Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 02 06 Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — ALLEN BENSON

Before: Justice Newton-Smith

Heard on: December 12 and 13, 2023 Reasons for Judgment released on: February 6, 2024

Counsel: C. Abdalla, counsel for the Crown E. Sinclair, counsel for the accused A. Benson

NEWTON-SMITH J.:

1Mr. Benson is charged with one count of impaired driving contrary to section 320.14(1)(a) of the Criminal Code.

Overview

2On September 19, 2022 Mr. Elcharbini was stopped at traffic light when he was rear-ended by Mr. Benson. After a brief exchange of information Mr. Benson drove off. Mr. Elcharbini, concerned with Mr. Benson’s driving and having smelt what he thought was alcohol on his breath, contacted police.

3An investigation began. Two officers went to Mr. Benson’s nearby apartment and knocked on the door. Mr. Benson answered and a demand pursuant to section 327.27 of the Code was made of him. Mr. Benson failed the screening test. He was arrested for impaired driving and taken to the station for breath samples.

4The defence brought an Application alleging violations of Mr. Benson’s section 8, 9 and 10(b) Charter rights and seeking, pursuant to section 24(2), to exclude the results of the seized breath samples and the observations of the police officers.

5The trial proceeded in a blended fashion.

The Evidence at Trial

6The Crown called Mr. Elcharbini, the two arresting officers, DC Van Hee and DC Vickers and the breath technician, Officer Niziol. No defence evidence was called.

Mr. Elcharbini

7Sometime shortly after 5 pm on September 19, 2022 Mr. Elcharbini was stopped at a light waiting to make a left hand turn at Queens Quay and York Street in downtown Toronto. He noticed Mr. Benson’s car which was on the other side of the road travelling in the opposite direction. What drew Mr. Elcharbini’s attention was the manner in which Mr. Benson was driving. Mr. Elcharbini testified that Mr. Benson’s car was swerving from left to right and going from one lane to the other without signalling. He described the driving as “very vicious” and “not normal”. Mr. Elcharbini wondered if the driver was having some kind of emergency. Suddenly Mr. Benson made a u-turn and drove into the rear of Mr. Elcharbini’s stopped vehicle.

8After the collision both drivers got out of their cars and began to exchange information. Mr. Benson gave Mr. Elcharbini his driver’s licence information but not the ownership information. When Mr. Elcharbini asked if he would just pay for the damage instead of going through the insurance company Mr. Benson got back into his car and drove off.

9Mr. Elcharbini testified that Mr. Benson “flew off swerving” and he felt an ethical obligation to protect the safety of the community and call the police. Mr. Elcharbini told the police about the way in which Mr. Benson had been driving, that he thought it was unsafe and that he could smell alcohol on Mr. Benson’s breath.

10In cross-examination Mr. Elcharbini agreed that he could not be positive that it was alcohol he smelled, and agreed with the suggestion that it could possibly have been a strong cologne.

The Arresting Officers

11At 6:20 pm DC Van Hee and his partner DC Vickers received a message from dispatch with respect to a motor vehicle accident. The information conveyed to the officers was that the complainant smelled alcohol and believed the other driver was impaired. The officers were given the name of the suspect impaired driver, Allen David Benson, the make, model and licence plate of the vehicle that he was driving and his date of birth.

12After conducting investigative checks DC Van Hee learned that the registered owner of the vehicle was a woman. The address on the vehicle registration was the same as the address on Mr. Benson driver’s licence. The address was close to where the accident had occurred and in the direction that Mr. Benson had driven off in.

13The officers went to the address which was an apartment building. They found the vehicle parked in the garage and went up to Mr. Benson’s unit. DC Van Hees brought the approved roadside screening device with him.

14Both officers agreed in cross-examination that their purpose in attending Mr. Benson’s apartment was to conduct a criminal investigation into a suspected impaired driver and to collect a breath sample. They both testified that they did not believe they needed a warrant to knock on Mr. Benson’s door. Their purpose was not to arrest Mr. Benson but to investigate a suspected impaired driving.

15All of the interactions at Mr. Benson’s apartment are captured on DC Vickers body worn camera [BWC].

16Mr. Benson answered the door. The officers recognised him from the MTO photo. After a brief exchange in which DC Van Hees confirmed that Mr. Benson was the driver involved in the collision, DC Vickers read Mr. Benson the approved screening device demand at 18:46.

17The officers, who were standing in the common hallway of the apartment building, asked Mr. Benson if he would prefer to have them conduct the test outside in the hallway or in his apartment. Mr. Benson responded by inviting the officers into his apartment to conduct the test.

18In cross-examination both officers were asked what they would have done had Mr. Benson simply closed the door in their faces. Both officers responded that they would have explained to Mr. Benson through the closed door that if he didn’t provide a breath sample he would be arrested for failing to provide one. They would have then contacted their investigators to determine next steps.

19When Mr. Benson invited them in to his apartment, the officers took a few steps into the entrance hall area of the apartment. At no point did they go any further into the apartment. As the machine was being readied and the process explained to Mr. Benson DC Van Hees also explained that if he refused he would be arrested for failing to provide a sample.

20The test was conducted in the entrance hall of the apartment.

21From DC Vickers BWC a female can be seen further inside the apartment sitting on a couch.

22Mr. Benson blew into the machine and registered a fail at 18:51. He was arrested for impaired driving. Mr. Benson asked if he could bring his phone and wallet to the station and the officers said yes. The woman, who was the registered owner of the vehicle, came to the entrance hall to help find Mr. Benson’s wallet. She was visibly upset that her car was being impounded. The officers took a few minutes to explain the process to her as Mr. Benson looked for his wallet. At 18:55 they left the apartment with Mr. Benson.

23As they were heading into the elevator DC Van Hees began to ask Mr. Benson if he had had anything to drink since the collision. Before he could answer DC Van Hees interrupted Mr. Benson and said, “wait don’t answer that”. Once they were in the elevator at 18:56 DC Van Hees read Mr. Benson his rights to counsel. Mr. Benson indicated that he understood and that he wished to speak to a lawyer.

24There was no further conversation of any significance and Mr. Benson was placed in the scout car.

25DC Van Hees testified that when they were in the close confines of the scout car he detected a strong odour of beer on Mr. Benson. DC Vickers also testified that in the scout car she could smell alcohol on Mr. Benson’s breath.

26They arrived at the station at 19:45. Once he was booked, DC Vickers made arrangements for Mr. Benson to speak with duty counsel.

27After Mr. Benson spoke with duty counsel he was taken to the breath room where he provided two samples, the first at 21:00 and the second at 21:22. The results were 160 and 140 respectively.

28The breath tech, Officer Niziol, made the following observations of Mr. Benson: there was an odour of alcohol that was neither weak nor strong, his pupils were dilated and his eyes blood shot and watery. His skin tone was flushed and he had some slight dexterity issues. Otherwise, his speech was good and he was polite and cooperative. Officer Niziol’s overall impression was that the effects of alcohol were noticeable on Mr. Benson.

Law and Analysis

A. The Charter Argument

29It is the Applicant’s position that the police officers violated his section 8 rights by entering his home without a warrant, and violated his section 9 rights by arresting him in his home without a warrant. In turn, it is the Applicant’s position that in entering his home the police exceeded their common law authority and the suspension of his section 10(b) rights for the purposes of obtaining a breath sample was no longer valid.

30Additionally, it is the Applicant’s position that the delay between his arrest shortly after 18:51, and being read his rights to counsel at 18:56, constituted a further violation of his section 10(b) rights.

Section 8

31Section 8 of the Charter protects a claimant’s reasonable expectation of privacy against unreasonable state intrusions. State conduct will amount to a search or seizure under section 8 if that conduct infringes on the claimant’s reasonable expectation of privacy in the subject matter of the search or seizure: R. v. Singh, 2024 ONCA 66 at para. 59.

32There is no issue here that the police were entitled to demand a breath sample from Mr. Benson and were authorised by law to take such a sample. The Applicant’s objection is to the manner in which, and in particular to the place in which, the police obtained the sample.

33The question is, did Mr. Benson have a reasonable expectation of privacy that was violated by the officer’s conduct, and did the conduct of the officers amount to an unwarranted state intrusion.

34Here, during the course of their investigation into a suspected impaired driving incident, the police went to Mr. Benson’s apartment and knocked on the door.

35What is commonly referred to as the “implied invitation to knock” doctrine was recognised and affirmed by Sopinka J. in R. v. Evans, [1996] 1 S.C.R. 8, at para. 12, “the common law has long recognised 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 authorise 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 authorised 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 authorised 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.

42The officers’ purpose in knocking on the door was to speak with Mr. Benson and demand a sample of his breath. Their interest was in exercising a power authorised by law. There was no surreptitious purpose. Their purpose was exactly as was stated to Mr. Benson.

43This is fundamentally different from what occurred in Evans and does not, in my view, exceed the limits of the implied invitation doctrine.

44Once at the door the police did not demand to be allowed inside Mr. Benson’s home. They gave him a choice. He could step out into the public hallway and provide the sample or they could come in and do it in the privacy of his home. The police gained no investigative advantage in entering Mr. Benson’s home. It was, perhaps ironically, in Mr. Benson’s privacy interest to have the officers enter his home to conduct the test. The offer was made in the interests of respecting Mr. Benson’s privacy not violating it. Unsurprisingly, Mr. Benson chose to invite the officers into his apartment rather than being exposed to the scrutiny of his neighbours.

45Not every investigatory technique is a “search” within the meaning of section 8. Just because the police step foot inside of a private dwelling does not mean that in so doing they are conducting a “search”. Once in the apartment the officers did conduct a search in the form of taking the breath sample. However, this is exactly what Mr. Benson invited them in to do.

46The defence characterises this as an uninformed waiver of Mr. Benson’s Charter rights. I do not agree. The police were not asking to come in to conduct a search of Mr. Benson’s home. They were giving him the choice of being sheltered from the view of the public in the privacy and comfort of his home. When the officers entered his home they were not conducting a search as contemplated by section 8 of the Charter. In inviting the officers into his home, Mr. Benson was not waiving a Charter right he was making a choice to stay out of public view.

47It defies common sense, and runs contrary to the privacy interests of individuals, to suggest that the police may not give an individual in Mr. Benson’s position the choice to submit to a breath test in the privacy of their home as opposed to a public hallway in view of any passerby.

48I find that the implied invitation to knock doctrine applies here and the police were entitled to knock on Mr. Benson’s door during the course of their investigation. Having confirmed that Mr. Benson was the driver involved in the collision the police had grounds to demand a sample of his breath. The officers gave Mr. Benson the option of stepping out into the hallway to comply with the demand, or allowing them in so that the sample could be given in the privacy of his apartment. Mr. Benson chose to invite the officers in. The police were not obligated to read Mr. Benson his rights to counsel prior to obtaining a sample of his breath. Once Mr. Benson failed the breath test, valid grounds existed for his arrest.

Section 10(b)

49The delay between Mr. Benson’s arrest and the reading of his rights to counsel was only a few minutes. The reason for the delay was that the officers were, at Mr. Benson’s request, assisting him to gather his belongings. I do not find that this brief delay violated his section 10(b) rights.

50If I am wrong the violation was fleeting and the officers were acting in good faith. The breath samples obtained were a minimal intrusion into Mr. Benson’s bodily integrity and are reliable evidence. I would not exclude the evidence pursuant to section 24(2).

B. The Trial Proper

51Mr. Benson is charged with impaired driving by alcohol. In order to secure a conviction the Crown must prove beyond a reasonable doubt that Mr. Benson’s ability to drive was impaired by alcohol. Any degree of impairment from slight to great, will suffice to make the offence out: R. v. Stellato, [1993] OJ No. 18 (C.A.).

52Mr. Elcharbini described Mr. Benson’s driving as “not normal”, “vicious” and “unsafe”. He described Mr. Benson swerving between lanes and driving erratically. Mr. Benson rear ended his car as it was stopped at a light. The driving conditions were clear and good. There was no environmental explanation for the accident. The only reasonable inference that arises from the evidence is that Mr. Benson’s ability to drive was impaired.

53The question is, was Mr. Benson’s ability to drive impaired by alcohol.

54Mr. Elcharbini testified that he smelled alcohol on Mr. Benson’s breath. He assumed that it was alcohol because it smelled like alcohol and because of the manner in which Mr. Benson was driving. While in cross-examination Mr. Elcharbini agreed that the smell could possibly have been cologne, the evidence is otherwise overwhelming that the smell was alcohol.

55When they were in close proximity with Mr. Benson in the scout car both officers testified that they could smell alcohol on his breath. The breath tech could also smell alcohol on Mr. Benson’s breath.

56The breath samples in evidence show Mr. Benson’s readings to be, respectively, 160 and 140 mg of alcohol in 100 ml of blood.

57I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Benson had consumed alcohol, that his ability to drive was impaired and that his ability to drive was impaired by alcohol.