The case of a local man, acquitted of drinking and driving charges because police stopped his vehicle for a sobriety test on private property, is headed to the Supreme Court of Canada.
On Thursday, the country's highest court granted the Crown leave to appeal an Ontario Court of Appeal decision that upheld a Sault Ste. Marie judge's acquittal of the driver.
In a June 24, 2021 ruling, the province's top court decided that police had breached Walker McColman's rights by conducting the traffic stop without reasonable grounds.
Superior Court Justice Edward Gareau found Walker McColman not guilty of the charges in 2019.
He called the stop unlawful -- breaching the accused's Charter right not to be arbitrarily detained -- and excluded the evidence.
Gareau overturned McColman's 2018 conviction in the Ontario Court of Justice, finding that the lower court judge had erred in law by concluding the stop was authorized under the Highway Traffic Act (HTA).
The appeal court agreed with Gareau saying it was a Charter of Rights and Freedoms violation because the officers had no reason to stop McColman in his parents' driveway.
In its one-page decision granting the Crown's application for leave to appeal, the Supreme Court said the appeal is only permitted on two issues -- whether the police stop was authorized by section 48 (1) of the HTA and if there was a Charter breach, whether the evidence should have been excluded.
That section of Ontario's HTA sets out the grounds and authority for police officers to demand a breath sample from drivers.
Defence lawyer Don Orazietti, who represents McColman, said the court only wants to hear arguments on these simple narrow issues.
"We're the respondent," he noted, adding the Crown has to convince the court the acquittal was wrong.
The Supreme Court is expected to hear the case this year.
McColman was charged in the early morning hours of March 26, 2016 after police followed his utility terrain vehicle from a restaurant parking lot, as it drove down a public road for about a minute, and then turned onto the private driveway outside his parents' Thessalon First Nation home.
During the initial trial in 2018 where McColman was convicted, Ontario Court Justice Robert Villeneuve heard from one of the officers who testified that he didn't see any signs of impairment or notice anything unusual about the accused's driving prior to stopping the vehicle.
He said he was exercising his authority under the HTA to conduct a random check.
The officer said when he approached the accused, McColman was unsteady on his feet, had red bloodshot eyes and admitted to drinking 10 beers.
Following his arrest, McColman recorded breathalyzer readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood.
Villeneuve convicted him of impaired driving and over 80.
He imposed a $1,000 fine and a 12-month driving prohibition.
When the court of appeal ruled on Gareau's subsequent acquittal in 2019, it noted this wasn't a case where the driver was swerving, where there was a broken tail light or any other HTA infraction.
"It is a case of a driver who drove normally onto their own driveway and parked."
The officer didn't immediately stop him after forming intention to conduct a random check to determine whether there was evidence to justify making the breath demand.
Police officers shouldn't be allowed to follow drivers onto private property to investigate driving where there are no grounds to suspect any wrong doing, the appeal court said.
When it dismissed the Crown appeal in 2021, Ontario's top court said neither the HTA nor common law authorized the police conduct in this case.
The stop violated McColman's Charter rights and the evidence was properly excluded by the summary conviction appeal judge (Gareau), it said.