The Supreme Court of Canada will rule on a Sault-area man's fight to overturn a drunk driving conviction.
Walker McColman was charged in 2016 with impaired driving and found guilty at a trial in 2018. That conviction was overturned on appeal in 2019, followed by yet another appeal in 2021 that upheld the decision to acquit McColman.
This month, Canada's top court said it would hear an appeal fighting the latest court decision.
The controversy in the case centres on where police arrested McColman in 2016. He left a convenience store near Thessalon First Nation on Maple Ridge Road, and drove about a minute to a private residence in a private driveway.
Ontario Provincial Police followed him after he left the store and drove into the private driveway. As he exited the vehicle, police saw signs he was impaired. For example, McColman was "hanging onto the side of the ATV with his right hand," the court transcript of the case said.
When an officer approached him, he could smell alcohol on McColman's breath, his knees appeared to be buckling, he had trouble speaking and his eyes were bloodshot.
After he was convicted in October 2018, his lawyers appealed the case on the grounds McColman's right to privacy had been breached. The defence argued that police had no right to follow him onto private property unless they had grounds to believe he was impaired.
"In his evidence, Const. (Jack) Lobsinger agreed with the suggestion of defence counsel that there was nothing unusual about the driving of Mr. McColman and that no information had been provided to him that Mr. McColman had been drinking," the transcript said.
"In his evidence at the trial, Const. Lobsinger testified that the ATV was not stopped for highway traffic concerns, and that he stopped the ATV solely under his authority under the Ontario Highway Traffic Act, which authorized him to stop vehicles to check for sobriety of the operator."
In the appeal, the judge ruled that for the Highway Traffic Act to apply, McColman had to be on a highway when he was arrested. In this case, the arrest happened on a private driveway.
"There was no public protection interest being served in following Mr. McColman onto his private property," the judge ruled. "
"At that point, Const. Lobsinger had no knowledge that the appellant had been drinking and made no personal observations to suggest to him that the appellant had been drinking or was impaired."
But in 2021, the Crown tried to have the conviction reinstated. The Crown compared the case to spot checks, where drivers are pulled over at random to ensure they haven't been drinking.
"If a police officer forms the lawful intention to stop a driver on a public street for a sobriety check, but the driver turns on to private property before the officer can effect the stop, does the officer maintain authority to conduct the stop?" the Crown argued.
In a decision supported by two of three Court of Appeal judges, the court acquitted McColman again. In this case, there was no evidence the driver was evading police, as would be the case at a spot check.
"Police officers should not be entitled to follow a driver, after forming a crystallized intention to effect a stop, and wait to do so until after the driver has entered onto private property," the judges ruled.
"This would allow the police to enter private property and detain people based on a claimed prior intention to stop the car, formed in the absence of any actual suspicion of impairment."
While there is no doubt that McColman's rights were breached, the judges said the case relies on three factors: whether the breach was serious enough to throw out evidence; whether the breach was so serious it called into question the integrity of the Charter of Rights; and whether throwing out the evidence would be against the interests of society as a whole.
"The court’s role … is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute," the judges wrote.
In this case, the court ruled police had other options. For example, the judge said police could have stopped McColman 30 seconds earlier, while he was still on the highway.
"While there is no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, society has a vital interest in having a justice system that is above reproach," the judge wrote.
"As I alluded to above, officers are not above the law, and conduct that tests the limits of their authority should not be condoned by this court."
The Supreme Court of Canada agreed to hear the appeal based on the same three factors as the lower appeals court. No date for the hearing has been announced.
