Sault Ste. Marie’s lawyer, Don Orazietti, is in Ottawa today to discuss a case before Canada’s highest court that could set a precedent for motorists in this country. The Supreme Court of Canada is hearing the Crown’s appeal of a local man’s acquittal of drinking and driving charges because police stopped his vehicle on private property for a field sobriety test. The Crown is appealing a June 24, 2021 decision by the province’s highest court that upheld the acquittal of the driver by a Sault judge. The Ontario Court of Appeal ruled that police violated Walker McColman’s rights by making the traffic stop without reasonable cause. Superior Court Judge Edward Gareau found McColman not guilty of the charges in 2019. He called the stop illegal, saying it violated the accused’s Charter right not to be arbitrarily detained, and excluded evidence from the trial. Orazietti, who along with his attorney Anthony Orazietti is representing McColman, will argue against the Crown’s appeal. The case centers on police power to come onto private property “and will likely set a precedent for motorists,” said Anthony Orazietti When the appeals court upheld their client’s acquittal last year, Don Orazietti said the ruling “clearly defines the limits of police power.” It shows “that police are not authorized by law to enter private property absent reasonable suspicion or probable cause,” the veteran lawyer told the Law Times. “This is the important resolution of this case.” The Canadian Civil Liberties Union and Quebec’s Director of Criminal and Criminal Prosecutions are interveners in the case before the Supreme Court. In February, the High Court granted the Crown’s application for leave to appeal the decision. He said the appeal would only be allowed on two issues – whether the police stop was authorized by Section 48(1) of the Highway Traffic Act (HTA) and, if there was a Charter breach, whether the evidence should have been excluded. This section of Ontario law sets out the grounds and authority for police officers to request a breath sample for drivers. Gareau overturned McColman’s conviction in 2018 in the Ontario Court of Justice, finding that the lower court judge had erred in law in concluding that the stop was authorized under the HTA. The appeals court agreed with Gareau, ruling that it was a violation of the Charter of Rights and Freedoms because the officers had no reason to stop McColman on his parents’ driveway. McColeman was charged in the early hours of March 26, 2016, after police followed his vehicle from a restaurant parking lot as it traveled on a public road for about a minute and then turned onto a private road outside Proto Ethniko’s parents’ Thessaloniki home. During his trial two years later, Ontario Court Justice Robert Villeneuve heard one of the officers testify that he saw no signs of impairment or noticed anything unusual in the defendant’s driving before the vehicle stopped. He told the court he was using his power under the HTA to carry out a random check. The officer said that when he approached McColeman, the defendant was unsteady on his feet, had red eyes and admitted to drinking 10 beers. McColeman recorded breathalyzer readings of 120 and 110 milligrams of alcohol in 100 milliliters of blood. Villeneuve convicted him of impaired driving and operating a vehicle with a blood alcohol level above the legal limit. He was fined $1,000 and banned from driving for 12 months. When the Court of Appeal ruled in Gareau’s acquittal, it noted that this was not a case where the driver swerved, where there was a broken taillight or any other HTA violation. “This is a driver who drove normally on his own property.” The officer did not make the stop after forming an intent to determine whether there was evidence to warrant a breath demand. Police officers should not be allowed to follow drivers onto private property to investigate driving when there is no reason to suspect they are driving at fault, the appeals court said. When it dismissed the Crown’s appeal last year, the province’s highest court said neither the HTA nor the common law authorized police conduct in this case.
