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R v McColman 2021 ONCA – Does the Common Law Authorize Police Conduct a Routine Traffic Stop?
R v McColman 2021 ONCA – Does the Common Law Authorize Police Conduct at a Routine Traffic Stop on Private Property?
Author Name: K Fonseca
The case of R v McColman 2021 ONCA 382 involves the intersection of the power of police to pull drivers over, whether statutory or common law, and the intended target vehicle being on private property. In its decision, the majority of the Ontario Court of Appeal (“ONCA”) applied the Ancillary Powers doctrine(AP doctrine) to the police power and determined that neither the Highway Traffic Act (“HTA”) nor the common law authorized the police’s conduct. Further the ONCA found that Mr. McColman’s s. 9 Charter right had been violated, and excluded the evidence pursuant to s. 24(2) of the Charter.
On March 26, 2016, Officers Lobsinger and Hicks observed a Utility Terrain Vehicle (“UTV”) parked outside a restaurant/gas station, and believing it to be leaving the area, they decided to conduct a sobriety check of the driver. The vehicle exited the parking lot and the officers began following the UTV down a public road for about 200 metres when they observed the UTV turn off of the roadway onto a private driveway. They followed the vehicle onto the driveway, and switched on their lights, exited the vehicle and approached the driver of the UTV.At this point the officers did not have a reasonable suspicion that the driver, Mr. McColman was connected to any particular crime, or showed any patterns of driving that indicated he may be intoxicated. Officer Lobsinger approached Mr. McColman, noting indicia of impairment, and arrested him after he admitted to “maybe having 10 beers”. Breath samples taken at the police station confirmed Mr. McColman’s intoxication.
McColman was charged with impaired driving under both s. 253(1)(a) and s. 253(1)(b) of the Criminal Code. Following this, Mr. McColman brought a Charter application, alleging that the stop was unlawful and constituted a breach of his rights under s. 9 of the Charter. The argument being that the police did not have authority to conduct the stop on private property.
R v McColman 2021 ONCA 382
On appeal to the ONCA, the Crown raised three issues, being that the appeal judge erred in finding that s. 48(1) of the HTA and the common law did not authorize the sobriety stop, and that if a Charter breach was found, the judge erred in excluding the evidence under s. 24(2) of the Charter.
Justice Tulloch, writing for the majority found that the issue regarding s. 48(1) was whether the respondent was a “driver” within the meaning of the HTA. It was determined that a private driveway is not a “highway”, and that a person in their private driveway cannot be a “driver” under the HTA. Justice Tulloch further rejected the argument that the officers intention to pull the vehicle over crystalized prior to him entering the private property, finding that their authority must be exercised within the confines stipulated in the HTA. Justice Tulloch differentiated the facts of this case from Boughen and Clarke, as Mr. McColman had not committed an infraction under the HTA, and thus grounds to detain could not be extended to private property.
It was established by the SCC in Dedman that the police have a common law power to randomly stop vehicles in the course of protecting public roadways, without reasonable suspicion. In order to determine if this power extends to private property Tulloch J. applied the AP doctrine outlined by the SCC in the case of Fleming. The common law police power at issue is the power to pursue a vehicle off highway and detain the driver to conduct a random sobriety check on a private driveway, where there are no grounds to suspect an offence has been or is about to be committed. Justice Tulloch categorized the liberty interference as limiting the freedom of individuals to move about freely on their own driveways, thus engaging the liberty interests protected by s. 9 of the Charter. Driving is a highly regulated activity, and thus requires that it be balanced against this liberty interest. It was found that the asserted police power represents a prima facie interference with the noted liberty interest. The next step of the AP doctrine is to determine if the police power falls within the general scope of the polices duties, in which Tulloch J. found that it could be conceptualized as an extension of the police duties to prevent crime, and to protect life and property.
Having satisfied the first stage of the AP doctrine, Tulloch J. found that the Crown had not met its onus of demonstrating that pursuing and detaining an individual on their own private property without any suspicion of wrongdoing is reasonable or necessary to pursue this objective. The reasoning followed is the breadth of power the police have at their disposal to combat impaired driving already, including the ability to conduct a random stop under s. 48(1) as soon as a vehicle enters the highway, as well as the option to observe the driver prior to stopping them. The majority dismissed the appeal, upholding the finding of a s. 9 Charter breach, and the exclusion of the evidence.
The reasoning of Tulloch J. is closely related to that of Cote J. in Fleming, where the common law police power at issue was rejected under the AP doctrine due to other statutory and common law police powers already being available.  Justice Cote further found that the extension of the power would result in too great a power to the police when considering the Charter rights of individuals.  In both cases, the police exerted their powers on citizens where there were no grounds to suspect any wrongdoings, and this was an important consideration in the Fleming decision. The decision in McColman appears to support the SCC’s reasoning in preventing the unreasonable expansion of common law police powers.
On February 3, 2022, the case of McColman was granted leave to the Supreme Court of Canada but is limited to the issues of whether the stop was authorized by s. 48(1) of the HTA, and whether a s. 9 Charter breach had occurred, and whether the evidence should have been excluded under 24(2). This indicates that Tulloch J.’s decision that the common law did not authorize the police stop on private property will not be addressed. This further enforces the use of the AP doctrine to balance the powers of police with the Charter protected rights of Canadians. The power to pursue a vehicle off of the highway and detain the driver to conduct a random sobriety check on a private driveway, where there are no grounds to suspect an offence has been or is about to be committed will be evaluated based on the HTA alone.
 R v McColman 2021 ONCA 382 at para 1 [McColman].  Ibid at 7.  Ibid.  Ibid at 10.  Ibid.  Ibid at 11.  Ibid at 12.  Ibid at 13.  Ibid at 14.  Highway Traffic Act, RSO 1990, c H.8, s. 48(1).  McColman, supra note 1 at 22.  Ibid at 31.  Ibid at 35.  Ibid at 37.  Ibid at 40.  R v Dedman,  2 SCR 2,  SCJ No 45.  Fleming v. Ontario 2019 SCC 45 [Fleming].  McColman, supra note 1 at 58.  Ibid at 60.  Ibid at 62.  Ibid at 63.  Ibid at 64.  Ibid at 66.  Ibid at 68.  Fleming, supra note 17 at para 93.  Ibid at 98.  McColman at para 72; Fleming at para 80.