R. v. Roy, 2024 ONCJ 533

R. v. Roy, 2024 ONCJ 533

ONTARIO COURT OF JUSTICE

DATE: 2024 10 24 COURT FILE No.: Gore Bay 23-22100381

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANDY ROY

Before: Justice G. Jenner

Heard on: October 21, 2024 Reasons for Judgment released on: October 24, 2024

Counsel: David Beaton....................................................................................... counsel for the Crown B.J. Allison................................................................... counsel for the accused Andy Roy

REASONS FOR DECISION RE: CROWN MOTION TO SUMMARILY DISMISS CHARTER APPLICATION

JENNER J.:

Part One: Introduction

1The applicant, Mr. Roy, is accused of operating a conveyance while impaired. He served and filed a Charter application seeking to exclude certain evidence from his trial. The Crown brought a motion to summarily dismiss that application on the basis that it was “manifestly frivolous,” the applicable standard established by the Supreme Court of Canada in R. v. Haevischer, 2023 SCC 11. On October 21, 2024, I heard oral argument in respect of the motion to dismiss only, and reserved judgment.

2Though the applicant’s Notice of Application could be much clearer in this regard, following oral argument on the motion I understand the applicant to be advancing the following four Charter arguments:

• That his s. 8 Charter right to be secure against unreasonable search and seizure was violated when, having received a tip about possible impaired driving, police entered onto the applicant’s property without a warrant and investigated him while he was in the driver’s seat of his motor vehicle;
• That his s. 10(a) Charter right to be informed promptly of the reason for his detention was infringed when the officer who approached him in his driveway detained him without providing a sufficient explanation;
• That his s. 9 Charter right to be free from arbitrary detention was infringed, and his s. 8 Charter right was further infringed when the applicant was arrested and made the subject of a breath demand without the officer having formed the necessary reasonable and probable grounds to believe the offence of impaired operation had been committed; and
• That his s. 10(b) right to counsel was infringed when the officer advised the applicant that he could call a lawyer of his choice or call duty counsel, but offered no resources or further implementational assistance.

3The Crown argues that these Charter arguments cannot possibly succeed, as well-settled appellate authorities demonstrate the officer’s impugned conduct was entirely appropriate and beyond reproach.

Part Two: The Summary Dismissal or Haevischer Framework

4Summary dismissal of Charter applications is governed by the Supreme Court of Canada’s decision in Haevischer, which holds that unless the impugned application is manifestly frivolous, then it should be addressed on its merits: para. 71. “Frivolous” connotes the inevitability or necessity of failure. Such an application has no basis on which it could succeed: paras. 67-68. The “manifestly” component requires that the frivolous nature of the application be obvious or clearly revealed: para. 69.

5The Supreme Court offered the following guidance in applying the standard:

• The trial judge should not engage in even a limited weighing of evidence or decide between competing inferences: para. 82.
• The trial judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest: para. 83.
• The applicant should nonetheless explain their factual foundation for the application and point towards anticipated evidence. Failing that, the trial judge can reject factual allegations as manifestly frivolous: para. 83.
• A ground or inference might be manifestly frivolous where a necessary fact underpinning it is not alleged or because the inference cannot be drawn or certain relief cannot granted as a matter of clearly established law: paras. 84-85.
• While the applicant has duty to explain its application and point to anticipated evidence, the burden of persuading the court that the application is manifestly frivolous rests on the party moving for summary dismissal: para. 90.

6With respect to procedure, the Supreme Court endorsed a minimal record to serve efficiency, and a flexible process to accord with local court rules and practices: paras. 94. At minimum, however, the parties should offer particulars as to the legal principles relied on, the anticipated evidence and how it may be adduced, the proposed argument, and the remedy requested. While circumstances might call for written materials, counsel’s statements within oral submissions will often suffice: para. 96-97.

Part Three: Application

3.1 The anticipated facts

7On the motion I was presented with the following materials:

• The applicant’s Notice of Application;
• The Crown’s Notice of Motion to Dismiss;
• The applicant’s Response to Notice of Motion;
• The affidavit of Cora Hayden, filed by the Crown, which appended the police notes of Ontario Provincial Police (OPP) Cst. Swanton, the arresting officer; and
• The affidavit of Debra Allison, filed by the applicant, which appended (i) the Crown Brief Synopsis summarizing the investigation and (ii) the Arrest Report pertaining to the investigation.

8These were the only sources of anticipated evidence before me on the motion. These materials provide an account of what the anticipated Crown evidence would be in a Charter voir dire. There is no alternative account provided by the applicant, either in his Notice of Application, or conveyed orally. He has, however, affirmed his intention to challenge the credibility of the Crown evidence in certain respects.

9Based on these sources, it is anticipated the evidence will be that on the day in question the OPP received a traffic complaint stating that the applicant had been drinking and was possibly planning on leaving his residence in his white Toyota truck. Cst. Swanton attended the applicant’s address and observed a white Toyota truck in the driveway. Cst. Swanton entered onto the driveway and approached the truck, which was running. He knocked on the window. The driver rolled down the window. The applicant was identified occupying the driver’s seat. Cst. Swanton observed an odour of alcohol on his breath and asked him to turn the truck off, provide police with the keys, and exit the vehicle. He complied.

10When the applicant exited the vehicle, he was very unsteady on his feet. It was raining and police suggested that the conversation could move into the applicant’s residence. The applicant used the side of the truck and the wall of his house to maintain his balance. Once inside, Cst. Swanton placed a call to a colleague, then arrested the applicant for impaired operation of a conveyance.

11On arrest, the applicant was brought to the police vehicle, and read his rights to counsel. He was asked if he wished to call a lawyer, or possibly which lawyer he would like to call, and responded, “I don’t know.” Cst. Swanton explained that he could contact any lawyer he wished or duty counsel if he did not have a specific lawyer in mind. He then read the applicant a caution and a breath demand, before transporting him to the police detachment. At the detachment, the applicant repeated that he did not have a lawyer, and indicated he would be satisfied with duty counsel. He ultimately did speak to duty counsel, and once finished, indicated he was satisfied with the legal advice provided.

3.2 The section 10(a) issue

12Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefore. On a generous reading of the applicant’s materials, he claims to have been detained when Cst. Swanton approached him in his driveway and claims further that he was not told why.

13To succeed in this argument, the applicant would first need to show, under the framework established in R. v. Suberu, 2009 SCC 33, that he was detained. I do not find it obvious that the applicant would inevitably fail in that endeavour. The anticipated evidence is that he was approached by a police officer, who knocked on his window, asked for his car keys, and directed him to exit his vehicle.

14Nor can I conclude that the applicant would necessarily fail in demonstrating that he was not advised of the reason for any detention. Section 10(a) does not require that the detainee be told, in technical fashion, of the charges they face. It requires only that they are given sufficient information to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Roberts, 2018 ONCA 411, at para. 78. On the anticipated evidence, however, there is no clear and explicit communication of the reason for the officer’s intervention. I will not summarily dismiss this ground.

3.3 The section 8 territorial privacy argument

15The applicant seeks to argue that his s. 8 Charter right to be secure against unreasonable search and seizure was violated when, having received a tip about possible impaired driving, police entered onto the applicant’s property without a warrant and investigated him while he was in the driver’s seat of his motor vehicle.

16The Crown asserts that this argument’s failure is inevitable in the face of settled appellate authority. Specifically, the Crown relies on R. v. Lotozky, in which the Court of Appeal for Ontario held that the police’s mere walking onto a driveway, even with the intent to conduct an investigation involving the owner, does not constitute a sufficient intrusion so as to be considered a search within the meaning of s. 8 of the Charter.

17Lotozky relies on the implied license doctrine, which recognizes that the occupier of the dwelling gives implied license to any member of the public, including a police officer, to come on to the property via the driveway to conduct legitimate business. The court explains its reasoning in part, as follows, at para. 37-38:

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

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

18Lotozky would appear to continue to represent the law in Ontario at this time. I am not, however, prepared to prevent this issue from proceeding to a voir dire. In R. v. McColman, 2023 SCC 8, the Supreme Court of Canada addressed the limits of police powers under Ontario’s Highway Traffic Act to randomly stop motorists on private property. The court did not grant leave on the question of the scope of police common law powers to arrest or detain motorists on private property, and the court does not directly address the implied license doctrine. The decision does, however, contain obiter concerning the extent of common law police powers on private property: see, for example, para. 49. The decision also engages with some of the very same policy considerations relied on in Lotozky, such as the concern over private driveways as “sanctuaries” where impaired motorist can wait out police.

19In Haevischer the Supreme Court was concerned about the potential for summary dismissal to stifle novel claims: para. 58. In my view, the applicant should not be precluded from exploring, on a full evidentiary basis, the contours of his rights in what is arguably an evolving legal landscape following McColman.

3.3 Sections 8 / 9 and reasonable grounds for arrest / breath demand

20The applicant challenges the validity of his arrest and the lawfulness of the breath demand on the basis that the officer lacked the reasonable and probable grounds to believe the offence of impaired operation had been committed. As both these steps were undertaken without prior judicial authorization, in the Charter voir dire the Crown bears the onus of demonstrating the officer had reasonable and probable grounds: R. v. Gundy, 2008 ONCA 284, para. 50.

21While the applicant has not offered his own positive account of the events in question, it was clear during oral submissions that he does not accept or admit the police’s account. Haevischer instructs me against the weighing of evidence and requires me to take the applicant’s arguments at their highest. I must, therefore, allow for the possibility that the police evidence as to grounds for the arrest and breath demand may be rejected at trial such that the Crown fails to meet its onus that the warrantless arrest and breath demand were reasonable. This ground should not be summarily dismissed.

3.4 Section 10(b) and the right to counsel

22Section 10(b) of the Charter provides persons detained or arrested by the police with the right to obtain advice from a lawyer without delay and to be informed of that right. It obligates police to (i) inform detainees of their right, (ii) provide detainees with a reasonable opportunity to exercise that right, and (iii) refrain from taking investigative steps, including questioning the detainee, until they have had the opportunity to speak with a lawyer if they so choose: R. v. Bartle, [1994] S.C.J. No. 74, at para. 17. The first component is referred to as informational. The second component is implementational. The third is the duty to ‘hold off.’

23With respect to the implementation duty, the scope of police obligations turns on the context. When a detainee names a specific lawyer, then naturally the police are required to make diligent efforts to contact that counsel of choice. When a detainee makes a request to speak to a third party to locate contact information for a lawyer, there is an obligation for police to contact that third party: R. v. Mumatz, 2019 ONSC 468, at para. 37. I do not propose to provide an exhaustive list of other circumstances and corresponding duties.

24The applicant’s complaint is that the police failed to provide him with the means to identify a lawyer he might choose. The applicant does not assert as an anticipated fact that he verbalized a request for assistance in this regard. There is no suggestion he requested a phone book, a list of local counsel, or internet access, for example.

25The operative question at trial would be whether the police have a duty to provide some form of assistance when no request is made. The operative question today is whether the applicant’s argument in favour of such a duty must obviously and inevitably fail.

26The Crown relies on R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.), affirmed [2006] O.J. No. 1023 (C.A.). Zoghaib primarily concerned the potential steering of a detainee to duty counsel. It does not speak directly to the main concern here, which I understand to be what base level of resources the police must provide to a detainee to facilitate their exercise of the right to counsel.

27There are cases which touch on the question of whether the police are under an obligation to provide resources such as a phone book. Results in those cases are mixed. See for example, R. v. Van Binnendyk, 2007 ONCA 537; R. v. Ghotra, 2020 ONCA 373, at para. 41; R. v. Wolbeck, 2010 ABCA 65. I have not been able to glean a bright line rule with respect to police providing resources, and observe only that typically the provision of resources, or lack thereof, is assessed in conjunction with the entire context to determine whether the police efforts were on the whole reasonable. I am not prepared to conclude that the applicant’s argument is manifestly frivolous.

28The Crown also relies on the seminal case of R. v. Willier, 2010 SCC 37. Among the many principles reinforced by Willier is the need for a detainee to be reasonably diligent in attempting to contact counsel: para. 33. Willier also clarifies that where a detainee receives advice, then unless the detainee indicates that the advice was inadequate, the police may assume the detainee is satisfied with the exercised right to counsel: para. 42. If the anticipated police evidence is accepted in this case, including the evidence that the applicant expressed satisfaction with his call with duty counsel, Willier would appear to rule out any chance of success. However, as with the alleged breaches of ss. 8 and 9, I cannot assume the police evidence will be accepted by the court and must grant the applicant the benefit of the possibility it will be rejected.

Part Four: Conclusion

29The applicant’s Charter application is not manifestly frivolous and may proceed to voir dire at trial. In allowing these issues to proceed to voir dire, I make no statement about the ultimate merit of the arguments at trial.

30The parties were previously directed to secure dates from the trial coordinator for both oral judgment in this motion to dismiss, and the trial proper. Given that these reasons have been released in writing, the parties are now directed to seek a date for the trial proper only. Per the prior agreement of the parties, the Charter application and trial may proceed in a blended fashion.

Part Five: Observations as to Procedure in the Present Case

31I make the following additional observations.

32Among the considerations animating the Supreme Court’s establishment of the manifestly frivolous standard were concerns over resources, efficiency, and delay. The court emphasized that, as in the civil context, the need for efficient criminal trials to reduce undue delay is manifest: Haevischer, at para. 49. The court observed that the time limits set in Jordan for the completion of trials should encourage those seeking summary dismissal to carefully consider whether such a step is necessary and to assess the impact on trial timelines. Complexity is sometimes unavoidable, and trial judges should scrutinize decisions taken in the name of efficiency to ensure they actually save time and resources. The court instructed trial judges to guard against steps that are improperly taken or take longer than they should: paras. 50-51.

33I heard this motion to dismiss on October 21, 2024. In doing so, I became the trial judge. This was my first interaction with this matter. I played no role in the fixing of dates nor the determination as to how this motion to dismiss would unfold. Two hours had been set aside, during which time no other matters were scheduled. In these circumstances, there was no opportunity for me, as trial judge, to assess whether the time set aside was justified, or to preserve and redeploy that time for other litigants deserving of access to the courts.

34Had there been that opportunity, I would likely have declined to entertain this motion to dismiss. It appears to me that even had this motion been successful, it would not have reduced, in any meaningful way, the time needed for trial in this matter. The parties had agreed that, if heard, the Charter application would proceed as a blended voir dire. There is near-complete overlap between the witnesses and testimony that would be advanced in support of the Charter application and that which would be advanced on the merits of the trial. I expect that, even had I dismissed the entirety of the Charter application, it would have reduced only marginally the time needed for evidence in the trial proper. With respect to time needed for submissions, any potential savings at trial have almost certainly been eclipsed by the two hours spent hearing oral argument on this motion. I appreciate that the outcome of a summary dismissal motion has the potential to spur resolution discussions which might obviate the need for any trial time. In my view that would not be reason enough hear this summary dismissal motion, which has protracted rather than simplified the proceedings.

35I make these observations for two purposes: firstly, to reinforce the need for parties to consider not only the prospect of success on a motion to dismiss, but whether success delivers real benefit or pyrrhic victory only; and secondly, to highlight the benefit in involving the trial judge at an earlier stage in the process, such that their gatekeeping role envisioned by the Supreme Court of Canada in Haevischer can be more fully realized.

36It is not for me to propose a procedure that will suit needs beyond a local level. But it would appear to me there would be great benefit to a moving party’s notice of dismissal speaking not only to the basis on which they claim the underlying application is manifestly frivolous, but also to the impact a summary dismissal might have on trial efficiency.