How the Ontario Court of Appeals recent decision affects driveway stops by police

Jul 5, 2021 By Melody Izadi

A lot of accused individuals call lawyers, outraged, saying they were driving perfectly yet a cop pulled them over. But what many do not know until a lawyer breaks the news to them is this: the Ontario Highway Traffic Act allows officers to stop a motor vehicle for any reason, or no reason, even if the driver is not committing an offence. Other provinces have similar laws. That is because driving is a privilege, not a right.

However, police can only enforce the Highway Traffic Act on public roadways, not private ones. And when police stopped Mr. McColman in his driveway after exiting his motor vehicle, the Ontario Court of Appeal was asked this puzzling question: can a police officer stop you in your driveway, then arrest you for a drinking and driving offence even though you were driving perfectly?

The Ontario Court of Appeal recently released its decision in R v McColman 2021 ONCA 382. They ruled that a motorist who had not breached Ontario’s Highway Traffic Act, and where police did not initiate a stop until the accused parked in his parents’ driveway, was a breach of the accused’s rights under section 9 of the Charter. So no, if an officer sees you driving perfectly on a public roadway, they cannot attempt to stop you in your driveway.

But do not get too excited. A careful distinction must be made here. If police are trying to initiate a traffic stop, you cannot speed home to your driveway to receive some kind of legal immunity. In McColman, the police did not attempt to stop the motor vehicle until he was in his driveway. They noticed signs of impairment after he exited the vehicle, on private property, and charged him accordingly. Split 2 to 1 in its decision, the Court of Appeal found this was a breach was a brazen one but not one in bad faith by police:

[D]rivers should not be entitled to escape onto private property to avoid culpability. However, police officers should not be allowed to follow drivers onto private property to investigate their driving where there are no grounds to suspect any wrongdoing.

In his dissert, Justice Hourigan flagged the potential loophole of a motorist pulling into an accessible driveway to avoid a roadside alcohol screening stop program by police. Likely police province-wide will not miss this apt and careful analysis by Justice Hourigan. This leads me to believe that the ripple effect of this decision will likely be police officers exercising their power to stop motorists even earlier, before the motorist is too close to home. They may also exercise their discretion to stop motorists quickly to altogether avoid the issue of a Charter breach similar to that raised in McColman.

This case may go to the Supreme Court for the ultimate binding analysis So, what are motorists to do in the meantime? Get to a driveway as soon as possible when a police officer is behind you? Make sure to only drive poorly on private property? The answer (and a bit of free legal advice here) is this: drive safely, abide by the rules of the road, and for goodness sake don’t drink and drive.

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