Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 4 minutes.

  1. On Thursday, March 23, 2023, the Court is releasing its decision in R. v. McColman. At issue is whether a random police stop for a sobriety check can be done once the driver is on private property.
  2. R. v. Downes, 2023 SCC 6 was released on March 10, 2023. The Court unanimously allowed the Crown appeal and restored the convictions for voyeurism.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Random Sobriety Checks on Private Property

Appeal by leave from R. v. McColman, 2021 ONCA 382

View the SCC webcast & read the factums

What Happened?

Trial: The respondent McColman was driving a vehicle, had exited the public highway, and was in the private driveway outside his parents’ house. A police officer approached him. The officer testified that they did not see any signs of impairment prior to stopping the respondent and there was nothing unusual about his driving. The officer explained that they were exercising their authority to conduct random sobriety checks pursuant to s. 48(1) of the Highway Traffic Act. At the stop, the officer spoke to the respondent, observed obvious signs of impairment, and arrested him. The respondent was convicted of impaired operation of a motor vehicle, and operating a motor vehicle while “over 80”.

Appeal: On appeal, the summary conviction appeal judge overturned the over 80 conviction, finding that the trial judge erred in law by concluding that the stop was authorized under s. 48(1) of the Highway Traffic Act. He also found the stop to be unlawful, breaching the respondent’s right not to be arbitrarily detained under s. 9 of the Charter. He proceeded to exclude the evidence under s. 24(2) of the Charter and entered an acquittal.

The Court of Appeal granted the Crown leave to appeal and framed the issue as follows: “Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person had been drinking?” A majority of the Court of Appeal dismissed the appeal. Justice Hourigan dissented.

SCC: At the Supreme Court, the Crown highlighted that the Court of Appeal’s interpretation creates a situation where impaired drivers can effectively opt out of a possible sobriety check by steering on to private property whenever they spot police coming up. The Highway Traffic Act it argued does not convey sanctuary status to private property. The respondent focussed on the fact that the officer did not have reasonable and probable cause to make the stop. The respondent’s driving was normal. Furthermore, the plain reading of the statute does not permit the police to make stops on private property. The combination of these factors results in a serious Charter breach.

What Else Should You Know Before Making a Prediction?

Like the last appeal (below), this is another Crown appeal and defence counsel have had a tough time recently. I don’t see this case being any different.

Last SCC Decisions

On March 10, 2023, the SCC released R. v. Downes, 2023 SCC 6. A unanimous Supreme Court allowed the Crown appeal and restored the convictions for voyeurism. (Note it was 8-0 as Justice Brown sat this one out.)

Held: In order to prove voyeurism, the prosecution did not need to prove that nudity could reasonably be expected in the dressing rooms at the time the photos were taken.

Key Points:

  • Section 162(1)(a) of the Criminal Code has no implicit temporal component.
  • Parliament’s purposes in enacting the voyeurism offence in s. 162(1) were to protect individuals’ privacy and sexual integrity. It does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity; it suffices if they are in a place where a person may reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom.
  • It also does not require the accused to act for a sexual purpose.

75% correctly predicted the result.

-Tom Slade

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