The most obvious statutory power to detain arises in the impaired-driving context, where, not atypically as a feature of powers of detention, it is based on something less than reasonable belief.
As we have noted above, this area is plagued by inconsistency and by varying opinions on many issues; statutory context, both federal and provincial, has been important and the Supreme Court has allowed the common law a large role in expanding powers given by statute. Because provincial statutes are significant and because provinces have not acted in unison, each statute will need, at times, to be consulted to determine the particular powers available to enforcement officers in a given jurisdiction.
It is also worth noting that a "detention" is not necessarily a detention power. As we will note, the definition of the word "detention," which appears in sections 9 and 10 of the Charter and which plays an important role in the right to silence under section 7 of the Charter, has received considerable attention from the Court.9Particularly in the July 2009 decisions in Grant10and Suberu,11the Court provides much guidance on the term’s definition. Yet what is not so clear is that these cases are not about detention powers. Rather, they address the question as
to what rights a detained person has once they are, in fact, detained. A detention power, on the other hand, needs to focus upon a situation in which the state or an individual has the power, at law, to assume "control over the movement of a person by a demand or direction," not just whether the police did in fact detain a person in a given circumstance.12
The failure to recognize the distinction can result in a misunderstanding of the principles at stake in any given situation.
A detention may be for varying amounts of time but generally we are here speaking of brief detentions that give rise to rights concerns. Different detention powers will sometimes be used in succession in that the exercise of one detention power might lead to the use of another or others. For example, the power to demand a roadside screening sample from a driver of a motor vehicle pursuant to section 254 of the Criminal Code13gives rise to a detention, which then gives rise to rights under sections 9 and 10 of the Charter.14But such a power does not give rise to the power to stop a motor vehicle. That is, a driver of a stopped motor vehicle might be detained for a roadside test; but the actual stopping of the vehicle by the police officer will need to be justified under some other power, such as the power to conduct a checkstop. That power arises under the common law as set out in the decision in Dedman.15
In most impaired-driving checkstops, then, the Dedman power will be relied upon, followed by a detention under section 254(2) where that power so permits.16Of course, that second detention may then lead to a further detention for a breathalyzer test or an arrest under applicable police arrest powers based upon reasonable belief in impaired driving. Likewise, where the police do not employ a checkstop but rather conduct a random stop, the police will need to look elsewhere for their power to stop the vehicle, even though both kinds of stops may, in the right circumstance, lead to a section 254(2) roadside detention and demand.17The power to conduct a random stop, as we shall see, is less clear, although the Court has certainly discovered such a power in most of the provinces.18Understood properly, therefore, the power to detain that is present in section 254 of the Criminal Code will in many
cases actually operate as a power to further detain a suspect who was detained initially for some other reason and on some other power.19Initially, it appears useful to separate this heading into stop powers and subsequent detention powers. In the Criminal Code, outside the impaired-driving context, there would appear to be few detention powers short of arrests themselves. There is, for example, a specific arrest power relating to apprehended terrorist activity which depends in part only on reasonable suspicion.20Significantly, there are detention powers in other federal statutes relating specifically to border crossings and customs.21Further, there are important detention powers in provincial legislation which in almost all cases will be centred on those that engage in various licensed or regulated activities or industries.
Our focus here will be on motor vehicle legislation stop powers since they have received the most attention from the Court. In Dedman the Supreme Court faced an argument that section 14 of the then Highway Traffic Act of Ontario justified the checkstop in which Dedman was caught.22The section imposed a duty upon the driver of a motor vehicle to surrender his or her licence for inspection upon demand. It did not expressly provide a police power to stop the vehicle to ask to see the licence. The Crown argued that a police officer’s power to stop a mo-
tor vehicle for the purpose of inspecting a licence arose by implication from the driver’s duty. The majority disagreed with the Crown, ruling that the section might imply a power to demand surrender of the licence for inspection, but whether such a power should extend, by further implication, to a power to stop a motor vehicle for such purpose was "doubtful."23Writing for the majority, Justice Gerald Le Dain also said:
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 as 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.24
Several significant findings appear in the above passage, at least some of which are now of doubtful validity. First, Justice Le Dain, for the majority, suggests that it is not appropriate to find by implication a power not expressly provided for in the statutory language. As we
shall see, the Court later does exactly that in Orbanski.25Next, it is suggested that a power must be used for the purpose there stated, in this circumstance, to ask for the driver’s licence, and not for another purpose, such as discovering evidence of impaired driving. We will see that the Supreme Court has held that it is a valid purpose to investigate the sobriety of the driver by way of provincial motor vehicle legislation.26Yet, as will be discussed below, while the Court in Dedman did go on to employ the common law to create a power to conduct impaired driving checkstops, it would also in a subsequent decision return to the theme that that power must be used only for that purpose and not to investigate other criminal offending.27We will discuss this common law power further, in Section C below in this chapter.
The Ontario legislature did not sit idly and accept the Dedman interpretation of section 14 and soon amended its Act. The issue then returned to the Court in Hufsky in 1988.28By this time, the legislature had added section 189(a) to the Ontario Highway Traffic Act29which now provided:
(1) 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.
(2) Every person who contravenes subsection (1) is guilty of an of-fence and on conviction is liable to a fine of not less than $100 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both.
In Hufsky, Le Dain J. had little difficulty finding the stop, based as it was on this section, to be lawful:
It [section 189(a)] does not specify that there must be some grounds or cause for stopping a particular driver but on its face leaves the choice of the drivers to be stopped to the discretion of the officer. In carrying out the purposes of the spot check procedure, including the
observation of the condition or "sobriety" of the driver, the officer was clearly in the lawful...