5-4 Split SCC decision: police breach ATV driver's Charter rights in sobriety test

In the landmark Supreme Court of Canada (SCC) decision rendered earlier this month, a split decision weighed in favour of an Ontario man accused of impaired driving after police conducted a sobriety test on private property.

That is to say, his charter rights were violated but the evidence obtained by the police were not so egregious as to be declared exculpatory, and therefore the court restored a previously acquitted conviction of impaired driving.

In R. v. McColman, 2023, investigating officers followed a man driving an ATV departing a convenience store. The man, Walker McColman, wasn't apprehended by the police until he drove down his parent's driveway, which is when he was arrested by police and  breathalyzed.

Despite his blood containing well over the legal limit of alcohol consumption, the main constitutional challenge that landed this case to Canada's highest court was because the sobriety test was conducted on private property.

The case originated in 2016 and was bounced through courts until it came to the SCC after a split decision at the Ontario Court of Appeal, which acquitted McColman because it found that the police violated s. 9 of the Charter which deals with arbitrary detention. This finding would in effect make the evidence exculpatory.

This case underscored a somewhat contradictory area in case law, when it comes to how police can instigate sobriety tests on drivers. An intent must be indicated by police when they are on a public road or public place before a sobriety test can be conducted, even if it's on private property later on. If there is no signal of intent it is not a lawful detention according to McColman.

The SCC concluded that the police had made a marked although egregious violation of charter rights.

McColman told an investigating officer that he "might've had 10" beers that evening. After he was brought to the police station his blood alcohol level was 40 mg/100ml higher than the legal limit, which is not indicative of what police allege him to have said. Nevertheless, at trial the officer also admitted that his driving on public roads did not manifest signs of impaired driving that otherwise would have warranted a stop. " That is, the police officers did not have reasonable and probable grounds to stop him," reads the judgement.