Show Notes
At around 12:30 a.m. on March 26, 2016, police on general patrol in the area of the Thessalon Frist Nation in Northern Ontario saw a utility terrain vehicle (or UTV) parked outside a restaurant and gas station. When it appeared the UTV was about to exit the parking lot, police decided to conduct a sobriety check of the driver and turned around to follow the UTV. Approximately 200 metres down the road – less than one minute of unremarkable driving – the UTV turned into the driveway of a home – the home of the driver’s parents. The police officers followed and activated their lights. On approaching the UTV, police observed signs of impairment and arrested Mr. McColman for impaired driving. At the station, he provided two breath samples, both of which were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.
At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.
The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.
The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.
The Crown applied for and was granted leave to the Supreme Court of Canada.
The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)
More from Canada's Court: Oral Arguments from the SCC
R.B.-C. was convicted of sexual assault. He is an Iranian citizen living in Canada on a post-graduation work permit. But his sentence was not imposed until more than 14 months after his conviction. When it finally was imposed, he received a conditional sentence of two years less a day, followed by probation.
Mr. Cope plead guilty to the aggravated assault of his common law partner. He had a significant criminal record, and a significant history of mental illness. Both he and his partner are Indigenous. The sentencing judge sentenced him to 5 years in custody for the aggravated assault, and eight months of custody for breaching the release orders he was subject to at the time of the aggravated assault on his partner.
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The two respondents, jointly tried for a number of drug trafficking and related charges, argued that the delay in their case was unreasonable. While both the Crown and Defence agreed at trial that the delay was over the 18-month presumptive Jordan ceiling, the Crown sought to justify the delay by arguing that the complexity of the case necessitated the delay. The trial judge disagreed and stayed the charges. The trial judge found that the delay in the case was not justified as exceptional because of any complexity.
Despite the fact that the trial judge found that the appellant sent sexually explicit material to a minor, the trial judge was left in doubt as to whether (a) the identity of the appellant was made out on the video as an element of the offence, and (b) the specific intent to commit one of the enumerated offences, reasoning that it could have been simply a case of “flirtation”. The appellant was acquitted at trial of transmitting sexually explicit material to a person under the age of 16 for the purpose of facilitating the commission of either a sexual assault or the indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose.