Court File and Parties
Court File No.: Regional Municipality of Waterloo (Kitchener) Info # 18-8575 Date: 2020-06-04 Ontario Court of Justice
Between: Her Majesty the Queen — and — Richard John Crowley
Before: Justice C.A. Parry
Heard on: November 20, 2019, January 8, February 12, and March 4, 2020
Reasons for Judgment released on: June 4, 2020
Counsel:
- B. Schnell, for the Crown
- S. Harvey, for Mr. Crowley
PARRY J.:
I. INTRODUCTION
1Mr. Crowley stands charged on a two-count information alleging that on November 23, 2018, he drove his car while his ability to do so was impaired by alcohol and while his blood alcohol concentration was over the legal limit.
2Mr. Crowley has brought an application pursuant to the Charter of Rights and Freedoms. He alleges that the investigating officer conducted an unreasonable search and seizure by attending at his front door and ultimately entering his side-hallway without a warrant, thereby violating section 8 of the Charter. He further alleges that the officer unlawfully detained him just inside his side-door by demanding his driver's licence, vehicle registration, and insurance. He argues that the demand was unlawful because it was made while the officer was a trespasser on his property. He argues that this unlawful and warrantless detention and demand coercively extracted him from his home. Once the officer achieved the unlawful extrication, he was able to make the observations necessary to ground an approved screening device demand.
3The Crown argues that the officer did not in fact enter the accused's home, but rather only attended at the front door. The Crown further argues that the implied invitation to knock doctrine permitted the officer to attend at the door and that the officer did not therefore violate any reasonable expectation of privacy. Alternatively, the Crown argues that the ancillary powers doctrine provided the officer with the legal authority to attend at Mr. Crowley's door. The Crown further argues that the Highway Traffic Act empowered the officer to demand the accused's driving credentials, given the apparent recency of the accused's driving.
4The Crown further argues that, even if a breach or breaches occurred, the breach cannot be considered serious, given the uncertainty of the law in this area, given the limited degree to which the officer breached Mr. Crowley's territorial right to privacy, and given the fact that the accused's girlfriend (herself a visitor) had invited the police to the property.
5The defence counters, arguing that the impact upon the accused's Charter protected rights was so significant that only exclusion of the evidence would preserve the long-term repute of the justice system.
6For the reasons that follow, I have concluded that Sergeant Mace violated Mr. Crowley's right to be free from unreasonable searches and seizures but did not violate Mr. Crowley's right against arbitrary detention. I have also concluded that despite the violation, the evidence obtained during the course of the breach may be admitted in the trial against Mr. Crowley.
II. THE EVIDENCE
A. Setting the Scene with the Uncontroversial Evidence
7The Crown called two witnesses on the voir dire, Jennifer Warford (the accused's girlfriend) and Sergeant Mace (the investigating officer). Mr. Crowley testified on his own behalf in reply. While there are conflicts in the evidence of these witnesses, there are also substantial areas of agreement. I begin with summarizing the uncontroversial evidence.
8Mr. Crowley lived at #50 3rd Avenue in the City of Cambridge. He lived there with his parents, who were away on November 23rd, 2018. At the time, he was dating Jennifer Warford, who lived elsewhere. They had dated for about a year and a half by the time of the incident. From time to time, she would visit him at his home, often a few times a week. When his parents went away, she would sleep over at the accused's home. On those occasions, she and Mr. Crowley would sleep in the guest room, which had a larger bed than the twin bed in Mr. Crowley's room. While Mr. Crowley had given her a key to his home, neither of them described her as a resident. She was a guest, a visitor.
9Ms. Warford worked as a receptionist in a vet's clinic. She worked that day until 7:15. Mr. Crowley was not working that day. Accordingly, she asked him to bake muffins for her in support of a charity event being held at her workplace. During the day, he texted her and asked her to bring him some beer after work. She arrived at his home somewhere between 8:00 and 8:30. He had finished her muffins. She had not come with his beer.
10Mr. Crowley's drinking had been the source of conflict in their relationship. Ms. Warford believed him to be an alcoholic. She had wanted him to stop drinking entirely. For his part, he acknowledged being an alcoholic. At the time of the incident, though, he lied often about his alcohol consumption. These lies and his drinking led to conflict.
11While there are disputes about the details, both Ms. Warford and Mr. Crowley testified to arguing about his drinking that evening. As a result of this argument, Ms. Warford called the police.
12Ms. Warford's call to police dispatch occurred at or close to 8:40 p.m. In that call, she provided her name and address. She went on to allege that Mr. Crowley was impaired and had left his home and had driven to the store to get beer, likely to the nearby Westgate Plaza. She provided Mr. Crowley's address and described both him and his car.
13Dispatch relayed the complaint over the radio and electronically. Sergeant Mace received that dispatch at around 8:40 p.m. or shortly thereafter and responded to the call. Having reviewed the call, he knew the accused's address and believed the accused to live at that address. He also knew that Ms. Warford had a different address than Mr. Crowley. He assumed Mr. Crowley would return home once he purchased his beer, so he drove to Mr. Crowley's neighbourhood, arriving at around 8:55 p.m. He drove by Mr. Crowley's home, but did not see his car there, so he decided to park his car in a neighbour's driveway at the end of the street and wait.
14At 9:01, dispatch contacted Sergeant Mace and notified him that Ms. Warford had called to inform the police that Mr. Crowley had returned home.
15Sergeant Mace then drove back down the road and stopped at Mr. Crowley's home, where he saw Mr. Crowley's car parked in the driveway.
16I must stress at this point that Sergeant Mace did not testify that he possessed a belief that Ms. Warford lived with Mr. Crowley. He also did not testify that he possessed a belief that Mr. Warford had any kind of standing or power to consent to the police presence at the residence. Mace knew at the time of the call that Ms. Warford's address was different than Mr. Crowley's. Therefore, the evidence does not establish that Mace's entry onto the property or into the house was based upon an express and lawful invitation and consent extended by a person lawfully entitled to provide that invitation and consent. While Sergeant Mace testified to believing his attendance at the house was lawful, he did not elaborate upon what he believed to be the basis of his lawful authority; nor did he testify to reflecting upon the legality of his endeavour before embarking upon it.
17Sergeant Mace exited his cruiser and approached the side door. On his way, he felt the hood of Mr. Crowley's car and noted the hood was warm. He then proceeded to knock on the door. Ms. Warford answered the door and spoke briefly with Sergeant Mace. She testified that she told the officer that she wanted the officer to administer a breath test on Mr. Crowley. I accept her evidence on this point. Soon thereafter, Sergeant Mace saw Mr. Crowley coming up the stairs from the basement living room to the door.
18Sergeant Mace was conducting a focused investigation but had not yet made any decision to make a warrantless arrest. Mace did not believe the driving complaint relayed by dispatch provided him with grounds to arrest Mr. Crowley. For that reason, he also did not profess to have sufficient grounds to enter the home in hot pursuit of Mr. Crowley. Nevertheless, Sergeant Mace's evidence makes clear that he treated Mr. Crowley as the target of an impaired driving investigation. He also assumed that the target of his investigation lived at the residence he was approaching. His knock on the door of Mr. Crowley's residence was not made in furtherance of maintaining general public order, or even simply in furtherance of making general inquiries about an occurrence, but rather in furtherance of advancing a specific police investigation of a specific individual.
19In furtherance of that investigation, Sergeant Mace intended to demand Mr. Crowley's driver's licence, registration, and insurance. He repeatedly testified that he was treating the interaction as a traffic stop. I therefore inferred from his evidence that he treated compliance with his demands as non-negotiable. He also testified that his purpose in attending the residence was to "see if there was [sic] grounds for an offence." In elaborating, he testified he was looking for "all the stuff you look for in an impaired". He specifically noted his intent upon examining "physical abilities, whether it be his motor movements… slurred speech." He also eventually took note of an odour of alcohol coming from the Mr. Crowley's breath while the two were outside in the driveway and asked questions about his consumption of alcohol. I therefore infer from his uncontested evidence that, when walking up to and knocking on Mr. Crowley's door, the officer intended to search for any evidence of physical indicia of impairment and to make any visual, auditory, and olfactory observations necessary to form grounds to believe an offence occurred. I also infer the officer intended to ask investigative questions of Mr. Crowley and to use the answers provided to confirm whether grounds for arrest existed.
20Sgt. Mace noted 9:08 p.m. as being the time of his initial interaction with Mr. Crowley. I accept this as the approximate time of his interaction with Mr. Crowley and infer that the door knock/ring and a brief interaction with Ms. Warford happened just before the commencement of Mace's interaction with Crowley.
21Upon receiving Sergeant Mace's demand for his driving credentials, Mr. Crowley provided his driver's licence to the officer. Mr. Crowley testified that he did not believe he had any other option but to comply with the demand made by the officer. This testimony is consistent with the evidence of the officer's characterization of the interaction as a traffic stop that involved the making of a demand – and I accept it. Mr. Crowley next stepped outside to procure his vehicle registration and insurance, in compliance with the officer's demand. Once Mr. Crowley was outside, Sergeant Mace asked Mr. Crowley about any recent alcohol consumption. Mr. Crowley confirmed he had consumed some sherry an hour and a half earlier. Sergeant Mace also noted an odour of alcohol on Mr. Crowley's breath once Mr. Crowley stepped outside in compliance with the officer's demand.
22Once Sergeant Mace smelled the alcohol and confirmed recent consumption, he concluded that Mr. Crowley had alcohol in his body. With the complaint of recent driving, he concluded he had sufficient grounds to make an ASD demand, albeit insufficient grounds yet to make an arrest. The ASD demand was made at approximately 9:10 p.m., within a few minutes of Mace's initial interaction with Crowley.
23When Mace made the demand of Crowley, Mr. Crowley asked if he could step inside. Mace denied the request and made clear Crowley's detention.
24Crowley eventually complied with the ASD demand and failed the screening test. His failure provided Mace with grounds to arrest Crowley and demand Crowley attend the police station to complete an Intoxilyzer test.
25Once transported to the police station, Mr. Crowley provided suitable samples of his breath into an Intoxilyzer device. The results of this breath test indicated that Mr. Crowley's blood alcohol content was over the legal limit. These results helped provide the grounds to lay the charges for which Mr. Crowley now stands trial.
26I will now turn to areas in which there was disagreement in the evidence of the three witnesses.
B. RESOLVING DISCREPANCIES IN THE EVIDENCE
27The evidence of the three voir dire witnesses differs in some areas:
(1) While Ms. Warford testified that Mr. Crowley departed the home during her visit and took his car to the beer store, Mr. Crowley denied driving during Ms. Warford's visit. Instead, Mr. Crowley claimed to have driven prior to Ms. Warford's arrival at his home.
(2) While Ms. Warford and Mr. Crowley testified that Sgt. Mace entered the foyer of the side door entrance, Sgt. Mace testified to believing that he stood at or just outside the threshold of the side door.
1. Did Mr. Crowley Drive his Car After Ms. Warford Came to his Home?
28I will begin first by saying that I do not think Mr. Crowley's evidence on this point was relevant to any of the issues being raised on the voir dire. The question of whether Mr. Crowley actually drove his car during the material time period is incapable of answering the question of the lawfulness of Sergeant Mace's attendance at Mr. Crowley's home, the lawfulness of Mace's demands to Mr. Crowley, or the lawfulness of Mace's arrest of Mr. Crowley. The evidence, though, went in without objection. Resolving this particular conflict in the evidence is essentially collateral to the issues raised on the voir dire and more appropriately left for deliberations in the trial proper.
29Having said this, I would observe that I find Mr. Crowley's evidence on this point improbable. First, it seems unlikely that Ms. Warford would call the police and specifically request that the police look for her boyfriend at the nearby beer store unless she genuinely believed her boyfriend to be there. Second, it seems improbable that she would place a second call to the police to advise them that her boyfriend had returned home unless he had in fact been out and then had returned. Third, the officer testified to seeing Mr. Crowley's car absent from the driveway when he first drove by and then later seeing it in the driveway when re-approaching the house. Fourth, the officer's evidence makes it plausible that he missed Mr. Crowley's return home while in the process of manoeuvring his cruiser to set up watch on Crowley's street. At this juncture, based on the evidence before me, I am not inclined to accept Mr. Crowley's evidence on this point on a balance of probabilities. [1] As will be seen, though, this adverse credibility finding on what appears to be a collateral issue does not have much of an impact upon the other live factual issue.
2. Did the Officer Enter the Home?
30Before resolving the conflicting evidence about whether Sergeant Mace entered the home, I must first make clear the layout of the home. As noted, the officer attended the side entrance of the accused's home, which is a small raised bungalow. The side door is at the right side of the house, from the vantage point of a person looking at the house from the street. It sits near the front corner of the house. The side door opens inward, so that the door swings from inwards from right to left, from the vantage point of a person knocking at the door. Across the threshold sits a small landing, rectangular in shape, about three feet deep and a little wider. To the right are three steps that lead up to the main floor kitchen. Straight ahead are stairs that lead downwards to the basement living room. To see down the stairs from outside the threshold, one would require the door to be opened fully, or nearly so.
31During examination in-chief, Ms. Warford testified that Sergeant Mace stood "on the doorstep". She did not think he came fully inside, but if he did so"he did not come in far". In cross-examination, defence counsel suggested the officer stepped fully inside, at which point Ms. Warford testified that the officer crossed the threshold of the door and stood on the mat just inside the doorway. For her part, she testified to backing up the steps leading to the kitchen to make room for the officer's entry. This evidence was provided in cross-examination effortlessly and without apparent reflection. She further testified that Mr. Crowley stood near the top of the stairs as Sergeant Mace demanded his driver's licence and vehicle documents.
32Mr. Crowley's evidence essentially mirrored that of Ms. Warford. He testified, however, that the door was closed behind the officer. He also testified that he stepped around the officer to get his keys from the side-wall that leads up to the kitchen. He then opened the side-door to let the officer outside. The officer stepped backwards away from the door to allow it to swing open before stepping outside. Then Mr. Crowley procured his boots from behind the door and followed the officer outside.
33Sergeant Mace testified to believing that he did not enter the home. In-chief he asserted that he stood outside. He testified that Ms. Warford answered the door and that she was the person he initially saw when the door opened. He also testified that Mr. Crowley was coming up the stairs behind Ms. Warford. According to Mace, Warford moved up the steps towards the kitchen after which Mr. Crowley came on the landing. Mace believed he would have remembered if he stepped onto the landing. He did not, however, flat-out deny entering the home. Indeed, in cross-examination, he agreed it was possible that he stepped onto the inside-landing while keeping the door open behind him; he just did not believe this occurred. Later in cross-examination, he testified that he stood on the threshold and that his boots most likely crossed the threshold. However, he maintained that there was no room for him on the landing. Regardless of whether or not he stepped on the landing, Sergeant Mace was adamant that the door did not close behind him. He reasoned that for tactical reasons he would never close the door behind him while actively questioning a suspect.
34Both Ms. Warford and Sergeant Mace's evidence varied between their testimony in-chief and their testimony in cross. Their evidence on this issue thus raises some reliability concerns. Nevertheless, I am inclined to accept the evidence of Ms. Warford. She clearly possessed animus towards Mr. Crowley both at the time of the arrest and, to a lesser degree, at the time of the trial. Her concession to counsel in cross-examination seemed to arise fluidly and without reflection, as if recalling a genuine memory. She provided detail as to where the officer stood, as if her memory had been refreshed. And she provided a logical choreography of everyone's relative movements. Her evidence in general, is also supported by Mr. Crowley, who provided a similarly logical choreography of everyone's relative movements. Against this evidence, Sergeant Mace offered a belief, not an outright denial. This belief was born in part from another belief: the belief that he would have a specific recollection of standing on the landing, if indeed he had done so. I keep in mind that Sergeant Mace treated this investigation as a somewhat routine traffic incident. It clearly did not and does not occupy a position of prominence in his life or in his memory. The same cannot be said for Ms. Warford or Mr. Crowley. This was clearly a very significant incident for both of them. For all these reasons, I accept on a balance of probabilities the evidence of Ms. Warford and Mr. Crowley that the officer stepped onto the landing in accordance to what I infer was an unspoken but implicit invitation by Ms. Warford to enter in furtherance of her explicit invitation to investigate Mr. Crowley.
35I do not, however, accept Mr. Crowley's assertion that anyone closed the door behind Sergeant Mace. I conclude that Mr. Crowley is mistaken on that point. Sergeant Mace's adamant assertion that he would never do such a tactically unwise thing rings true. Mr. Warford's evidence supports Mace on this point. I therefore conclude that Mr. Crowley is mistaken on the question of whether the officer closed the door behind him.
III. WAS THE OFFICER'S ATTENDANCE AT THE DOOR UNLAWFUL?
A. The Implied Invitation Doctrine
36The implied invitation doctrine creates a constructive waiver of an individual's reasonable expectation of privacy. It constitutes a recognition of a social contract that exists between individual home dwellers and the rest of our society. In that social contract, individual home dwellers waive their reasonable expectation of privacy for the purpose of allowing the general public to communicate with them at the doors of their homes. We have doorbells for a reason. Through this contract, a courier can deliver a package, our children's friends can invite our children out to play, volunteers can canvas for charities, and neighbours can drop by for a visit. This social contract has limits, though. There are some things we just do not invite to our doorstep. We do not invite burglars and others with criminal intent, for example. And we do not invite state investigations of us in the private sanctuary we call home.
37In R. v. Evans, most of the Supreme Court – Justice Sopinka for three members of the court and Justice La Forest in concurring reasons – set out the limits of the Implied Invitation Doctrine. In doing so, Justice Sopinka explained that the purpose of the implied invitation "is to facilitate communication between the public and the occupant": see para. 15. He then cautioned however, that when the police approach the door with the intent of gathering evidence against the occupant, they exceed the scope of the implied invitation and approach as intruders. He reasoned as follows:
In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to affect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.
In the present case, I am of the view that the actions of the police went beyond the forms of conduct permitted by the implied licence to knock. Although I accept that one objective of the police in approaching the Evans' door was to communicate with the occupants of the dwelling in accordance with the implied licence to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans' door was to attempt to "get a whiff [sic] or a smell" of marijuana. As a result, the police approached the Evans' home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.
38One could be forgiven for interpreting the above passages to be a declaration that the police are not welcome at our doors without a warrant if their purpose involves questioning us about our possible involvement in criminal activity for the purpose of substantiating a criminal charge against us. One could also be forgiven for concluding that no reasonable person would waive their territorial expectation of privacy if they knew that the fruits of such door-step investigative questioning would be used to ground a criminal charge against them. I would be surprised, in fact, to learn that any member of the public would extend such an invitation and thereby expose themselves to their own self-incrimination and a corresponding loss of their liberty. I repeat the words of Justice Sopinka:
Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them.
39Nevertheless, the following binding Ontario cases stand for the proposition that the implied invitation to enter onto private property doctrine can include police action intended to investigate an impaired driving offence, even investigative questioning: R. v. Desrochers at paras. 10-23, aff'd 2008 ONCA 255; R. v. Dehaney, 2014 ONSC 4182 at paras. 23-35; R. v. Lotozky at paras. 35 to 42; and R. v. Van Wyk, 1999 O.J. No. 3515 at para. 33, aff'd [2002] O.J. No. 3144.
40These binding cases draw a distinction between attending for the purpose of facilitating lawful communication and attending for the purpose of gathering evidence. These binding authorities conclude that lawful communication includes investigative questioning of suspects at their doorways. They declare that this kind of lawful communication falls within the implied invitation that the court deems members of the public provide to law enforcement.
41In my respectful view, the judicial distinction between door-step investigative questioning of suspects and door-step evidence collection is a difficult one to draw and potentially one without a meaningful difference. Show me an officer who is questioning a suspect, and I will show you an officer who is collecting evidence. As the police caution says"anything you say may be used in evidence against you."
42The recent case of R. v. Le, 2019 SCC 34, gives me pause to wonder whether the Supreme Court has affirmed the proposition that door-step investigative questioning of a suspect constitutes a form of evidence gathering that vitiates any implied invitation to knock at the suspect's door. In Le, several police officers entered a residential backyard and questioned several occupants of that backyard. They questioned the men about "what was going on, who they were, and whether any of them lived there." They also required the young men to produce documentary proof of their identities. The majority of the court [Brown, Martin, and Karakatsanis] examined the purpose of the police entry and concluded that their purpose rendered them trespassers. They accepted the characterization of the police purpose as follows: "the police entry was no better than a speculative criminal investigation, or a fishing expedition." It is tempting to conclude that the majority would have found the police presence in that backyard lawful if they had articulable cause to question one of the occupants. The logic of that temptation, however, does not stand up to scrutiny. The more grounds the police possess to suspect an occupant is engaged in criminal activity, the more likely the occupant is actually engaged in criminal activity. The more likely the occupant is actually engaged in criminal activity, the less likely it will be that the occupant will extend an invitation to the police to attend and question ask questions in furtherance of an investigation of that activity. I am therefore more inclined to infer that the majority concluded that the implied invitation to knock does not extend to situations where the purpose of the attendance involves an effort to obtain, through the act of questioning, evidence against the occupant. My inference about the majority's reasoning in the Le decision would appear to be consistent with the Saskatchewan Court of Appeal's interpretation of appellate jurisprudence that preceded the Le decision: R. v. Rogers, 2016 SKCA 105; leave to appeal refused: [2016] S.C.C.A. No. 438. However, the Rogers decision is not binding upon me.
43In my view, the inference I draw from Le is also consistent with the rubric constructed by the Supreme Court for identifying a psychological investigative detention. One of the factors considered in this rubric is a reasonable person's perception of the police purpose: whether (1) the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, (2) singling out the individual for focused investigation: R. v. Grant, 2009 SCC 32. This dichotomy between generalized policing inquiries, on the one hand, and focused investigation of a suspect, on the other, lends itself nicely to a consideration of the boundaries of the implied invitation to knock. I have no hesitation in concluding that reasonable people would invite and welcome police communication that involved providing general public assistance, maintaining general order, or making general inquiries about a particular occurrence. On the other hand, as noted, I have trouble accepting that any reasonable member of the public would willingly invite an officer on their property for the purpose of being interrogated and possibly charged by that officer. I read the majority's decision in Le as declaring the inquisition of the backyard occupants, which was inherently an evidence gathering procedure, as being the subsidiary purpose that rendered the police trespassers. However, I am not satisfied that the majority's decision in Le definitively draws the line I have inferred it drew. The ambiguity of the language leaves me unable to conclude with enough certainty that the Le decision supersedes the previously decided and binding case-law noted above.
44As noted, however, the binding authorities draw a distinction between investigative questioning and evidence gathering, in other words, between the "intention to investigate a crime" and the "intention to secure evidence." In Mr. Crowley's case, I have found that Sergeant Mace intended to secure evidence when he approached Mr. Crowley's door. Specifically, I have concluded that Sergeant Mace attended for the purpose of searching for physical indicia of impairment and to make any visual, auditory, and olfactory observations necessary to form grounds to believe an offence occurred. [2] He also intended to ask investigative questions of Mr. Crowley and to use those answers to potentially substantiate grounds for arrest. I therefore conclude that Sergeant Mace's attendance at Mr. Crowley's door exceeded the bounds of the implied invitation doctrine. His attendance at the door therefore infringed Mr. Crowley's right to be free from unreasonable searches, as guaranteed by section 8 of the Charter.
B. The Ancillary Powers Doctrine
45The ancillary powers doctrine provides police officers with the common law powers necessary to fulfill statutory duties in situations where (1) no statute provides officers the power to fulfill their duty and (2) where the exercise of the power is reasonably necessary in all the circumstances.
46In Mr. Crowley's case, the Highway Traffic Act and the Police Services Act imposed a duty upon Sergeant Mace to investigate behaviours that posed a potential threat to road safety and that may have contravened Criminal Code driving provisions.
47Section 33 of the HTA requires drivers to surrender their driver's licences to a police officer upon demand. Section 48 of the HTA empowers police to stop drivers of motor vehicles for the purpose of determining whether there exists sufficient evidence to make a criminal code breath demand. The Court of Appeal for Ontario has concluded that the term "driver of a motor vehicle" found in both of these provisions ought to be afforded some "past signification", to avoid absurd results: R. v. Richards. This approach is consistent with that taken with the roadside screening demand provisions of the Criminal Code, which have been interpreted as not requiring the driver to be actually driving or actually in care and control of the vehicle at the time the demand is made: R. v. Lackovic; R. v. Campbell.
48In Mr. Crowley's case, Sergeant Mace had reasonable grounds to believe that Mr. Crowley been driving within minutes of his arrival at the house. If Sergeant Mace had encountered Mr. Crowley in a corner store after a similar time lapse, I would have no hesitation in concluding that Sergeant Mace would be entitled to rely upon the powers conferred by sections 33 and 48 of the HTA.
49Having concluded that the subjective belief in Mr. Crowley's recent driving triggered the officer's powers under sections 33 and 48 of the HTA, I must then ask whether an infringement of Mr. Crowley's territorial right to privacy was reasonably necessary to enable Sergeant Crowley to fulfill his duties and exercise his powers under sections 33 and 48 of the HTA.
50In Fleming v. Ontario, 2019 SCC 45, the Supreme Court urged caution and restraint when considering expanding police common law powers. The court reasoned as follows at paragraph 41 of the decision:
Before embarking on an analysis of common law police powers, it is important to consider the appropriate role of the courts in such an exercise. Establishing and restricting police powers is something that is well within the authority of legislatures. Accordingly, the courts should tread lightly when considering proposed common law police powers.
51While the establishment of an ancillary power to enable officers to enter onto a homeowner's property and to knock on their door may seem relatively inconsequential at first blush, significant ramifications can indeed flow from the existence of such a power. If the occupant opens the door, the officer can then proceed to demand the production of the occupant's driver's licence, registration, and ownership. Non-compliance with such a demand carries legal consequences. Similarly, if enough suspicion is aroused, the officer might be positioned to make an ASD demand, the refusal of which can give rise to criminal sanction. The making of these demands will in many situations – such as the case before me – lead to detentions of occupants inside their homes, even though the detaining officer may not yet have the legal right to enter the home to accomplish the aims of that detention. Also, compliance with demands of this nature will in many cases lead to a warrantless extraction of the occupant from their homes. Absent exigent circumstances, the minimum constitutional standard for the extraction of suspects from their homes requires the existence of reasonable and probable grounds, recounted in writing and under oath before a justice, and the issuance of a warrant for both the arrest of the suspect and the right to enter to facilitate that arrest: R. v. Feeney.
52I would also note that despite repeated opportunities to do so, appellate courts [see R. v. Desrochers; R. v. Dehaney; R. v. Lotozky; and R. v. Van Wyk, above] have yet (to my knowledge) to resort to the ancillary powers doctrine to assess the lawfulness of an door knock in furtherance of an impaired driving investigation.
53While I appreciate that driving is a regulated privilege, I am hesitant to signal the establishment of a common law power, in the absence of exigent circumstances including reasonable grounds to believe that an offence has been committed [3], to invade the territorial privacy rights of individuals to facilitate the making of binding regulatory or Criminal Code demands. The establishment of such a power is well within the purview of Parliament and the Legislators. Therefore, despite having voiced the temptation to do so, I will refrain from ruling that the police possess the ancillary power to knock on a driver's door to investigate that driver for the purpose of gathering evidence in the quest to obtain grounds to make a breath demand.
IV. WAS THE OFFICER'S ENTRY INTO MR. CROWLEY'S FOYER UNLAWFUL?
54The Crown has effectively conceded that, if I find that Sergeant Mace entered the front foyer, such an entrance was unlawful and therefore a violation of Mr. Crowley's section 8 rights.
55In doing so, the Crown has effectively conceded that Ms. Warford did not have the necessary standing to consent to the police entry and thereby override Mr. Crowley's reasonable expectation of privacy. She was a guest, not a resident. She lived elsewhere and the officer believed her to have a different address than Mr. Crowley. A third party cannot waive the privacy rights of another: R. v. Reeves, 2018 SCC 56; R. v. Cole, 2012 SCC 53.
56For his part, Mr. Crowley did not invite the police to enter, nor did he provide any informed waiver of his reasonable expectation of privacy. I admit to being tempted to consider as a waiver Mr. Crowley's dare to Ms. Warford to "go ahead" and call the police. However, in submissions, the Crown did not appear to share my temptation. Upon reflection, I see the wisdom in the Crown's position. Having considered the evidence [4], I have concluded that Mr. Crowley was effectively calling Ms. Warford's bluff – issuing a derisive dare. I do not consider his words to be a true invitation to Ms. Warford to invite the police over or to invite the police inside. And I most certainly do not view his bluff or dare as any kind of an informed waiver of his right to be left alone by the state.
57The Crown has also conceded that the implied invitation to knock doctrine does not permit police entry into the homes at which they knock. This concession is consistent with the long line of case-law culminating in R. v. Le, supra. Therefore, even if Sergeant Mace's knock at the door was permitted by the implied invitation doctrine, his entry into the foyer was not.
58Lastly, the Crown has conceded that the doctrine of hot-pursuit has no application here. Sergeant Mace himself made clear that he did not have grounds to arrest Mr. Crowley at the point he knocked on the door. He could not therefore have lawfully entered the home in pursuit of Mr. Crowley: R. v. Macooh.
59I agree with the Crown's concessions and conclude that Sergeant Mace's warrantless entry into Mr. Crowley's foyer was unlawful and therefore unreasonable. However, I should stress that I view Sergeant Mace's entry as forming part of a fluid and fast evolving sequence of events, spurred by Ms. Warford's solicitation of a police investigation of her boyfriend.
V. WHEN WAS MR. CROWLEY DETAINED?
60In R. v. Grant, 2009 SCC 32, the majority of Supreme Court set out the test for detention as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
61Despite having subjective components, the test is ultimately an objective one: R. v. Le, supra.
62Turning to Mr. Crowley's case, I conclude that Mr. Crowley's detention commenced the moment Sergeant Mace demanded Crowley's driver's licence, insurance, and registration. I reach this conclusion for the following reasons. In my view, Mace's evidence makes clear that compliance with the demand was not optional. His repeated declarations that he treated the interaction as a traffic stop make that clear. Similarly, his use of the word "demand" makes that clear. In a normal Highway Traffic Act stop, motorists have a legal obligation to provide a driver's licence, ownership, and insurance. Any refusal to provide these documents comes with punitive legal consequences. Understandably, Mr. Crowley believed he did not have any other option but to comply with the demand. This demand followed upon the heels of Ms. Warford's insistence that the police administer a breath test upon Mr. Crowley. A reasonable person in Mr. Crowley's shoes would inevitably conclude he had been singled out for investigation. Lastly, I would note that the demand was made from within Mr. Crowley's foyer. The officer's presence in the foyer, while not intentionally oppressive or malevolent, nevertheless changed the power dynamic. For any reasonable person, closing the door on the officer would no longer be a convenient option, nor would retreat. The officer did not just have his foot in the proverbial door, he had his whole uniformed body in there. All of these factors in combination gave rise to a psychological detention at the point in time the officer demanded Mr. Crowley's driving credentials.
VI. DID THE OFFICER ARBITRARILY DETAIN MR. CROWLEY?
63If Mr. Crowley were in a public place, rather than inside of his home, when Sergeant Mace demanded he provide his driving credentials, I would have no hesitation in concluding that, given the recency of the driving, Sergeant Mace would be entitled to do so. As mentioned, sections 33 and 48 of the Highway Traffic Act as well as the roadside screening provisions of the Criminal Code have been interpreted as having a degree of past signification, thereby allowing officers to make lawful demands of those who have very recently been driving a vehicle. I am therefore satisfied that, but for my conclusion that the detention occurred during of a violation of Mr. Crowley's rights under section 8 of the Charter, the detention was lawful.
VII. WHAT IS THE REMEDY FOR THE SECTION 8 BREACH?
64An applicant who establishes a breach of his or her Charter Rights, must seek redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.
65Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
66The subsection reveals that the party seeking exclusion must establish two things: (1) the evidence sought to be excluded was obtained in a manner that infringed a Charter Right; and (2) the admission of the evidence would bring the administration of justice into disrepute. The applicant must establish these two things on a balance of probabilities: See R. v. Pino, 2016 ONCA 389.
67There can be no dispute that the evidence in this case was obtained during the course of a Charter violation. The outcome if this application therefore turns on the question of whether or not the admission of the evidence would bring the administration of justice into disrepute.
68In considering the effect of the admission of the evidence on the repute of the administration of justice, the court must take a long-term view, one aimed at preserving the long-term integrity of our justice system and our democracy. Interpreting subsection 24(2) from this perspective, trial courts are required to assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];
(2) The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and
(3) Society's interest in the adjudication of the case on its merits: See R. v. Grant
69The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith" and should not be encouraged or rewarded through the admission of evidence: see Grant, supra, at para 75.
70I turn, then, to the question of the seriousness of the Charter-infringing conduct of the state agents in this case.
71I do not consider Sergeant Mace's actions to constitute flagrant or deliberate misconduct. Sergeant Mace presented as an honest and dispassionate witness – which goes to his credit, even if he presented with a reliability concern on the issue of his entry into the house. Sergeant Mace also appears to have believed he had the power to conduct himself in the fashion he did, albeit without ever articulating what he believed to be the source of his power. The law in this area is murky and continues to evolve. Results sometimes turn on fine factual distinctions which, arguably, are distinctions without a difference. Having said that, Mace's approach to the side-door was conducted for the purpose of collecting evidence against Mr. Crowley and the content and tenor of Mace's evidence left me with the impression that he did not pause to give any serious reflection upon the question of the legality of this endeavour before embarking upon it. [5] Democracy and the fundamental freedoms associated with democracy risk being eroded if police fail to reflect upon the basis of their authority before purporting to exercise it. With respect to Sergeant Mace's entry into the foyer, that entry did indeed contravene well-established legal boundaries and is therefore more concerning. Yet, I do not believe it was consciously contemplated. Instead, I think it was the by-product of a fluid situation spurred by the invitation of Mr. Crowley's girlfriend. However, as noted, there is no suggestion in the evidence that Mace asked himself whether Ms. Warford had the authority or standing to invite Mace's presence at or into a home in which he knew she did not reside. Therefore, while the evidence does not establish that Sergeant Mace acted in bad faith, it falls short of establishing good faith. I therefore consider this factor to be at best a neutral one, neither favouring the admission or exclusion of the evidence.
72While I do not consider Sergeant Mace's conduct to be cause for great concern, I do consider the impact of the violation upon Mr. Crowley's Charter protected rights to be significant. In saying that, I accept that Sergeant Mace did not go beyond the front foyer. He certainly did not proceed into more personal spaces inside the home. Nevertheless, individuals enjoy a significant expectation of privacy in their dwelling homes: see R. v. Davidson, 2017 ONCA 57; R. v. Feeney (1997); R. v. Paterson, 2017 SCC 15; and R. v. Silveira. In Silveira, at para 140, the majority observed"[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'." The dwelling house is "the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish": Silveira, para 148. Similarly, at para. 41, La Forest J. (in dissent, but not on this point) described this high expectation of privacy as a "bulwark for the protection of the individual against the state [which] affords the individual a measure of privacy and tranquillity against the overwhelming power of the state". In Le, the majority had this to say about the sanctity of the dwelling house:
Living in a less affluent neighbour hood in no way detracts from the fact that a person's residence, regardless of its appearance or its location, is a private and protected place. This is no novel insight and has long been understood as fundamental to the relationship between citizen and state. Over 250 years ago, William Pitt (the Elder), speaking in the House of Commons, described how "the poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter! – all his force dares not cross the threshold of the ruined tenement."
That same majority later agreed with the minority reasons of Lauwers J.A. in the court below that "most people would be utterly shocked and appalled by the sudden appearance of police officers in their backyard or the front hall of the[ir] house in the absence of emergent circumstances."
With these principles in mind, the majority of the Supreme Court in Paterson concluded that the impact of the warrantless search of a dwelling house upon the Charter protected rights of the accused is a factor that "strongly favours exclusion." Sergeant Mace was a trespasser the moment he knocked on Mr. Crowley's door for the purpose of collecting evidence against him. To add insult to injury Sergeant Mace then entered Mr. Crowley's home and, as trespasser, detained Mr. Crowley inside of his own home. While inside Mr. Crowley's home, he made a demand for which a refusal carried potential legal consequences, and he thereby achieved a warrantless extraction of Mr. Warford from his home. This warrantless extraction set in motion a sequence of events that ultimately provided the officer grounds to make an ASD demand, make an arrest, and provide a breath demand. If the approach to the front door and the ultimate entry constituted the search, the observations and ultimate extraction of Mr. Crowley constituted the seizure. I therefore consider the impact of the breach upon Mr. Crowley's Charter protected rights to be quite significant and to strongly favour exclusion. [6]
73Turning to society's interests in seeing the charges tried on their merits, I note that the evidence Mr. Crowley seeks to exclude is presumptively reliable evidence crucial to his conviction on at least one of the counts before the court. Drinking and driving continues to be a significant societal problem. Criminal trials are an important instrument in society's effort to address this significant public safety concern. I keep in mind, though, the majority of the Supreme Court in Paterson cautioned that it is "important not to allow the third Grant 2009 factor of society's interest in adjudicating a case on its merits to trump all other considerations" While this factor may not trump all considerations, the factual circumstances of this case strongly support an adjudication of the allegations on their merits. In considering this factor, some context is important. According to Ms. Warford, Mr. Crowley drove to the beer store in blatant defiance of her warning that she would call the police. On her evidence, he could reasonably expect police pursuit. And on her evidence, Mr. Crowley barely made it home before being intercepted by the police. These allegations, which seem eminently probable [7], disclose a contempt for public safety and a contempt for the laws designed to protect public safety. The allegations create the appearance of Mr. Crowley playing a disdainful game of hide-and-seek with law enforcement and using this Charter application as his declaration of "home-free!" With this context in mind, exclusion of the evidence risks bringing the administration of justice into disrepute. Society has an important interest in seeing these credible allegations determined on their merits. This factor therefore strongly favours admission of the evidence.
74The weighing of these factors results in a very close call. On the one hand, a reasonable and informed member of the public, knowing the nature of the charges and the facts in this case, would lose faith in the administration of justice if they learned that the court admitted evidence obtained during the unconstitutional trespass onto the property of an accused, the unconstitutional entry into that accused's home, and the unconstitutional extraction of that accused from his home. Admission of the evidence would send the message that unconstitutional state intrusions into private dwelling-homes is condoned and that household privacy rights count for little. A message of that nature could, in the long run, undermine the repute of the administration of justice. On the other hand, the unconstitutional intrusion on Mr. Crowley's privacy interests occurred following his allegedly flagrant defiance of the law and equally flagrant challenge to Ms. Warford to call the police to stop him. Ms. Warford's credible allegations paint Mr. Crowley as using his very contempt for the law as a shield against any attempt to prosecute him for his violation of it. Having considered all of the relevant factors, I have concluded that their balancing neither favours exclusion nor favours admission.
75Ultimately, the burden rests upon Mr. Crowley to establish on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. In this endeavour, he has fought the Crown to a draw. He has therefore failed, ever so slightly, to satisfy his burden.
76For all the above reasons, the evidence obtained during the course of the Charter violation – including his Intoxylizer breath test results – may be used in evidence against Mr. Crowley.
Released: 4 June 2020
Signed: Justice C.A. Parry
Footnotes
1I wish to stress that I have not made any determination beyond a reasonable doubt on this issue. Any conclusions about this essential element of the offence will only be made after both parties have closed their cases and have made their final submissions.
2I would note here that the Crown conceded in submissions that any attempts to discern indicia of impairment would constitute a search for evidence.
3R. v. Paterson, 2017 SCC 15 , [2017] 1 SCR 202 at para. 28-33
4Both Mr. Crowley and Ms. Warford agreed he stated "go ahead" in response to her threat to call the police.
5As noted, I have concluded that Sergeant Mace entered the foyer of the residence. This was a warrantless entry. The Crown therefore bears the burden rebutting the presumption of its unreasonableness. Mace knew Ms. Warford resided elsewhere at the time he approached the residence; and he never sought Mr. Crowley's consent to be at or in the house. I accept that he entered at the time Ms. Warford made an express request that he perform a breath-test upon Mr. Crowley, yet there exists no evidence to suggest that Mace considered Ms. Warford's standing to invite the police onto the property or into the house. Similarly, Mace provided little indication of what he intended to do if he saw Mr. Crowley exhibiting signs of impairment while still safely ensconced in his home. Did he intend to make him do an ASD test inside the house? Make him come outside for an ASD? Perform a warrantless arrest inside the house? Request he step outside to be arrested? Seek a Warrant? Mace offered little insight on the subject. He simply stated that he did not think he needed a warrant for the kind of investigation he was performing – and that he treated his investigation "like a traffic stop." From this evidence, I infer that Mace did not pause to reflect in any meaningful way upon the precise nature of his authority to attend at the side door or to enter the house. In particular, on these facts and given the manner in which Mace gave his evidence, I am not prepared to infer that he believed his presence was authorized by Ms. Warford's consent. I am likewise not prepared to infer that he considered in any meaningful way the extent to which the Highway Traffic Act could authorize his presence at the door or inside the foyer.
6In reaching this conclusion, I consider the privacy interests infringed in Mr. Crowley's case to be broader than those infringed in the case of R. v. Jennings, 2018 ONCA 260. In Jennings, the breach (stemming from a lack of reasonable grounds to take a breath sample) infringed Mr. Jennings' reasonable expectation of privacy in his breath. In Mr. Crowley's case, the breath sample was derivative evidence obtained as a result of the preceding serious invasion of Mr. Crowley's territorial right to privacy. Because different privacy rights are engaged, Jennings has little application here: R. v. Irving, 2019 ONSC 1459 at paras 42-58.
7As noted, even Mr. Crowley admitted to declaring "go ahead" in response to the threat to call the police, albeit while simultaneously making the improbable denial that he ever drove away.
