Appeal Court Rules Police Had No Grounds to Conduct Sobriety Test on Private Property

Written on behalf of Barrison Law
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In a recent decision released by the Ontario Court of Appeal, the court has upheld the acquittal of an impaired driver as the police were found to have breached his rights by conducting a traffic stop on private property without reasonable grounds.

Walker McColman (“McColman”) was followed by police as he pulled into his parents’ driveway at which point he was found to be driving while intoxicated. Despite his conviction, the appeal court found that it was unlawful for the police to stop him without reasonable grounds and the evidence against him should be excluded and he was acquitted of all charges.


On March 26, 2016 at 12:30 am, McColman was observed driving a utility terrain vehicle by two officers who were conducting a general patrol of the Thessalon First Nation area. McColman proceeded to turn into his parents’ driveway before the officers pulled him over. The officers admitted they did not seen any signs of impairment prior to stopping McColman and were simply exercising their authority to conduct random sobriety checks pursuant to section 48(1) of the Highway Traffic Act.

Upon approaching McColman, Constable Lobsinger noticed that McColman was impaired as he was unsteady on his feet, he was hanging onto the side of the vehicle, his knees were wobbly, his eyes were red and bloodshot and there was a strong odour of alcohol on his breath. McColman admitted he had been drinking and may have had ten beers.

The officers proceeded to arrest McColman and charge him with impaired operation of a motor vehicle and operating a motor vehicle while ‘over 80’. He was convicted and sentenced to a 12-month driving prohibition and given a $1,000 fine.


The summary conviction was appealed and it was determined that the traffic stop was unlawful and breached McColman’s right not to be arbitrarily detained under section 9 of the Charter. The evidence against McColman was excluded and an acquittal was entered.

The Crown brought a motion for leave to appeal, which was granted as it was determined that the issue in question was significant to the administration of justice with respect to the scope of police powers. The issue on appeal was outlined as follows:

Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person had been drinking?

The majority of the judges that heard this appeal made the following conclusions:

  1. The police did not have the statutory authority to stop McColman in a private driveway.
  2. The police power represents a prima facie interference with driving on private property.
  3. The police did not have the authority to randomly check the sobriety of McColman on his private property.

Given these findings, the appeal court found that McColman’s Charter rights under section 9 (the right not to be arbitrarily detained or imprisoned) were breached. The appeal court agreed with the summary conviction appeal judge and ruled that the evidence should be excluded as its inclusion “would bring the administration of justice into disrepute”. Therefore, the evidence was excluded, the appeal was dismissed and McColman’s acquittal was upheld.

Justice Michael Tulloch, writing for the majority, wrote in his reasons:

At home, the individual has no expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter on to their driveway and arbitrarily detain them.

Justice C. William Hourigan provided a dissenting opinion on this appeal. He referred to a ruling by the Supreme Court and stated that “the random stopping of vehicles on public streets by the police is constitutionally permissible because such a minimal restriction of liberty is demonstrably justified in a free and democratic society”. He criticized the reasons by the majority of the judges on this appeal and stated:

The sanctuary finding means that an impaired driver who the police intended to stop on a public highway is free to pull onto private property when the driver spots a police cruiser. As long as the driver gets their vehicle onto a stretch of private property, sanctuary applies, and they are ‘home free’. …

For drivers who are in the process of being pulled over as part of a random stop, if they can pull onto private property as the safe spot to stop their vehicle, arguably they too will have reached sanctuary.

If you have been charged with impaired driving or any other driving related offence, please contact the knowledgeable criminal defence lawyers at Barrison Law online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.