12/21/2022
The RIDE Program: How Festive is it?
(a) Arbitrary Detention?
There was a time when persons operating a vehicle could expect to drive around free from interference by the police. But that was a time long ago before to the advent of the R.I.D.E. (Reduce Impaired Driving Everywhere) program.
While there is no question that drinking driving exacts a heavy
human toll every year the issue remains to what extent the police are empowered to randomly detain motorists for the purpose of combating the social ill of carnage on our highways caused by people who shouldn’t be behind the wheel.
One of the earliest and most significant Charter decisions dealing with the tension between civil liberties and our supposed constitutional guarantees to be free from arbitrary detention and unreasonable search is the Supreme Court of Canada decision in R. v. Hufsky, [1988] 1 SCR 621. In that case our highest court decided that random stopping of a motorist for the purposes of a spot check procedure, even if of relatively brief duration, results in a detention within the meaning of s. 9 of the Charter of Rights.
The court also concluded that such detention is arbitrary in violation of s. 9 even though the stop is done pursuant to statutory [provincial] authority and for lawful purposes since there are no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The court nevertheless authorized such stops based on provincial legislation as being a reasonable limit within the meaning of s. 1 of the Charter, having regard to the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving.
Finally, the S.C.C. concluded that a demand by the police officer that the motorist surrender his driver's licence and proof of insurance for inspection as required by the provincial legislation does not infringe the motorist's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter.
(b) Unsanctioned Investigations:
Against that background however the courts have made it clear that the police do not have an unfettered right to arbitrarily investigate drivers who they stop in the course of a random check for drinking drivers. The subsequent decision by the Supreme Court of Canada in R. v. Mellenthin, [1992] 3 S.C.R. 615 makes that perfectly clear.
In that case the police directed the appellant's vehicle into a check stop set up as part of a program to check vehicles. One of the officers shone a flashlight in the interior of the appellant's vehicle, which was considered to be an appropriate action to ensure the safety of the officers conducting the check point. The flashlight
inspection revealed an open gym bag on the front seat. The officer asked what was inside the bag, was told food and shown a paper bag with a plastic sandwich bag in it. When the officer noticed empty glass vials, of the type commonly used to store cannabis resin, he asked the appellant to get out of the car, searched the car and found vials of hash oil and some cannabis resin ci******es. The appellant later gave an incriminating statement at the police detachment. At trial the judge excluded both the physical evidence of the drugs and the statement and acquitted the accused.
The Court of Appeal overturned the acquittal and ordered a new trial. Our Supreme Court emphatically restored the acquittal reasoning that although RIDE programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles their
primary aim must be to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The court authoritatively held that the police use of check stops should not be extended beyond these aims and that “random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.”
(c) The Investigation of Passengers:
This restrictive analysis has now also been extended to the rights of
passengers questioned in the course of a RIDE check.
Recently, a well respected judge of this province had occasion to review the evolving law in this regard and had no difficulty acquitting a passenger of a car who had been questioned at the roadside and charged with breach of probation. In R. v. Dale, 2012 ONCJ 692 The arresting officers were questioned at trial how it was that they discovered the alleged breach and they candidly testified that “it was ‘common’ to collect identification from not only the drivers but also passengers in vehicles stopped at a R.I.D.E. and run the names through CPIC to see if anyone was in breach of any conditions”. The judge roundly denounced this practice: “In the case at bar, I find the violations to be very serious, in particular the violation of s.8. I say this because of the bad faith of the officer. The officers were either aware of Mellenthin….or they should
have been. Mellenthin was decided in 1992….. The seizure of identification from passengers at a R.I.D.E. program has been specifically denounced as a violation by the highest court in this country and in this province. The OPP must obey the law. They cannot ignore it. They are sworn to uphold it. But they do not. This is bad faith because the violation is either deliberate or through their ignorance. It is necessary to dissociate the Court from ‘the
fruits of this unlawful conduct’. Where the police are acting in bad faith and continue to engage in conduct specifically denounced by the Court then the violation is very serious.”
In conclusion, although it is permissible for the police to arbitrarily detain motorists in a RIDE program, that detention should be brief and directed specifically to the issue of the sobriety of the driver. The police do not have carte blanche powers to conduct any other type of criminal investigation in relation to the driver and they have no legal authority to commence an impromptu investigation regarding any of the passengers.
(d) Demand for Roadside Breath Sample:
Drivers who are stopped by RIDE may also face a demand to provide a sample of their breath into a roadside screening device. The officer only needs to entertain a “reasonable suspicion” that the driver has “alcohol in his body”.
Generally that would be established by the detection of an odour of alcohol on a motorist’s breath coupled with an admission of consumption. Although the police are entitled to ask “have you been drinking” an informed motorist should know that an incriminating reply can supply the grounds that the officer who is looking for to make the demand. If a roadside demand is made, the motorist normally isn’t entitled to be informed of his right to counsel unless there is a delay in administering the test in which case the police must read him his rights or risk having any subsequent result excluded.
During the course of the test it is also necessary for the police to advise as to the legal consequences for refusing to provide a sample (the same jeopardy as if the detainee had been tried and convicted for an impaired driving offence). A person faced with a demand to provide a sample who is either reluctant or unable to provide a breath sample must also be cautioned that after a number of unsuccessful attempts he is facing his “last chance.”
(e) Related Administrative Consequences:
It is not a crime to take the roadside test and fail. This investigative result simply provides grounds for the police to arrest on suspicion of “over 80” when you must then be given your right to counsel and afforded a reasonable opportunity to exercise that right. Motorists need to understand however that even if they “pass” the test in the sense that they only blow a “warn”, which means that they are actually under the legal limit, there are now serious administrative consequences.
Paradoxically, in Ontario your licence will be immediately suspended (even though the machine has proven your
innocence) as follows:
First Time
• 3-day licence suspension
• $150 Administrative Monetary Penalty
Second Time (within 5 years)
• 7-day licence suspension
• Mandatory alcohol education program
• $150 Administrative Monetary Penalty
Third Time (within 5 years)
• 30-day licence suspension
• Mandatory alcohol treatment program
• Six-month ignition interlock licence condition
• $150 Administrative Monetary Penalty
Subsequent infractions (within 5 years)
• 30-day licence suspension
• Mandatory alcohol treatment program
• Six-month ignition interlock licence condition
• Mandatory medical evaluation
• $150 Administrative Monetary Penalty
•
To make matters worse, these suspensions cannot be appealed. The roadside device in other words constitutes an essentially unreviewable legal regime akin to judge, jury and executioner at the roadside. The end result of these escalating legislative sanctions is that the present penalty imposed by the law at the roadside, where no criminal offence has either occurred or been charged, is far worse than the penalties drivers used to get in years gone by
after they had actually been tried and convicted of drinking and driving.
MERRY CHRISTMAS!
This article was written before the passage of even more restrictive legislation in 2018 which now permits a roadside demand without reasonable suspicion that the driver has any alcohol in their system.
Subject to a successful constitutional challenge, all that an officer now needs to make a valid demand is that he finds someone operating a "conveyance" (which, believe it or not, could even include a canoe!).
For further analysis of the defence of DUI cases please see my website at EngelDuiLaw.ca
