. 2, provides:
14. (1) Every operator of a motor vehicle shall carry his licence with him at all times while he is in charge of a motor vehicle and shall surrender the licence for reasonable inspection upon the demand of a constable or officer appointed for carrying out the provisions of this Act.
(2) Every person who is unable or refuses to surrender his licence in accordance with subsection 1 shall, when requested by a constable, give reasonable identification of himself and, for the purposes of this subsection, the correct name and address of such person shall be deemed to be reasonable identification.
61. It should perhaps be noted that counsel for the respondent conceded in this Court, as he apparently did in the Court of Appeal, that he no longer relied, as a statutory basis for an implied power to stop a motor vehicle for the purpose contemplated by the R.I.D.E. program, on s. 86(1) of The Highway Traffic Act, which confers a power on a police officer to direct traffic "according to his discretion" and imposes a duty to obey such directions.
62. Section 14 of the Ontario Highway Traffic Act imposes a duty upon the driver of a motor vehicle to surrender his or her licence for inspection upon demand. It was argued that there arises by implication from the driver's duty a power in a police officer to stop a motor vehicle for the purpose of inspecting a licence. I question whether such a power can be derived as a matter of statutory construction from the duty of the motorist. Implied powers are derived by implication from the powers expressly conferred by statute on an authority. Section 27(b) of The Interpretation Act, R.S.O. 1970, c. 225, provides: "In every Act, unless the contrary intention appears . . . where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing". This is a statutory embodiment of the rule stated in Halsbury’s Laws of England, 3rd ed., vol. 36, para. 657: "The powers conferred by an enabling statute include not only such as are expressly granted but also, by implication, all powers which are reasonably necessary for the accomplishment of the object intended to be secured". Section 14 of The Highway Traffic Act does not purport to confer a power on a police officer but rather imposes a duty on the individual driver. It may well be that such a duty necessarily implies a power to demand surrender of a licence for inspection, but whether such a power should extend by further implication to a power to stop a motor vehicle for such purpose is in my opinion doubtful. It would appear to involve an unusual extension of the rule of implied powers, as a matter of statutory construction. Such a power might exist as a matter of implication from the general nature of police duties, but that is a different basis. That is what I understand by common law authority for the exercise of police power. It may seem to come down to much the same thing in the end but the rule of statutory construction must not be distorted because of its application in a great variety of other statutory contexts. In any event, even assuming for the purposes of analysis that a power to stop a motor vehicle in order to demand surrender of a licence for inspection arises by implication from the terms of s. 14 of The Highway Traffic Act, and need not be grounded as a matter of common law on the general duties of police officers, it is a power that must be exercised for the purpose indicated in s. 14. It cannot be validly exercised for another purpose, using the purpose indicated in s. 14 as a subterfuge or pretext. In this case, it is clear from the findings of fact as set out in the stated case that while the police officer asked the appellant for his licence, the true purpose of the signal to stop was not to demand surrender of the licence for inspection but rather to determine whether there were grounds for a reasonable suspicion that the appellant had alcohol in his blood. That is clear from the following findings of fact: "Although police officers ask for valid driver's licences, they only do so to initiate conversation or contact to detect the drinking driver that they may not otherwise be able to detect" and "The only reason he was stopped was a part of the R.I.D.E. programme". I am, therefore, of the opinion that s. 14 of The Highway Traffic Act did not provide statutory authority for the signal to stop in the present case.
63. In view of this conclusion, it is unnecessary to express an opinion as to the constitutional validity of s. 14, which counsel for the appellant contended would be put in issue if the section were construed to confer authority to make a random vehicle stop for the purpose contemplated by the R.I.D.E. program. It may be noted that s. 189a.‑‑(1) of the Highway Traffic Act, as added by 1981 (Ont.), c. 72, s. 2, confers express authority on a police officer to stop a motor vehicle in the following terms: "A police officer, in the lawful execution of his duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop".
IV
64. Reliance was also placed on the general duties of police officers as the foundation for a common law authority to stop a motor vehicle for the purpose contemplated by the R.I.D.E. program. A statutory statement of these duties is found in s. 55 of The Police Act, R.S.O. 1970, c. 351, which provides:
55. The members of police forces appointed under Part II, except assistants and civilian employees, are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by‑laws of the municipality, and apprehending offenders, and laying informations before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables.
65. It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property, from which is derived the duty to control traffic on the public roads. See Rice v. Connolly, [1966] 2 Q.B. 414, at p. 419; Johnson v. Phillips, [1975] 3 All E.R. 682, at p. 685; Halsbury’s Laws of England, 3rd ed., vol. 30, para. 206, p. 129.
66. The common law basis of police power has been derived from the nature and scope of police duty. Referring to the "powers associated with the duty", Ashworth J. in R. v. Waterfield, supra, at pp. 661‑62, laid down the test for the existence of police powers at common law, as a reflection of police duties, as follows:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example, in Davis v. Lisle [1936] 2 All E.R. 213; [1936] 2 K.B. 434, it was held that even if a police officer had a right to enter a garage to make inquiries, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thenceforward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.
67. The test laid down in Waterfield, while generally invoked in cases in which the issue is whether a police officer was acting in the execution of his duties, has been recognized as being a test for whether the officer had common law authority for what he did. In Hoffman v. Thomas, [1974] 2 All E.R. 233, the issue was whether a police constable had the power to direct a motorist to stop for the purpose of submitting to a traffic census. The appellant was charged with refusal to comply with a direction to stop given by a police constable in the execution of his duty. Applying the Waterfield test, which he referred to as being of "the greatest assistance", Lord Widgery C.J. affirmed that the power to control traffic was a power to be exercised for the protection of life and property and held that the traffic census could not be related to this purpose. The direction did not therefore fall within the general scope of a police constable's duties under the first branch of the Waterfield test. Speaking in terms of police powers, Lord Widgery C.J. said at p. 238, "Accordingly it seems to me that neither at common law, nor by any statutory provisions to which we have been referred, had this police officer any right to direct the appellant to leave the motorway and go into the census area", and he spoke of the direction as a "signal which he had no power to make either at common law or by virtue of statute". The test laid down in Waterfield was treated as authoritative and applied by this Court in R. v. Stenning, [1970] S.C.R. 631, and in Knowlton v. The Queen, [1974] S.C.R. 443, both cases in which the issue was whether a police officer was in the execution of his duty. In Knowlton, Fauteux C.J., delivering the judgment of the Court, said at p. 446, "Police duty and the use of powers associated with such duty are the sole matters in issue in this appeal", and he concluded at p. 448, "I cannot find in the record any evidence showing that Sergeant Grandish or other police officers resorted, on the occasion, to any unjustifiable use of the powers associated with the duty imposed upon them". Leigh, Police Powers in England and Wales (1975), p. 33, refers to the decision in Knowlton as reflecting a movement towards "an ancillary powers doctrine which would enable the police to perform such reasonable acts as are necessary for the due execution of their duties." In the Wiretap Reference, [1984] 2 S.C.R. 697, Dickson J. (as he then was), dissenting, considered the Waterfield test under the heading "The Common Law Powers of the Police", which he referred to as "powers inherent in the execution of a police officer's duty".
68. In applying the Waterfield test to the random stop of a motor vehicle for the purpose contemplated by the R.I.D.E. program, it is convenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". That is the way it was referred to in Hoffman v. Thomas, supra, and in Johnson v. Phillips, supra. In assessing the interference with this right by a random vehicle stop, one must bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and control for the protection of life and property. Applying the Waterfield test, then, and using the word "liberty" in this qualified and special sense, it may be said that the random vehicle stop in this case was prima facie an unlawful interference with liberty since it was not authorized by statute. The first question, then, under the Waterfield test is whether the random stop fell within the general scope of the duties of a police officer under statute or common law. I do not think there can be any doubt that it fell within the general scope of the duties of a police officer to prevent crime and to protect life and property by the control of traffic. These are the very objects of the R.I.D.E. program, which is a measure to improve the deterrence and detection of impaired driving, a notorious cause of injury and death.
69. Turning to the second branch of the Waterfield test, it must be said respectfully that neither Waterfield itself nor most of the cases which have applied it throw much light on the criteria for determining whether a particular interference with liberty is an unjustifiable use of a power associated with a police duty. There is a suggestion of the correct test, I think, in the use of the words "reasonably necessary" in Johnson v. Phillips, supra. 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. 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. I would accordingly hold that there was common law authority for the random vehicle stop for the purpose contemplated by the R.I.D.E. program.
70. In view of this conclusion it is unnecessary for me to express an opinion as to whether, if the random vehicle stop were unlawful for lack of statutory or common law authority, its unlawful character would constitute a reasonable excuse, on the authority of the decision of the majority of this Court in Brownridge v. The Queen, [1972] S.C.R. 926, for the failure to comply with the s. 234.1(1) demand for a sample of breath, or would render such demand invalid, on the reasoning of the House of Lords in Morris v. Beardmore, [1980] 2 All E.R. 753.
71. I would accordingly dismiss the appeal. The appellant should have his costs in this Court on both the application for leave to appeal and on the appeal.
Appeal dismissed, Dickson C.J. and Beetz and Chouinard JJ. dissenting.
Solicitor for the appellant: Morris Manning, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General for New Brunswick: John H. Evans, Fredericton.
Solicitor for the intervener the Attorney General for Alberta: R. W. Paisley, Edmonton.