Supreme court ruling allows for evidence from a northern Ont. unlawful spot check to be admitted in court

The Supreme Court of Canada has reinstated the impaired driving conviction of a northern Ontario man, despite agreeing that his rights were breached during his arrest.

The case dates back to 2016 in Thessalon First Nation, when two Ontario Provincial Police constables saw a man drive an ATV out of a parking lot of a convenience store in the community.

Officers followed for about a minute and saw him pull into a private driveway nearby. They opted at that point to make a random sobriety check and noticed he was showing several signs of being impaired.

He had red eyes, smelled of alcohol, his knees were buckling and he appeared to be holding on to the side of the ATV with his right hand.

However, both OPP officers involved in the arrest testified they hadn’t seen signs he was impaired before making the random check in the driveway.

If they had grounds to believe he was impaired, the court ruled the arrest would have been legal.

But a random sobriety check is only permitted on public highways, not private property.

However, a 2019 ruling in the Ontario Superior Court of Justice said that on balance, it favoured allowing the police evidence to be used.

Otherwise, it would create a situation in which suspects could avoid impaired driving charges by driving onto private property if they saw police.

“Surely, the statutory authority afforded to police officers under … the Highway Traffic Act are not suspended by the mere fact that the driver of a motor vehicle succeeds in avoiding being stopped on a public street or highway,” the court ruled.

The suspect was then convicted of impaired driving, but that decision was overturned on appeal, in part because the court ruled the fact the arrest took place on private property “elevated appellant’s privacy rights.”

“Simply put, (the suspect) was in his driveway and not on a highway or public roadway,” the court ruled.

“There were no interests of the public that had to be protected at that point in time that would justify the actions of the police authorities or couch them with implied license or authority under the common law.”

A 2021 ruling by the Ontario Court of Appeal upheld the acquittal and the Crown then appealed to the Supreme Court of Canada (SCC).

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In its decision, released March 23, the SCC ruled that it agreed the suspect was not “a driver” as defined by the Highway Traffic Act.

“Even if it can be said that he had care or control of the ATV, he was not on a highway when the police effected the stop,” the court said.

“Therefore, the police stop was unauthorized.”

However, the SCC said the breach was not severe enough that all evidence gathered by police had to be thrown out, especially since the rules regarding sobriety checks on private property were “uncertain” when the OPP made the arrest.

“The unlawful police stop constituted a marked, although not egregious, intrusion on (the suspect’s) charter‑protected interests and moderately favours exclusion of the evidence,” the court said.

“However, the evidence collected by the police was reliable and crucial to the Crown’s case and impaired driving is a serious offence. Admission of the evidence would better serve the truth‑seeking function of the criminal trial process and would not damage the long‑term repute of the justice system.”

Read the full ruling here.