Her Majesty the Queen v. McColman
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Her Majesty the Queen v. McColman

[Indexed as: R. v. McColman]
2021 ONCA 382
Court of Appeal for Ontario, Feldman, Tulloch and Hourigan JJ.A.

June 4, 2021

Charter of Rights and Freedoms — Arbitrary detention or imprisonment — Sobriety checks — Remedies — Exclusion of evidence — Police on patrol deciding to stop accused for random sobriety check but not activating lights or signalling accused to stop — Accused’s vehicle pulling into parents’ private driveway — Accused demonstrating no unusual

driving and no indicia of impairment until after exiting vehicle — No indication accused fleeing from police — Accused admitted to drinking about ten beers and registering breathalyzer readings of .12 and .11 — Evidence excluded by summary conviction appeal judge for arbitrary detention — Crown’s appeal from acquittal dismissed — Police had no statutory authority to conduct random stop in private driveway — Despite important goal of decreasing drinking and driving, Crown didn’t meet onus of showing that ancillary powers doctrine should be extended to justify stop on private property— Evidence properly excluded and acquittal upheld — Canadian Charter of Rights and Freedoms, ss. 9, 24(2) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).

Criminal law — Drinking and driving offences — Police on patrol deciding to stop accused for random sobriety check but not activating lights or signalling accused to stop — Accused’s vehicle pulling into private driveway — Accused demonstrating no unusual driving and no indicia of impairment until after exiting car — No indication accused fleeing from police — Accused admitted to drinking about ten beers and registering breathalyzer readings of .12 and .11 — Evidence excluded by summary conviction appeal judge for arbitrary detention — Crown’s appeal from acquittal dismissed — Police had no statutory authority to conduct random stop in private driveway — Despite important goal of decreasing drinking and driving, Crown didn’t meet onus of showing that ancillary powers doctrine should be extended to justify stop on private property — Evidence properly excluded and acquittal upheld — Canadian Charter of Rights and Freedoms, ss. 9, 24(2) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).

Criminal law — Police powers — Police on patrol deciding to stop accused for random sobriety check — Accused’s vehicle pulling into private driveway — Accused demonstrating no unusual driving and no indicia of impairment until after exiting vehicle — Accused admitted to drinking about ten beers and registering breathalyzer readings of .12 and .11 — Evidence excluded by summary conviction appeal judge for arbitrary detention — Crown’s appeal from acquittal dismissed — Police had no statutory authority to conduct random stop in private driveway — Despite important goal of decreasing drinking and driving, Crown didn’t meet onus of showing that ancillary powers doctrine should be extended to justify stop on private property— Evidence properly excluded and acquittal upheld — Canadian Charter of Rights and Freedoms, ss. 9, 24(2) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).

Two police constables were conducting general patrol in a First Nations area when they observed a vehicle parked outside what was variously described as a restaurant and gas station and convenience store. When they saw the vehicle depart, they decided to conduct a sobriety check of the driver, who was the accused. They did not activate their lights or signal to the driver to pull over. They followed the accused for about 200 metres, when he reached his destination and turned into a private driveway that served both a commercial property and his parents’ home. There was no indication that the accused was fleeing or seeking to evade the police by parking at his parents’ home. One of the constables testified that at that point neither of them had seen any signs of impairment or anything unusual about the accused’s driving and that they were exercising their authority to conduct a random sobriety check under s. 48(1) of the Highway Traffic Act. However, upon exiting the police car, the constable noticed that the accused was unsteady on his feet, his eyes were bloodshot, and there was a strong odour of alcohol on his breath. The accused admitted that he might have had ten beers. The accused was arrested and taken to the police station, where he provided breath samples with readings of .12 and .11. The accused applied to exclude the evidence obtained from the stop on the ground that he was arbitrarily detained contrary to s. 9 of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the application and convicted the accused for impaired driving and driving with an illegal blood alcohol level. The accused’s appeal to the Superior Court of Justice was allowed. The summary conviction appeal judge held that there was no authority to conduct a sobriety or highway safety stop on private property absent reasonable and probable grounds. The judge excluded the evidence under s. 24(2) of the Charter and entered an acquittal. The Crown appealed.

Held, the appeal should be dismissed.

Per Tulloch J.A. (Feldman J.A. concurring): The police did not have statutory authority to stop the accused in a private driveway. In order for the police to invoke their powers under s. 48(1), the person being stopped had to be a “driver” as defined in the Highway Traffic Act. A “driver” was defined as a person who drives or has care or control of a vehicle on a highway, and a private driveway was not a high- way. It did not matter that the officers’ decision to conduct the stop was taken while the accused was still on a public roadway. The officers’ intentions in the moments preceding the stop did not render an otherwise unlawful stop lawful.

The common law did not authorize the stop. The police had a common law power to randomly stop vehicles in the course of protecting public roadways, absent reasonable suspicion. However, the power was not without its limits. Police actions interfering with individual liberty could be recognized under the common law if ancillary to the pursuit of recognized police duties, provided that the police action was reasonably necessary for the fulfilment of that duty. The power at issue was the power to pursue a vehicle off the highway and detain the driver to conduct a random sobriety check on a private driveway where there were no grounds to suspect that an offence had been or was about to be committed. The liberty interests engaged in the appeal involved limiting the freedom of individuals to move about on their own driveways. The liberty interest was qualified by the fact that driving was a regulated activity in the interest of safety, but an individual had greater liberty at home than on a public highway. The asserted police power rep- resented a prima facie interference with the liberty interest. With the power and interest defined, an inquiry under the ancillary powers doctrine proceeded in two stages. The first stage was to determine whether the police action at issue fell within the general scope of a statutory or common law police duty. Pursuing driv- ers off the highway onto private property to conduct random sobriety checks was related to the duties to prevent crime, such as impaired driving, and to protect life and property from the harms associated with impaired driving. The second stage was to ask whether the proposed expansion of police powers involved a justifiable exercise of police powers associated with the general duty or duties in question. There could be no doubt that impaired driving was a serious problem, but the Crown failed to meet its onus of demonstrating that extending the ancillary powers doctrine to include the power to conduct a groundless stop on private property was reasonably necessary. The police had many less intrusive means of enforcement at their disposal in combatting impaired driving. Drivers should not be entitled to escape onto private property to avoid culpability, but police should not be allowed to follow drivers onto private property to investigate driving in the absence of grounds to suspect wrongdoing.

The stop breached s. 9 of the Charter and the evidence ought to have been excluded under s. 24(2). It was only after the police followed the accused onto his

property and effected the arbitrary stop that they noticed indicia of impairment. Although the police did not act in bad faith, their conduct was brazen. The breach significantly undermined the accused’s liberty interests with the police obtaining evidence against him in an unlawful detention on private property where he had a reasonable expectation of privacy. While there was no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, inclusion would bring the administration of justice into disrepute. The evidence was excluded and the acquittal upheld.

Per Hourigan J.A. (dissenting): The majority engaged in a strict construction of the powers of a police officer to conduct a random traffic stop under the Highway Traffic Act. That construction led to a finding that in effect, the accused moved into an area of legal sanctuary by pulling into private property. A purposive and common-sense approach would permit police to conduct a random stop of a driver on private property in restricted situations where the police formed an intention to make a stop while the vehicle was on a public highway. Even if there were no such statutory authority, under the ancillary powers doctrine any gaps in the legislative scheme should have been filled by the common law to ensure an effective screening regime. As for whether the evidence ought to have been excluded under s. 24(2), the appeal judge’s reasons took one paragraph and were factually and legally flawed. A thoughtful and nuanced balancing of factors was required. The state misconduct was minor or technical in nature, the accused’s privacy expectation on a driveway shared with a commercial business was minimal, and society had a legitimate interest in seeing cases of impaired driving adjudicated on the merits.

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Other cases referred to

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Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 8, 9, 10, (b), 24(2)
Criminal Code, R.S.C. 1985, c. C-46, s. 253(1)(a) [rep.], (b) [rep.]
Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], ss. 1(1) [as am.], 48 [as am.], (1)

[as am.], (18) [as am.], 216(1)
Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 64, (1) Police Services Act, R.S.O. 1990, c. P.15, s. 42 [as am.]
The Traffic Safety Act, S.S. 2004, c. T-18.1 [as am.], s. 209.1

Authorities referred to

McGuinty, Patrick, “Section 24(2) of the Charter; Exploring the Role of Police Con- duct in the Grant Analysis” (2018) 41:4 Man. L.J. 273

Sankoff, Peter, “The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action” (2004) 28 Adv. Q. 103

APPEAL from acquittal by Gareau J., reported at [2019] O.J. No. 4680, 2019 ONSC 5359 (S.C.J.), on a conviction by Villeneuve J., of the Ontario Court of Justice, dated October 4, 2018, for impaired driving.

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