Ontario court ruling should be a big relief to impaired drivers

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The Ontario Superior Court just did a really stupid thing.

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Can I get in trouble for saying that? ( Ed: we’ll check, but probably. ) After a five-year slog through the courts, they’ve found in favour of a dude who admitted to having “probably 10 beers” before hopping on his ATV to hit the road near Sault Ste. Marie in March of 2016. Walker McColman left a convenience store with police following him. He noticed cops on his tail and deked into his parents’ driveway which was serendipitously right there. 

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As reported by Canadian Underwriter , ” McColman stopped on a private driveway and admitted to police that he had been drinking and may have consumed up to 10 beers. McColman was arrested, tried, and initially convicted of a criminal offence of operating a motor vehicle with a blood-alcohol level of more than 0.08%.”

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So far, so good. “But in 2019, the Ontario Summary Conviction Appeal Court overturned McColman’s conviction, finding that the police had no authority to stop the driver on a shared driveway that was not a public highway.” The Crown fought back that when police form the intent to pull over a driver, the fact they’ve dodged down a convenient strip of private property does not create a literal “get out of jail free card.”

The Court of Appeal for Ontario, in upholding the tossed conviction, argued otherwise. “The majority, Ontario Appeal Court Justices Michael Tulloch and Kathryn Feldman, ruled that police had violated McColman’s right under Canada’s Charter of Rights and Freedoms not to be “arbitrarily detained or imprisoned.”” For the record, this writer would like to know how a guy who is 10 beers drunk and spotted by cops driving his ATV on the road is being “arbitrarily detained” and “imprisoned” on his parents’ driveway. The majority judges said this didn’t matter.

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You’d think it was fairly clear. The Ontario Highway Traffic Act states in Section 48: “ (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle or operator of a vessel to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada). R.S.O. 1990, c. H.8, s. 48 (1); 2006, c. 20, s. 3 (1).” Canada’s Criminal Code gives them even more power, allowing testing for BAC over .08 up to two hours after driving. 

The lone dissenting wise voice on the Court, Justice William Hourigan, saw this for what it is: an escape clause a mile wide and a mile deep in keeping impaired drivers off our roads. “J ustice Hourigan expressed concern that the majority ruling to acquit would result in impaired drivers now having a “sanctuary” if they pulled off the highway and onto private property when they spot a police cruiser.”

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This is exactly what this ruling has done. You know who needs sanctuary? Spouses fleeing abusive situations. People running from war-torn countries. Wounded animals. Impaired drivers do not need sanctuary. But it gets worse.

“This property need not be a place to which they have any connection or even a legal right to visit. It matters not that a police officer wished to conduct the random stop on a public highway. As long as the driver gets their vehicle onto a stretch of private property, sanctuary applies, and they are ‘home free,’” wrote Justice Hourigan. These idiots could end up in your driveway. 

Let’s extrapolate the likely, if not inevitable, the fallout from such a decision. I drink enough to know I’m over the limit. I know what an impaired conviction means. Under Ontario law, a 90-day licence suspension; 7-day vehicle impoundment; $287 licence reinstatement fee; $550 penalty. Then the Canada Criminal Code 320.14 penalties kick in, with convictions leading to higher fines, longer licence suspensions, possible jail or prison time, and a criminal record. I’m driving along, no doubt believing I’m driving just fine because that’s how impaired people drive, when I see a police car in my rearview mirror. 

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Oh hell, no. All I have to do is make it home. Or to someone’s home. I just need my sanctuary! In turning down the appeal, Justice Tulloch said police didn’t pull over the ATV driver soon enough. “A police officer may choose to follow a driver along a highway to see if the manner of driving gives rise to a reasonable suspicion that the driver is intoxicated,” he wrote. “However, where there is no indication from the manner of driving that the driver is intoxicated, 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.” Police followed him for a minute as he made his final turns into the driveway before arresting him. A minute.

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When he was stopped, he admitted to having had about 10 beers, his eyes were bloodshot, his knees were buckling, he was hanging onto the side of his machine, he smelled of alcohol and he was mumbling. At the police station, he puked several times. His BAC readings were 110 and 120.

The dissenting Justice got it right : “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. In many cases, this sanctuary will be fleeting, as the impaired driver will stay on the private property only for as long as the police cruiser is in the area. Once it is out of sight, the driver will be free to re-enter the public highway and continue to endanger public safety.” 

Bingo.