Private Property: A Legal Sanctuary for Impaired Drivers - Mario Elbardisy
Impaired driving has plagued our society for decades. However, police have been empowered by the Highway Traffic Act (“HTA”) to conduct random stops to tackle this devasting crime. Unfortunately, the Ontario Court of Appeal’s recent decision in R. v. McColman allows impaired drivers to turn onto private property to achieve a “safe haven” or “legal sanctuary.” I respectfully disagree with the majority and resonate more with the dissent. Furthermore, I argue that this decision will put the public at risk by allowing impaired drivers to evade conviction through the majority’s “legal sanctuary.”
On March 26th, 2016, police officers were patrolling Thessalon First Nation and saw the accused, McColman, in his vehicle leaving a restaurant; the officers decided to conduct a sobriety check. The officers followed McColman about 200 metres down the road until he turned into the private driveway of his parents’ home and their commercial business. The officers then activated their lights and pulled over the accused. Up until this point, the officers did not have reasonable suspicion and testified that they did not see any indication that the accused was impaired prior to the stop. However, pursuant to s. 48(1) of the HTA, officers are allowed to conduct random sobriety checks. When the officers approached McColman, they immediately noticed that McColman was impaired due to his wobbly knees and blood shot eyes. The officers then arrested McColman and transported him to the police station, where he provided breath samples reading 120mg of alcohol in 100mL of blood and vomited several times in holding.
Initially, the trial judge dismissed McColman’s Charter application, finding that the HTA lawfully provided police authority for the stop. On appeal to the Superior Court, the judge allowed the appeal stating that there was no authority in the HTA to conduct sobriety or highway safety stops on private property without reasonable and probable grounds. On appeal to the Ontario Court of Appeal, there were three issues, but I will only speak to the first one: did the appeal judge err in finding that s. 48(1) of the HTA did not authorize the sobriety stop?
Decision: The Majority’s Strict Approach
In order for police to invoke their statutory power under s. 48(1) of the HTA, “the person being stopped must be a ‘driver.’” In the HTA, a “driver” is defined as a “person who drives a vehicle on a highway.” Additionally, “highway” is defined as “a common and public highway, street, driveway… intended for or used by the general public….” As such, the majority took a strict approach in determining that a private driveway is not defined as a highway for the purposes of the HTA and is not property for the general public. On the other hand, the Crown argued that because the police officers had the intention to pull over McColman while he was on a public roadway, it should have been a lawful stop pursuant to the HTA. However, the majority rejected this argument, stating that the officers’ intentions prior to the stop could not render an unlawful stop lawful. Thus, the majority concluded that, on the facts, the HTA did not authorize a sobriety stop because McColman was not a “driver” on a “highway” as defined in the HTA.
Common Sense Approach
In his dissent, Justice Hourigan stated that granting an accused a “legal sanctuary” because they turn onto private property leads to policy implications that are far-reaching. By creating this “legal sanctuary,” anybody who is impaired, whom the police intended to stop on a public highway, can turn onto private property when the driver sees the police. Justice Hourigan further stated that the majority’s decision is too strict on police powers in undertaking random traffic stops and prevents police from conducting their duties. This approach to statutory interpretation is contrary to public safety. Furthermore, it is contradictory to other cases where the court has taken a common-sense approach to facilitate public safety and reduce the selfish and reckless behavior of impaired driving. Even the Supreme Court in R. v. Orbanski stated that, with regard to legislation aiming to combat impaired driving, the common law should provide enough flexibility to ensure enforcement of said legislation is effective.
Public Safety at Risk
The strict interpretation of legislation by the majority has caused a potential public safety risk. The essence of the police power to conduct random sobriety tests under the HTA is to prevent impaired drivers from causing any harm. This pressing societal concern should outweigh the narrow interpretation, or definitions, of the HTA. Additionally, it is surprising that the majority did not seem to consider the ramifications of their decision. To create a “legal sanctuary,” as Justice Hourigan said, defeats the entire purpose of the police power to conduct random sobriety stops. As a result of the majority’s decision, anybody driving a vehicle impaired can pull into private property and avoid being stopped or arrested. For something our society has long tried to prevent, it is worrisome that this is the precedent set by the ONCA.
I understand that there is a concern about expanding police powers to allow police to pull people over on private property. However, the potential ramifications of the majority decision are more concerning. The McColman decision is already being cited in cases acquitting impaired drivers (see R. v. Hayatibahar). If the issue is truly about expanding police power, there is a solution that addresses the majority’s concern. McColman was not actually on private property for the entire duration of his drive. The police had intended to pull him over on public property, but McColman happened to reach his home by the time the police decided to pull him over. Since the police decided to pull him over on public property, private property should not have provided him protection. Otherwise, the dangers of impaired driving will continue to devastate communities. Moreover, as this decision has been granted leave to appeal to the Supreme Court, it is the Supreme Court’s responsibility to correct this decision. I argue that the correct decision is to loosen the interpretation of the HTA to prevent a “legal sanctuary” and ensure that impaired drivers are not putting the lives of others at risk.
Someone who is driving while impaired should not be granted “legal sanctuary” and be permitted to evade punishment and continue putting everyone at risk. When one considers the ramifications of the majority’s decision, it becomes evident that Justice Hourigan’s dissent best protects society and helps continue the fight against impaired driving. Ultimately, it is up to the Supreme Court to correct this decision and restore a common-sense approach to statutory interpretation as it decided in R. v. Orbanski.
 R v McColman, 2021 ONCA 382 at para 8 [McColman].  Ibid at para 10.  Ibid.  Ibid at para 11.  Ibid.  Ibid at para 13.  Ibid at para 15.  Ibid at para 19.  Ibid at para 21.  Ibid at para 26.  Ibid at para 27; see also Highway Traffic Act, RSO 1990, c H.8, s 48(1) [HTA].  Ibid at para 28; see also HTA, supra note 11, s 48(1).  Ibid at para 33.  Ibid at para 36.  Ibid at para 37.  Ibid at para 95.  Ibid at para 96.  Ibid at para 97.  Ibid at paras 93, 97, 98.  Ibid at para 99; see also R v Orbanski; R v Elias, 2005 SCC 37.  R v Hayatibahar, 2022 ONSC 1281.