R v Lux
2012 SKCA 129
R. v. Lux
2012 SKCA 129
Saskatchewan Court of Appeal — J. Klebuc C.J.S., G.A. Smith and R.K. Ottenbreit JJ.A. | December 21, 2012
Background
On October 18, 2009, Linda Sophie Lux was driving her Escalade through the parking lot of the Bella Vista Hotel in Humboldt, Saskatchewan. She wasn't speeding, weaving, or doing anything suspicious — just moving in what the officer's own report called an "uneventful manner." Constables Selinger and Jacquet were on routine patrol when they spotted her vehicle and decided to stop her using their emergency lights. Cst. Selinger later testified that his purpose was simply to check her driver's licence and vehicle registration.
After stopping Lux in the parking lot, well back from any public street, Cst. Selinger approached her vehicle, had a conversation, then escorted her to the police car where he seated her in the back seat. He questioned her about alcohol consumption, and when she confirmed she had been drinking, he demanded a breath sample using a roadside screening device. Lux either couldn't or wouldn't provide an adequate sample, so she was charged under s. 254(5) of the Criminal Code for failing to comply with a breath demand.
Issues
- Does s. 209.1 of Saskatchewan's Traffic Safety Act authorize police to conduct random stops in private parking lots?
- If the stop was unauthorized, should the evidence obtained be excluded under s. 24(2) of the Charter?
The Private Property Problem
This case hinged on a crucial distinction that many people don't realize: police powers on public roads don't automatically extend to private parking lots. The trial judge originally acquitted Lux, finding that s. 209.1 of the Traffic Safety Act didn't apply to private parking areas. The summary conviction appeal court disagreed and ordered a retrial, but the Court of Appeal sided firmly with the trial judge.
The court emphasized several key points: First, Saskatchewan's Traffic Safety Act specifically excludes private parking areas from its definition of "highway." Second, the licensing and registration requirements that justify random stops on public roads don't apply to vehicles operating on private property. Third, if the legislature intended to give police such broad powers on private property — essentially allowing them to stop anyone in any parking lot or even on private driveways — it needed to say so clearly and unambiguously.
The court applied strict interpretation principles because this was penal legislation that could result in fines and imprisonment. As the judge put it: "If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication."
Charter Breach and Evidence Exclusion
Having found the stop was unauthorized, the court applied the three-part test from R. v. Grant for excluding evidence under s. 24(2) of the Charter. The court found that while Cst. Selinger didn't act in bad faith, he should have known he lacked authority to detain Lux for licence and registration checks on private property. The detention materially impacted Lux's liberty and privacy interests, and there was no evidence she was about to drive onto a public highway. The court concluded that admitting the conscripted breath evidence would bring the administration of justice into disrepute.
Key Takeaway
Police cannot conduct random traffic stops on private property unless specifically authorized by clear legislative language.
This case offers important protection for anyone stopped in parking lots, driveways, or other private property. While police retain significant powers on public roads, those powers don't automatically extend to private property — even property that's open to the public like shopping centers or hotel parking lots.