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Local man's impaired acquittal stands after appeal court rules police needed reason for random stop on private property

Side-by-side driver told police he 'might have had 10' beers, but judges say it was a Charter violation because officers had no reason to stop him in his parents' driveway
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The Ontario Court of Appeal has upheld a Sault Ste. Marie judge's acquittal of a district man, charged five years ago with drinking and driving offences after police stopped his vehicle for a sobriety check on private property.

Walker McColman was in a driveway outside his parents' home on Thessalon First Nation in the early morning hours of March 26, 2016 when officers executed the stop to determine if he was under the influence of alcohol or drugs.

The province's top court heard a Crown appeal of Superior Court Justice Edward Gareau's 2019 decision to overturn McColman's conviction last December and released its ruling Friday.

In its decision, the appeal court noted this wasn't a case where the driver was swerving, where there was a broken tail light or any other obvious Highway Traffic Act (HTA) infraction.

"It is a case of a driver who drove normally onto their own driveway and parked."

The officers didn't immediately stop him after forming an intention to conduct a random stop to determine whether there was evidence to justify making the demand.

They followed him for about a minute as he made a turn and then a second turn into his driveway.

"The police lights weren't activated until he was safety in his driveway," the writer of the majority report said.

"Certainly, drivers should not be entitled to escape onto private property to avoid culpability," Justice Michael Tulloch wrote.

"However, police officers should not be allowed to follow drivers onto private property to investigate the driving where there are no grounds to suspect any wrongdoing."

In dismissing the Crown's appeal, he said neither the HTA nor common law authorized the police conduct in this case.

The stop violated McColman's Charter rights and the evidence was properly excluded by the summary conviction appeal judge (Gareau), he concluded .

On Sept. 16, 2019, Gareau found the stop was unlawful, breaching the accused's Charter right not to be arbitrarily detained, and excluded the evidence.

He overturned Ontario Court Justice Robert Villeneuve's Oct. 4, 2018 conviction of McColman, finding the lower court judge had erred in law by concluding the stop was authorized under the HTA.

During McColman's trial, Villeneuve heard the officers were doing general patrol in the area about 12:30 a.m., when they spotted a utility terrain vehicle parked outside a restaurant.

The vehicle "seemed" like it was going to be leaving the parking lot and they decided to conduct a sobriety check.

They began to follow the UTV as it left the parking lot and drove east along a public road until it turned into a driveway.

One of the officers testified that he didn't see any signs of impairment prior to stopping the vehicle and indicated to defence lawyer Don Orazietti there was nothing unusual about the driving.

He said he was exercising authority to conduct random sobriety checks under the traffic act.

When he approached the driver, the officer said he noticed McColman was unsteady on his feet, had red, bloodshot eyes and admitted to having had 10 beers.

Following his arrest, the accused recorded readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood.

Villeneuve convicted him of impaired driving and over 80, fined McColman $1,000  and imposed a 12-month driving prohibition.

In the Ontario appeal court decision, one of the three justices who heard the case disagreed with his two colleagues and wrote a dissenting opinion.

Justice C. William Hourigan described the case as an "egregious example of impaired driving" where the accused had offered an "honest, but frightening answer" when police asked if he had been drinking,

"I've had a few beers. Well, I might have had 10," McColman told the officer.

Hourigan said that according to the majority reasons, the accused is immune from investigation or prosecution because he had pulled into a shared driveway leading to his parent's home and a store.

"In effect, by pulling over to private property, the respondent moved into an area of legal sanctuary."

This sanctuary finding means an impaired driver, who police intend to stop on the highway, is free to pull onto private property when he spots a cruiser, the justice said.

"As long as the driver gets the vehicle onto a stretch of private property, sanctuary applies and they are 'home free.'"

He wrote that in his view, if the officers didn't have the authority under the HTA to make the stop in the shared driveway, they had the common law authority to do so.


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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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