Brown v. Durham Police Force, (1998) 116 O.A.C. 126 (CA)

• Judge: Doherty, Weiler and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 12, 1998
• Jurisdiction: Ontario
• Citations: (1998), 116 O.A.C. 126 (CA);1998 CanLII 7198 (NS CA);1998 CanLII 7198 (ON CA);43 OR (3d) 223;167 DLR (4th) 672;131 CCC (3d) 1;21 CR (5th) 1;[1998] OJ No 5274 (QL);116 OAC 126;39 MVR (3d) 133;59 CRR (2d) 5

Brown v. Durham Police Force (1998), 116 O.A.C. 126 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. DE.031

Lorne Brown, Donald Petersen, Tero Rampanen and 689571 Ontario Limited, operating as Sovereign Property Corporation (plaintiffs/appellants) v. Regional Municipality of Durham Police Service Board (defendant/respondent)

(C24465)

Indexed As: Brown et al. v. Durham Regional Police Force

Ontario Court of Appeal

Doherty, Weiler and Goudge, JJ.A.

December 15, 1998.

Summary:

The police set up checkpoints to stop members of a motorcycle club who were attending parties on property owned by the club. Members of the club sued police claiming that the stops violated their s. 9 Charter rights.

The Ontario Court (General Division) dismissed the action. The police sought party and party costs. The members claimed that there should be no costs because a novel point of law was involved, and it was a test case.

The Ontario Court (General Division), in a decision reported 2 O.T.C. 28, ordered that there were to be no costs. The members appealed the dismissal of the action. The police cross-appealed the costs finding.

The Ontario Court of Appeal dismissed the appeal and the cross-appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The police set up checkpoints to stop members of a motorcycle club who were attending parties on property owned by the club - The police stopped anyone riding a Harley Davidson motorcycle or wearing colours of the club or another gang - Police checked licence, registration and insurance - They conducted a CPIC check - The police checked the vehicles and equipment for mechanical fitness and compliance with safety standards - They videotaped all those stopped - Members of the club sued police, claiming that the stops violated their s. 9 Charter rights - The Ontario Court of Appeal affirmed that the deten­tions were authorized by s. 216(1) of the Highway Traffic Act and were not arbi­trary - See paragraphs 18 to 56.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The police set up checkpoints to stop members of a motorcycle club who were attending parties on property owned by the club - The police stopped anyone riding a Harley Davidson motorcycle or wearing colours of the club or another gang - Police checked licence, registration and insurance - They conducted a CPIC check - The police checked the vehicles and equipment for mechanical fitness and compliance with safety standards - They videotaped all those stopped - Members of the club sued police, claiming that the stops violated their s. 9 Charter rights - The police claimed, inter alia, that the detentions were authorized under the common law police duty to preserve the peace and prevent crimes - The Ontario Court of Appeal held that the stops and detentions were not authorized at common law - See para­graphs 57 to 80.

Police - Topic 3024

Powers - Common Law - Scope of - [See second Civil Rights - Topic 3603 and Police - Topic 3077 ].

Police - Topic 3077

Powers - Arrest and detention - For ap­prehended breach of the peace - The On­tario Court of Appeal discussed the police common law power to arrest or detain a person to prevent an apprehended breach of the peace - The court stated that "the apprehended breach must be imminent and the risk that the breach will occur must be substantial" - The police officer must have reasonable grounds for believ­ing that the anticipated conduct will likely occur if the person is not detained - The power to arrest for an apprehended breach of the peace is not meant as a mechanism where­by the police can control and moni­tor on an ongoing basis the comings and goings of those they regard as dangerous and prone to criminal activity - See para­graphs 70 to 75.

Police - Topic 3204

Powers - Direction - Stopping vehicles - Section 216(1) of the Highway Traffic Act (HTA) authorized police to stop vehicles - The Ontario Court of Appeal stated that "[t]he detention authorized by s. 216(1) of the HTA is circumscribed by its purpose. The detention is limited to the roadside [including an adjacent parking lot] and must be brief, unless other grounds are established for a further detention. The police may require production of the doc­uments which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention ... More intrusive examina­tions or inquiries directed at mat­ters not relevant to highway safety con­cerns are not authorized by s. 216(1) of the HTA" - See paragraph 24.

Police - Topic 3204

Powers - Direction - Stopping vehicles - Section 216(1) of the Highway Traffic Act (HTA) authorized police to stop vehicles - The Ontario Court of Appeal held that highway safety concerns were a legitimate purpose for stopping vehicles - The court stated that where the police have stopped and detained a vehicle under s. 216(1), they can avail themselves of the opportu­nity to further some legitimate police inter­est - However, if one of the purposes motivating the stop and detention was improper, then the stop is unlawful even if highway safety concerns factored into the decision to stop and detain the vehicle - See paragraphs 26 to 41.

Police - Topic 3204

Powers - Direction - Stopping vehicles - [See both Civil Rights - Topic 3603 ].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - [See both Civil Rights - Topic 3603 and first and second Police - Topic 3204 ].

Practice - Topic 7029

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Novel or important point - Members of a motor­cycle club were stopped by police at checkpoints established on public highways leading to property owned by the club - Members of the club sued the police for damages, claiming that their s. 9 Charter rights were violated - The trial judge dis­missed the action - The trial judge denied the police party and party costs because the action was a test case that raised novel legal issues of considerable public im­portance - The members appealed and the police cross-appealed the costs finding - The Ontario Court of Appeal dismissed the appeal and cross-appeal - The court re­fused to order costs on appeal on the same basis - See para­graphs 81 to 83.

Practice - Topic 7029.5

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Where not in public or private interest - [See Practice - Topic 7029 ].

Practice - Topic 8331

Costs - Appeals - Costs of appeal - Novel or important questions - [See Prac­tice - Topic 7029 ].

Cases Noticed:

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 19, footnote 6].

R. v. Goodwin (No. 2), [1993] 3 N.Z.L.R. 390 (C.A.), refd to. [para. 19, footnote 6].

R. v. Simpson (R.), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 19].

R. v. Monney (I.) (1997), 105 O.A.C. 1; 120 C.C.C.(3d) 97 (C.A.), refd to. [para. 19].

R. v. Saulnier (1990), 23 M.V.R.(2d) 16 (B.C.C.A.), refd to. [para. 19].

R. v. Simpson (D.) (1994), 117 Nfld. & P.E.I.R. 110; 365 A.P.R. 110; 88 C.C.C.(3d) 377 (Nfld. C.A.), revd. [1995] 1 S.C.R. 449; 178 N.R. 145; 127 Nfld. & P.E.I.R. 171; 396 A.P.R. 171; 95 C.C.C.(3d) 96, refd to. [para. 19].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110; 56 C.C.C.(3d) 22; 21 M.V.R.(2d) 165, consd. [para. 21].

R. v. Soucisse (G.) (1994), 63 Q.A.C. 71; 5 M.V.R.(3d) 207 (C.A.), refd to. [para. 23].

R. v. Wilson (M.C.) (1993), 36 B.C.A.C. 161; 58 W.A.C. 161; 86 C.C.C.(3d) 145 (C.A.), refd to. [para. 23].

R. v. MacLennan (J.W.) (1995), 138 N.S.R.(2d) 369; 394 A.P.R. 369; 97 C.C.C.(3d) 69 (C.A.), refd to. [para. 23].

R. v. Montour (T.S.) and Longboat (S.R.) (1994), 150 N.B.R.(2d) 7; 385 A.P.R. 7; 5 M.V.R.(3d) 250 (C.A.), revd. [1995] 2 S.C.R. 416; 182 N.R. 154; 163 N.B.R.(2d) 158; 419 A.P.R. 158, refd to. [para. 23].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273, consd. [para. 24].

R. v. G.A.E. (1992), 77 C.C.C.(3d) 60 (Ont. C.A.), refd to. [para. 24].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 25].

R. v. Zammit (J.) (1993), 62 O.A.C. 272; 13 O.R.(3d) 76 (C.A.), refd to. [para. 25].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, consd. [para. 32].

R. v. Annett (1984), 6 O.A.C. 302; 17 C.C.C.(3d) 332 (C.A.), leave to appeal refused (1985), 58 N.R. 339; 9 O.A.C. 80; 17 C.C.C.(3d) 332 (S.C.C.), refd to. [para. 33].

R. v. Parsons (G.) (1993), 65 O.A.C. 61; 15 O.R.(3d) 1 (C.A.), refd to. [para. 48].

R. v. Shortreed (1990), 37 O.A.C. 144; 54 C.C.C.(3d) 292 (C.A.), refd to. [para. 48].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 51].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321; 56 C.C.C.(3d) 142, refd to. [para. 51].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161; 110 C.C.C.(3d) 1, refd to. [para. 52].

Knowlton v. R. (1973), 10 C.C.C.(2d) 377 (S.C.C.), refd to. [para. 59].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 61].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 16 C.R.(5th) 287; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 62].

R. v. Godoy (V.) (1997), 100 O.A.C. 104; 115 C.C.C.(3d) 272 (C.A.), refd to. [para. 63].

Ontario (Attorney General) v. Dieleman et al. (1994), 20 O.R.(3d) 229 (Gen. Div.), refd to. [para. 68].

Hayes v. Thompson et al. (1985), 18 C.C.C.(3d) 254 (B.C.C.A.), refd to. [para. 70].

R. v. Howell (1981), 73 Cr. App. R. 31 (C.A.), refd to. [para. 71].

Albert v. Lavin, [1982] A.C. 546 (H.L.), refd to. [para. 72].

Percy v. Director of Public Prosecutions, [1995] 3 All E.R. 124 (Q.B.), refd to. [para. 73].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9 [para. 18].

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 216(1) [para. 20].

Authors and Works Noticed:

Stuart, Politically Expedient but Potentially Unjust Legislation Against Gangs (1988), 2 Can. Crim. L.R. 208, generally [para. 69, footnote 11].

Counsel:

Robert M. Girvan, for the appellants;

David J.D. Sims and David R. Neill, for the respondent.

This appeal was heard on May 12, 1998, by Doherty, Weiler and Goudge, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following judgment for the Court of Appeal on December 15, 1998.