R. v. McColman, 2023 SCC 8

WHAT YOU NEED TO KNOW

- In Ontario, police do not have statutory authority under s. 48(1) of the HTA to conduct random sobriety stops on private property even if police form intent to conduct while suspect was on highway/not on private property.

- In conducting s. 24(2) analysis, SCC concludes over 80 is a “serious offence” warranting admission of evidence despite first two prongs favouring exclusion (slightly).

BACKGROUND

While on general patrol, police spotted Mr. McColman’s all-terrain vehicle parked outside convenience store. Police then followed McColman when he drove out of the parking lot and onto the highway. Police formed in the intention to conduct a random sobriety stop pursuant to s. 48(1) of Ontario’s Highway Traffic Act. By the time police caught up him, McColman had pulled off the highway onto a private driveway of his parents’ home.

After stopping McColman, the police observed obvious signs of impairment and arrested him for impaired driving and over 80.

DECISION(S) BELOW

The trial judge concluded that s. 48(1) of the HTA provided police with lawful authority to conduct the random sobriety stop and found McColman guilty of both charges. McColman appealed his conviction to the Superior Court. The summary conviction appeal judge (“SCA judge”) allowed McColman’s appeal finding that the HTA did not permit police to conduct random sobriety stops on private property absent reasonable and probable grounds. As a result, the SCA judge found that the police breached McColman’s s. 9 Charter right and that the subsequent evidence should be excluded under s. 24(2) resulting in an acquittal. The Crown appealed the SCA judge’s decision; a majority of the Court of Appeal dismissed the Crown’s appeal. The Crown now appeals McColman’s acquittal.

Disposition – Crown appeal allowed; Acquittal set aside; Conviction restored.

ANALYSIS

In Ontario, police do not have statutory authority under s. 48(1) of the HTA to conduct random sobriety stops on private property. While s. 48(1) provides police with the authority to randomly stop a motor vehicle to ascertain the sobriety of a driver, the definition of “driver” is statutorily prescribed:

(1)    In section 1(1) of the Act, “driver” means a person who drives a vehicle on a highway, and

(2)    In section 48(18), “driver” within the context of s. 48 includes a person who has a care or control of a motor vehicle.

The first definition (under s.1(1)) targets both the activity (driving) and the location of that activity (on a highway). While the s. 48(18) expands the scope of this definition, it only expands the definition of the activity (i.e. what constitutes driving) not the location element of the definition.

As a result, a harmonious reading of the two definitions, for the purposes of a police officer’s statutory authority under s. 48(1), means a “driver” is a person who is driving, and/or has care or control of a motor vehicle, on a highway. A person who has care and control of a motor vehicle, who is no longer on a highway, therefore could and would not be a “driver” under s. 48(1) of the HTA.

                “Section 48(1) authority therefore cannot be used by police to carry out a random sobriety stop on private property on the basis that the driver was on the highway at the time the police officer formed the subjective intention to stop them. Police must communicate their intention to a driver to effect a random stop on a highway in order to properly fall under the scope of s. 48(1) of the HTA.”

APPLICATION

Given the above, the Supreme Court concluded that the officers did not have the statutory authority to follow McColman onto the private driveway in order to conduct the random sobriety stop. As a result, the police officers breached McColman’s s. 9 Charter rights by effecting an unlawful and arbitrary detention.

The Court, however, was of the view that the evidence obtained from the stop should not be excluded under s. 24(2) of the Charter. In assessing the seriousness of the breach, the Court concluded that the breach was not so serious due to the legal uncertainty that clearly existed at the time as to the police’s authority to effect a random sobriety stop on private property. Similarly, in assessing the impact of the breach, the Court concluded that while the unlawful stop was a “marked” intrusion on McColman’s rights it was not an egregious breach. Both these factors slightly favoured the exclusion of evidence.

In assessing the third Grant factor, the Court noted that the evidence collected by police was reliable and crucial to the Crown’s case and that impaired driving was a serious offence. As a result, this factor weighed heavily towards admission:

                “Admission of the evidence would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.”