Episode 2: R. v. McColman
His Majesty the King v. Walker McColman
At around 12:30 a.m. on March 26, 2016, police on general patrol in the area of the Thessalon Frist Nation in Northern Ontario saw a utility terrain vehicle (or UTV) parked outside a restaurant and gas station. When it appeared the UTV was about to exit the parking lot, police decided to conduct a sobriety check of the driver and turned around to follow the UTV. Approximately 200 metres down the road – less than one minute of unremarkable driving – the UTV turned into the driveway of a home – the home of the driver’s parents. The police officers followed and activated their lights. On approaching the UTV, police observed signs of impairment and arrested Mr. McColman for impaired driving. At the station, he provided two breath samples, both of which were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.
At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.
The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.
The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.
The Crown applied for and was granted leave to the Supreme Court of Canada.
The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)