R. v. Hufsky, (1988) 84 N.R. 365 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 28, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 84 N.R. 365 (SCC);40 CCC (3d) 398;[1988] 1 SCR 621;AZ-88111029;4 MVR (2d) 170;32 CRR 193;JE 88-580;63 CR (3d) 14;1988 CanLII 72 (SCC);[1988] SCJ No 30 (QL);84 NR 365;27 OAC 103

R. v. Hufsky (1988), 84 N.R. 365 (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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Werner E.J. Hufsky v. Her Majesty the Queen and the Attorney General of Canada

(19028)

Indexed As: R. v. Hufsky

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest, JJ.

April 28, 1988.

Summary:

The accused's vehicle was randomly pulled over by police for a spot check procedure pursuant to s. 189a(1) of the Ontario Highway Traffic Act. The officer checked the accused's licence and proof of insurance. The officer smelled alcohol and noticed that the accused's speech was slurred slightly and therefore demanded that the accused submit to a roadside breath screening test. The accused refused. He was then advised of his right to counsel (Charter, s. 10(b)). He was charged with refusing to take a roadside breath screening test contrary to s. 234.1 of the Criminal Code. At trial he argued that the nonuniversal proclamation of s. 234.1 of the Code infringed his right to equality before the law guaranteed by s. 1(b) of the Canadian Bill of Rights. He argued further that the random stop and spot check procedure infringed his right to be secure against unreasonable search and seizure and his right not to be arbitrarily detained as guaranteed by ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The Ontario Provincial Court rejected these contentions and convicted the accused. The accused appealed.

The Ontario County Court dismissed the appeal without reasons. The accused appealed.

The Ontario Court of Appeal, in an endorsement on a record reported at 14 O.A.C. 1, dismissed the appeal. The accused appealed again. Estey, J., posed five constitutional questions for the court:

(1) Does the nonuniversal proclamation of s. 234.1 of the Criminal Code infringe the right to equality before the law under s. 1(b) of the Canadian Bill of Rights?

(2) Does the random stopping of motor vehicles by police under federal or provincial statutes infringe the right not to be arbitrarily detained as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms?

(3) If the answer to question two is affirmative, is such statutorily permitted conduct justified under s. 1 of the Charter?

(4) Was the accused's right to be secure against unreasonable search as guaranteed by s. 8 of the Charter infringed by the "spot check" procedure employed by the police officer?

(5) If the answer to question four is affirmative, is such statutorily permitted conduct justified by s. 1 of the Charter?

The Supreme Court of Canada dismissed the appeal, answering question one in the negative, questions two and three in the affirmative and question four in the negative. The court found it unnecessary to answer question five. The court held that (1) the nonuniversal proclamation of s. 234.1 did not violate the right to equality in s. 1(b) of the Canadian Bill of Rights; (2) the random stopping of motor vehicles by police under federal or provincial statutes violated the right not to be arbitrarily detained under s. 9 of the Charter, but such a violation was justified under s. 1 of the Charter; and (3) the accused's right to be secure against unreasonable search and seizure (Charter, s. 8) was not violated by the random spot check procedure.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Request by police to provide licence and proof of insurance - The Supreme Court of Canada held that the provisions of the Ontario Highway Traffic Act, which empowered a police officer to demand that a driver surrender his driver's licence and insurance card for inspection, did not constitute a search within the meaning of s. 8 of the Charter, because it did not constitute an intrusion on a reasonable expectation of privacy - The court stated that "there is no such intrusion where a person is required to produce a licence or permit or other documentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of the right or privilege" - See paragraphs 22, 23.

Civil Rights - Topic 1219

Security of the person - Lawful or reasonable search - Search defined - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 1401

Security of the person - Law enforcement - General - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 3601

Detention - General - The Supreme Court of Canada held that the approach taken to the meaning of "detention" in s. 10 of the Charter (the right to counsel provision), could be applied in determining whether a person is "detained" within the meaning of s. 9 of the Charter (the arbitrary detention provision) - See paragraph 12.

Civil Rights - Topic 3603

Detention - Arbitrary detention - What constitutes - The accused's vehicle was randomly stopped under s. 189a (1) of the Ontario Highway Traffic Act for the purposes of a spot check procedure to check the driver's licence and proof of insurance and to observe the accused's sobriety - The Supreme Court of Canada held that the random stop for the purpose of a spot check resulted in a detention within the meaning of s. 9 of the Charter - See paragraphs 8 to 12 - The court held further that the detention was arbitrary, because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure - See paragraph 13 - The court noted however that s. 189a (1) limited the right not to be arbitrarily detained by giving police the absolute discretion to decide what vehicles to stop (a limit prescribed by law) - See paragraphs 14, 15 - The court held, however, that this limit on the right not to be arbitrarily detained was reasonable and demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter - See paragraphs 16 to 21.

Civil Rights - Topic 3603

Detention - Arbitrary detention - What constitutes - The Supreme Court of Canada held that a detention is arbitrary within the meaning of s. 9 of the Charter if there are no criteria, express or implied, which govern its exercise - See paragraph 13.

Civil Rights - Topic 3604

Detention - What constitutes - The accused's vehicle was randomly stopped pursuant to s. 189a(1) of the Ontario Highway Traffic Act, for the purpose of a spot check procedure to check the driver's licence and proof of insurance and to observe the accused's sobriety - The Supreme Court of Canada held that the random stop of the accused for the purpose of the spot check resulted in a detention within the meaning of s. 9 of the Charter - See paragraphs 8 to 12.

Civil Rights - Topic 5642

Equality and protection of the law - Federal statute not proclaimed in all provinces - Criminal Code, s. 234.1 - The Ontario Court of Appeal held that the roadside screening provisions of s. 234.1 of the Criminal Code were operative although not proclaimed in all Canadian provinces, notwithstanding the equality provisions of s. 1(b) of the Canadian Bill of Rights - The Supreme Court of Canada affirmed this decision where s. 234.1 was justified by a valid federal objective - See paragraph 8.

Civil Rights - Topic 8007

Canadian Bill of Rights - Principles of operation and interpretation - Equality before the law - [See Civil Rights - Topic 5642 above].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - The Supreme Court of Canada reiterated that a limit prescribed by law within the meaning of s. 1 of the Charter may arise by implication from the terms of the legislative provision or its operating requirements - See paragraph 15.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See first Civil Rights - Topic 3603 above].

Police - Topic 3105

Powers - Investigation - Sobriety test - [See first Civil Rights - Topic 3603 above].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - [See first Civil Rights - Topic 3603 above].

Cases Noticed:

R. v. Cornell (1988), 83 N.R. 383, appld. [para. 8].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 C.C.C.(3d) 97; 20 D.L.R. (4th) 321, refd to. [para. 10].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C. (3d) 481; 45 C.R.(3d) 97; 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, appld. [para. 12].

R. v. Thomsen (1988), 84 N.R. 347, appld. [para. 12 et seq.].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R. (4th) 200; 50 C.R.(3d) 1; 24 C.C.C. (3d) 321, appld. [para. 16].

R. v. Videoflicks, [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1, appld. [para. 16].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks.

R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385, refd to. [para. 17].

Delaware v. Prouse (1979), 440 U.S. 648, not folld. [para. 20].

Little v. State (1984), 479 A.2d 903, not folld. [para. 20].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 23].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(b) [para. 8].

Canadian Charter of Rights and Freedoms, sect. 1, sect. 8, sect. 9, sect. 10.

Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83, sect. 3(1) [paras. 11, 22].

Criminal Code, R.S.C. 1970, c. C-34, sect. 234.1 [para. 1 et seq.]; sect. 235(1) [para. 10].

Criminal Law Amendment Act 1975, S.C. 1974-75-76, c. 93, sect. 102(3) [para. 8].

Highway Traffic Act, R.S.O. 1980, c. 192, sect. 19(1) [paras. 11, 22]; sect. 30a(1) [para. 10]; sect. 189a(1) [para. 10 et seq.].

Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, sect. 1, sect. 2 [para. 10].

Counsel:

Irvin H. Sherman, Q.C., and Warren Creates, for the appellant;

Michael A. MacDonald, for the respondent;

E.A. Bowie, Q.C., for the intervenor, the Attorney General of Canada.

Solicitors of Record:

Irvin H. Sherman, Toronto, Ontario, for the appellant;

Ministry of the Attorney General, Toronto, Ontario, for the respondent;

Frank Iacobucci, Ottawa, Ontario, for the intervenor.

This appeal was heard on February 24 and 25, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada. The following unanimous decision of the court was delivered in both official languages on April 28, 1988, by Le Dain, J.