New constitutional “sanctuary” for impaired drivers who leave the highway to stop

If you drive drunk in Ontario, it’s your way or the highway.

Impaired drivers can now find “sanctuary” by pulling off a public “highway” and on to private property when they see a police car, a Court of Appeal for Ontario judge warns.

In 2018, Walker McColman was convicted of driving with more than the legal limit of alcohol in his blood. The conviction was overturned the following year by the Ontario Summary Conviction Appeal Court. A Crown appeal was denied in R. v. McColman, a Court of Appeal for Ontario ruling released June 4, 2021.

The Insurance Bureau of Canada has warned in the past that impaired driving is dangerous at any time because of the risk of a  motor vehicle collision, which can result in insured losses.

The McColman case arose in March 2016, when two Ontario Provincial Police officers spotted an all-terrain vehicle parked outside a convenience store near Thessalon, east of Sault Ste. Marie. McColman, the ATV driver, drove away and was followed by police. McColman stopped on a private driveway and admitted to police that he had been drinking and may have consumed up to 10 beers. McColman was arrested, tried, and initially convicted of a criminal offence of operating a motor vehicle with a blood alcohol level of more than 0.08%.

McColman was initially sentenced in 2018 to a $1,000 fine plus a $300 victim surcharge and a 12-month driving prohibition. But in 2019, the Ontario Summary Conviction Appeal Court overturned McColman’s conviction, finding that the police had no authority to stop the driver on a shared driveway that was not a public highway.

The June 2021 Court of Appeal for Ontario ruling upheld the Summary Conviction Appeal Court decision. But the Appeal Court decision was not unanimous.

In dissenting reasons, Justice William Hourigan would have restored McColman’s conviction. Justice Hourigan expressed concern that the majority ruling to acquit would result in impaired drivers now having a “sanctuary” if they pulled off the highway and onto private property when they spot a police cruiser.

“This property need not be a place to which they have any connection or even a legal right to visit. It matters not that a police officer wished to conduct the random stop on a public highway. As long as the driver gets their vehicle onto a stretch of private property, sanctuary applies, and they are ‘home free,’” wrote Justice Hourigan.

The majority, Ontario Appeal Court Justices Michael Tulloch and Kathryn Feldman, ruled that police had violated McColman’s right under Canada’s Charter of Rights and Freedoms not to be “arbitrarily detained or imprisoned.” The majority rejected the Crown’s position that it was legal for police to stop McColman under the Ontario Highway Traffic Act because those police officers formed their intention to stop the ATV while McColman was still driving on a public roadway.

Section 48 (1) of the Highway Traffic Act gives police in Ontario the power to require motor vehicle drivers to stop for the purpose of determining whether or not there is evidence to justify a test for alcohol or drug impairment. The Criminal Code of Canada gives police various powers to test drivers for impairment.

In McColman’s case, the Crown argued that police intended to stop the ATV operator for a sobriety check while he was still a “driver,” as defined in the Highway Traffic Act. Therefore, police were authorized to stop McColman even though the stop occurred on private property.

But the plain language of the Highway Traffic Act, and the related definitions of “driver” and “highway,” do not authorize random stops off the highway, Justice Tulloch wrote for the majority.

“The fact that driving is a regulated activity must be balanced against the heightened liberty interest at one’s own private property. Driving on highways is a highly regulated activity, and drivers expect that the rules of the road will be enforced. By contrast, at home, the individual has no expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter onto their driveway and arbitrarily detain them,” Justice Tulloch added.

In 2018, McColman was convicted of operating a vehicle with a blood alcohol level of .08%. His conviction on a separate but related criminal charge of impaired driving was stayed. In his dissenting reasons, Justice Hourigan would have allowed the Crown appeal, set aside the 2019 order of the Summary Conviction Appeal Court, and restored the original 2018 convictions, along with the stay of the impaired driving charge. He would also have reduced the sentence by eliminating the $300 victim surcharge.

After McColman was arrested in March 2016, he vomited at the police station. When the alcohol tests were ultimately administered, they showed blood alcohol levels well above the legal limit, Justice Hourigan wrote.

In denying the Crown appeal, Justice Tulloch noted that the police who followed McColman did not immediately stop McColman after forming the intention to conduct a random stop to determine whether or not there was evidence to justify demanding a sobriety test.

Instead, police followed McColman for about a minute as he made a turn and then another turn into his driveway.

“A police officer may choose to follow a driver along a highway to see if the manner of driving gives rise to a reasonable suspicion that the driver is intoxicated,” wrote Justice Tulloch. “Alternatively, the police officer may immediately stop the driver to see if there is evidence to support making a demand. However, where there is no indication from the manner of driving that the driver is intoxicated, police officers should not be entitled to follow a driver, after forming a crystallized intention to effect a stop, and wait to do so until after the driver has entered onto private property. This would allow the police to enter private property and detain people based on a claimed prior intention to stop the car, formed in the absence of any actual suspicion of impairment.”

In Ontario, a highway is defined as “a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for passage of vehicles and includes the area between the lateral property lines thereof.”

When McColman was stopped in 2016, officers noticed a strong odor of an alcohol, his knees were buckling his eyes were red and bloodshot and McColman was mumbling while speaking to police.

Feature image via iStock.com/SolStock