R. v. Lippett  O.J. No. 5185 – an Ontario Court of Justice, presided over by the Honourable Justice Robert W. Beninger, has examined police powers at a RIDE program, and specifically whether they can open the car door.
The defendant, alone in his car, entered a RIDE stop, which had been set up by police on an afternoon in February. There was nothing notable about the defendant’s driving before he was stopped. An officer approached the defendant’s vehicle and asked him to roll down his window. The window was rolled down two or three inches, so the officer asked him to roll it down further. The defendant then rolled the window down two thirds of the way. It was not established on the evidence whether the window was a power window or opened manually. The officer noted a strange odour in the defendant’s vehicle, which he could not identify. He identified the obvious odour of an air freshener. He noted an air freshener hanging from the rear-view mirror of the vehicle. He spoke to the defendant, and he observed the defendant’s eyes to be shiny or glassy with the white portion of the eye very pink. The officer did not ask the defendant if he wore contact lenses or had allergies (the defendant’s sworn affidavit said he was wearing contact lenses when he was stopped by police).
The officer observed the defendant’s speech to be what he termed as, “Gummy and laboured.” The officer asked the defendant if he had consumed alcohol, and the defendant denied it. The officer asked the defendant if he had ingested marihuana and the defendant denied that. On request, the defendant produced a valid Ontario Driver’s License without difficulty. The officer walked to the rear of the vehicle to verify the license plate. The evidence was not established as to how long the officer was at the back of the vehicle, but he said it was no more than ten seconds. When the officer returned to the driver’s side window, the window was closed. Upon leaving the driver’s side of the vehicle, the officer had not directed the defendant to keep his driver’s window rolled down, nor did he direct the defendant to either turn off his vehicle or put it in park. The officer had not told the defendant how long he was going to be gone when he walked away.
The officer asked the defendant to roll the window down. The defendant appeared to the officer to be trying to open the window, but seemed to be having difficulty opening the window. It was not established on the evidence as to how long the officer waited for the defendant to open the window. The officer said that, in his view the defendant wanted to appear as if he was rolling down the window, but he wasn’t rolling down the window. The officer said that in his view he gave the defendant “ample” time to open the window. It was unclear to the officer whether the defendant was unable to open the window or was deliberately not complying with his direction. In the end, the officer did not wait for the defendant to open the window. The officer opened the door of the vehicle, and leaned into the defendant’s car for the purpose of furthering his investigation. The officer did not ask for permission to open the door, and he was not invited by the defendant to open the door.
As it was winter, it was cold outside and there was snow on the ground. The officer leaned into the car through the open door, and he could smell the obvious odour of marihuana in the vehicle. The officer formed a belief that the defendant had been smoking marihuana and was in possession of marihuana. There was no smoke in the car, nor any physical signs of marihuana in the car. The officer removed the defendant from the car and arrested him for possession of marihuana (this was about 3 minutes after the initial stop). The defendant told the officer that he had weed in his shirt pocket, and the officer found two rolled joints in the defendant’s shirt pocket. After he removed the defendant from the vehicle, the officer made observations that the defendant was unsteady on his feet, so he arrested the defendant for driving while he was impaired by a drug. After his right to counsel, the officer read the defendant a D.R.E demand and transported the defendant to the police detachment, leaving some 10 minutes after the initial stop. Once back at the police station, the defendant initially complied with the D.R.E testing, but about 30 minutes later said he would no longer cooperate with the testing. Subsequently, he was charged with refusal under s. 254(5) of the Criminal Code.
Defence argued that there was a section 8 Charter breach when the defendant was subject to an unlawful search and seizure; there was a section 9 Charter breach when the defendant was arrested for a possession of marihuana without the police having reasonable grounds for an arrest, and without the police being in compliance with s. 495(1)(b) of the Criminal Code; and that all the evidence relied upon by the crown to prove the charges against the defendant should be excluded pursuant to s. 24(2) of the Charter.
Justice Beninger first addressed police powers at a R.I.D.E. stop. The scope of police power was described by Justice Doherty in R. v. Smith,  O.J. No. 372, in the Court of Appeal as, in order to be reasonable having to be:
“Performed at the site of the detention with dispatch, with no danger to the safety of the detainee, and with minimal inconvenience to the detainee.”
The crown argument was that the action of opening the car door falls within the parameters of the police powers which are available at the roadside. As stated in R. v. Orbanski,  S.C.J. No. 37 [SCC] at paragraph 45 and following:
“One can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body, and those who have reached the impermissible level.”
The crown cited a number of cases which endorse the power of the police to open the car door as a lawful investigative step, but Justice Beninger found that none of those cases support the proposition that police have the authority at a standard R.I.D.E stop to open the door of a vehicle without the permission of the driver. The crown’s argument, as Justice Beninger understood it, is that he should find that the police have the authority to open car doors at a R.I.D.E. stop pursuant to their ancillary powers. To agree with the crown on that point, the Justice would be endorsing the authority of police to open car doors at R.I.D.E. stops as part of their standard investigative procedure.
Defence argued, as stated in R. v. Ladouceur,  1 S.C.R. 1257, that R.I.D.E. stops under the Highway Traffic Act are a Section 9 Charter Violation but they are saved by Section 1 of the Charter. The Section 9 violation is a reasonable limit as, to quote from paragraph 59:
“These stops are and must be of relatively short duration, requiring the production of only a few documents. There is a minimal inconvenience caused to the driver, there is seldom a need to bring the driver to the police station, nor is there usually a need for intrusive searches of the driver or the vehicle. If they were intrusive they would probably be subject to challenge as infringing Section 8 of the Charter. The routine check impairs the Section 9 guarantee against arbitrary detention as little as possible.”
The defence further cited R. v. Mellenthin  S.C.J. No. 100, as authority for the scope of R.I.D.E. investigations. In paragraph 15 the Court stated:
“Check stop programs result in the arbitrary detention of motorists. The 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. The primary aim of the R.I.D.E. program is thus to check for sobriety, licenses, ownership, insurance, and the mechanical fitness of cars. The police use of check stops should not be extended beyond those aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.”
In this case, Justice Beninger found that the action of the police officer in opening the car door, and leaning into the vehicle was an unreasonable search. He found that the police actions at the R.I.D.E. stop were a Section 8 Charter violation.
With regards to defence’s application on the Section 9 Charter breach when the defendant was arrested for a possession of marihuana, Justice Beninger cited R. v. Polashek  O.J. No. 968 [OCA], as the facts on that case are comparable to the facts in this case. As Justice Rosenberg noted in R. v. Polashek, at paragraph 13:
“The sense of smell is highly subjective, and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of an officer.”
Justice Beninger said the officer in question is an experienced police officer with many prior arrests involving marihuana, but he was not convinced that his level of expertise was such that the Justice could rely upon his opinion that there was still marihuana present in the defendant’s vehicle (the Justice noted that the officer did not know how long the odour of marihuana would linger after being smoked). In addition to odour, the officer also cited his physical observations of the defendant’s speech and eyes. Justice Beninger said the officer had no prior experience with the defendant and did not inquire about other explanations for his observations as to speech, and the appearance of the defendant’s eyes. Finally, on his evidence the officer did not believe that there were more than 30 grams of marihuana in the vehicle. The offence in question was a summary conviction offence. The defence cited R. v. Johnson,  O.J. No. 4793 [SCJ], in paragraph 55 of that case:
“Possession of a controlled substance where the quantity is under 30 grams is a summary conviction offence and in such circumstances the power to arrest is limited to the situation where a peace officer finds a person presently committing a criminal offence as provided for in s. 495(1)(b).”
As the officer did not find the defendant “committing an offence,” Justice Beninger ruled the arrest was not authorized in law under s. 495, so there was a breach of the defendant’s Section 9 Charter Rights.
As for the 24(2) Charter analysis, Justice Beninger said there was both an unreasonable search and seizure, and an unlawful arrest. The arrest was facilitated by the unreasonable search of the vehicle, so he found that the Charter infringing state conduct at the R.I.D.E. stop was serious. He also found that the circumstances in a drug investigation are different than in an investigation relating to impairment by alcohol. In a drug impairment investigation, a person in detention is subject to D.R.E testing, which is significantly more intrusive than the process of providing breath samples, said the Justice.
The result: Justice Beninger ruled that the D.R.E. demand made by police was not a lawful demand and dismissed the charges.