SCC rules Ontario’s Highway Traffic Act does not authorize random sobriety stops on private property

By Cristin Schmitz

Law360 Canada (March 23, 2023, 5:29 PM EDT) -- The Supreme Court of Canada has ruled 8-0 that police do not have authority, under s. 48(1) of Ontario’s Highway Traffic Act, to conduct random sobriety checks on drivers located on private property — unless, counsel say, police previously signalled their intention to stop the vehicle while the driver was still on a public highway.

The court’s March 23 judgment, co-written by Chief Justice Richard Wagner and Justice Michelle O’Bonsawin, allows the Ontario Crown’s appeal and restores the conviction at trial for driving with a blood alcohol level “over 80” of respondent Walker McColman: R. v. McColman, 2023 SCC 8.

The Supreme Court accepted the defence argument that police conducted an illegal random stop and thereby breached the Charter’s s. 9 Charter prohibition of arbitrary detention when they followed McColman’s vehicle from a public highway to his parent’s driveway where they purported to make a random sobriety stop under the authority of the HTA’s s. 48(1).

Justice Michelle O’Bonsawin

Justice Michelle O’Bonsawin

However, the top court agreed with the Crown that the resulting evidence — including McColman’s statement to police indicating he might have consumed 10 beers and his breathalyzer results showing a blood alcohol level over the legal limit — was not required to be excluded pursuant to s. 24(2) of the Charter because admitting the illegally obtained evidence would not bring the administration of justice into disrepute in the circumstances.

McColman marks the first time the top court has pronounced on the legality of random sobriety checks of drivers on private property — a question which had generated conflicting decisions below and among various appellate courts. Many provincial statutes authorize random sobriety stops of drivers, however, the statutes’ wording differs, at times significantly.  

McColman is the first written judgment from Justice O’Bonsawin, who joined the court Sept. 1, 2022. (Supreme Court Justice Russell Brown heard the appeal last November, but did not participate in the decision because he has been on a leave of absence from the court since Feb. 1.)

In McColman, the court began by interpreting the HTA and then analyzed and applied Charter ss. 9 and 24(2) to the case.

Section 48(1) of the HTA gives police officers authority to randomly stop a motor vehicle to ascertain the sobriety of a “driver.”

The Supreme Court cautioned that “Ontario’s HTA differs in important ways from the other provincial statutes that regulate driving and drivers. In analyzing a provision of the HTA, a court must keep its focus on the text, context, and purpose of the provision at issue.”

“The HTA’s definition of the term ‘driver’ places sharp limits on police officers’ authority to conduct random sobriety stops under s. 48(1),” Chief Justice Wagner and Justice O’Bonsawin wrote. “For the purpose of s. 48(1), ‘driver’ refers to a person who is driving, or has care or control of, a motor vehicle on a highway. A person who has care or control of a motor vehicle but who is no longer on a highway would not be a ‘driver’ under the HTA.”

Accordingly, the Supreme Court ruled that McColman, who wasn’t on a highway when stopped, was not a “driver” for the purposes of s. 48(1) of the HTA. “Therefore, the police stop was unauthorized by s. 48(1),” the judges ruled. 

“Since the police waited until McColman had pulled into the private driveway before they signaled their intention to stop him, they did not properly invoke their authority to conduct a random sobriety stop under s. 48(1) of the HTA,” the judges reasoned. “Since the stop was unlawful, the police breached [his] rights under s. 9 of the Charter as a detention not authorized by law is arbitrary.”

Turning to the Charter’s remedy section, the Supreme Court went on to rule that “on the whole and considering all of the circumstances,” the inculpatory evidence obtained from the unlawful police stop, in breach of Charter s. 9, should not be excluded under Charter s. 24(2), which requires unconstitutionally obtained evidence to be excluded from the proceedings if its admission “would bring the administration of justice into disrepute.”

Chief Justice Wagner and Justice O’Bonsawin reasoned that although the police acted without statutory authority in effecting the stop, “given the legal uncertainty that existed at the time of the random sobriety stop, the breach was not so serious as to require the court to disassociate itself from the police actions.”

The unlawful police stop “constituted a marked, although not egregious, intrusion on McColman’s Charter-protected interests and moderately favours exclusion of the evidence,” Chief Justice Wagner and Justice O’Bonsawin said. “However, the evidence collected by the police was reliable and crucial to the Crown’s case and impaired driving is a serious offence. 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.”

The Supreme Court noted that it is not its role to rewrite valid law. “When read contextually, s. 48(1) of the HTA does not authorize police officers to conduct random sobriety stops on private property. This court is duty-bound to respect the legislature’s will,” Chief Justice Wagner and Justice O’Bonsawin said. “If the legislature believes that police officers ought to wield wider powers under s. 48(1), it may amend the provision.”

Kyla Lee, Acumen Law Corporation

Kyla Lee, Acumen Law Corporation

Kyla Lee of Vancouver’s Acumen Law Corporation, whose practice focuses on drinking and driving cases, told Law360 Canada the judgment makes it “very clear” that police don’t have the authority to pull people over for random sobriety stops on private property “at least in Ontario, but actually likely in other provinces, including B.C., unless their motor vehicle or highway traffic or traffic safety Acts are amended to make it clear that the police power to conduct these stops extends beyond roadways.”

Lee, who did not participate in the appeal, said the decision has broad implications because many police investigations start with traffic stops, particularly on private property.

“Often, I see people ‘pulled over,’ in quotation marks, who are sitting in their cars in ... private parking lots, not public parking lots, [or] who are pulled to the side of the road, not on the roadway, not on the travelled portion of the roadway and police pull [up] behind them. They’re sleeping in the vehicle, and police do a sobriety check at that point,” she explained. “And because this case limits really the applicability of those random sobriety checks to people who are actively driving, or in care and control of vehicles, on roadways, it is going to have an impact on police power to check sobriety, but it’s also going to arm defence counsel with more tools to argue that their clients Charter rights are violated,” she continued. “And although in this case the Supreme Court of Canada found that the violation was not significant, they did use some pretty good language, in my opinion, to talk about how this was an area of legal uncertainty and so [police] get a pass. But now that it’s not an area of legal uncertainty, it’s either going to fall to provincial legislatures to change their statutes to make it clear that the police have broader [random stop] authority, or it’s going to be a lot easier for people in the future to argue that this was a violation that should result in exclusion [of evidence], because there is clear delineation of the scope of police authority from the court and [police] ignoring that jurisprudence is a serious violation.”

Anthony Orazietti, Orazietti & Orazietti

Anthony Orazietti, Orazietti & Orazietti

Anthony Orazietti of Orazietti & Orazietti in Sault Ste. Marie, Ont., who with Donald Orazietti represented McColman, said the decision’s “biggest takeaway ... is that [the court] ironed out any wrinkles with respect to the police authority to go onto private property. Officers don’t have the authority to initiate ... random traffic stops under s. 48 of the HTA while the vehicle is on private property. They say that if an officer doesn’t initiate to stop before that vehicle gets onto private property, then they don’t have [s. 48] authority to go onto private property.”

Orazietti said that because the court has cleared up the former uncertainty in the law, a similar fact situation in another case would likely see the evidence excluded under s. 24(2).

At press time, counsel for the appellant Ontario Crown had not responded to a request for comment.

The case arose at about 12:30 a.m. on March 26, 2016, when Ontario Provincial Police officers on general patrol near a small town on Lake Huron decided to follow an all-terrain vehicle out of a convenience store parking lot onto a highway. They caught up to McColman about a minute later, when he had pulled onto the private driveway of his parents’ home on a road in the Thessalon First Nations Reserve. Two officers approached him and observed that McColman was unable to stand up straight and smelled strongly of alcohol. He told them he might have had 10 beers that evening. He was arrested for impaired driving and did two breathalyzer tests at the police station, where he was then charged with impaired driving and operating a motor vehicle with a blood alcohol concentration above the legal limit.

The accused had been driving normally on the highway, with no outward signs that anything was amiss.

The Crown argued the police officer had authority to make a random stop on the private property, i.e. without having reasonable and probable cause, because the officer had already formed the intention to stop the McColman while his vehicle was still on the roadway.

However, the Supreme Court of Canada noted that s. 216(1) of the HTA imposes a “communication” requirement on police “that a police officer seeking to invoke s. 48(1) authority must, at a minimum, signal or otherwise request that the driver stop their vehicle on a highway.”

“Here, the police waited until Mr. McColman had pulled onto his parents’ driveway before they signalled their intention to stop him,” Chief Justice Wagner and Justice O’Bonsawin wrote. “Accordingly, they did not properly invoke their authority to conduct a random sobriety stop under s. 48(1).”

McColman had been convicted in Ontario provincial court of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood, but won an acquittal on summary conviction appeal, affirmed by a majority of the Ontario Court of Appeal.

Photo of Justice Michelle O’Bonsawin by Supreme Court of Canada Collection

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