R. v. Dedman, (1985) 60 N.R. 34 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 31, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 60 N.R. 34 (SCC);34 MVR 1;JE 85-781;60 NR 34;20 DLR (4th) 321;AZ-85111062;14 WCB 396;[1985] 2 SCR 2;46 CR (3d) 193;[1985] CarswellOnt 103;20 CCC (3d) 97;11 OAC 241;1985 CanLII 41 (SCC);51 OR (2d) 703;[1985] SCJ No 45 (QL)

R. v. Dedman (1985), 60 N.R. 34 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Dedman

Indexed As: R. v. Dedman

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.

July 31, 1985.

Summary:

The police conducted a random spot check of drivers in a program designed to detect impaired drivers in areas with a high incidence of impaired driving. The accused was one of the drivers arbitrarily signalled to stop, even though there was nothing improper about his driving or his vehicle. The accused complied. The police officer asked for the accused's driver's licence and insurance, for the sole purpose of observing the accused to determine if reasonable grounds existed for the making of a breathalyzer demand under s. 234.1 of the Criminal Code of Canada. After noting a strong smell of alcohol on the accused, the officer demanded that the accused provide a breath sample into an approved roadside screening device. The accused's repeated attempts failed to provide sufficient samples to give a proper reading. The accused was charged with failing to comply with the demand, contrary to s. 234.1(2) of the Criminal Code.

The Ontario Provincial Court acquitted the accused, because the police had no statutory or common law authority to signal the accused to stop. The Crown appealed.

The Ontario Supreme Court, in a judgment reported (1980), 55 C.C.C.(2d) 97, dismissed the appeal. The court affirmed the lack of police authority and held that it provided a reasonable excuse for failing to comply with the demand. The Crown appealed.

The Ontario Court of Appeal, in a judgment reported (1981), 59 C.C.C.(2d) 97, allowed the appeal and set aside the acquittal. The court held that by complying with the signal to stop the accused made the issue of police authority to randomly stop vehicles immaterial. The court held that the officer had reasonable grounds for making the demand. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The court held that although the police had no statutory authority to randomly stop drivers for the purpose of implementing a program designed to detect impaired drivers, they had authority to do so at common law in association with their duty to prevent crime and protect life and property.

Dickson, C.J.C., dissenting, Beetz and Chouinard, JJ., concurring, would have allowed the appeal. The minority held that the police had neither statutory nor common law authority to randomly stop drivers, therefore the unlawful demand was invalid and the charge should be dismissed.

Highways - Topic 4005

Use of highways - General - Nature of right - The Supreme Court of Canada stated that a motorist's right to circulate on a public highway was a liberty, but not a fundamental liberty - The court stated that driving on a highway was a licensed activity subject to regulation and control for the protection of life and property - The court held that police had the common law authority to interfere with a driver's liberty by stopping drivers in the enforcement of a random stop check program designed to detect impaired drivers - See paragraph 22.

Police - Topic 2204

Duties - General duties - Common law duties - The Supreme Court of Canada stated that the common law duties of police were preservation of the peace, prevention of crime and protection of life and property, from which was derived the duty to control traffic on public roads - See paragraph 19.

Police - Topic 3008

General - Unauthorized acts - Validation of - The Supreme Court of Canada stated that a police officer acts lawfully only where authority is conferred by statute or common law - The court held that citizen compliance with an unlawful police direction did not make that direction lawful - See paragraphs 12 to 13.

Police - Topic 3024

Powers - Common law - Scope of - The Supreme Court of Canada set out the test to determine whether a particular act by a police officer was authorized by the common law in association with a common law duty - See paragraph 20.

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - A police program was implemented to detect impaired drivers - In areas with a high incidence of impaired driving, random spot checks of drivers were carried out - The driver was asked to produce his licence and insurance, for the sole purpose of allowing the police to observe him and determine whether reasonable grounds existed for making a breathalyzer demand - The Supreme Court of Canada held that the random stops, having regard to the importance of the public purpose served, was a reasonable interference with a driver's right to use the highway - The court held that the police had the common law authority to randomly stop drivers for the purpose contemplated by the program - See paragraphs 9 to 24.

Cases Noticed:

R. v. Waterfield, [1964] 1 Q.B. 164, appld. [para. 11].

Rice v. Connolly, [1966] 2 Q.B. 414, refd to. [para. 19].

Johnson v. Phillips, [1975] 3 All E.R. 682, refd to. [para. 19].

Hoffman v. Thomas, [1974] 2 All E.R. 233, refd to. [paras. 21, 22, 46, 58].

R. v. Stenning, [1970] S.C.R. 631, refd to. [paras. 21, 46, 47].

R. v. Knowlton, [1974] S.C.R. 443, refd to. [paras. 21, 46, 47].

Wiretap Reference, [1984] 2 S.C.R. 697; 56 N.R. 43, refd to. [paras. 21, 47].

Brownridge v. The Queen, [1972] S.C.R. 926, refd to. [paras. 24, 62, 69].

Morris v. Beardmore, [1980] 3 W.L.R. 283, refd to. [paras. 24, 66-69].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 37].

Samuel v. Payne (1780), 1 Doug K.B. 359; 99 E.R. 230, refd to. [para. 43].

Christie v. Leachinsky, [1947] A.C. 573 (H.L.), refd to. [para. 43].

R. v. Moore, [1979] 1 S.C.R. 195; 24 N.R. 181, refd to. [para. 44].

Albert v. Lavin, [1981] 3 All E.R. 878 (H.L.), refd to. [para. 44].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, refd to. [para. 62].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 62].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 234.1 [paras. 3, 61].

Highway Traffic Act, R.S.O. 1970, c. 202, amended S.O. 1979, c. 57, sect. 2, sect. 14 [para. 14].

Interpretation Act, R.S.O. 1970, c. 225, sect. 27(b) [para. 16].

Police Act, R.S.O. 1970, c. 351, sect. 55 [para. 18].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 36, para. 657 [para. 16].

Halsbury's Laws of England (3rd Ed.), vol. 30, para. 206, p. 129 [para. 19].

Leigh, L.H., Police Powers in England and Wales (1875), pp. 29 [para. 41]; 33 [para. 21].

Salhany, R.E., Canadian Criminal Procedure (3rd Ed. 1978), p. 31 [para. 42].

Smith and Hogan, Criminal Law (1965), pp. 278, 279 [para. 43].

Butler and Garsia, Archbold Criminal Pleading, Evidence and Practice (36th Ed. 1966), para. 2808 [para. 43].

Devlin, The Criminal Prosecution in England (1958), p. 82 [para. 44].

Honsberger, The Power of Arrest and the Duties and Rights of Citizens and the Police, [1963] L.S.U.C. Special Lectures: Arrest & Interrogation 1, [para. 44].

Cohen, The Investigation of Offences and Police Powers (1984), 13 Ottawa L.R. 549, generally [para. 44]; p. 562 [paras. 52, 57].

Lanham, Arrest, Detention and Compulsion, [1974] Crim. L.R. 288, p. 289 [para. 44].

Bailey & Birch, Recent Developments in the Law of Police Powers, [1982] Crim. L.R. 475, p. 481 [para. 44].

Counsel:

Morris Manning, Q.C., and Joseph Favaro, for the appellant;

Murray D. Segal, for the respondent;

John H. Evans, for Attorney General for New Brunswick;

William Henkel, Q.C., and Richard Taylor, for the Attorney General for Alberta.

This appeal was heard on October 9, 1984, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.

On July 31, 1985, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Le Dain, J. - see paragraphs 1 to 25;

Dickson, C.J.C., dissenting - see paragraphs 26 to 71.

McIntyre, Lamer and Wilson, JJ., concurred with Le Dain, J.

Beetz and Chouinard, JJ., concurred with Dickson, C.J.C.