Court File and Parties

Ontario Court of Justice

Date: February 5, 2018

Court File No.: Barrie 17-0826

Between:

Her Majesty the Queen

— and —

Timothy Higgins

Before: Justice C.M. Harpur

Heard on: November 21, 2017

Reasons for Judgment released on: February 5, 2018

Counsel

Hanieh Azimi — counsel for the Crown

Eginhart Ehlers — counsel for the accused Timothy Higgins

Background and Issues

1Mr. Higgins is charged with impaired care or control of a motor vehicle and care or control with excess alcohol on February 7, 2017 at approximately 1:30 a.m. The facts in this case are somewhat unusual. When first observed by Police Constables Michael Velema and Madeline Holden from their police cruiser driving southbound on Essa Road in Barrie, the vehicle in question was in the snow-filled side/back yard of the home in which Mr. Higgins lived at 479 Essa Road. Mr. Higgins was the vehicle's sole occupant. The vehicle was stuck and he was attempting to move it. PC Velema and PC Holden walked onto the property to the vehicle and spoke to Mr. Higgins. In dealing with him, PC Holden formed grounds to arrest Mr. Higgins for the impaired offence, did so, and made a demand pursuant to s.254(3) CC.

2Mr. Higgins subsequently provided samples pursuant to the demand. The lower of these was 210 milligrams of alcohol in 100 millilitres of blood.

3Prior to trial Mr. Higgins filed an application for Charter relief alleging breaches of Charter sections 7, 8, 9, 10(a) and 10(b) and seeking either a stay of proceedings under Charter s.24(1) or a s.24(2) exclusion of (i) PC Holden's observations underlying the impaired charge and the demand and (ii) the excessive blood alcohol readings.

4Apart from these constitutional issues, Mr. Higgins disputes that the Crown has proven beyond reasonable doubt that he was impaired to any degree in his ability to operate a motor vehicle.

5The Crown proceeded summarily. Ms. Azimi for the Crown called the evidence of PCs Velema and Holden as well as the evidence of the third officer who arrived on scene in a separate cruiser, PC Andrew Young. Mr. Ehlers for Mr. Higgins called Mr. Higgins' brother Patrick Higgins ("Patrick") and Mr. Higgins' father Brian Higgins ("Brian"), the latter of whom took many photographs of the scene and the house driveway during the night of February 7, 2017 and the following morning.

The Evidence

(a) PC Velema

6PC Velema was a police officer with sixteen years of service in February 2017. In the early morning of February 7, 2017, he was the passenger in a cruiser driven by PC Holden on general patrol in the City of Barrie. PC Holden had begun her work as a police officer just a few months previously and PC Velema was acting as her training officer.

7They proceeded southbound on Essa Road. At 1:36 a.m. PC Velema observed what appeared to him to be fresh tire tracks leading from Essa Road onto the property surrounding the house at 479 Essa Road to the south of that property. He also observed a running vehicle on the lawn on the south side of the house approximately one hundred feet from Essa Road and twenty feet from the house. The vehicle was facing the house. The tracks appeared to PC Velema to begin on Essa Road and to enter the property at a point immediately south of the driveway in front of the house. The lawn was covered in approximately three quarters of a foot of snow. PC Velema observed the vehicle to be rocking as if stuck. He concluded that the driver of the vehicle had lost control of it as it proceeded southbound on Essa Road and that it had then travelled onto the house property. He suspected that the driver might be impaired.

8PC Holden stopped the cruiser and PC Velema walked onto property to the vehicle. Its wheels were spinning. When PC Velema reached the vehicle it was clear that it "was not going anywhere". Mr. Higgins exited the vehicle, asked "what's going on" and said he was stuck. He had difficulty enunciating his words"chewing" them. PC Velema asked Mr. Higgins why he was there and Mr. Higgins responded that he lived in the home. PC Velema noted the smell of alcohol on Mr. Higgins' breath, enlargement of his pupils, watery eyes, a dryness of his mouth and a lack of balance as Mr. Higgins leaned down to attempt to put a collar on a white dog which had approached from the house.

9PC Velema asked Mr. Higgins if he had consumed any alcohol and Mr. Higgins acknowledged having had "a few beers". When asked by PC Velema why his vehicle was on the lawn, Mr. Higgins said he had wanted to test its off-road capabilities. Mr. Higgins said the vehicle was a rental, that his own vehicle was in for repairs, and that he had left his wallet and his identification in it.

10PC Holden had joined PC Velema at Mr. Higgins' vehicle. PC Velema told her of his observations. She arrested Mr. Higgins at 1:38 a.m. for the impaired offence.

11Following the arrest PC Velema observed what he felt was a single set of tracks leading to the vehicle. He took photographs of the scene and the tracks with his cell phone.

12Once the officers and Mr. Higgins had proceeded to the police detachment, PC Velema observed that Mr. Higgins seemed remarkably less impaired than he had at the scene. He did not stumble. His speech was clear. He was very polite. Indeed, he exhibited no indicia of impairment at that time, although the odour of alcohol on his breath persisted.

13In cross examination PC Velema said he is familiar with the Charter and was aware that Mr. Higgins' vehicle was on private property. He did not regard a warrant as necessary for him to approach the vehicle. He had no discussion with PC Holden regarding the matter of entering private property to investigate.

14He said PC Holden had dropped him off approximately one hundred feet past the driveway for 479 Essa Road from which point he walked onto the property to the vehicle. He said PC Holden then parked the cruiser just south of the driveway.

15PC Velema testified in cross examination that the tire tracks he observed seemed to proceed from Essa Road across the house driveway onto the lawn and then to go deeper into the property in a southwest direction to the vehicle's resting place. The tracks suggested to PC Velema as he first noted them that the trajectory of the vehicle was not intentional and that it had commenced on Essa Road. He said his impression of the tracks and vehicle was formed in approximately five seconds of observation as the cruiser proceeded past and south of the house driveway. He did not believe the tracks began on the house driveway. After attending at the vehicle on the property he did not return to the roadway to confirm that the tracks began on Essa Road.

16PC Velema felt time was an important factor in reaching the vehicle. He was unsure whether the vehicle was stuck fast and did not wish to lose sight of it. Mr. Higgins had been able to rock the vehicle slightly as PC Velema approached it and PC Velema felt Mr. Higgins might succeed in extricating it. He also wished to identify the driver. He acknowledged that this was not a case of hot pursuit.

(b) PC Holden

17PC Holden observed Mr. Higgins' vehicle on the side lawn of 479 Essa Road approximately fifty to one hundred feet from the home as she and PC Velema drove by it. Its lights were on and its wheels were turning. It seemed to be stuck. She also observed tire tracks from Essa Road to the vehicle.

18PC Holden made two U turns and parked the cruiser south of the driveway at 479 Essa Road. She and PC Velema got out. She followed PC Velema onto the property. She saw the vehicle rock two to three feet back and forth as she and PC Velema approached it. Mr. Higgins exited the vehicle and said he lived in the home on the property. PC Velema asked what he was doing and Mr. Higgins said he had got the vehicle stuck. PC Velema and PC Holden continued to question him. PC Holden noted a strong odour of alcohol on Mr. Higgins' breath, very glossy eyes, slurred speech and a lack of balance. Mr. Higgins said he had "had a few beers". He said he wanted to "see how well his rental vehicle would do in the snow". PC Holden said she did not discuss with PC Velema grounds for arrest of Mr. Higgins but that they did agree he was impaired. PC Holden proceeded to make the arrest. Mr. Higgins was polite and "very apologetic".

19At the detachment Mr. Higgins did not exhibit any balance problems or other indicia. He did continue to smell of alcohol.

20In cross examination PC Holden said that her motive in entering the property to approach the vehicle was to check on the vehicle occupants' wellbeing, although she was aware that she might also be dealing with a criminal offence. She was not aware that she was entering private property.

21The tire tracks which PC Holden followed to the vehicle had appeared to her to begin at Essa Road, not the house driveway. They seemed to proceed in a direct line to the vehicle.

22When shown the photographs of tracks which had been taken by PC Velema that night (Exhibit 1), PC Holden agreed that neither set of the tracks which appear in the photographs seems to begin at Essa Road. PC Holden said she had assumed that the tracks leading to the vehicle had begun on Essa Road, crossed a portion of the driveway and proceeded into the snow on the property. She said she was not focussed on the number of tracks leading toward the vehicle nor their precise location as her primary concern was the occupants of the vehicle. PC Holden acknowledged that the track to the vehicle shown in one of PC Velema's photographs makes two turns of approximately forty-five degrees each as it progresses onto the property. She said however that from the road passing by the turns were not visible.

23PC Holden was also shown by Mr. Ehlers a photograph taken by Brian of a tire track traversing the driveway and proceeding into the side yard (Exhibit 5, #615). Looking at it in court, she acknowledged that the track may have been present when she and PC Velema entered the property and the possibility that the person who made the track began his drive in the driveway, not on Essa Road.

24PC Holden agreed with Mr. Ehlers that she did not regard anyone as in danger of death as she entered the property, nor that evidence of a crime was about to be destroyed.

25PC Holden said that she and PC Velema spoke of the possibility of encountering a driver impaired either by alcohol or by medical difficulty as they approached Mr. Higgins' vehicle.

26PC Holden agreed with Mr. Ehlers that Mr. Higgins' lack of balance once out of his vehicle may have been attributable to the snow on the lawn. She estimated the depth of the snow to be one to one and one half feet.

(c) PC Andrew Young

27PC Young was a fifteen year police veteran at the time of the incident and had investigated many motor vehicle collisions which had occurred on snowy terrain. He came to the scene to arrange for the tow of Mr. Higgins' vehicle. PC Young viewed the photographs taken by PC Velema and agreed that one of the photos (Exhibit 1, #1), shows tracks which could not be made by one vehicle making a single trip. He also said that when he came to the scene he saw tracks which appeared to come onto the property from the driveway, not from Essa Road.

(d) Patrick Higgins

28Patrick is Mr. Higgins' brother. He was in the home at 479 Essa Road with Mr. Higgins on the night of February 6, 2017. From 9:00 p.m. until 10:30 p.m. he played a board game with his brother. Mr. Higgins drank nothing alcoholic during that period. When Patrick went to bed at 11:00 p.m. some indoor house lights and the outside lights of the home were on.

29Patrick confirmed seeing his father take pictures of the driveway later that night after the police had come to the property. One of them (Exhibit 5, #615) accurately depicts the tracks present on the driveway prior to the arrival there of a tow truck. These tracks do not extend beyond the lawn and the driveway, that is, they do not extend from the lawn to Essa Road.

(e) Brian Higgins

30Brian took photos of the scene on February 7, 2017 (Exhibit 5), both that night and in daylight the following morning, as evidence with respect to the charge his son was facing.

The Crown's Position

31Ms. Azimi submits that the fact of Mr. Higgins having consumed alcohol, the indicia observed by the officers on encountering Mr. Higgins and the bad judgement inherent in his risking embedding his motor vehicle in the snow in his backyard at 1:30 a.m. on February 7, 2017 meets the test in R. v. Stellato (1993), 78 CCC (3d) 380 (OCA) of proof beyond reasonable doubt of some degree of impairment of his ability to operate the vehicle. The Crown argues that there is no basis for a Charter remedy excluding the officers' observations of indicia.

32As to the over 80 offence - on which the defence relies solely on the Charter - the Crown acknowledges that PC Holden's and PC Velema's entry onto 479 Essa Road constituted a warrantless search but submits that the officers acted within the implied licence granted to them by the occupants of that home so as to investigate the apparent accidental intrusion onto the home property of a motor vehicle in the middle of the night.

The Defence Position

33Mr. Ehlers' contention with respect to the impaired charged is that, by reason of the trespass onto the Higgins' property, as well as an investigation by the police that night which dogmatically excluded relevant exculpatory evidence, PC Holden's and PC Velema's observations of indicia of impairment, such as they were, should be excluded under Charter s.24(2). Alternatively, the defence submits that the indicia observed, without more, fall short of establishing impairment to the criminal law's exacting standard.

34With respect to the excess alcohol charge, the defence position is (i) that the deficient investigation by the police necessitates a stay to distance this court from the state's conduct, (ii) that the deficient investigation, the trespass onto the Higgins' property and a delay in giving Mr. Higgins his rights to counsel render inadmissible any observations by the officers of indicia of impairment used by PC Holden as grounds for her s.254(3) CC demand, and (iii) that grounds for PC Holden's demand have not been proven even if her observations of indicia are admissible.

Analysis

(a) The Impaired Charge

35I will say at the outset of this analysis that I find no Charter breaches in this case. For the reasons which follow under the heading "The Over 80 Charge", the Crown has satisfied me on a balance of probabilities that PC Holden had grounds for the s.254(3) CC demand and Mr. Higgins has not satisfied me on that onus that the police investigation was biased or deficient, that they were trespassing when they approached him, or that they impermissibly delayed in providing his Charter s.10(b) rights to him.

36The absence of Charter breaches deprives Mr. Higgins of the potential remedy of excluding from the record the officers' evidence of their observations of indicia of impairment. Nonetheless, I feel that evidence does not prove impairment. Mr. Higgins' eventual readings, which are admissible, are very high but there was no proof presented at trial of a correlation between such readings and impairment. The observation by the police of Mr. Higgins' lack of balance on scene was largely offset by PC Holden's acknowledgment that the deep snow in which Mr. Higgins was moving in his yard may well have caused his imbalance, and by the officers' concession of an absence of any balance or movement problems once Mr. Higgins was taken from the scene. Absent evidence of impaired motor skills, I do not regard the remaining constellation of indicia described as proving impairment. The venture into the deep snow in the backyard with the rental car at 1:30 a.m. does smack of bad judgement but Mr. Higgins is a young man, a stage when errors in judgement can readily be found for no reason at all.

37The impaired charge will be dismissed.

(b) The Over 80 Charge

(i) The trespass issue

38Mr. Higgins' allegation of breaches of Charter ss. 7, 8, 9 and 10(a) are based primarily on the idea that PC Velema and PC Higgins were not lawfully on the Higgins' property when they began to speak to Mr. Higgins. The result, the argument goes, is that their observations of Mr. Higgins ought not to be received in evidence and that PC Holden's notification of the reason for the arrest, the arrest itself and the breath demand were not lawful.

39Mr. Ehlers submits that Mr. Higgins enjoyed a privacy right as he tested his rental vehicle on his property and that that right was infringed by the officers' trespass. I do not agree.

40I accept PC Holden's evidence that (i) she was proceeding onto the property thinking it was not property belonging to 479 Essa Road; (ii) her primary concern as she proceeded was the safety of the occupants of the vehicle; and (iii) she thought the driver of the vehicle had lost control on Essa Road and thus advanced onto the property.

41Mr. Ehlers likens the situation to that in R. v. Lauda, [1999] O.J. No.2180 (OCA), in which police officers advanced onto a fenced cornyard a considerable distance from any home, finding and destroying marijuana plants. In Lauda the Court of Appeal expressly rejected the American "open fields" doctrine and stated that "s.8 of the Charter should not be interpreted in a manner which would, without exception, foreclose property holders from asserting an expectation of privacy in unoccupied lands on the basis that society does not recognize the expectation as reasonable". So here, the defence proposes, did Mr. Higgins have a right to engage in an activity on the property adjacent to his family home without fear of state intrusion.

42With respect, I regard as more germane to Mr. Higgins' circumstances the slightly later decision of the Ontario Court of Appeal in R. v. Mulligan, [2000] O.J. No.59, followed in R. v. Lotozky, [2006] O.J. No.2516 (OCA). In Mulligan a police officer observed a pick-up truck parked outside a commercial building late at night. He suspected a break-in and drove into the property driveway to investigate. In the pick-up truck was the owner of the building, Mr. Mulligan. He was intoxicated and behind the wheel of the truck. In the trial for impaired driving Mr. Mulligan argued that his reasonable expectation of privacy had been violated and sought Charter relief. His application was unsuccessful at trial and on appeal. The reason was implied licence. Sharpe JA, who gave judgment for the court, said the following with respect to the principle:

[24] The implied licence to knock discussed in Tricker, supra, and Evans, supra, appears to be specifically related to activities reasonably associated with the purpose of communicating directly with the owner or occupant. However, it seems to me that the underlying principle is a broader one. Licences may arise at common law by implication from the nature of the use to which the owner puts the property. As Prof. Ziff notes in Principles of Property Law (Carswell, 2d ed., 1996) at 274, licences may be implied "such as where a shop is open for business to the public at large." In my opinion, the implied invitation principle extends to situations where the very purpose of entry is to protect the interests of the property owner or occupant, particularly where the entry occurs on an area of the property to which all members of the public ordinarily have access to do business with the property owner. It is plainly in the interests of a property owner or occupant that the police investigate suspected crimes being committed against the owner or occupant upon the property. For that reason, absent notice to the contrary, a police officer may assume that entry for that purpose is by the implied invitation of the owner, particularly where entry is limited to areas of the property to which the owner has extended a general invitation to all members of the public…

[31] In the present case, no issue is taken with the factual findings of the trial judge that the bona fide purpose of the officer entering onto the appellant's property was to investigate a possible break in or theft. There was no intention to investigate any possible criminal activity of the owner or occupant of the property and no intention to secure incriminating evidence against the owner or occupant. Indeed the officer's purpose was to protect the owner or occupant from possible criminal activity perpetrated by a third party. To the extent that the officer adverted to the possibility that the owner or occupant might be present, it was with a view to communicating with the owner or occupant to determine that the suspicion of break-in or theft was ill-founded and that nothing was amiss. In my view, the officer's purpose brought him squarely within the ambit of the implied invitation or licence that I have described…

[33] It follows from what I have already said about the implied licence that, given his purpose, the police officer did not invade the appellant's reasonable expectation of privacy and that s.8 is therefore not engaged. The purpose of the officer was the very antithesis of invading the rights of the appellant. The officer's purpose was to protect those rights from what the officer suspected might be criminal activity. From the perspective of the owner or occupant of private property, it is entirely reasonable to expect a police officer to investigate activity giving rise to a suspicion of criminal activity being perpetrated against the owner or occupant on his or her property.

43Mr. Ehlers would distinguish Mulligan on the basis that, in Mulligan, the path taken by the investigating police officer followed the route which would take a member of the public to the door of the commercial establishment whereas, in Mr. Higgins' case, the path taken by PCs Velema and Holden was clearly not on route to the home at 479 Essa Road. I do not regard this is a significant distinction. While in paragraph 24 of Mulligan cited above, Justice Sharpe says that the implied invitation exists "particularly where the entry occurs on the area of the property to which all members of the public ordinarily have access", he did not say that the entry must necessarily involve such an area to qualify for the implied licence. I see no reason why the licence described in Mulligan would not extend to other areas of a property, at least to those in which the property owner's privacy rights must be seen as quite limited, such as the readily-viewed, unfenced grounds of a house.

44Mr. Ehlers rightly noted some conflicts between the evidence of PC Velema and PC Holden. The most significant of these was PC Velema's testimony that he was dropped off by PC Holden approximately one hundred feet past the Higgins' driveway and that she proceeded to park the cruiser while he advanced toward the vehicle on the property. PC Holden's testimony was that PC Velema remained with her while she made two U turns and parked the cruiser and that the two of them proceeded together onto the property from a position immediately south of the Higgins' driveway. Additionally, PC Velema testified that he was present when PC Holden gave Mr. Higgins his rights to counsel. PC Holden said that he was not present. Mr. Ehlers points out as well that PC Velema first testified to the absence of a sidewalk between Essa Road and the Higgins' driveway and then, having been shown photographs, conceded that a sidewalk was there. I agree with the Crown's submission that none of these discrepancies is sufficiently material to undermine the evidence of either officer about their perception that a vehicle was on the property adjacent to the home at 479 Essa Road because the driver of that vehicle had lost control while travelling southbound on the roadway, a perception which legitimized their approaching Mr. Higgins.

45Thus I am satisfied on a balance of probabilities that the police entry onto the Higgins' property was not a trespass.

(ii) The deficient investigation issue

46I turn to Mr. Ehlers' argument that the police investigation was so deficient as only to have sought out evidence supportive of the Crown's case. The argument is made on the basis of a comparison between PC Velema's photographs on the night of February 7, 2017 and the many more taken by Brian that night and the following day. PC Velema took his photographs with his cell phone. It is clear that he was not attempting detailed accident reconstruction. I accept his evidence that, at the time of trial, he continued to believe that Mr. Higgins' vehicle had travelled from Essa Road onto the Higgins' property. That being his theory, I agree with Ms. Azimi's submission that his failure to gather the sort of detailed evidence about tire tracks on the house driveway exhibited in Brian's photographs cannot be faulted.

47Moreover, while it is true that Brian's photographs alone give rise to the defence position that Mr. Higgins never left his family's property in operating his vehicle that night, that fact seems to me to be beside the point. What is significant is the perception of the police officers as they began to investigate how Mr. Higgins' vehicle had come to be on the property, not how, in fact, it had come to be there. I accept the evidence of the police officers that their perception that night was that Mr. Higgins' vehicle had left Essa Road and proceeded onto the property. It was that perception which caused them to approach the vehicle and to make the observations leading to Mr. Higgins' arrest. Subsequent to that arrest, PC Velema took photographs intended to depict the vehicle on the property and the path it travelled. The fact that PC Velema and PC Holden might have discerned, when returning to the roadway to take the photographs and undertaking a more detailed inspection, that their initial assumption had been incorrect would make no difference to the legitimacy of their previous conduct.

(iii) The grounds for demand issue

48Although PC Holden's observations of Mr. Higgins on scene are not enough, in my view, to prove his impairment, there is a material difference between the evidence needed for proof of impairment at trial and that needed to supply grounds for a s.254(3) CC demand: R. v. Bush, 2010 O.J. No. 3483 (O.C.A.). Here, PC Holden testified to her conclusion that Mr. Higgins was impaired. The oddity of the off-road enterprise, his admission of consuming alcohol, and his slurred speech and glossy eyes provided the objective reasonableness of that conclusion.

(iv) The s.10(b) issue

49Finally, there is Mr. Higgins' allegation of a violation of his right to be informed immediately on his arrest of his right to communicate with counsel. PC Holden acknowledged having arrested Mr. Higgins at 1:38 a.m., having walked Mr. Higgins from his vehicle on the property to the cruiser, having placed Mr. Higgins in the rear of the cruiser and then, at 1:40 a.m., having read to him his rights to counsel and having provided him with the caution. She deferred giving rights and a caution, she said, because of the cold and wind to which she and Mr. Higgins was being subjected standing beside his vehicle and the fact that the Higgins' dog, which had come to them from the house, was proving to be a distraction. I accept her evidence. In these circumstances I do not regard the delay from 1:38 a.m. until 1:40 a.m. for the giving of rights as material. The police did not obtain any evidence during this interval or seek to do so.

50There being no Charter violations, the Crown is entitled to rely upon the excessive blood alcohol readings eventually given by Mr. Higgins. I find him guilty of the over 80 offence.