Case information
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39826
His Majesty the King v. Walker McColman
(Ontario) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2023-04-14 | Appeal closed | |
| 2023-03-23 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2023-03-23 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2023-03-23 |
Judgment on the appeal rendered, CJ Ka Côt Br Row Mar Kas Ja Ob, The appeal from the judgment of the Court of Appeal for Ontario, Number C68630, 2021 ONCA 382, dated June 4, 2021, heard on November 1, 2022, is allowed. The acquittal is set aside and the respondent’s conviction and the stay entered at trial are restored. Leave to appeal is granted to the appellant to appeal the sentence. The sentence imposed at trial is restored, with the exception of the victim surcharge, which is eliminated. ____________________ * Brown J. did not participate in the final disposition of the judgment. Allowed |
|
| 2022-11-15 | Transcript received, 97 pages | |
| 2022-11-01 | Judgment reserved OR rendered with reasons to follow | |
| 2022-11-01 |
Hearing of the appeal, 2022-11-01, CJ Ka Côt Br Row Mar Kas Ja Ob Judgment reserved |
|
| 2022-10-28 | Respondent's condensed book, (Book Form), (Printed version filed on 2022-10-31) | Walker McColman |
| 2022-10-27 | Intervener's condensed book, (Book Form), (Printed version filed on 2022-10-28) | Canadian Civil Liberties Association |
| 2022-10-27 | Supplemental document, (Book Form), Mr. Justice Michel Yergeau of the Québec Superior Court rendered judgment on October 25 in the case of Luamba v. Québec (A.G.) (500-17-114387-205), a case we refer to in our factum. An electronic copy of the judgment is enclosed. We ask permission to file the judgment as an additional authority and instructions as how to proceed., Completed on: 2022-10-27, (Printed version due on 2022-11-03) | Canadian Civil Liberties Association |
| 2022-10-26 | Appellant's condensed book, (Book Form), (Printed version filed on 2022-10-31) | His Majesty the King |
| 2022-10-25 | Intervener's condensed book, (Book Form), (Printed version filed on 2022-10-28) | Director of Criminal and Penal Prosecutions of Quebec |
| 2022-10-12 | Notice of appearance, Donald Orazietti and Anthony Orazietti will appear before the Court. Donald Orazietti will present oral argument. | Walker McColman |
| 2022-10-11 | Notice of appearance, Davin Michael Garg will appear before the Court and will present oral argument. | His Majesty the King |
| 2022-10-11 |
Notice of appearance, Me Julie Nadeau and Me Lina Thériault will appear before the Court. Me Julie Nadeau will present oral argument. |
Director of Criminal and Penal Prosecutions of Quebec |
| 2022-10-11 | Correspondence (sent by the Court) to, all parties; Letter of direction relating to upcoming hearing | |
| 2022-09-01 | Order on motion to extend time, by the Registrar (sent to parties by email) | |
| 2022-09-01 |
Decision on motion to extend time, Reg, UPON APPLICATION by the respondent for an order extending the time to serve his factum to July 4, 2022, and extending the time to serve and file his book of authorities to July 7, 2022, and for an order granting him permission to present oral arguments at the hearing of the appeal, pursuant to Rule 71(3) of the Rules of the Supreme Court of Canada; AND THE MATERIAL FILED having been read; AND NOTING the consent of the appellant; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2022-09-01 | Submission of motion to extend time, Reg | |
| 2022-08-05 | Response to motion to extend time, (Letter Form), Completed on: 2022-08-05, (Printed version due on 2022-08-12) | His Majesty the King |
| 2022-07-27 |
Motion to extend time, (Book Form), Amended version filed on August 5, 2022. Missing: Filing Fee, Incomplete, (Printed version due on 2022-08-04) |
Walker McColman |
| 2022-07-26 | Intervener's book of authorities, (Book Form), Completed on: 2022-07-28, (Printed version filed on 2022-07-28) | Canadian Civil Liberties Association |
| 2022-07-26 | Intervener's factum, (Book Form), Completed on: 2022-07-28, (Printed version filed on 2022-07-28) | Canadian Civil Liberties Association |
| 2022-07-19 |
Intervener's factum, (Book Form), require: -service upon intervener CCLA (rec'd 2022-07-20) -service upon respondent (rec'd 2022-07-25) received: -amended factum (rec'd electronic copy 2022-07-19), Completed on: 2022-07-25, (Printed version filed on 2022-07-20) |
Director of Criminal and Penal Prosecutions of Quebec |
| 2022-07-18 | Certificate (on limitations to public access), (Letter Form), (Printed version due on 2022-07-25) | Walker McColman |
| 2022-07-07 |
Respondent's book of authorities, (Book Form), require: -electronic copy (rec'd 2022-07-11) -service (rec'd 2022-07-11) -motion for extension of time (rec' 08/05/22), Completed on: 2022-08-05, (Electronic version filed on 2022-07-11) |
Walker McColman |
| 2022-06-28 | Notice of hearing sent to parties | |
| 2022-06-28 |
Appeal hearing scheduled, 2022-11-01 Judgment reserved |
|
| 2022-06-24 |
Respondent's factum, (Book Form), require: -service (rec'd 2022-07-04) -23A (rec'd 2022-07-18) -pdf version -motion for extension of time for service (rec'd 2022-07-18) -amended motion for extension of time for service (rec'd 2022-08-05), Completed on: 2022-10-04, (Printed version filed on 2022-07-07) |
Walker McColman |
| 2022-06-14 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), (sent to all parties by email) | |
| 2022-06-14 | Order on motion for leave to intervene, by KARAKATSANIS J. | |
| 2022-06-14 |
Decision on the motion for leave to intervene, Ka, UPON APPLICATIONS by the Director of Criminal and Penal Prosecutions of Quebec; and the Canadian Civil Liberties Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motions for leave to intervene are granted and the said two (2) interveners shall each be entitled to serve and file a factum not to exceed ten (10) pages in length, and book of authorities, if any, on or before July 26, 2022. The said two (2) interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal. The said interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. In particular, the interveners must limit their submissions to the issues on which leave to appeal was granted. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and the respondent any additional disbursements resulting from their interventions. Granted |
|
| 2022-06-14 | Submission of motion for leave to intervene, Ka | |
| 2022-06-03 | Response to the motion for leave to intervene, Completed on: 2022-06-07 | His Majesty the King |
| 2022-05-27 | Notice of name, (Letter Form), Missing: Proof of Service, (Printed version filed on 2022-05-31) | Canadian Civil Liberties Association |
| 2022-05-27 |
Motion for leave to intervene, (Book Form), Missing: Filing Fee Proof of Service (rec' 05/31/22), Incomplete, (Printed version filed on 2022-05-31) |
Canadian Civil Liberties Association |
| 2022-05-24 |
Order by, Br, UPON REQUEST by the respondent for an order appointing counsel, under s. 694.1 of the Criminal Code, for the purpose of the appeal; AND THE MATERIAL FILED having been read; AND NOTING the consent of the appellant; IT IS HEREBY ORDERED THAT: 1.The request is granted; 2.Donald R. Orazietti, Q.C. is appointed as counsel for the respondent, under s. 694.1 of the Criminal Code, for the purpose of the appeal; and 3.Donald R. Orazietti’s fees and disbursements shall be paid by the Attorney General of Ontario, in accordance with ss. 694.1 (2) and (3) of the Criminal Code. Granted |
|
| 2022-05-19 | Notice of name, (Letter Form), (Printed version filed on 2022-05-20) | Director of Criminal and Penal Prosecutions of Quebec |
| 2022-05-19 |
Motion for leave to intervene, (Book Form), Missing: Filing Fee Proof of Service (rec' 05/26/22), Incomplete, (Printed version filed on 2022-05-20) |
Director of Criminal and Penal Prosecutions of Quebec |
| 2022-05-16 | Correspondence received from, (Letter Form), Davin Michael Garg, RE: Consent to the appointment of counsel., (Printed version due on 2022-05-24) | His Majesty the King |
| 2022-05-13 | Correspondence received from, (Letter Form), Donald R. Orazietti, Q.C., RE: Request to appoint counsel., (Printed version due on 2022-05-20) | Walker McColman |
| 2022-04-29 | Appellant's book of authorities, (Book Form), Completed on: 2022-05-17, (Printed version filed on 2022-04-29) | His Majesty the King |
| 2022-04-29 | Certificate of counsel (attesting to record), (Letter Form), 24A, (Printed version filed on 2022-04-29) | His Majesty the King |
| 2022-04-29 | Appellant's record, (Book Form), Completed on: 2022-05-17, (Printed version filed on 2022-04-29) | His Majesty the King |
| 2022-04-29 | Appellant's factum, (Book Form), Completed on: 2022-05-17, (Printed version filed on 2022-04-29) | His Majesty the King |
| 2022-03-04 | Notice of appeal, (Letter Form), Completed on: 2022-03-23, (Printed version filed on 2022-03-09) | His Majesty the King |
| 2022-02-03 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2022-02-03 | Judgment on leave sent to the parties | |
| 2022-02-03 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C68630, 2021 ONCA 382, dated June 4, 2021, is granted. Leave to appeal is granted only on the following issues: 1) whether the police stop was authorized by s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8; and 2) if there was a breach of s. 9 of the Charter, whether the evidence obtained should have been excluded under s. 24(2) of the Charter. Granted |
|
| 2021-11-22 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2021-10-25 | Correspondence received from, (Letter Form), Respondent's counsel is seeking the procedure to apply for a s. 684 Criminal Code order for legal assistance for Mr. McColman. | Walker McColman |
| 2021-10-06 | Letter acknowledging receipt of an incomplete application for leave to appeal, FILE OPENED 2021-10-06 | |
| 2021-09-03 | Certificate (on limitations to public access) | His Majesty the King |
| 2021-09-03 |
Application for leave to appeal, (Book Form), Require: - Signed Trial Court Reasons for Judgment (rec'd 2021-10-19) - Trial Court Order (rec'd 2021-10-19), Completed on: 2021-11-10, (Printed version filed on 2021-09-03) |
His Majesty the King |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| McColman, Walker | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Director of Criminal and Penal Prosecutions of Quebec | Intervener | Active |
| Canadian Civil Liberties Association | Intervener | Active |
Counsel
Party: His Majesty the King
Counsel
Crown Law Office Criminal
720 Bay Street, 10th Floor
Toronto, Ontario
M7A 2S9
Telephone: (437) 833-8842
FAX: (416) 326-4656
Email: davin.garg@ontario.ca
Agent
World Exchange Plaza
100 Queen Street, suite 1300
Ottawa, Ontario
K1P 1J9
Telephone: (613) 787-3562
FAX: (613) 230-8842
Email: neffendi@blg.com
Party: McColman, Walker
Counsel
434 Albert Street East, Upstairs
Sault Ste. Marie, Quebec
P6A 2J8
Telephone: (705) 256-5601
FAX: (705) 945-9427
Email: donaldorazietti@gmail.com
Party: Director of Criminal and Penal Prosecutions of Quebec
Counsel
Lina Thériault
Complexe Jules-Dallaire
2828, boulevard Laurier, Tour 1, Burreau 500
Québec, Quebec
G1V 0B9
Telephone: (418) 643-9059 Ext: 20844
FAX: (418) 644-3428
Email: julie.nadeau@dpcp.gouv.qc.ca
Agent
17, rue Laurier
Bureau 1.230
Gatineau, Quebec
J8X 4C1
Telephone: (819) 776-8111 Ext: 60442
FAX: (819) 772-3986
Email: isabelle.bouchard@dpcp.gouv.qc.ca
Party: Canadian Civil Liberties Association
Counsel
Lex Gill
Bureau 90
750, Côte de la Place d'Armes
Montréal, Quebec
H2Y 2X8
Telephone: (514) 871-8385 Ext: 202
FAX: (514) 871-8800
Email: bruce@tjl.quebec
Summary
Keywords
Charter of Rights — Arbitrary detention — Exclusion of evidence —Was the police stop authorized by s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 — If there was a breach of s. 9 of the Charter, should the evidence have been excluded under s. 24(2) — ss. 9, 24(2) of the Charter of Rights and Freedoms.<br>
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The respondent was driving a vehicle, had exited the public highway, and was on private property when the 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, R.S.O. 1990, c. H.8. 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”. The respondent’s summary conviction appeal was allowed; the conviction was set aside and an acquittal was entered. A majority of the Court of Appeal dismissed the appellant’s appeal.
Lower court rulings
Ontario Superior Court of Justice
2019 ONSC 5359, 7908-18
Appeal allowed: conviction set aside; acquittal entered
Court of Appeal for Ontario
2021 ONCA 382, C68630
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available