A deterrent tool available to police to combat impaired driving is the ability to pull over a vehicle and complete a field sobriety test to assess a driver’s alcohol consumption. However, in some situations, the police may observe what they believe is impaired driving, but may not have the opportunity to pull the vehicle over before the driver enters onto private property.
In a recent decision, the Supreme Court of Canada clarified the issue of whether police can conduct a random sobriety stop on private property pursuant to section 48(1) of the Highway Traffic Act.
Driver is stopped for sobriety test on private property
In the case of R v. McColman, two police officers from the Ontario Provincial Police (“OPP”) were on general patrol in Northern Ontario just after midnight on March 26, 2016. The officers noticed an all-terrain vehicle (“ATV”) parked outside of a convenience store before they saw the respondent (“WM”) exit the store and drive away on the ATV.
The police followed the ATV and performed a random sobriety stop on WM under the Highway Traffic Act. At the time of the stop, the officers did not notice any signs indicating that WM was impaired, and therefore, they did not have reasonable and probable grounds to stop him. However, when officers pulled WM over, he had already entered onto private property.
The officers spoke with WM and noted signs of impairment, including the smell of alcohol on his breath and his inability to stand up straight. WM told the police that he may have consumed up to 10 beers that evening. WM was subsequently arrested for impaired driving and took two breathalyzer tests, both of which indicated that he had a blood alcohol concentration of at least 37% over the legal limit.
Driver of ATV claims stop was unlawful
WM brought a Charter application alleging, among other things, that the sobriety stop was unlawful and breached his rights under section 9 of the Charter. However, the trial judge stated that:
“The mere fact that (the officer) did not effect this stop until (WM) had turned into a private driveway and was thus on private property did not eliminate or invalidate the officer’s authority under s. 48 of the Highway Traffic Act.”
The trial judge did not go into a further analysis of the officers’ authority to stop WM on private property and proceeded to find him guilty of impaired driving.
Driver appeals; not considered a “driver” on private property under Highway Traffic Act
WM appealed to the Ontario Superior Court of Justice, arguing that the trial judge erred in determining that the officers were authorized to conduct random sobriety stops on private property.
The driver was successful in this appeal. The appeal judge found that the Highway Traffic Act does not permit police officers to conduct sobriety or highway safety stops on private property if they do not have reasonable and probable grounds to stop the vehicle. In this case, WM was not pulled over because he was exhibiting signs of impairment, and the police did not have reasonable or probable grounds to stop the ATV.
The appeal judge went on to find that once the driver entered private property, WM was no longer qualified as a “driver” under definition of the Highway Traffic Act, and WM was acquitted.
The Crown appealed the acquittal, but the majority of the Court of Appeal for Ontario dismissed it, agreeing with the appeal judge’s decision that WM did not qualify as a “driver” and that WM was not operating his ATV on a “highway” when he was pulled over.
Crown appeals all the way to the Supreme Court of Canada
The Crown raised two issues in appealing to the country’s highest court. The first issue was that the random stop was authorized under the Highway Traffic Act, arguing that the police may conduct a random sobriety stop off a highway only if the police officer intends to do so while the vehicle is on a highway.
The Crown also argued that there was no serious infringement of WM’s Charter rights as the police acted in good faith in legal uncertainty. The Crown stated the infringement was neither intrusive nor significant, and that when individuals operate a motor vehicle, they perform a regulated activity. Therefore, there is a significant public interest in allowing brief sobriety stops, such as those performed on the night in question.
Supreme Court of Canada addresses issue for first time
The Supreme Court acknowledged that this case was its first opportunity to address whether officers can conduct random sobriety stops on private property under the Highway Traffic Act. The Court began its analysis by noting that a stop on private property constitutes “arbitrary detention” which can only be justified under the Charter if the police acted within the powers conferred to them.
The Court found that WM was not a “driver” for the purposes of the Highway Traffic Act, meaning that the police stop was not authorised under the Act. Taking this reasoning further, the stop infringed WM’s Charter rights against arbitrary detention.
Original Conviction reinstated by Supreme Court
The Court then asked whether the evidence the police collected during the stop needed to be excluded under section 24 of the Charter. This section requires that evidence obtained in a manner that infringes the Charter rights of an accused person should be excluded if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” In order to reach a conclusion on this, the Court must take three lines of inquiry. The first looks at the seriousness of the Charter-infringing conduct. Here, the Court found that the police acted without statutory authority, but they were acting under uncertainty in this regard. The Court found this inquiry to favour exclusion of the evidence.
The second line of inquiry related to the breach’s impact, which the Court again found to favour evidence exclusion. The unlawful stop led to WM being taken to a police station where he was detained for several hours.
However, the third line of inquiry considered society’s interest in the adjudication of the case on its merits. The Court looked at the evidence’s reliability and the offence’s seriousness. The Court found that impaired driving is a serious office and that society has a vital interest in combating drinking and driving.
Ultimately, the Supreme Court of Canada allowed the appeal and reinstated the conviction that was issued at the original trial.
Contact the Criminal Lawyers at Hicks Adams for Advice on Defending Driving Under the Influence Charges
The experienced criminal defence lawyers at Hicks Adams in Toronto are prepared to defend clients against serious charges, including driving under the influence and Charter violations. Our lawyers work with clients to build strong defences and help individuals move on with their lives. If you have been charged with a DUI, or have a question regarding your constitutional rights, contact us at 416-975-1700 (toll free at 1-877-975-1700) or online to schedule a consultation with one of our trusted criminal defence lawyers.
