CRIMINAL | Police Cannot Stop You in Your Driveway For Motor Vehicle Related Offences... Sort Of.

AuthorIzadi, Melody

How the Ontario Court of Appeal's recent decision affects driveway stops by police.

A lot of accused individuals call lawyers, outraged, saying they were driving perfectly yet a cop pulled them over. But what many do not know until a lawyer breaks the news to them is this: the Ontario Highway Traffic Act allows officers to stop a motor vehicle for any reason, or no reason, even if the driver is not committing an offence. Other provinces have similar laws. That is because driving is a privilege, not a right.

However, police can only enforce the Highway Traffic Act on public roadways, not private ones. And when police stopped Mr. McColman in his driveway after exiting his motor vehicle, the Ontario Court of Appeal was asked this puzzling question: can a police officer stop you in your driveway, then arrest you for a drinking and driving offence even though you were driving perfectly?

The Ontario Court of Appeal recently released its decision in R v McColman 2021 ONCA 382. They ruled that a motorist who had not breached Ontario's Highway Traffic Act, and where police did not initiate a stop until the accused parked in his parents' driveway, was a breach of the accused's rights under section 9 of the Charter. So no, if an officer sees you driving perfectly on a public roadway, they cannot attempt to stop you in your driveway.

But do not get too excited. A careful distinction must be made here. If police are trying to initiate a traffic stop, you cannot speed home to your driveway to receive some kind of legal immunity. In McColman, the police did not attempt to stop the motor vehicle until he was in his driveway. They noticed signs of impairment after he exited the vehicle, on private property, and charged him accordingly. Split 2 to 1 in its decision, the Court of Appeal found this was a breach was a brazen one but not one in bad faith by police:

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