Compromising Privacy Protections to Maintain Public Safety:R v. McColman

Ulfa Ismail

R v. McColman [2023] SCC 8

Key Terms

s. 48(1) of the Highway Traffic Act: States that a police officer, given that they are currently identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand to (1) test for the presence of alcohol or drugs and/or (2) sample the driver’s breath or blood for alcohol.

s. 253(1)(a) of the Criminal Code: An impaired driving legislation which was repealed and replaced in 2018.

s. 253(1)(b) of the Criminal Code: A charge relating to a driver who operates a motor vehicle with an excess of 80 milligrams of alcohol in 100 millilitres of blood. This legislation was repealed and replaced in 2018.

Section 9 of the Charter: States that everyone has the right not to be arbitrarily detained or imprisoned.

Section 24(2) of the Charter: States that evidence collected in a manner that infringed upon the Charter rights of an accused person(s) should be excluded from the trial if it is determined that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

Background

On March 26, 2016, around 12:30 a.m., Ontario Provincial Police (O.P.P) constables Jeff Lobsinger and Laura Hicks were patrolling around the Thessalon First Nation area. Cst. Lobsinger identified a parked all-terrain vehicle at a convenience store. Walker McColman, the driver of the vehicle, later drove onto a highway. Upon McColman entering the highway, Cst.Lobsinger formed the intention to conduct a random highway sobriety stop. Thus, Lobsinger instructed Cst. Hicks to follow McColman. The officers were able to follow and stop McColman after he had exited the highway and entered private property. Upon observing signs of intoxication, McColman communicated to officers that he may have had 10 beers. At around 12:36 a.m., Mr. McColman was arrested for impaired driving and was brought to the police station to conduct a breathalyzer test. At the police station, McColman had vomited due to his alcohol consumption, hence his breathalyzer test was delayed. Afterwards, two breathalyzer tests measured his blood alcohol concentration level to be 120 and 110 milligrams of alcohol in 100 millilitres of blood.

As a result, Mr. McColman was charged with impaired driving under s. 253(1)(a) of the Criminal Code, and with operating a motor vehicle with an excess of 80 milligrams of alcohol in 100 millilitres of blood under s. 253(1)(b) of the Criminal Code.

Procedural Posture

At trial, McColman argued that given the officers had stopped him on private property, his section 9 Charter rights had been violated. Section 9 states that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. Therefore, since McColman was on private property and had exited the highway at the time of his stop, police did not have the authority to stop and charge McColman. Ultimately, this violation of rights should deem the collected evidence as inadmissible to trial courts.

The trial judge disagreed with McColman, stating that Section 48(1) of the Highway Traffic Act (HTA) allowed officers to conduct random sobriety stops for vehicles on the highway, even if a driver demonstrated no signs of intoxication. Since officers had made the intention to conduct a sobriety stop while McColman was still on the highway, the eventual charges laid against McColman were lawful.

As a result, McColman was found guilty of impaired driving under to s. 253(1)(a) and operating a motor vehicle with an excess of 80 milligrams of alcohol in 100 millilitres of blood under to s. 253(1)(b) of the Criminal Code. His sentence resulted in a $1,000 fine and a driving prohibition of one year.

This trial decision was appealed in 2019 to the Ontario Superior Court of Justice. McColman argued that the trial judge erred in finding that the police officers' random sobriety stop on private property was lawful under s.41(1) of the HTA. The appeal judge agreed, given that McColman was stopped on private property, he was arbitrarily detained and had his s. 9 rights violated. The judge allowed McColman’s appeal, set aside his conviction and acquitted him.

Ontario Court of Appeal

In 2021, the Crown appealed the acquittal made by the Ontario Superior Justice. The majority of the Ontario Court of Appeal agreed with the reasoning of the Ontario Superior Court of Justice in that the stop of McColman was unlawful. The terms “driver” and “highway” within s.48(1) of the HTA indicate that officers did not have the right to randomly stop drivers for a sobriety check off the highway. Furthermore, given that McColman was stopped on private property, his s.9 Charter rights, which protect citizens from arbitrary detainment, were violated by officers. Therefore, because the stop was unlawful, evidence collected from this stop should be excluded and McColman’s acquittal should remain upheld.

Supreme Court Holding and Reasoning

Following the Ontario Court of Appeal’s decision, the Crown once again made an appeal, this time in 2023 to the Supreme Court of Canada. The Crown presented two arguments. (1) that the random sobriety stop was authorized under s. 48(1) of the HTA and (2) that even McColman’s stop was not authorized by the HTA, and his s.9 Charter rights were violated, the evidence of impairment and blood alcohol concentration was still admissible to court because doing so would not bring the administration of justice into disrepute.

First the Supreme Court sought to determine whether or not s. 48(1) of the HTA authorized McColman’s random sobriety stop on private property. Section 48(1) states that “A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code”. Unanimously, the Supreme Court agreed that for a stop to be lawful under the HTA, someone who has care or drives a vehicle must be on a highway, defined as a “common and public highway, street, avenue […] intended for or used by the general public”. Since McColman was not on a highway when police conducted their stop, the stop was unlawful. Therefore, McColman was arbitrarily detained and his s.9 rights were violated.

In addressing the Crown’s argument that evidence collected unlawfully should be admitted into court given that doing so would not risk harming the public's faith in the justice system, the Supreme Court unanimously agreed. Allowing for the submission of evidence collected by police was important due to the critical role evidence would play at trial as well as the serious nature of the charges laid against McColman.

Ultimately, the Supreme Court held that admission of the evidence would not damage the long-term reputation and trust in the truth-seeking function of the justice system. With that, the court concluded that the evidence collected by officers, while unlawful, should not be excluded from trial. The Supreme Court allowed the Crown’s appeal, set aside McColman’s acquittal and restored the Ontario Court of Justice’s initial conviction.

Implications

R v. McColman investigated the pursuit of striking a balance between maintaining privacy protection and public safety10. Ultimately, the Supreme Court determined that Mr. McColman’s s.9 Charter rights, and thus his privacy, had been violated by the police officers who conducted his random sobriety stop. While s.24 of the Charter would typically exclude unlawfully collected evidence under the justification that admitting said evidence would bring the administration of justice into disrepute, the Supreme Court held that due to the seriousness of McColman’s charges, it was important to prioritize the truth-seeking function of the courts.

As a precedent, this case demonstrates that in certain circumstances, where a set of charges are serious and carry high stakes for public safety, critical evidence collected unlawfully may be allowed. The emphasis on the truth-seeking function of justice is critical in order to ensure violations of privacy committed by police officers are not normalized nor deemed acceptable under regular circumstances.