R v McColman

R. v. McColman

2019 ONSC 5359
Ontario Superior Court of Justice — Gareau J. | September 16, 2019

Background

At 12:30 a.m. on March 25, 2016, Constable Lobsinger spotted Walker McColman driving an ATV parked outside Rob's Variety store on the Thessalon First Nation. The officer followed McColman for about a minute as he drove on public roads, then watched him turn into a private driveway at 30 Biish Road — his parents' property. Instead of stopping McColman on the public road, Constable Lobsinger followed him onto the private driveway and detained him there.

Once on the private property, the officer observed signs of impairment: McColman hanging onto the ATV, strong alcohol odour, bloodshot eyes, buckling knees, and mumbling speech. McColman was arrested and later convicted under section 253(1)(b) of the Criminal Code. Crucially, Constable Lobsinger admitted he saw no signs of impairment while McColman was driving on public roads and had no information suggesting McColman had been drinking.

Issues

1. Did the police officer have statutory authority under section 48 of the Highway Traffic Act to stop McColman on private property?
2. Did the officer have common law authority to enter the private property and detain McColman?

The Limits of Highway Traffic Act Authority

The Superior Court found the trial judge made a reversible error in law. Section 48(1) of the Highway Traffic Act allows officers to stop drivers "for the purposes of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code." But the Act defines a "driver" as "a person who drives a vehicle on a highway," and "highway" means property "intended for or used by the general public for the passage of vehicles."

Once McColman turned into his private driveway, he was no longer a "driver" under the Highway Traffic Act — he was no longer on a "highway." The court emphasized that most privately owned driveways are not highways as defined in the Act. The officer's statutory authority under sections 48 and 216 simply didn't extend to private property unless he had reasonable grounds to believe an offence had been committed.

The court also rejected the Crown's argument about implied consent and common law authority. For police to rely on implied license to enter private property, they need a "legitimate basis" for entering. Here, the officer admitted he was solely relying on Highway Traffic Act authority to conduct a random sobriety check — which doesn't exist on private property. The public protection interest that justifies roadside stops disappears once a driver reaches their private driveway.

Key Takeaway

Police cannot follow you onto private property for random Highway Traffic Act stops — their statutory authority ends at the property line.

If you're charged after being stopped on private property, examine whether the officer had reasonable grounds for the stop or was just conducting a random check. The distinction between public roads and private property creates a significant Charter protection that courts will enforce.