COURT OF APPEAL FOR ONTARIO
DATE: 20000117
DOCKET: C32948
LASKIN, FELDMAN AND SHARPE JJ.A.
B E T W E E N : )
)
HER MAJESTY THE QUEEN ) Clayton C. Ruby
) for the appellant
(Respondent) )
)
and )
)
DONALD MULLIGAN ) Christine McGoey
) for the respondent
(Appellant) )
) Heard: November 19, 1999
)
On appeal from the judgment of Templeton J. dated September 14,
1999, dismissing a summary conviction appeal from conviction
imposed by Morneau J. dated November 10, 1998.
SHARPE J.A.:
[1] This case involves the power of a police officer, who
suspects that a crime is in progress, to enter private property
for the purpose of investigating the suspicious activity.
OVERVIEW
[2] Late at night in an isolated location, a police officer saw
a pick-up truck parked outside a commercial establishment. He
suspected a break in or theft and drove onto the property to
investigate. He found the appellant, the owner of the property,
in an intoxicated condition behind the wheel of the truck. The
appellant was arrested and a scuffle ensued. The trial judge
rejected the argument that the officer’s actions violated the
appellant’s ss. 7,8, 9, and 10(b) Charter rights and entered
convictions for having care and control of a motor vehicle while
impaired and for resisting arrest. The appellant was sentenced
to fines of $650 and $200 respectively and to a one-year driving
prohibition. The appellant’s summary conviction appeal to
Templeton J. was dismissed.
[3] The appellant appeals to this court, with leave, on the
grounds that the conduct of the police officer violated his s. 8
Charter right to be secure against unreasonable search and
seizure, his s. 9 right not to be arbitrarily detained or
imprisoned, as well as his rights pursuant to s. 7. The claim
that the appellant’s s. 10(b) rights were violated was not
pursued before this court. The appellant further submits that, as
a consequence of these breaches, evidence crucial to his
convictions should be excluded pursuant to s.24(2) of the
Charter.
FACTS
[4] On April 16, 1998 at approximately 12:26 a.m., an OPP
officer was driving alone in an unmarked police car on Highway 10
in a rural area south of Flesherton. The officer observed a
pickup truck with its lights on outside a commercial
establishment situated 50 or 60 feet off the highway. The
officer knew that the truck was on private property but he did
not know who owned the property or that the owner’s residence was
on the same property, approximately 1,200 feet to the east of the
commercial establishment. Given the late hour and the
unlikelihood that a commercial establishment would be open, the
officer suspected a break-in. He drove onto the parking area
adjacent to the commercial establishment to investigate. The
parking area is open to the public. There is no gate, nor is
there any sign forbidding or limiting access.
[5] As he pulled in, the officer saw the sign “Mulligan
Construction” on the building. He observed that the same
business name was painted on the back of the pick-up truck. The
truck’s engine was running and someone was seated inside the
truck. At this point, the officer thought that the driver was
either someone stealing the truck or, perhaps, the owner. The
person in the truck was the appellant who, together with his
wife, owned the property. The appellant got out and met the
officer at the side of the truck.
[6] The officer asked the appellant if this was his place. The
appellant did not answer but, using profanity, asked the officer
what he wanted. They had a brief conversation. The officer
detected a strong odour of alcohol emanating from the appellant
who was also swaying and slurring his speech. At that point, the
officer arrested the appellant for having care and control of a
motor vehicle while impaired.
[7] The appellant insisted that the officer had no right to
arrest him on private property. The officer again told the
appellant that he was under arrest and the appellant repeated
that he could not be arrested on private property. The appellant
is a large and strong man, 5 feet, 11 » inches tall, weighing 335
pounds. The officer used his portable radio to request backup.
As the appellant turned to walk away, the officer spun him around
and sprayed him with pepper spray. The appellant gripped the
side of his truck. The officer attempted, without success, to
pry the appellant’s hands from the truck. The officer used his
baton to strike the appellant several times on the arm and leg.
[8] As this struggle ensued, the officer kept telling the
appellant that he was under arrest and the appellant continued to
scream that he could not be arrested on private property. The
officer used his pepper spray again and struck the appellant with
his baton half a dozen more times. The appellant was finally
pried from the truck. He headed for the building. The officer
got the appellant by the head and the appellant tripped. The
officer ended up on top of the appellant, pulled the appellant’s
coat over his head and hit the appellant on the ear as the
appellant attempted to rise with the officer on his back. The
officer described his blows as “good whacks”, intended to inflict
pain, disorient the appellant, and secure his compliance.
[9] Four backup officers arrived at approximately 12:40 a.m.
After a further struggle, the appellant was subdued and
handcuffed. His wife arrived at about 12:49 a.m. After she
spoke to him, the appellant became co-operative with the police.
The appellant was cautioned and advised of his right to counsel.
A demand for a breath sample was made. The appellant indicated
that he wished to speak to his lawyer. He was taken to the
police station. After speaking to duty counsel, he gave two
breathalyzer samples. The samples indicated 205 and 200 mg of
alcohol in 100 ml of blood.
JUDICIAL HISTORY
(1) Ontario Court Provincial Division
[10] The appellant was charged with having care and control of a
motor vehicle while impaired and with unlawfully resisting
arrest. After a one-day trial in the Ontario Court, Provincial
Division, Morneau J. found the appellant guilty on both counts.
The trial judge found that the OPP officer entered the
appellant’s driveway thinking he was coming upon a break and
enter or a theft. The trial judge found that the officer did not
enter onto the appellant’s property to obtain evidence against
the appellant to secure a conviction for a drinking and driving
offence. The trial judge specifically found that the officer’s
“intention was to protect the property from a possible thief.
There is no evidence that [the officer] specifically adverted his
mind to the possibility of securing evidence against Donald
Mulligan on a drink and drive matter.” The trial judge found that
the officer entered the property on the suspicion that he would
intercept a thief or, if not a thief, the owner who would be
thankful for his vigilance.
[11] Both the appellant and his wife testified that they did not
wish the police to come onto their property for any purpose. The
trial judge found, however, that the officer had no knowledge of
their wishes when he entered the property. The appellant and his
wife had not given the police any indication of their wishes, and
no signs were posted to that effect.
[12] The trial judge rejected the contention that the officer’s
entry on the property was an unlawful trespass. She found that
the officer’s entry fell within the “common law invitation to
approach”, a licence that had not been withdrawn by the
appellant. The trial judge found that there was no invasion of
the appellant’s reasonable expectation of privacy and that the
officer was not obliged to leave the appellant’s property upon
being asked to do so by the appellant.
[13] The trial judge rejected the contention that the force used
by the officer constituted a Charter breach. The trial judge
found that although the officer had used pepper spray, hit the
appellant eight to ten times with his baton and struck the
appellant on the ear, this force was used with the intention to
cause enough pain to secure compliance and was justifiable.
(2) Ontario Superior Court
[14] The summary convictions were affirmed on appeal to the
Ontario Superior Court. After a review of the relevant
authorities, Templeton J. found that the trial judge had
correctly determined that the officer’s entry onto the Mulligan
property was authorized by implied invitation within the
principles elaborated in R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23
(S.C.C.). The summary conviction appeals judge found that the
activity of the police officer fell within the “implied license
to knock” principle enunciated by this court in R. v Tricker
(1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198, leave to appeal to the Supreme Court
of Canada refused February 8, 1996, and that the appellant had no
reasonable expectation of privacy in the circumstances. The
summary conviction appeals judge concluded, accordingly, that
there was no search within the meaning of s.8 of the Charter and
that no s.8 rights were violated.
[15] The summary conviction appeals judge went on to find that if
there was a search it was an unreasonable one as there was no
prior authorization. She further held, however, that if there
was a s.8 breach, the evidence should not have been excluded
pursuant to s.24(2). The summary conviction appeals judge also
found that the arrest of the appellant was lawful and that it had
not been shown on a balance of probabilities that the officer
used excessive force in the circumstances.
ISSUES
[16] The appellant raises the following issues:
(1) Was there an unreasonable search contrary to s. 8 of
the Charter?
(2) Was there an arbitrary detention contrary to s. 9 or a
violation of the appellant’s s. 7 Charter rights?
(3) Did the arresting officer use excessive force?
(4) If Charter rights were breached, should evidence be
excluded pursuant to s. 24(2)?
ANALYSIS
(1) Was there an unreasonable search contrary to s. 8 of
the Charter?
(a) Position of the appellant
[17] It is the appellant’s position that it is clear on the
record that the officer entered the appellant’s property without
a search warrant and without reasonable and probable grounds with
respect to a drinking and driving offence. Moreover, the
officer’s suspicion of the possibility of a break and enter did
not amount to reasonable and probable grounds sufficient to
obtain a search warrant. It is also clear that the officer’s
conduct cannot be justified as a warrantless search in exigent
circumstances given the absence of reasonable and probable
grounds. The summary conviction appeals judge specifically found
that, had the officer’s conduct constituted a search, such a
search would have been unreasonable in these circumstances.
[18] The appellant submits that there was a search and that both
the trial judge and the summary conviction appeals judge erred in
accepting the respondent’s submission that the doctrine of
implied invitation applied to the circumstances. The appellant
submits that the doctrine of implied invitation has no
application where the police purpose is to gather evidence in a
criminal investigation. The officer did not enter the property
with the intention of communicating with the occupant or owner.
He went to investigate what he thought might be a criminal
offence. The appellant submits that the officer was a trespasser
and that his conduct constituted a search conducted without
lawful authority. The legitimate police purpose of investigating
crime cannot be used to permit what would otherwise be unlawful
activity by the police. To justify the police conduct in this
case would undermine the rights protected by s.8 of the Charter.
(b) Did the activity of the officer constitute a “search”
within the meaning of s. 8?
[19] It has been consistently held that a court must inquire into
the purposes of s. 8 to determine whether particular police
conduct at issue constitutes a “search” that attracts the
scrutiny of s. 8 of the Charter: R. v. Evans, supra at 29. In
Hunter v. Southam Inc. (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 at 108, Dickson
J. stated:
The guarantee of security from unreasonable search and
seizure only protects a reasonable expectation [of privacy].
This limitation on the right guaranteed by s.8, whether it is
expressed negatively as freedom from 'unreasonable' search and
seizure, or positively as an entitlement to a 'reasonable'
expectation of privacy, indicates that an assessment must be made
as to whether in a particular situation the public's interest in
being left alone by government must give way to the government's
interest in intruding on the individual's privacy in order to
advance its goals, notably those of law enforcement.
[20] The purpose of s. 8 is to preserve the privacy interests of
individuals. The right protected by s. 8 is invoked where a
person's reasonable expectation of privacy is diminished by an
investigative technique.
[21] As Sopinka J. stated in R. v. Evans, supra at 29: “not every
form of examination conducted by the government will constitute a
‘search’ for constitutional purposes”. The reason is clear. If
every police inquiry or question constituted a search, the
public’s interest in law enforcement would be unrealistically
curtailed in favour of an absolute right of privacy of all
individuals against state intrusion, without regard to the level
of intrusion.
[22] In the circumstances of this case, to determine whether the
conduct of the officer amounted to a search within the meaning of
s. 8 of the Charter, the matter is to be considered from two
perspectives. First is the question of the purpose of the officer
when he went onto the property of the appellant. Second is the
question of whether, in light of his purpose, the officer’s
activity invaded the appellant’s reasonable expectation of
privacy. Related to both inquiries is the issue of implied
licence or implied invitation.
(i) Implied Licence
[23] In R. v. Tricker, supra at 203, this court considered the
common law implied invitation or licence to members of the public
granted by occupants of private property:
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.
As explained in R. v. Evans, supra at 30 :
The implied invitation, unless rebutted by a clear
expression of intent, effectively waives the privacy interest
that an individual might otherwise have in the approach to the
door of his or her dwelling.
[24] The implied licence to knock discussed in Tricker, supra,
and Evans, supra, appears to be specifically related to
activities reasonably associated with the purpose of
communicating directly with the owner or occupant. However, it
seems to me that the underlying principle is a broader one.
Licences may arise at common law by implication from the nature
of the use to which the owner puts the property. As Prof. Ziff
notes in Principles of Property Law (Carswell, 2d ed., 1996) at
274, licences may be implied “such as where a shop is open for
business to the public at large.” In my opinion, the implied
invitation principle extends to situations where the very
purpose of entry is to protect the interests of the property
owner or occupant, particularly where the entry occurs on an area
of the property to which all members of the public ordinarily
have access to do business with the property owner. It is
plainly in the interests of a property owner or occupant that the
police investigate suspected crimes being committed against the
owner or occupant upon the property. For that reason, absent
notice to the contrary, a police officer may assume that entry
for that purpose is by the implied invitation of the owner,
particularly where entry is limited to areas of the property to
which the owner has extended a general invitation to all members
of the public.
[25] In resisting the contention that there is an implied licence
of this nature, the appellant is driven to the submission that it
is a trespass for a police officer to enter private property on a
suspicion that a crime is being committed against the owner. If
that is the result, the officer would be exposed to a civil
action or prosecution for trespass. The appellant attempts to
respond to this unacceptable result with the argument that the
owner would not sue or the Crown would stay the charges. In my
view, that answer is unsatisfactory. In an area of the law
touching police investigative powers, it is in the interests of
the public at large, property owners and the police, to have a
more certain and coherent legal framework. In my view, that
framework is offered by the implied invitation. It tells the
police what they can do, and affords the property owner the power
to limit those powers by express direction.
[26] While we were referred to no authority specifically on
point, a common law implied invitation to this effect seems to
have been assumed by the English authorities relied on in R. v.
Tricker, supra. Galligan J.A cited Robson v. Hallet [1967] 2 All
E.R. 403 (C.A.), which in turn referred to the judgment of Atkin
L.J. in Great Central Railway v. Bates [1921] 3 K.B. 578 (C.A.).
In Bates, the English Court of Appeal dismissed the claim of a
police officer against a property owner arising from injuries he
sustained upon entering a building owned by the defendant. The
officer had seen a door open and a bicycle on the other side of
the building. He went in to remove the bicycle to a place of
safety, was injured in the process and sued the owner for
damages. In holding that the police officer had no right to
enter the building for this purpose, Atkin L.J specifically noted
at 581: “It is not suggested that [the officer] suspected a
felony or suspected that there was a felon within the premises…”.
The underlying assumption was that an officer enjoys a licence to
enter for the purpose of dealing with a suspected crime in
relation to the property.
[27] As with all police investigative powers, this licence must
be strictly curtailed to avoid the risk of abuse. The officer
must have a bona fide belief that gives rise to a reasonable
suspicion of criminal activity being perpetrated against the
owner or occupant or the property. The police officer must be
able to demonstrate an objective basis in fact that gives rise to
his suspicion. To borrow the language of Doherty J.A. in R. v.
Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 at 500-501, discussing the
common law power to detain a suspect for questioning, there must
be some “articulable cause” above the level of a mere “hunch”, “a
constellation of objectively discernible facts which give the
detaining officer reasonable cause to suspect that the detainee
is criminally implicated in the activity under investigation.”
[28] In the present case, the trial judge accepted the bona fides
of the officer and specifically found that his purpose was to
investigate suspected criminal activity directed against the
property. There was also an articulable cause for the officer’s
suspicion based upon objectively discernable facts. The presence
of a pick-up truck with its lights on outside a commercial
establishment late at night in a rural area satisfies this
requirement.
(ii) Purpose of the Officer
[29] In R. v. Evans, supra, the police received an anonymous tip
that the accused were growing marijuana in their home. The
police checked criminal records, electricity consumption and
conducted a perimeter search of the private property from public
property. The police officers approached the front door of the
accuseds’ home with the distinct purpose of securing evidence
against the occupants of the dwelling. One of the accused
answered the door. The police officers smelled marijuana and
immediately arrested the accused. The accused contended that the
olfactory observations of the police constituted a search and,
since they had no search warrant, it was presumptively
unreasonable.
[30] As in the present case, the Crown relied on the implied
licence principle to justify the actions of the police. The
Supreme Court of Canada held that to determine whether the
activity of the police fell within the implied licence, the
matter had to be considered from the perspective of the purpose
of the police when entering the property of the accused. On this
point Sopinka J., writing for the majority, held that the matter
has to be assessed in the light of the “underlying purpose or
intent of the police” in approaching the door of the person
claiming the protection of s. 8. In Evans, supra, the majority
found that the police failed to bring themselves within the
implied invitation as their purpose and intention went well
beyond simply knocking on the door. It was their purpose to
secure evidence against the owner or occupant of the dwelling,
and in light of that purpose, the investigative activity of the
police constituted a search and was therefore subject to Charter
scrutiny.
[31] In the present case, no issue is taken with the factual
findings of the trial judge that the bona fide purpose of the
officer entering on to the appellant’s property was to
investigate a possible break in or theft. There was no intention
to investigate any possible criminal activity of the owner or
occupant of the property and no intention to secure incriminating
evidence against the owner or occupant. Indeed the officer’s
purpose was to protect the owner or occupant from possible
criminal activity perpetrated by a third party. To the extent
that the officer adverted to the possibility that the owner or
occupant might be present, it was with a view to communicating
with the owner or occupant to determine that the suspicion of
break-in or theft was ill-founded and that nothing was amiss. In
my view, the officer’s purpose brought him squarely within the
ambit of the implied invitation or licence that I have described.
(iii) Expectation of Privacy
[32] The Supreme Court of Canada articulated the framework for
determining whether there is an 'expectation of privacy' in R. v.
M. (M.R.) (1998), 1998 770 (SCC), 129 C.C.C. (3d) 361 at 376-7 as follows:
Did the appellant have, in the circumstances presented, a
reasonable expectation of privacy, and if he did, what was the
extent of that expectation? The appellant must first establish
that in the circumstances he did have a reasonable expectation of
privacy. This is apparent because if there is no reasonable
expectation of privacy held by an accused with respect to the
relevant place, there can be no violation of s. 8 (see, e.g. R.
v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, 104 C.C.C. (3d) 136, 132 D.L.R.
(4th) 31; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R.
841, 1998 828 (SCC), 124 C.C.C. (3d) 129, 158 D.L.R. (4th) 577). The need for
privacy 'can vary with the nature of the matter sought to be
protected, the circumstances in which and the place where state
intrusion occurs, and the purposes of the intrusion' (R. v.
Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20 at 53, 87 C.C.C. (3d) 193, 110
D.L.R. (4th) 297). A reasonable expectation of privacy is to be
determined in light of the totality of circumstances (Colarusso;
Edwards, at para. 31; R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36 at 62,
(1990), C.C.C. (3d) 460). The factors to be considered in
assessing the circumstances may include the accused’s presence at
the time of the search, possession or control of the property or
place searched, ownership of the property or place, historical
use of the property or item, ability to regulate access,
existence of a subjective expectation of privacy and the
objective reasonableness of the expectation (Edwards, at para.
45).
[33] It follows from what I have already said about the implied
licence that, given his purpose, the police officer did not
invade the appellant's reasonable expectation of privacy and that
s.8 is therefore not engaged. The purpose of the officer was the
very antithesis of invading the rights of the appellant. The
officer’s purpose was to protect those rights from what the
officer suspected might be criminal activity. From the
perspective of the owner or occupant of private property, it is
entirely reasonable to expect a police officer to investigate
activity giving rise to a suspicion of criminal activity being
perpetrated against the owner or occupant on his or her property.
[34] It seems to me that the flaw in the argument advanced by the
appellant is that it focuses on the end result and reasons
backwards, rather than taking the objective legal standards
governing the conduct of the police as the starting point. It is
trite law that the legality of police investigative conduct is
not determined by what they do or do not find. If the police
officer was entitled to enter the property for the stated
purpose, the legality of his conduct is not defeated solely
because it produced the unexpected result of apprehending the
owner for an offence not suspected by the officer when he
entered.
[35] I note as well that the activities of the officer were
restricted to an area of the property to which the public had
access by general invitation of the owner. The officer did not
enter a residence or even a commercial building. The level of
intrusion was minimal.
(iv) Conclusion
[36] I conclude, accordingly, that the officer was entitled to
enter on the property of the appellant and that the officer’s
conduct did not amount to a search within the meaning of s.8 of
the Charter. I wish to emphasize that the circumstances of the
present case are plainly distinguishable from those involving
investigative techniques to obtain evidence to incriminate the
occupant of a dwelling. Even perimeter searches on private
property will infringe the rights protected by s. 8 where the
purpose of the search is to obtain incriminating evidence against
the occupant: See R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207
(S.C.C.), and R. v. Laurin (1997), 1997 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.
C.A.).
(2) Was there an arbitrary detention contrary to s. 9 or a
violation of the appellant’s s. 7 Charter rights?
(3) Did the arresting officer use excessive force?
[37] The second and third grounds of appeal are closely related
and can be dealt with together. The appellant submits that as
the officer was unlawfully on the property, he had no right to
arrest or detain the appellant and that he used excessive force.
The appellant argues that the alleged use of excessive force
constitutes both a Charter violation and a defence to the charge
of resisting arrest.
[38] I have already decided that the police officer had a right
to be on the appellant’s property given his intended purpose.
The next question is whether the permission to be on the property
ended once the police officer learned that there was no third
party criminal activity in progress. Was the police officer
unlawfully on the property once the appellant told him that he
could not be arrested on his private property?
[39] In my view, the answer is no. I accept that the appellant
was entitled to revoke the officer’s licence to enter or be on
his property. This is clear from R. v. Tricker, supra, and
Robson v. Hallet, supra. However, it is not at all clear that the
appellant revoked the licence as distinct from disputing the
officer’s right to arrest him. Even if he did purport to revoke
the licence, as the officer entered on the property for a
legitimate purpose and within the implied licence, the officer
had to be given a reasonable opportunity to leave before his
presence became unlawful: see Robson v. Hallet, supra, at 413.
Within seconds of observing the appellant, the officer formed the
view that the appellant was impaired and arrested him.
[40] In my view, before his licence was revoked, assuming for
these purposes that it was revoked, the officer had lawfully
arrested the appellant for having care and control of a motor
vehicle while impaired, and nothing that transpired afterwards
affected the legality of the arrest. If an occupant is found to
be committing an offence by a police officer who is lawfully on
the property, there is no doubt that the officer has the power to
arrest. The point is covered in R. v. Tricker, supra, at 205:
The [property owner] was entitled to withdraw the implied
licence. If he did so before grounds for lawful arrest came into
existence then the [police officer] would have been required to
leave the property at the risk of becoming a trespasser. If
grounds for arrest without warrant came into existence before the
implied licence was withdrawn, however, the appellant would have
been lawfully entitled to arrest the [owner] and to use physical
force in doing so.
[41] Both the trial judge and the Summary Conviction Appeal Court
judge made findings of fact that the force was not excessive and
that the police officer acted reasonably under the circumstances.
The evidence clearly shows that the appellant resisted arrest.
He failed to comply with the officer's arrest procedure. He
attempted to run away. He grabbed onto the truck and would not
let go. The appellant is a large and strong man and in the end,
it took five officers to subdue him. While considerable force
was used causing considerable pain, it has been said that in such
a situation, the officer “could not be expected to measure the
force used with exactitude”: R. v. Bottrell (1981), 60 C.C.C.
(2d) 211 (B.C.C.A.) at 218. In my view, it was open on these
facts for the trial judge and the summary conviction appeals
judge to find as they did. I see no basis to interfere with
their findings.
(4) If Charter rights were breached, should evidence be
excluded pursuant to s. 24(2)?
[42] As I have found that no Charter rights were breached, it is
not necessary for me to consider this ground of appeal
CONCLUSION
[43] For these reasons, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree. John Laskin J.A.”
“I agree. K. Feldman J.A.”
Released: Jan. 17/00
JIL