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


In R. v. McColman, 2023 SCC 8, March 23, 2023, the Supreme Court concluded that the stopping of the accused’s motor vehicle on private property violated section 9 of the Charter because the police officer “did not have statutory authority under” section 48(1) of the Highway Traffic Act, R.S.O. 1990, “to follow the respondent onto the private driveway to conduct the random sobriety stop” (at paragraph 2).   However, the Court concluded that the evidence obtained as a result of the stop should not be excluded pursuant to section 24(2) of the Charter

The Supreme Court indicated that “the s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion…Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns” (at paragraphs 53 and 54).

Because the “the trial judge did not conduct a Grant analysis, since he found that s. 48(1) of the HTA authorized the random sobriety stop and there was no s. 9 violation”, the Supreme Court conducted the Grant analysis “afresh” (at paragraph 56).

The Supreme Court commenced its section 24(2) analysis by indicating that it is important to understand that “the first and second lines of inquiry are distinct. The first line of inquiry evaluates the state conduct itself, while the second line of inquiry goes further and assesses the impact of the state conduct on the accused’s Charter-protected interests” (at paragraph 59).

In relation to the three lines of the Grant inquiry, the Supreme Court concluded as follows:

(1)  The Seriousness of the Charter-Infringing Conduct:

…the first line of inquiry pulls slightly in favour of exclusion. Although there was relevant case law to support the police officers’ sobriety stop, given the legal uncertainty that existed at the time, the police officers should have acted with more prudence. When faced with legal uncertainty, “the police would do well to err on the side of caution”… on the whole, the first line of inquiry pulls slightly in favour of exclusion. The police acted without statutory authority in effecting the stop, and a body of case law confirmed their lack of authority to stop Mr. McColman. On the other hand, another body of case law supported their conduct. Given the legal uncertainty that existed at the time of the random sobriety stop, the breach was accordingly not so serious as to require this Court to disassociate itself from the police actions. In light of that same legal uncertainty, however, the police officers should have acted with more prudence. In our view, on balance, these two effects of the legal uncertainty pull in favour of exclusion, but only slightly (at paragraphs 60 and 65).

(2) The Impact of the Breach on the Charter-Protected Interests:

…the second line of inquiry moderately favours exclusion of the evidence. The stop impacted Mr. McColman’s liberty interests because the police questioned him in the course of an unlawful detention. Although the police had the power to randomly stop Mr. McColman to check his sobriety, they did not act within the legal limits of that power. In addition, the fact that the arbitrary detention occurred on private property is relevant because “[r]etreat to a private residence (even if not one’s own residence) will sometimes be the only practical way for individuals to exercise their right to be left alone”: Le, at para. 155. As a result of the unlawful stop, Mr. McColman was arrested and brought to the police station, where he was detained for several hours. The police obtained significant evidence against him, including the officer’s observations of signs of impairment, Mr. McColman’s statements about his alcohol consumption, and the results of two breathalyzer tests. Therefore, the unlawful police stop constituted a marked, although not egregious, intrusion on Mr. McColman’s Charter-protected interests. (at paragraph 68).

(3) Society’s Interest in the Adjudication of the Case on Its Merits:

…the evidence collected by the police was reliable and crucial to the Crown’s case…[I]mpaired driving is a serious offence…In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system. (at paragraphs 71 to 73)

(4) Balancing the Grant Factors:

When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: Lafrance, at para. 90; R. v. Beaver, 2022 SCC 54, at para. 134. Here, the first line of inquiry slightly favours exclusion of the evidence and the second line of inquiry does so moderately. However, the third line of inquiry pulls strongly in favour of inclusion and, in our view, outweighs the cumulative weight of the first two lines of inquiry because of the crucial and reliable nature of the evidence as well as the important public policy concerns about the scourge of impaired driving. On the whole, considering all of the circumstances, the evidence should not be excluded under s. 24(2). (at paragraph 74).