Police do not have the authority to conduct random tests for alcohol intoxication on private property, the Supreme Court of Canada has ruled.
McColman left a restaurant and gas station on an ATV, near the Thessalon First Nation, according to court documents. Police on general patrol decided to conduct a sobriety test on the driver and began to follow him, despite not observing any concerns with his driving of the all-terrain vehicle.
The court noted that at trial, one of the constables who arrested the man conceded that he had not shown signs of impaired driving that would have otherwise warranted stopping him. Nonetheless, police followed him as he pulled off the highway, and drove into a private driveway to his parent’s home.
The police stopped him on the property, noticed signs of impairment, and arrested him. An earlier court judge ruled the stop was lawful, and McColman was found guilty by the Ontario Court of Justice. The man appealed that ruling to the Ontario Superior Court of Justice, and the Court of Appeal ruled the police had breached McColman’s Charter rights and acquitted him of impaired driving.
The Crown appealed the decision, arguing that police could perform random sobriety tests on private property if they intended to stop them first on a highway, but the Court of Appeal ruled against the government.
Driver Must Be on Highway, Says Court
The Supreme Court’s decision noted the police “acted without legal justification,” and stated officers did not have “authority to conduct a random sobriety stop on private property.” They also did not act on reasonable and probable grounds, ruled the court.The court also noted that the law is clear on the word driver, which states that “driver” means a person driving a vehicle on a highway, and has care or control of a motor vehicle. The court ruled that to be a driver, one must be driving a vehicle and must do so on a highway.
McColman was not on a highway when police conducted the stop, said the court, which made the stop unauthorized and a breach of his constitutional rights.
The organization said roadside stops by police without adequate suspicion have been a “serious and longstanding concern” because they “act as a notorious pretext for racial profiling.”
“They also facilitate other abuses of discretionary power that are difficult for courts to review,” added the CCLA.
The organization had one criticism of the ruling, stating the court set the bar “too high” when it comes to excluding evidence when police violate a citizen’s Charter rights in cases of “legal uncertainty.”
“There should be no legal incentive for police officers or prosecutors to push the limits of police powers until told otherwise by a Court,” said the CCLA.
