Supreme Court restores conviction of man whose Charter rights were violated in impaired driving case

A man who had his Charter rights violated when he was arrested for impaired driving has seen his conviction restored after the Supreme Court of Canada ruled Thursday that even though the evidence was obtained unlawfully, it should not be excluded from trial. 

The case stems from an incident that took place at 12:30 a.m. in March 2016 on Biish Road, in Thessalon First Nation reserve on the northern shores of Lake Huron.

Ontario Provincial Police noticed Walker McColman driving an all-terrain vehicle from a convenience store parking lot, onto a public highway and then onto his parents' driveway. 

One of the officers told an Ontario court that they decided to follow McColman out of the parking lot to conduct a random sobriety test, despite admitting that they observed no signs of intoxication when they began their pursuit. 

McColman left the highway, pulled onto his parents' driveway and was approached by police, who said they observed obvious signs that he was intoxicated. McColman told the officers that he may have consumed as many as 10 beers over the course of the evening. 

He was arrested and taken to the police station, where he took two breathalyzer tests. He was charged and later convicted of impaired operation of a motor vehicle and operating a motor vehicle while over the legal limit. 

McColman was banned from driving for one year and given a $1,000 fine. The impaired driving charge was immediately stayed to avoid McColman serving multiple convictions for the same offence. 

Excluding and including evidence

In his initial appeal, McColman's lawyers argued that the arrest was illegal because it was conducted on private property when McColman was no longer driving the vehicle, violating Section 9 of the Charter of Rights and Freedoms, which protects people from arbitrary detention. 

His lawyers argued that the evidence against McColman should be excluded from the case against him. 

The Ontario Superior Court of Justice agreed, setting aside the conviction, a decision that the Ontario Court of Appeal subsequently agreed with, leaving the Crown to appeal to the Supreme Court of Canada. 

In a unanimous 8-0 decision that excluded Justice Russell Brown, who remains on leave from the top court, the justices decided to restore the conviction under Section 24.2 of the Charter. 

Signalling intent to stop

That provision says that unlawfully obtained evidence can only be excluded if "it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

"Because of the crucial and reliable nature of the evidence, as well as the important public policy concerns about the scourge of impaired driving. On the whole, considering all of the circumstances, the evidence should not be excluded," the Supreme Court said Thursday. 

The top court took issue with Ontario's Highway Traffic Act, which, as written, says that police do not have to communicate their intention to stop a driver "so long as the driver was on the highway at the time the police officer formed the subjective intention to stop them."

The court said that if police require someone to stop, they cannot do that "by merely subjective intending it" but have to signal that intention to the person they want to stop. 

"A police officer seeking to [stop a driver] must, at a minimum, signal or otherwise request that the driver stop their vehicle on a highway," the ruling said.