Court File and Parties
Court File No.: 22-9982291 Date: 2024-10-09 Ontario Court of Justice Central East Region - Newmarket
Between: His Majesty The King
And: Milan Tosic
Before: Justice M. Townsend
Counsel: A. Kunasingam and C. Lamy, for the Crown C. Shortt, for the defendant Milan Tosic
Heard: March 22, 2024, May 8, 2024, and May 9, 2024.
TOWNSEND J.:
1Milan Tosic stands charged as follows:
“That he on or about the 25th day of August in the year 2022, at the City of Vaughan and the Regional Municipality of York, did operate a conveyance while their ability to operate it was impaired to any degree by alcohol, contrary to Section 320.14(1)(a) of the Criminal Code.
And further, on or about the 25th day of August in the year 2022, at the City of Vaughan in the Regional Municipality of York did, within two hours of operating a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code.”
2Mr. Tosic plead not guilty, and the trial began as a blended trial and Charter voir dire. Mr. Tosic has advanced a Charter application alleging breaches of his rights as guaranteed under sections 8 and 10 of the Canadian Charter of Rights and Freedoms. At the outset of the trial, the Crown indicated it wished to prove the voluntariness of certain statements made by Mr. Tosic to the breath technician. At the conclusion of the breath technician’s evidence, counsel for Mr. Tosic very fairly conceded the voluntariness of those statements.
Evidence on the Trial
A) Ms. Julia Persaud
3Julia Persaud testified that on the 25th of August 2022 she was driving East on Major Mackenzie Drive in York Region, towards Dufferin Street, and close to the Velour Woods intersection. She stopped at a stop light. She looked in her rearview mirror. She saw a man in the car behind her with his head down. She testified that she did not think anything of it at the time, but then when the light turned green, she noticed that that car did not drive when she began to drive. There was another car there that honked at the man with his head down, and then the man started to drive.
4Ms. Persaud noticed that as the man was driving his head was still down. He would look up momentarily and then put his head down again. This went on for a little while as the man drove. She testified that “he would have his head up for five seconds and then he would put it down for around the same amount of time. He did that pretty much the entire time.”
5At one point Ms. Persaud noticed that the man started to swerve. Ms. Persaud was in the middle lane and the man was in the right lane.
6She observed the man swerve into the middle lane, into the left lane, and then back through the middle lane into the right lane. Ms. Persaud slowed her vehicle down a little bit because she wanted to be cautious around the other vehicle. At this time, she noticed the vehicle swerve again, hit the curb and then once again came back into the right lane. Ms. Persaud testified that she thought that the man may have hit the curb twice.
7Ms. Persaud’s passenger called 911 from Ms. Persaud’s phone, and they followed the car into a residential neighbourhood as there was a concern that the driver was impaired. As she followed the vehicle, she saw it drive through more than one stop sign and did not seem to be stopping at all. At one point, Ms. Persaud lost track of the vehicle, turned her car around, and then spotted it again stopped in front of a residence.
8She described the male driver as having dark, maybe brown or black hair, in his late 20’s or early 30s, and wearing a hoodie. The vehicle he was driving was a white car. All in all she had involvement with the vehicle for about 10-15 minutes.
9Ms. Persaud testified that she did not see the driver exit the vehicle and go into any residence. After she had lost track of the car, she drove around the neighbourhood for a minute or two until she saw the car again – she knew it was the same one because it had the same licence plate.
10After she saw the vehicle, and relayed that information to the 911 call taker, Ms. Persaud left the area. Just as she was leaving the street where the vehicle was parked, she saw a police car, and relayed to the officer where the car was.
11When cross-examined, Ms. Persaud agreed that when she first saw the vehicle it was about a car length behind her, and that it was a normal length behind her at the light. It was from that distance that she noticed the driver in her rearview mirror. As well, she admitted that she could not see below the dashboard of the vehicle, and at first, she did think that perhaps the driver was looking at something below the dash, perhaps on his lap.
12Further in cross-examination she testified that at the point in time after the vehicle had swerved, and hit the curb a couple times, the suspect vehicle was in front of her. Ms. Persaud was in the middle lane, the other driver was in the right lane, and her front passenger wheel was parallel to his rear driver’s wheel. It was such that she could see directly into his driver’s side window. When asked in re-examination about this issue, she testified that once she saw the vehicle swerving, she realized that maybe he was not looking for something below the dashboard or in his lap.
B) Officer Saied Khorrami
13Officer Saied Khorrami testified that he was working on August 25th, 2022, and was the Acting Sergeant on scene. Officer Khorrami testified that the call came in at 11:44 pm, and information was relayed to officers that there was a possible impaired driver at Lebovic Campus and Naismith Way in Vaughan. Information received was that a white Honda Civic was travelling eastbound on Major Mackenzie Drive, a licence plate was provided by the caller, and that there were reports of the male driver being facedown at the wheel.
14At 11:53 pm Officer Khorrami made his way to the location of 101 Laskin Drive. He observed a white Honda Civic with Ontario plate number CCJR 613 in the driveway. There was nobody in the vehicle, and door was closed. The door to the home was closed, and the hood of the car was warm to the touch. Indicating to him that the vehicle had been operated recently.
15Officer Khorrami knocked on the front door a number of times, and eventually Mr. Tosic came to the door. He may have also rung the doorbell but could not recall. The purpose in attending at the door was to further investigate the matter.
16When Mr. Tosic came to the door, he was wearing a blue T-shirt and boxer shorts. The officers stayed outside the door and spoke to Mr. Tosic. At one point, Mr. Tosic asked, “did anybody get hurt?”.
17Officer Khorrami made the following observation of Mr. Tosic while at the door:
“… like I made observations, he had like bloodshot eyes. He looked like, if I can describe a person who has had alcohol as a drunk guy. That’s what he looked like. You know, like he looked like with the, you know, he had the, the pinkish, you know, bloodshot eyes, which you can say, well, you know what, maybe he was sleeping. Okay, sure. But then he could barely stand. I remember that. He had to hang on to the door and, you know, barely could – could stay steady on his feet. I mean, when he opened the door, it was just like, it wasn’t even a question. We get called to these things all the time. Sorry, I’m just going off here. But we get called to these things all the time. And it’s very obvious if the person is drunk or not. And in the case of this gentleman when he came to the door, he looked drunk. And he had a hard time maintaining his balance, slurred speech. He actually called me “Your Honour” a bunch of times. I remember that. … Anyway, strong smell of alcohol was coming from his mouth and, yeah, I mentioned to him that the complainant had called and talked about the – his head on the – on the steering wheel, hitting the curb, and, yeah, just the totality of the circumstances and the way he looked like and everything that the caller had given us, I believe that he was driving impaired.”
18After forming grounds to arrest Mr. Tosic for the offence of impaired operation, Officer Khorrami, still outside the residence, told Mr. Tosic that he should consult with his lawyer. He told him that he should “consult with your lawyer, turn yourself in or we’re going to get a warrant for your arrest.” Officer Khorrami testified that based on a recent case that he was involved in, he was careful not to break the threshold” into Mr. Tosic’s house.
19Mr. Tosic went into the house, put some clothes on, and then came out of the house and turned himself in to the officers at 12:17 am. He told officers that he would turn himself in voluntarily.
20Officer Khorrami testified that Mr. Tosic opened the door voluntarily, he could have closed it at any time, and that neither he nor any other officer was holding the door open or blocking the door in any way. In the event that Mr. Tosic closed the door and did not come out, Officer Khorrami would have consulted with CIB to get a warrant for his arrest.
21Once at 2 District, Officer Khorrami called Duty Counsel for Mr. Tosic at 12:46 am, and at 1:13 am a Duty Counsel lawyer called back.
22In cross-examination, Officer Khorrami admitted that while his notes were not the best, and his recollection of the event also may not have been the best, he did remember the salient aspects of his role in the investigation that evening. He believed that when he got there, Officer Scott was there speaking with – or just finishing speaking with - the complainant.
23Officer Khorrami agreed that it was his idea, not Officer Scott’s, to go up to the front door of the house, and that when he touched the hood of the vehicle, it was on private property. Officer Sanderson arrived sometime around the time when they were at the front door of the residence. All officers were apparently under the impression that they were there to investigate an impaired driver. As well, while at the door, Officer Khorrami agreed that he did not have the grounds to arrest – perhaps a suspicion – butt not grounds for an arrest.
24Officer Khorrami also agreed in cross-examination that by virtue of the presence of a driveway, a walkway, and stairs up to the front door there is implied consent on behalf of the homeowner to attend upon the property.
25It was agreed by Officer Khorrami that while at the doorway, Mr. Tosic was generally cautioned, but he was not given his formal rights to counsel and caution. In answer to the “you can consult with a lawyer …” part of the conversation, it was suggested that Mr. Tosic said “where will I find a lawyer at this hour?” Officer Khorrami did not recall him saying that, only that he would turn himself in voluntarily.
26In re-examination Officer Khorrami reiterated that the driveway, the walkway and the path to the front door gave him an implied invitation or implied consent to go up to the front door and knock.
C) Officer Ashley Scott
27Officer Ashley Scott testified that she was working the evening of August 25th, 2022, and became involved as a result of a radio call to investigate a possible impaired driver. She was given the licence plate of the vehicle, a description of the observed driving, and a short description of the driver. Portions of her in-car-camera were played as well and marked an exhibit on the trial.
28Eventually on Officer Scott’s in-car-camera, we can see her come in contact with the complainant Ms. Persaud. We can hear Ms. Persaud tell the officer that she was the one who called it in, and that the suspect vehicle is parked at 101 Laskin Drive.
29Next on the in-car-camera and in Officer Scott’s testimony we can see both she and Officer Khorrami exit their respective vehicles, walk up to the white Honda Civic parked in the driveway of 101 Laskin Drive, and walk up to the front entrance of the townhouse.
30Officer Scott testified that they conducted a door knock. The door was answered by a male who we now know is Mr. Tosic. He was a white male, with a buzz cut and matched the description provided by the complainant. They let the male know the reason why they were there, and in that conversation with Mr. Tosic, Officer Scott made observations of impairment, including the odour of alcohol, and leaning on the doorway. She also noted slurred speech, and that he appeared to be swaying.
31At this time, Officer Scott cautioned Mr. Tosic with respect to the offence of impaired driving and advised him that he had the right to contact a lawyer – not verbatim from her notebook but from her memory.
32Officer Scott advised Mr. Tosic that she formed grounds to arrest him for the offence of impaired driving. Officer Scott advised that it was a dynamic situation, and that at one point Officer Sanderson arrived and there may have been times that all three officers were speaking with Mr. Tosic. Mr. Tosic was advised that he could go back into his house, consult with a lawyer and turn himself in to them now, or they would get a warrant for his arrest and they would come back and take him into custody.
33Officer Scott indicated, the door to the house was open and Mr. Tosic was free to close the door. All officers were outside on the porch.
34Mr. Tosic made comments to the officers to the effect of “who did I hurt?” or “what damage did I cause?” or “I didn’t hurt anybody.”
35Officer Scott placed Mr. Tosic under arrest at 12:17am. He was handcuffed. He retrieved something from “his vehicle” (the Honda in the driveway) and he was brought to Officer Scott’s cruiser. While in the cruiser, Officer Scott read him his rights to counsel, caution and the breath demand. This happened at 12:20 am.
36Mr. Tosic arrived with Officer Scott at 2 District at 12:33 am. The booking video shows Officer Scott, Officer Khorrami and the Booking Sgt., all at the 2 District Booking Hall. A search of Mr. Tosic at the Booking Hall revealed a receipt from the “Firkin on Bay” pub revealing a purchase of “1 Jamieson, $5”. Mr. Tosic is led to the cells and lodged into the cell at approximately 12:46 am. Officer Scott noted that during this time that Mr. Tosic was unsteady on his feet.
37At 1:13 am Mr. Tosic was brought to the telephone so he could have a conversation with the Duty Counsel lawyer. The call was completed at 1:18 am. After that call Mr. Tosic was handed over to Officer Hyde the breath technician.
38When cross-examined, Officer Scott acknowledged that she was not sure who got to the front door of 101 Laskin Drive first, she or Officer Khorrami. She acknowledged as well that at the time that they attended at the door, she did not have grounds to arrest Mr. Tosic for the offence of impaired driving.
39Officer Scott acknowledged that when she went up to the door of 101 Laskin Drive, she was potentially investigating a possible impaired driver, but there were other reasons for attending the door as well – it could have been a medical call, it could have been road rage, there could have been someone in distress. She wanted to explore all those options.
40Officer Scott also outlined her understanding of an implied invitation to attend at the door of a person’s private residence, and upon their property.
41Similar to Officer Khorrami, Officer Scott did not recall Mr. Tosic saying “where am I going to find a lawyer at this hour?” when told at the doorway that he could go inside and contact a lawyer.
D) Officer Ashton Hyde
42Officer Ashton Hyde is the breath technician in this case. He was certified as a qualified breath technician in January 2022. He was on general patrol in Markham when he got the call to attend for this investigation.
43Officer Hyde received custody of Mr. Tosic at 1:19 am from Officer Scott. The breath room video was played and entered as an exhibit. Shortly before 1:21 am on the video, we see Officer Hyde re-read the breath demand to Mr. Tosic and read him a secondary caution. All of which Mr. Tosic indicated he understood.
44The breath room video showed the diagnostic checks, calibration checks, and other quality assurance tests done by the instrument, and it was at all times in proper working order.
45At 1:27 am, Mr. Tosic provided his first suitable sample of breath directly into the instrument, and it registered 162 milligrams of alcohol in 100 milliliters of blood. The second suitable sample was provided at 1:50 am and registered 158 milligrams of alcohol in 100 milliliters of blood. The Intoxilyzer printout was marked as Exhibit #4 and the Certificate of Qualified Technician was marked as Exhibit #5.
46The following statements to Officer Hyde are conceded as voluntary on the part of Mr. Tosic:
PC Hyde: Were you driving a motor vehicle? Were you driving a car? Mr. Tosic: Correct PC Hyde: Where were you driving to? Mr. Tosic: I was driving to my home PC Hyde: Where did you start driving from? Mr. Tosic: Bathurst and Niagara Street PC Hyde: When did you start driving? Mr. Tosic: It must have been ten in the evening or so. PC Hyde: Ten in the evening? Mr. Tosic: Maybe a little earlier than that. PC Hyde: Have you been consuming any alcohol? Mr. Tosic: Not to extent it would impair my drive, sir. No PC Hyde: What have you been drinking? Mr. Tosic: Beer, sir PC Hyde: What quantity, how much? Mr. Tosic: It’s difficult to say. I think I might have had one to two pint glasses. PC Hyde: What time did you start drinking? Mr. Tosic: Must have been some point earlier in day. So we can say around 3 or 4 pm PC Hyde: What time did you stop drinking? Mr. Tosic: Must have been around some point in the evening, maybe 8 or 9 pm PC Hyde: Where was the last location of your drink? Mr. Tosic: Same location I mentioned before. I think it was the Firkin, just north of islands. I can’t honestly specify location literally, but cannot be too far north of island.
E) Officer Matthew Sanderson
47Officer Matthew Sanderson testified that he was working on August 25th, 2022, and was dispatched to Mr. Tosic’s address along with other officers. He testified that when he got to the address, both Officers Scott and Khorrami were approaching the front door. When Officer Sanderson got to the front door, Mr. Tosic was answering the door, and was standing at the door in his boxers.
48Officer Sanderson noted that Mr. Tosic had his boxers on backwards, there was right away a strong odour of alcohol on his breath, and he noted bloodshot eyes. He also noted that Mr. Tosic was very unsteady on his feet, and the entire time that he was standing at the doorway he was leaning onto the doorway to keep his balance.
49Officer Sanderson described that the “options” were explained to Mr. Tosic, that they would not be going “in” to arrest him, but that he could either turn himself in or there would be a warrant sought for his arrest. He described “It was just like a normal conversation as of – as of like what we are having right now. There’s no threats made, no indications of any immediacy. It was just kind of explained as a general knowledge or education piece.”
50Mr. Tosic agreed to turn himself in, went inside to get some clothes and came back downstairs to put his shoes on. Officer Sanderson noted that he continued to be unsteady on his feet when he was putting his shoes on.
51Like the other officers, Officer Sanderson indicated that if Mr. Tosic had closed the door and stayed in his house, they simply would have waited to obtain a warrant for his arrest.
52In cross-examination Officer Sanderson agreed that any rights to counsel and caution given to Mr. Tosic at the doorway would have been paraphrased by the officers and not read directly from their notebooks.
F) Milan Tosic
53Mr. Tosic testified on the Charter application only.
54Mr. Tosic testified that he spent the day at a work event at Toronto Island with some colleagues. He testified that he likely had two pints of beer between the hours of 2 pm and 4 pm. He then went from the event on the island to the Firkin on Bay, a nearby pub, arriving there between 5 pm and 6 pm. He had one mixed drink, and then 3-4 pints of beer, leaving the pub just after 10:30 pm. He walked to Bathurst Street and Niagara Street, and then drove home.
55Mr. Tosic testified that while driving home on the 400, he was not feeling well and vomited inside his vehicle. This happened around Major Mackenzie Drive. He testified that he was frantically looking down while driving trying to wipe it up.
56Mr. Tosic testified that when he got back to his residence, he parked his car, went up to his bedroom ad went to sleep. The next thing he remembers is the doorbell. He looked out the window and saw two police cruisers outside. He frantically went downstairs and opened the door.
57There is a window in the door, and he could see the officers on his porch. Mr. Tosic’s evidence is that immediately officers began asking him if he had had anything to drink, and that they were investigating reports of an impaired driver.
58Officers were asking him about the odour of alcohol coming from him, accusing him of drinking. Mr. Tosic felt their tone to be imposing, stern and accusatory.
59Mr. Tosic said that because of past dealings with the police, he developed a passive and subservient nature to law enforcement. Mr. Tosic testified that he was asked by officers at his door if he had a lawyer, to which he questioned where he would find on at this time of night. He said that officers told him that he could either come with them then, or they would get a warrant. He did not remember being cautioned. He felt he had no option other than to go with them.
60Mr. Tosic agreed to go with the officers, went to put some clothes and his shoes on, and went outside the residence. He was placed under arrest, placed in handcuffs and put in the back of Officer Scott’s cruiser. He felt that if he didn’t comply with their demands he would be charged with obstruction of justice.
61Mr. Tosic remembers speaking to Duty Counsel at the police station, and he felt a little calmer after that.
62In cross-examination, Mr. Tosic acknowledged that all throughout the day, prior to driving home, he had up to six pints of beer and one whiskey sour. He still felt, however, that he was absolutely fine to operate his motor vehicle the approximately 45-minute drive home.
63He admitted that while in the car he threw up all over the dashboard and the steering wheel. He did not recollect if he was stopped or was driving when he threw up. He agreed with the suggestion of Crown Counsel that people who drink too much tend at times to throw up. He disagreed, however, that the alcohol caused him to throw up on that day - potentially the alcohol had an influence on his throwing up, but he was generally not feeling well. Mr. Tosic agreed that at times he was looking down at the vomit, dividing his attention between the vomit and the driving.
64He agreed that his driving was not perfect – he would grade his driving with a C.
65Mr. Tosic testified that when the police were at his door, he wanted to oblige them and open the door. He was not aware that simply ignoring them was an option. He felt obliged to respond to the police presence at his door.
66He acknowledged that the first thing the officers said when they opened the door was that there had been reports of an impaired driver. Mr. Tosic also acknowledged that he lied to the police when telling them that he had not been drinking that day. He was nervous and afraid.
67Mr. Tosic remembers the officers saying that he can come with them now or they will come back with a warrant for his arrest.
Position of the Parties
68Mr. Tosic alleges breaches of his section 8 and 10 rights as guaranteed by the Canadian Charter of Rights and Freedoms.
69Mr. Tosic alleges improper and illegal entry by police onto his property. He stresses that there was no warrant, no exigent circumstances, and no “hot pursuit”. He further alleges that upon police investigation of the alleged offence the police failed to inform him of his 10(a) rights and neglected to effect both his informational and implementational 10(b) rights.
70Mr. Tosic ultimately seeks exclusion of all evidence flowing from the investigation, and as such an acquittal on all counts.
71The Crown submits that there was at no time a violation of Mr. Tosic’s Charter protected rights, and that the elements of the offence have been made out beyond a reasonable doubt.
Argument and Analysis on the Charter Application
Section 8
72Section 8 of the Canadian Charter of Rights and Freedoms ensures that individuals are free from, and secure against, unreasonable search and seizure. The primary issue in the case before the court is the ability of police to enter upon private property for the purpose of investigating a criminal offence.
73The defence relies upon the following passage from R. v. Evans, [1996] S.C.J. No. 1 at paragraph 11:
11What then is the purpose of s. 8 of the Charter? Previous decisions of this Court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160, the objective of s. 8 of the Charter is "to protect individuals from unjustified state intrusions upon their privacy".
74Justice Sopinka, writing for the majority in Evans, also dealt with the issue of an implied licence to attend upon a person’s property:
13I agree with Major J. that the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock. As the Ontario Court of Appeal recently stated in R. v. Tricker (1995), 21 O.R. (3d) 575, at p. 579:
The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939.
As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock.
14If one views the invitation to knock as a waiver of the occupier's expectation of privacy in the approach to his or her home, it becomes necessary to determine the terms of that waiver. Clearly, under the "implied licence to knock", the occupier of a home may be taken to authorize certain persons to approach his or her home for certain purposes. However, this does not imply that all persons are welcome to approach the home regardless of the purpose of their visit. For example, it would be ludicrous to argue that the invitation to knock invites a burglar to approach the door in order to "case" the house. The waiver of privacy interests that is entailed by the invitation to knock cannot be taken to go that far.
15In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind the purpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court in Bushman stated, at p. 19:
The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.
I agree with this statement of the law. 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 effect 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.
75The Court in Evans held that the police attended the door of Mr. Evans for the express purpose of getting a “whiff” of marijuana and to look into the residence. And it is primarily on that basis that the search was found to be unreasonable. It was found to be a breach of the implied invitation. See also paragraph 23 of Evans.
76Mr. Tosic also relies upon R. v. Thibodeau, [2023] O.J. No. 3213 (OCJ), R. v. Crowley, [2020] O.J. No. 2494 (OCJ), and R. v. Curic, [1999] O.J. No. 5786 (OCJ). Each case however can be distinguished at the outset based on their facts. These cases are unlike the case before this court wherein officers in Thibodeau and Crowley physically entered into the backyard of the accused, or directly into the home of the accused for the purpose of gathering information. Similarly, the officer in Curic pursued the accused to his doorstep and laid hands on him at the threshold.
77Justice Newton-Smith (as she then was) in R. v. Benson, [2024] O.J. No. 560 (OCJ) also dealt with the issue of the “implied invitation to knock”:
35What is commonly referred to as the "implied invitation to knock" doctrine was recognized and affirmed by Sopinka J. in R. v. Evans, [1996] 1 S.C.R. 8, at para. 12"the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock".
36In exploring the limits of the implied invitation doctrine Justice Sopinka held at para. 18:
According to the majority in Duarte (at p.46)"privacy may be defined as the right of the individual to determine for himself, when, how, and to what extent he will release personal information about himself". Thus, while an individual may explicitly "invite" another to engage in private conversation, the invitation cannot be extended to authorize an activity with a different purpose, namely, the surreptitious recording of what was said. Where the person purporting to act on the "invitation to converse" exceeds the bounds of that invitation, the activity in question may constitute a "search" for constitutional purposes. Similarly, where the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant's home. Since the implied invitation is for a specific purpose, the invitee's purpose is all-important in determining whether his or her activity is authorized by the invitation.
37The Applicant points to the testimony of the officers that their purpose in knocking on Mr. Benson's door was to gather evidence in the form of a breath sample, and submits that this exceeds the implied invitation doctrine. In support of this argument the Applicant seizes on the above sentence"where the police approach a dwelling for the purposes of securing evidence they have exceeded the bounds of the implied invitation and are engaging in a search of the home".
38In my view that sentence must be considered in its context and not read in isolation.
39The rationale in Evans protects individuals from having the police knock on their door as a pre-text for gathering information that they are not otherwise authorized to gather.
40The fundamental difference between Evans and the case at bar is that in Evans the police knocked on the door for the purpose, not of communicating with Mr. Evans, but of getting a look and a sniff inside his dwelling.
41Here the police had no interest in the contents of Mr. Benson's apartment. The officer's grounds for making the breath demand of Mr. Benson came from the report of Mr. Elcharbini and existed irrespective of anything in Mr. Benson's home. There is nothing that occurred at Mr. Benson's apartment that could not have occurred out in public at the roadside had Mr. Benson not left the scene.
78In R. v. Lotozky, [2006] O.J. No 2516 (OCA) the Ontario Court of Appeal also dealt with the implied licence doctrine. Justice Rosenberg speaking for the Court, found at paragraphs 35, 37 and 38:
35The 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.
37There 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.
38I acknowledge that there is a countervailing policy. It is always possible that a property owner may engage in an altercation with the police because of a mistaken view of the scope of the common law property rights; Tricker is obviously an extreme example of what can happen. Counsel for the respondent suggests that there is, therefore, value in drawing a bright line around the entire property and prohibiting any police entry where the purpose is to investigate criminal activity by the property owner. On the other hand, the implied licence is easily withdrawn simply by the occupier telling the officer to leave. The officer must then leave, unless he or she acquired grounds to make an arrest before that time. Further, even the rule proposed by the respondent is not as clear as it appears. The lawfulness of the officer's entry on the driveway still would depend upon the officer's purpose, which may or may not be apparent to the occupier. Regrettably, in this area, like so many others involved in constitutional litigation it is not always possible to draw bright lines and the best courts can do is give a reasonable common sense interpretation to the law that is relatively easy to apply.
79I agree with the submission of the Crown that in Lotozky the Ontario Court of Appeal favoured a contextual approach to the issue of the implied licence. The Court favoured an approach that balanced the police duty to investigate criminal offences and an individual resident’s ability to promptly withdraw the licence if they wished the police to leave the private property. The fact that a resident chose not to withdraw that licence is crucial to the contextual analysis.
80Officers in the case before this Court attended upon Mr. Tosic’s property with the intention of investigating the offence alleged by the complainant. They did not attend at Mr. Tosic’s door with the express purpose of gathering evidence, with respect to the offence. (See: R. v. Van Wyk, [1999] O.J. No. 3515 (SCJ))
81R. v. Graham, [2007] O.J. No. 2785 (OCJ) is very similar factually to the case before this court.
82In Graham police received a complaint about a possible impaired driver. An officer attended and spoke with a civilian who had followed the vehicle to the residence. The civilian told the officer the driver had gone into the home. The officer approached the home. He testified that he approached the house to investigate a suspected impaired driver. The officer knocked on the front door. From the doorway the officer could see inside the home. He saw a female “bang into the banister.” A female opened the door. The officer told her he was investigating a driving complaint. He asked her questions. The officer observed indicia of impairment.
83Justice Kenkel summarized his findings as follows:
8The evidence shows Constable Reid's purpose on entering onto the accused's property was to communicate with the occupant of the home in an attempt to investigate an allegation of impaired driving. He conceded that at the time he entered the property he had no way of knowing whether the driver inside was intoxicated or was in medical distress. His attendance on the property and conversation at the doorway was very brief, lasting less than one minute.
9Constable Reid knocked on the door and stayed at the entrance. He did not move around the perimeter of the house or attempt to look into the windows to gather evidence. As it happened, the accused's door had glass portions which allow a person standing on the front porch to see directly into the home. As Constable Reid waited for the door to be answered he happened to make an observation of the accused. As there is ample other evidence of gross impairment in the ability to drive, the Crown is not relying on this observation as evidence. Accordingly, I need not consider then whether the officer's observation amounts to a search, or violates a reasonable expectation of privacy of a person who has configured their door in that manner, other than to note the observation was by chance and incidental to his main purpose which was to communicate with the occupant.
11The central issue in this case is whether the officer was acting within the scope of the implied license when he spoke with the accused at her doorway and detected an odour of alcohol. The purpose of the implied invitation to knock is"to facilitate communication between the public and occupant." R. v. Evans, [1996] 1 S.C.R. 8 (S.C.C.) at para.18.
12There is an important difference between approaching a residence to communicate with an occupant and approaching to gather evidence by means other than communication. Where a police officer knocks on the door of a residence in order to investigate a complaint by communicating with the occupant, that officer acts within the scope of the implied license. In cases where officers have lacked grounds for a warrant and knocked on doors in the hopes of peering inside and seeing or detecting evidence of an offence, the police have been found to be acting outside the scope of implied license. See: R. v. Evans supra.
13Is there a s.8 search where the police approach a home to communicate with the occupant, but while doing so happen to observe evidence related to their investigation? Several courts have held that where the officer's purpose is to investigate an offence by communicating with the occupant, then the officers are acting within the scope of implied license and incidental observations they make do not amount to a search. R. v. LeClaire, 2005 NSCA 165 , [2005] N.S.J. No. 547 (N.S. C.A.), R. v. Petri (2003), 2003 MBCA 1 , 171 C.C.C. (3d) 553 (Man. C.A.)
14I understand that given the important legal consequences flowing from the officer's intention on entering the property, a trial court must be alert to detect any evidence which might suggest the stated purpose is but a pre-text for an unlawful search. In this regard it is important to assess all of the evidence, not just the officer's evidence. Here, the officer's stated intent to investigate a complaint by conversation with the home occupant wasn't challenged in cross-examination. To the contrary, what evidence there is of the officer's intent was elicited in cross-examination by the defence pursuant to their Charter application.
15This is not a case where the police were investigating a complaint involving stolen property or a marijuana grow operation where the purpose in attending a doorway would not be to speak with the occupant but merely to view inside a residence in the hopes of obtaining evidence without a warrant. The next step in the officer's investigation of the driving complaint involved the location and identification of a driver and communication with the occupant of the home was a logical next step. Considering all of the circumstances including the nature of the complaint Constable Reid was investigating and his actions, I accept his evidence with regard to his purpose.
16In this case I find the applicant has failed to prove on the balance of probabilities that there was a "search" that would engage s.8. Constable Reid's purpose was to communicate with Ms. Graham in relation to the complaint he had received. The fact that he detected an odour of alcohol during that conversation does not transform the licensed act into a search. An officer is not required to hold their nose or avert their eyes when otherwise lawfully speaking with a citizen in order to avoid engaging s.8 of the Charter.
84The Charter application was dismissed.
85The attendance by police upon Mr. Tosic’s property was an entirely reasonable exercising of their investigatory role with respect to the complaint of a possible impaired driver. The intent of the police was to communicate for the purposes of investigation, not simply to obtain and secure evidence against Mr. Tosic.
86If Mr. Tosic’s argument is taken to its logical conclusion, there would exist no opportunity ever for police to attend upon a person’s property for any purpose related in some fashion to the investigation of a criminal offence (absent a warrant or exigent circumstances like a “hot pursuit”). This would amount to all but eliminating any ability by the police to investigate criminal offences if a person is on their property. The implied license doctrine utilized by police to attend at a person’s doorstep when simply communicating for the purpose of investigating suspected criminal offences does not amount to a breach of an individual’s section 8 Charter protections.
87Where agents of the State attend upon a residence with the express intention of gathering evidence to be used against the occupant of the residence, that is when they have exceeded any authority offered to them under the implied invitation to knock. That is not what happened when officers attended upon Mr. Tosic’s residence. Each officer testified that their purpose was to communicate for the purpose of the investigation. As such there is no breach. (See also R. v. Kandiah, [2011] O.J. No. 2752 (SCJ), R. v. Vu, 1999 BCCA 182 , [1999] B.C.J. No. 707 (BCCA), and R. v. Petri, 2003 MBCA 1 , [2003] M.J. No. 1 (MCA))
88The Section 8 Charter application is dismissed.
Sections 10(a) and 10(b)
89Sections 10(a) and 10(b) of the Charter state as follows:
10 Everyone has the right on arrest or detention, (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right;
90Each officer testified that when they got to the door of Mr. Tosic’s residence, they informed him that there had been a report of a suspected impaired driver.
91Officers Scott and Khorrami each remember an informal caution being given to Mr. Tosic within the first three minutes or so of the conversation at the door. Mr. Tosic testified that the conversation began immediately, and he could not recall a caution.
92While I agree with the submission of counsel for Mr. Tosic that citizens have the right to be promptly informed of the reason for police attendance and why they may be under investigation, I disagree with the assertion that this was denied of Mr. Tosic.
93The evidence as I find it on this point is clear. Officers attended upon Mr. Tosic’s residence for the purpose of communicating with him in the investigation of a possible impaired driver. He was told of this by Officer Scott, Officer Khorrami, or both, within seconds of opening the door.
94In his own testimony, it is clear that Mr. Tosic was aware of why the officers were there at the door. He responded with questions of his own like “was anybody hurt?”, “is there any damage?” and “I didn’t hurt anybody.”
95Mr. Tosic submits that he was detained by the police as soon as he opened the door. Setting aside the fact that each officer testified that Mr. Tosic was free to close the door at any time and retreat back into his house, the Crown position is that Mr. Tosic’s argument with respect to breaches of his section 10(a) and 10(b) rights are based on a mistaken determination of when his detention began.
96Mr. Tosic testified that he felt intimidated by the officers at the door, and that based on his own history of police interaction, he felt compelled by police to stay at the door.
97The Crown submits that Mr. Tosic’s detention began when he, of his own choice, exited the residence and surrendered himself to police. Prior to that point he was not detained, though he was certainly participating in the conversation with respect to the investigation and was eventually told that he was arrestable for the offence of impaired driving.
98The Crown submits that Mr. Tosic’s detention and arrest came at a time of his choosing and was immediately followed by the provision of his section 10(b) rights.
99In R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, the Supreme Court of Canada held that a detention arises when the police act in such a manner that causes a person to believe that they do not have the choice to stay or walk away. This can arise out of legal obligation or because of physical or psychological detention.
100Not every interaction with police or other persons in authority will amount to a detention. A detention only arises when a person’s liberty is meaningfully constrained. When an individual is placed in handcuffs, that is obviously a detention. If a person feels compelled to stay in police presence, that can also be a detention. These are the circumstances that require a contextual analysis. (See R. v. Grant at para 32).
101Similarly, just because involvement with the police begins in one way (i.e. a communication for the purposes of an investigation), does not mean that it suddenly becomes a detention when the questioning becomes more apparent.
102R. v. Grant, at paras 30-3, and R. v. Le, 2019 SCC 34 , [2019] S.C.J. No. 34 at paras 25-26 outline that when an individual is legally required to comply with a direction or demand by the police, this can amount to a psychological detention. Similarly, if an individual is not under a legal obligation to comply with a direction or demand but a reasonable person in their shoes would feel so obligated and conclude they are not free to go, this may also amount to a psychological detention.
103I have no trouble finding that Mr. Tosic’s detention did not begin until he stepped foot outside his residence and was placed under arrest by the police.
104Mr. Tosic was told several times that he could go back into his house and speak to a lawyer. Leading one to reasonably believe that he did not have to go with the police should he not want to go. He was told that he could go speak to a lawyer and then turn himself in, or he could close the door and the police would come back later. Two clear options, both leading to the reasonable belief that he was not detained when still inside his residence.
105I also have no problem, on the facts presented, finding that as soon as Mr. Tosic was arrested and detained, the police complied with their informational and implementational obligations under sections 10(a) and 10(b) of the Charter. (See: R. v. Bartle, [1994] S.C.J. No. 74)
106Officer Scott read the rights to counsel, caution and the breath demand to Mr. Tosic as soon as he was placed in the back of the cruiser, almost immediately upon his exit from the residence. When at 2 District, Mr. Tosic spoke to Duty Counsel, and never indicated to officers that he had any difficulty with that decision.
107Based on the evidence heard on the application, the testimony of the officers on scene, and the testimony of Mr. Tosic on the voir dire, I find that the officers complied with all obligations required of them under sections 10(a) and 10(b) of the Charter and the application for exclusion of evidence will be dismissed.
108Given that I have found no breach of Mr. Tosic’s Charter protected rights, I will not embark upon an analysis under section 24(2).
Analysis of Evidence on the Trial
109Having found that all evidence presented upon this trial is properly admissible when considering whether the Crown has proven the essential elements of the offence beyond a reasonable doubt, I will start with the following comments.
110The overriding issue in this, and in all criminal trials, is whether the Crown has proven the guilt of Mr. Tosic beyond a reasonable doubt. In order to determine this, I must keep a number of things in mind:
(1) Mr. Tosic began this trial with the presumption of innocence. That presumption remains with him throughout the trial and is only overcome if there is admissible and properly used evidence that satisfies me beyond a reasonable doubt of his guilt. (2) Reasonable doubt is not something that is imaginary or frivolous, nor is it based on sympathy for or prejudice against any of the parties. It must be something that logically arises from the evidence, or lack thereof. If I am only satisfied that Mr. Tosic is probably guilty, I must acquit him of these charges.
111The issues for me to determine on this trial are as follows:
(1) Has the Crown proven beyond a reasonable doubt that Mr. Tosic operated his conveyance on August 25th, 2022, while his ability to do so was impaired? (2) Has the Crown proven beyond a reasonable doubt that Mr. Tosic, within three hours of operating his conveyance on August 25th, 2022, had a blood alcohol level that was equal to or exceeded 80 milligrams of alcohol in 100 milliliters of blood?
112Ultimately, I find that the Crown has proven both.
113While Mr. Tosic testified only on the voir dire, he was questioned by his counsel and cross-examined by Crown counsel on issues that went beyond the scope of the voir dire. I wish to make it clear, that Mr. Tosic’s evidence on the voir dire is only applicable to that aspect of the trial. Only the agreed upon statements of Mr. Tosic to Officer Hyde during the breath tests have been considered on the trial proper. His viva voce testimony was not.
114The driving evidence presented by Ms. Persaud is clear. Mr. Tosic was bobbing his head up and down as he drove, sometimes even with the dashboard. At times, it looked as if he may have been looking at something on the floor or on his lap He was swerving in and out of lanes, coming close to other vehicles, and on at least two occasions he hit the right curb on the side of the road.
115Ms. Persaud followed Mr. Tosic to the area of his residence and pointed out to police where the vehicle was parked.
116Upon police attendance at the residence, they observed bloodshot eyes and the odour (sometimes described as strong) of alcohol coming from Mr. Tosic’s breath. They also witnessed Mr. Tosic slur his words and become unsteady on his feet at times such that he had to lean on the door.
117The officers at all times had reasonable grounds to arrest Mr. Tosic for the offence of impaired operation and read him the valid breath demand.
118Mr. Tosic, when speaking to Officer Hyde admitted to operating the conveyance. He said that he was driving from downtown to his home, consistent with the path that Ms. Persaud testified to. Mr. Tosic admitted consuming alcohol that evening, but not to the extent that it would impair his ability to drive. He did admit that the time of his last drink was likely 8 pm or 9 pm.
119Officer Hyde is a qualified breath technician and was at all times operating an approved instrument into which Mr. Tosic provided two suitable samples of his breath. Mr. Tosic’s truncated readings were 160 milligrams of alcohol in 100 milliliters of blood and 150 milligrams of alcohol in 100 milliliters of blood.
120My conclusion above not to exclude any evidence gathered as a result of the investigation, is all but determinative of the ultimate issue on the trial. This was fairly addressed by counsel at the conclusion of the evidence on the trial.
Conclusion
121The evidence presented at trial leads to the overwhelming conclusion that the Crown has proven all essential elements of the offences before the court beyond any reasonable doubt.
122Mr. Tosic was impaired when operating his conveyance on August 25th, 2022, and he was doing so with a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 milliliters of blood.
123Accordingly, Mr. Tosic I find you guilty.
124Following the principles outlined in R. v. Kienapple, [1974] S.C.J. No. 76, a conviction will register on the Impaired charge, and the 80+ charge will be stayed.
Released: October 9th, 2024 Signed: Justice M. Townsend