Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. McColman, 2021 ONCA 382, June 4, 2021, the accused was convicted of an offence, contrary to the former section 253(1)(b) of the Criminal Code.  The police had stopped the vehicle the accused was driving “in a private driveway outside the [accused’s] parents’ house”. The police noticed signs of intoxication and the accused was arrested and charged.

The accused argued that the stop was arbitrary and not in compliance with section 48(1) of the Highway Traffic Act.  The trial judge rejected the argument and entered a conviction.

The conviction was overturned by the summary conviction appeal court. The Crown was granted leave to appeal to the Ontario Court of Appeal.  The Court of Appeal described the issue raised as being the following:

Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person had been drinking?

The appeal was dismissed. A majority of the Ontario Court of Appeal held that “neither the HTA nor the common law authorized the police conduct in this case. The stop violated the respondent’s s. 9 Charter rights, and the evidence was properly excluded” (at paragraph 7).

The Legislation:

Section 48(1) of the Highway Traffic Act states:

A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand undersection [320.27 or 320.28] of the Criminal Code.

Section 1(1) of the Highway Traffic Act defines a “driver” as a “person who drives a vehicle on a highway.” Section 48(18) provides that in the context of s. 48, a driver “includes a person who has care or control of a motor vehicle.” “Highway” is defined as follows:

a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for passage of vehicles and includes the area between the lateral property lines thereof.

The Majority’s Reasoning:

The majority of the Court of Appeal indicated that “it is well established that a private driveway is not a highway as defined in the HTA… Because a private driveway is not a ‘highway’ for the purposes of the HTA, on the plain language of the HTA, a person in their private driveway cannot be a ‘driver’ as they are not a ‘person who drives a vehicle on a highway’ (at paragraphs 33 and 35).

The majority held that it did not matter that the police “crystallized the intention to stop the [accused] while he was still on a public roadway” because the “issue is whether the police were acting pursuant to lawful authority at the moment when they conducted the stop. That authority must be exercised within the confines stipulated by the HTA, including the precondition that the person subject to the stop is a “driver” on a “highway”. The officers’ intentions in the moments preceding the stop do not render an otherwise unlawful stop lawful…As set out above, the plain language of s. 48(1) and the related definitions of “driver” and “highway” do not authorize random stops off the highway” (at paragraphs 36 to 38).

Was the Stop Authorized by the Common Law?

The majority noted that it “is settled law that the police have a common law power to randomly stop vehicles in the course of protecting public roadways, absent reasonable suspicion” (at paragraph 46).

The Court of Appel declined to expand this common law power, holding that “[w]hile the liberty interests at stake are qualified by the driving context, randomly detaining an individual on their own driveway is a non-trivial interference with liberty” (at paragraph 76).

The Dissent:

In a dissenting opinion, Hourigan J.A. concluded that “the officers in this case had the authority to make the stop on the shared driveway” pursuant to the Highway Traffic Act and “they had the common law authority to do so. This is an instance where any gaps in the legislative scheme should be filled by the common law to ensure that the screening regime is effective” (at paragraphs 134 and 151).