Court File and Parties

Ontario Court of Justice

Date: 2016-10-18

Court File No.: Central East - Newmarket 4911-998-15-04658-00

Between:

Her Majesty the Queen

— and —

Joao Manuel de Medeiros Arruda

Before: Justice David S. Rose

Heard on: June 7, September 23, 2016

Reasons for Ruling on Charter Application released on: October 18, 2016

Counsel:

• L. O'Neill — counsel for the Crown
• A. McKay — counsel for the defendant Joao Manuel de Medeiros Arruda

ROSE J.:

Introduction

[1] Mr. de Medeiros Arruda is charged with the offence of Over 80 Operation. This trial commenced with a Charter Application alleging infringements of ss. 8, 9, and 10(b). The case did not proceed by what is commonly referred to as a rolled up Charter Application, and I am being asked to give a ruling before considering the trial proper.

[2] Mr. McKay called two police officers on the Application and obtained agreed facts regarding the evidence of another.

Facts

Police Attendance at the Residence

[3] PC Garilao was in uniform on duty with PC Rostant as his zone partner on the 5th of June, 2015. At 2:13 a.m. that night he received a communication from Toronto Police dispatch that an off-duty police officer was following a possibly impaired driver. The report detailed a licence plate for the car, which was a brown Toyota 4-door. The licence plate returned to an address in Markham at 106 Rizal Avenue. Because the information came from another police officer he gave it some additional weight.

[4] At 2:21 a.m. PC Garilao arrived at the residence of 106 Rizal and saw the vehicle in the driveway. He went up to the front door and knocked. He waited for a response and saw one of the shutters moving in a window. The house was dark, and the lights were off. PC Garilao said that he was not in a hot pursuit situation. He described 5 steps which lead up to a small porch on the front of the house. The porch had home accents, like plants and a light on top of the doorway. He believed that the driver of the vehicle described to him over the air was inside the residence. He testified that he was at the residence to confirm that information and collect evidence.

Initial Conversation at the Door

[5] After a good minute, and a second knock, someone came to the door and PC Garilao engaged in a conversation with him. Police dispatch had given a possible descriptor for the driver being possible Italian descent. The man who came to the door fit that description. Notably, PC Garilao was asked the following:

Q. And the purpose of engaging in that conversation was to elicit certain evidence?

A. Just to ascertain who was driving the vehicle.

[6] The man said that he was the last person to drive the vehicle. He was asked questions about his whereabouts and his consumption of alcohol. PC Garilao was again asked about the reason he was questioning the man at the door.

Q. Okay, and that purpose was to collect evidence?

A. Well to ascertain, that's correct.

[7] By then Garilao had determined that the man at the door was the same as the man who had been seen driving by the off duty Toronto Police officer, and that he was the man who had arrived home shortly before the police arrived. The man at the door had a blank stare and showed signs of impairment. He was speaking with a heavy accent. This all took place at the doorway just outside the door itself. The man was standing right at the doorway. There was no invitation to come in. Garilao was adamant that he stayed outside the house on the porch at the doorstep. Garilao asked him if he could grab some identification. The man walked back inside the house and provided a health card.

Detention and Arrest

[8] At this point PC Garilao had a reasonable suspicion that the man had been operating a motor vehicle under the influence of alcohol, and he made a breath demand. Garilao asked him to step outside the house and come to his cruiser in front of the camera. At that point he was under detention. He identified himself as Joao Manuel de Medeiros Arruda, and had no concerns with Garilao's attendance at his property, but he kept asking Garilao why they were there and Garilao kept telling him that they had been dispatched to the residence for an impaired driver. At some point the accused asked why they were coming into his house. He asked that a number of times. He asked about his wife being in the house and was concerned about forgetting his wallet. His utterances at the roadside indicate responsiveness to inquiries about whether he has any weapons on him.

[9] Mr. de Medeiros Arruda ultimately failed an ASD test and was arrested for Over 80. In the arrest process Mr. de Medeiros Arruda continued to interrupt PC Garilao with protests that he was arrested inside his house and that he wanted to see his wife.

Booking and Custody

[10] In cross-examination PC Garilao described the video recorded events from in front of the police cruiser to the booking hall at the police station. At booking the accused gives his name, date of birth, and address without difficulty. He was asked by the booking Sergeant, "Do you understand why you're under arrest?" and says "But I was inside my house." That answer met the response "It doesn't mean your home free."

[11] At no time did the accused ask Garilao to leave his residence, close the door, or say that he didn't want to speak with him. He was asked if he was sick or injured and he acknowledged with a nod. Likewise he denied being on any medications. He was asked if he wished to speak to a free lawyer, and said yes. At 3:17 a.m. Mr. de Medeiros Arruda was put in touch with duty counsel and ended that conversation 10 minutes later. He was asked if he had any alcohol today and said yes. He was asked how much, and replied 3 beers. He was told that if he behaved the handcuffs would come off and, after confirming his understanding that the handcuffs would be removed if he behaved, the handcuffs were removed. He was asked to remove his belt, which he then did. He was asked to take his hands out of his pockets, which he did. He was asked for his phone number and he gave it to the officers.

[12] During the Intoxilyzer investigation Mr. de Medeiros Arruda was told to take his hands off the breath tube which he did.

Evidence from Constable Alvey

[13] Cst. Robert Alvey also testified at the voir dire. On June 6, in the early morning, he was travelling north bound on the Don Valley Expressway around 1:55 a.m. He noticed a car travelling in front of him. It was driving a bit erratically. He thought the person might be texting and driving because it was weaving in and out of lanes. At a point he came to believe that the driver was impaired. He followed the vehicle as it exited the 401 and crossed the rumble strip, nearly hitting the median. He followed the car and called 911, passing information along to the dispatcher. He described the car as a beige or brown Toyota Corolla.

Agreed Facts

[14] The last piece of evidence called was an agreement by both defence and Crown counsel. It was agreed that Cst. Rostant would say, and I can take as a fact that, upon asking questions of the accused his responses were delayed and at times he wasn't answering the questions asked at the residence. Cst. Rostant directed the accused to find his footwear and retrieve his wallet, which he did. Upon arrest the accused requested the police to lock the door and contact his wife (or he be allowed to contact his wife). Neither happened. The accused's wife found the door open at 4:00 a.m. and the accused's vehicle in the driveway.

[15] The Crown called no evidence on the Charter Application.

Issues

[16] Mr. McKay argues that the police violated Mr. de Medeiros Arruda's rights under ss. 8 and 9 of the Charter by approaching his residence doorway as they did, conversing with him, asking him outside and investigating him at the roadside. Furthermore, they violated his rights under s. 10(b) of the Charter by not providing him with language translation.

Issues to be Determined:

1. Did PC Garilao violate Mr. de Medeiros Arruda's rights under ss. 8 and 9 of the Charter by questioning him at his door and asking him outside for continuation of the investigation?

2. Were Mr. de Medeiros Arruda's Charter rights under s. 10(b) of the Charter violated because no language interpretation was provided to him during his arrest?

3. If the answer to either #1 or #2 is yes, does a remedy lie to Mr. de Medeiros Arruda under s. 24(2) of the Charter?

Analysis

1. The Sections 8 and 9 Argument

The Implied Licence to Knock

[17] Mr. McKay places the facts before me on a solid line of jurisprudence which stands for the proposition that the implied invitation of a homeowner to those approaching the dwelling does not in law extend to police who attend for the purpose of collecting evidence. In R. v. Atkinson 2012 ONCA 380, Watt J.A. summarized it this way:

[45] The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: R. v. Evans, [1996] 1 S.C.R. 8, at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant's privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.

[46] This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence" to knock: Evans, at para. 15.

[47] Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the occupant's home: Evans, at paras. 16, 18 and 21. Likewise, where police specifically advert to the possibility of securing evidence against an accused by "knocking on the door", they have exceeded the authority conferred on them by the implied licence to knock: Evans, at para. 20.

[48] In some circumstances, police officers lawfully present at the door of a residence may lawfully enter the premises. An invitation to enter may be implied from the circumstances, for example, from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place: R. v. Clarke, [2005] O.J. No. 1825, 196 C.C.C. (3d) 426 (Ont. C.A.), at para. 28.

[49] When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 7 O.R. (3d) 337, at p. 348 O.R.

[18] In Atkinson the police were pursuing the Appellant as a person of interest in a break-in. She had been observed at the scene of the break-in on prior occasions, and dog feces were left at the broken-in apartment. When the police investigators spoke with the Appellant in her apartment they saw, and smelled, a pair of shoes which had dog feces on them. That, according to the Ontario Court of Appeal, was a Charter breach under s. 8 because the police had exceeded the limits of their implied licence to approach the apartment.

R. v. Rogers and the Saskatchewan Approach

[19] Atkinson was applied more recently by the Saskatchewan Court of Appeal in R. v. Rogers 2016 SKCA 105 to the impaired driving context. Rogers is factually similar to the case at Bar, if not on all fours. The Appellant had been seen driving a car which caused an accident. A civilian witness thought the driver was intoxicated and provided the police dispatcher with a licence plate. That led a policeman to the residence of the Appellant. The Appellant spoke to the constable through the doorway. That conversation led to an ASD demand, test and subsequent arrest for impaired driving.

[20] In Rogers the Court summarized the jurisprudential landscape this way:

[46] There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house. The most noteworthy of the appellate decisions that I have considered are R v LeClaire, 2005 NSCA 165 at para 15, 208 CCC (3d) 559, leave to appeal to SCC refused [2006] SCCA No 63 (QL) [LeClaire]; R v Fowler, 2006 NBCA 90, 40 CR (6th) 398 [Fowler]; R v Desrochers, 155 CRR (2d) 102 (Ont Sup Ct), affirmed 2008 ONCA 255 [Desrochers]; R v Atkinson, 2012 ONCA 380, 110 OR (3d) 721 [Atkinson]; and R v Parr, 2016 BCCA 99, 334 CCC (3d) 131 [Parr].

[47] LeClaire comes closest to extending the law to permit the police investigating a drinking and driving offence to use the implied licence to knock to gather evidence of drinking but, in the end, the Court draws back to saying "the conduct of the police did not amount to a search within the meaning of s. 8 of the Charter, because their purpose when they went onto the property of the appellant was to investigate the commission of an offence" (at para 34).

[21] And accordingly found, as the trial judge did, that approaching a residence with a view to investigating an impaired driver exceeded the limits of the implied invitation to approach a dwelling.

The Ontario Court of Appeal Approach: R. v. Lotozky

[22] Notably, the Court in Rogers did not consider the Ontario Court of Appeal decision in R. v. Lotozky, 81 O.R. (3d) 335 (C.A.). Lotozky, and its progeny (see R. v. Desrochers 2008 ONCA 255, 2015 ONSC 5887; and R. v. Dehaney 2014 ONSC 4182) stand for the proposition that the implied invitation to enter onto private property includes police action intended to investigate an impaired driver. I can put it no better than Rosenberg J.A., who said:

[35] The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. that licences may arise by implication from the nature of the use to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view.

[36] The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. The driver drove the vehicle in an unusual fashion as he approached the driveway. The officers would have been entitled to stop the vehicle on the street under s. 48(1) of the Highway Traffic Act. For reasons of safety, they waited until the motorist had brought the vehicle safely to a stop. This was a reasonable decision to make. It makes no sense that because the officers exercised a reasonable degree of caution their actions should be characterized as illegitimate.

[37] There are other reasons for viewing the officers' actions as legitimately within the scope of the implied licence. It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist's house until he or she returns to the street.

Policy Considerations in Impaired Driving Cases

[23] The policy reasons which ground impaired driving investigations therefore furnish a principled basis to view the implied invitation to enter private property differently in that context than when the police enter private property for other kinds of investigation.

Residential Privacy and Territorial Interests

[24] I would add to this that one of the differences which underlies a more restricted reading of the implied licence rule in impaired driving cases is the nature of residential searches. Anderson (supra) is consistent with senior appellate courts' long standing constitutional scrutiny over warrantless police intrusions into the territorial privacy interest inherent in private dwellings. See for e.g. R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Tessling (2004), C.R. (6th) 207 (S.C.C.); or more recently R. v. White 2015 ONCA 508. There is a consistent concern underlying this jurisprudence that the state not be able to collect evidence without prior judicial authorization from within a residence which pre-existed the arrival of the police. For that reason the police may not use the implied licence to render lawful what would otherwise require prior judicial authorization.

Nature of Impaired Driving Investigations

[25] In the case of an impaired driving investigation such as the case at Bar the territorial privacy interest is present but of lesser concern. The investigation is not the search for a thing, but rather comes in the form of a conversation with the occupant. The occupant's breath may smell of alcohol which, combined with utterances, may lead the investigator to pursue an Alcohol Screening Device demand, but it is different in nature from arriving at the door hoping that the officer's position at the door will afford a view or a smell of something which evidences a crime.

Application to This Case

[26] It follows that I would approach R. v. Rogers with caution. Not only am I bound by the Ontario Court of Appeal in Lotozky, but I would go further and say that, for the forgoing, Rogers applies the Anderson line of cases out of context.

[27] I would also find that Cst. Garilao's evidence that he was collecting evidence when he approached Mr. de Medeiros Arruda's door was nothing more than the pursuit of his duty to investigate an impaired driver based on fresh information. There is nothing in his evidence, or the rest of the evidence before me, which suggests that PC Garilao was hoping that an open door might lead to anything more than a conversation with the driver of the car.

[28] I therefore find that PC Garilao's approach to Mr. de Medeiros Arruda's door was within the lawful scope of his implied licence. The resulting conversation was, on the evidence before me, voluntary with no complaint from Mr. de Medeiros Arruda. Mr. de Medeiros Arruda could have refused to open the door, speak with the officer or come outside his house, but did not. There is no s. 8 or s. 9 breach.

Location of the Conversation

[29] Mr. McKay asks me to find that PC Garilao actually entered the dwelling and that the conversation occurred inside the house, as opposed to Garilao and Mr. de Medeiros Arruda on opposite sides of the threshold. I only have PC Garilao's evidence on this point and it is uncontradicted that he stayed on the outside portion of the house while Mr. de Medeiros Arruda was inside.

2. Was there a violation of Mr. de Medeiros Arruda's right to counsel under s. 10(b) of the Charter because no language translation was provided to him?

The Legal Framework for Section 10(b)

[30] Rights to Counsel must be meaningful to the detainee. Therefore, the detainee has the right to understand the arresting officer in both the informational component of Rights to Counsel, as well as at the stage of implementation if access to counsel is requested, see R. v. Vanstaceghem, [1987] O.J. No. 509. Special circumstances may exist which cause the detaining officers to take steps to prove additional language services in the process. The existence of special circumstances is a fact specific inquiry, see for e.g. R. v. Shmoel [1998] O.J. No. 2233; R. v. Peralta-Brito 2008 ONCJ 4; R. v. Nayyar 2009 CarswellOnt 8664 (C.J.); R. v. Czerniawski 2016 ONCJ 505.

Application to the Facts

[31] On the evidence before me there is ample evidence that Mr. de Medeiros Arruda protested his arrest. He repeatedly asked, in English, why he was arrested in his house. This suggests sufficient command over English that he understood both his jeopardy and something more, namely that there was something wrong with the process as it was unfolding. While I have already found that he was not arrested in his house, the fact that the conversation at the doorway with PC Garilao was the basis of outright challenge in English furnishes a finding that Mr. de Medeiros Arruda understood English. I also take into consideration that he asked in English about his wife and the fact that his house was unlocked. This suggests that he was quite able to articulate in English the implications of his predicament. I also take into consideration that after speaking with Duty Counsel in English he gave no indication of dissatisfaction with that call. This also supports a finding that Mr. de Medeiros Arruda had sufficient command over English to have a meaningful conversation with a lawyer, see R. v. Dumont 2014 ONSC 4133. I have considered the fact that Mr. de Medeiros Arruda has a very thick accent in the video tape played at trial, and is appearing at his trial with an Interpreter. Those factors are insufficient to establish a violation under s. 10(b) of the Charter. Mr. Medeiros-Arruda understood English sufficiently that both the informational and implementational component of s. 10(b) were meaningful in this case.

[32] The Charter Application under s. 10(b) is therefore dismissed.

Conclusion

[33] There is no need to consider s. 24(2) under the circumstances.

Released: October 18, 2016

Signed: "Justice David S. Rose"