01/15/2013 03:12 EST | Updated 03/17/2013 05:12 EDT

Saskatchewan Court: No Random Police Checks In Private Parking Lots


HUMBOLDT, Sask. - Saskatchewan's highest court has put the brakes on police randomly stopping people in private parking lots.

The Saskatchewan Court of Appeal has ruled that the provincial Traffic Safety Act does not authorize police to make such checks.

The case involved a woman who was stopped in a parking lot at a hotel in Humboldt in 2009. Two officers on a routine patrol stopped an SUV to check for a driver's licence and vehicle registration. One of the officers took the woman to the police car and asked if she'd been drinking. When she said yes, the officer demanded a breath sample.

The court decision says the woman went through the motions, but couldn't produce a suitable sample.

She was charged with failing to provide a breath sample and was acquitted. That decision went to a higher court, where she was convicted, and it finally fell to the Court of Appeal to acquit her.

Chief Justice John Klebuc noted there was nothing wrong with the way the vehicle was being driven and police had no reason to stop it in the parking lot.

"While I am satisfied that (the officer) did not act in bad faith, he ought to have known he was not entitled to detain the appellant and check for a driver's licence or vehicle registration, neither of which was required to operate a vehicle off highway on a private parking area," wrote Klebuc.

"Furthermore, in the absence of anything unusual in the appellant's driving there was no reason for (the officer) not to wait until she drove onto a highway, assuming that proved to be her course of action."

Random stops are allowed on Saskatchewan highways. But police may not ask for a driver's licence and registration without reason when a vehicle is operated on private property, Klebuc wrote.

"In my view, when the words of The Traffic Safety Act are read in their entire context .... they do not authorize peace officers to conduct random stops on private parking areas."

Klebuc said that's consistent with interpretations by the Supreme Court and the courts of Ontario, Nova Scotia and New Brunswick.

He said the detention, the demand for information and the breath sample had an impact on the woman's liberty and privacy.He also rejected the Crown's argument that she should have had a low expectation of privacy, given that she would have been required to provide the information had the random stop taken place on a highway.

"If the approach advanced by the Crown were accepted, virtually all drivers of vehicles could be detained on private property based on the possibility they may drive the vehicle onto a highway without a licence or while impaired."

MADD Canada CEO Andrew Murie said the key distinction in the case is the way the vehicle was being driven.

"If that lady had been showing suspicion of drinking and driving in the parking lot — so it's not a random stop anymore, the officer has met the grounds for reasonable suspicion — he could have pulled her over and charged her with drinking and driving and this would have not ended up in the Appeal Court," said Murie.

Rules governing random police stops vary by province, Murie said. He said he's not concerned that this case will influence other impaired driving cases.

RCMP Sgt. Paul Dawson said officers across Saskatchewan will be informed about the court decision.

Dawson also noted that police may continue to stop drivers if they have grounds.

"If someone is driving erratically in a parking lot, then the members would still be able to stop that vehicle."

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