DATE: 20050510
DOCKET: C42410
COURT OF APPEAL FOR ONTARIO
SHARPE, SIMMONS and LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Amy Alyea for the appellant
Applicant/Appellant
- and -
PATRICK CLARKE
David Gomes for the respondent
Respondent
Heard: March 18, 2005
On appeal from the judgment of Justice Paul Rivard of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 1, 2004, allowing an appeal from a conviction entered by Justice Maryka Omatsu dated September 30, 2003.
SHARPE J.A.:
[1] The Crown applies for leave to appeal, and if leave to appeal be granted, appeals the decision of the summary conviction appeal court judge (“appeal judge”), allowing the respondent’s appeal from conviction entered by the trial judge for driving with more than 80 mg. of alcohol in 100 ml. of blood. The appeal judge found Charter breaches in relation to arbitrary detention, right to counsel, and unreasonable search and seizure, ruled that the breathalyzer evidence should be excluded, and entered an acquittal. For the following reasons, I would grant leave to appeal, allow the appeal, and restore the conviction.
FACTS
[2] On Tuesday, July 16, 2002, P.C. Boyd was driving a marked police car on routine patrol with his partner P.C. Pickett in the City of Toronto. They saw a black Pontiac Firebird, driven by the respondent, about half a block ahead of the police car. There were no other cars in between. The respondent made a right turn without signalling the turn. Boyd accelerated to catch up, activated the overhead lights on the police car and sounded the air horn several times. Boyd testified that when he first saw the Firebird, he thought it was speeding, but both Boyd and Pickett acknowledged that they decided to stop the respondent because of his failure to signal his turn.
[3] The respondent stopped momentarily, but then turned left into the underground parking garage of an apartment building. The respondent rolled down his window to activate the garage door opener. Boyd again sounded his air horn. The respondent did not stop but proceeded to enter the garage.
[4] The respondent testified on the voir dire that the first time he realized the police wanted him to stop was when he opened his window to open the underground garage. He heard the air horn and P.C. Boyd yelling for him to pull his car over. He stated that he had no idea why he was being stopped. His car was on a steep incline in a driveway that was barely wide enough to hold one vehicle and there was not enough space to open the door to get out. The respondent testified that he told Boyd that he was just going to put his car in the underground spot but denied that he gave the police permission to enter into the garage:
A. There was no way to get out. From where I was stopped, I couldn’t back up, I couldn’t get out because it was too narrow. I only had one direction to go and that was down.
A. I knew he [P.C. Boyd] wanted to talk to me, but like I say I had nowhere to go but down and I let him know that, that I was just going to put the car into my space.
Q. And it was your belief that that was a private property so he couldn’t follow you?
A. I wasn’t thinking anything like that. Like I wasn’t thinking that way at all. All I was thinking was he’s behind me, he’s telling me to pull the car over and I told him I’m just putting the car down in my space because that was the only direction I could have gone. I couldn’t back up, I couldn’t get out of the car, it’s too narrow.
[5] Boyd followed the respondent’s vehicle into the garage with his emergency roof light activated. Boyd came to a stop in the garage. The respondent backed his car into the police car causing minor damage.
[6] Boyd smelled alcohol on the respondent’s breath and observed signs of intoxication. The respondent admitted he had been drinking. P.C. Tallon was called to the scene because of the collision. Tallon, who brought a roadside-screening device, could also smell alcohol on the respondent’s breath. He asked the respondent whether he had had anything to drink. The respondent said “I am not telling you anything until I speak to my lawyer.” Tallon replied: “Well, sir, that doesn’t matter if you tell me or not. I can smell the odour of an alcoholic beverage upon your breath” and he demanded a roadside screening breath sample. The respondent complied with the demand and failed the test.
[7] Boyd arrested the respondent for driving with a blood alcohol level over 80 and advised him of his right to counsel. Boyd testified that he followed the standard formula, including this sentence: “You have the right to telephone any lawyer you wish” [emphasis added]. When asked: “Do you wish to call a lawyer?” the respondent replied: “Yes, I think I will.”
[8] At the police station, Boyd placed a call to duty counsel and when duty counsel returned the call, Boyd handed the respondent the phone. The respondent did not indicate that he wanted to speak to a specific lawyer and, without complaint, spoke in private to duty counsel for several minutes. The respondent acknowledged that he had been advised of his right to counsel but testified that he understood that his right was to be provided with duty counsel. When asked by his trial counsel what he would have done if he knew that he could call and speak to any lawyer of his choosing, the respondent stated: “I would have called you.”
[9] After speaking to duty counsel, the respondent then provided two breath samples.
[10] The respondent rested his defence upon Charter motions alleging breaches of ss. 7, 8, 9 and 10(b).
LEGISLATION
Highway Traffic Act, R.S.O. 1990, c. H. 8.
142(1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.
216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
217 (2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of …or subsection 216(1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.
Charter of Rights and Freedoms
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right…
TRIAL JUDGMENT
[11] The trial judge dismissed the Charter motions and convicted the respondent. She found that the respondent’s failure to signal the right hand turn had attracted the attention of the police who then activated their lights and horn and followed the respondent 200 yards into his underground garage.
[12] The trial judge stated that the appellant’s argument that he had been subjected to an unlawful search was his “most compelling argument” and agreed that the respondent had a reasonable expectation of privacy in his underground parking garage. However, she further found that this expectation of privacy had to be balanced against the interests of law enforcement. She stated: “It has long been public policy against a suspect being able to use his property as a sanctuary from police investigations into his immediately proceeding conduct.” She also found that the police had implied consent to enter the garage and, as the respondent did not ask them to leave, the police were not trespassers. The trial judge concluded that there was no violation of the respondent’s Charter rights when the police followed him into the garage without a warrant or with his express consent.
[13] The trial judge found “that Officer Boyd informed Clarke of his right to counsel and that Clarke understood that right” and rejected the argument that the respondent’s right to counsel had been violated. Once advised of his right to counsel, she held that the onus switched to the respondent to exercise reasonable diligence and that he failed to discharge that onus. While the respondent told P.C. Tallon that he was not saying anything “until I speak with my lawyer”, she found that P.C. Boyd did not hear that remark “and Clarke never raised the request to speak with a specific lawyer again.”
[14] The respondent’s contention that he had been arbitrarily detained rested on the submission that he had committed no offence by failing to signal his turn. The Highway Traffic Act, s. 142(1), makes it an offence to fail to signal only where “the operation of any other vehicle may be affected by the movement”. The respondent submitted that the only other vehicle in the area was the police car and that it was too far way to be affected by his turn. The trial judge rejected this submission: “The police cruiser was obviously ‘another car in the vicinity that may be affected by the movement’.”
[15] As the respondent’s Charter motions failed, the trial judge convicted him of the driving over 80.
SUMMARY JUDGMENT APPEAL
[16] The appeal judge found that there had been several Charter violations and set aside the conviction.
[17] The appeal judge held that the evidence did not support the conclusion that the police car was close enough to be affected by the respondent’s turn and that the police had acted on the erroneous belief that failing to signal a turn itself constitutes an offence. It followed, he ruled, that the police had no authority to stop the respondent and that his detention was unlawful, arbitrary and a breach of his s. 9 Charter rights.
[18] The appeal judge further found that as the respondent had committed no offence, the police had no authority to enter the parking garage, an element of the respondent’s dwelling, and that the ensuing search and seizure of the breath samples violated his s. 8 rights.
[19] Finally, the appeal judge found that the respondent “clearly expressed an intention to speak to his lawyer” and was not afforded an opportunity to do so “in circumstances which were oppressive.” The appeal judge found: “In advising the police that he was not saying anything until he spoke to his lawyer, he was not told he would be afforded that opportunity. At the police station, nothing was done to permit the appellant to speak to his lawyer.”
[20] The appeal judge concluded that these were serious Charter breaches, that the evidence obtained as a result was conscriptive, and accordingly, that the breath samples ought not to have been admitted. He allowed the appeal, set aside the conviction and entered an acquittal.
ISSUES
Did the summary conviction appeal judge err in finding that the respondent had been arbitrarily detained?
Did the summary conviction appeal judge err in finding that the police unlawfully entered the parking garage?
Did the summary conviction appeal judge err in finding that the respondent’s right to counsel had been denied?
ANALYSIS
1. Did the summary conviction appeal judge err in finding that the respondent had been arbitrarily detained?
[21] The pivotal question with respect to both the first and second issues is whether Officers Boyd and Pickett were acting in the lawful execution of their duties and responsibilities when they required the respondent to stop after he failed to signal his turn. If they were, s. 216(1) of the Highway Traffic Act authorized their actions and required the respondent to stop. His failure to stop, in the circumstances of this case, would provide grounds for arrest pursuant to s. 217(2).
[22] The respondent’s contention that the police officers were not acting in the lawful execution of their duties turns on the definition of the offence of failing to signal a turn in s. 142(1). I agree with the respondent that, on the wording of s. 142(1), it is an offence to fail to signal a turn only where “the operation of any other vehicle may be affected by the movement”. However, for the following reasons, I am unable to agree with the submission that the police officers were not acting in the lawful execution of their duties or that that respondent’s Charter right not to be arbitrarily arrested or detained was violated.
[23] First, as I have noted, the trial judge found as a fact that the police car was another car in the vicinity sufficient to satisfy the statutory requirement that “another car may be affected by the movement”. The appeal judge found that the evidence did not support that finding and made a finding to the contrary. It is firmly established that a trial judge’s findings of fact are entitled to deference on appeal. An appellate court may only interfere where it is satisfied that a properly instructed trier of fact, acting judicially, could not have convicted: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.). With respect for the appeal judge’s view to the contrary, in my opinion, the respondent failed to make out a case for appellate intervention with respect to this finding. The trial judge accepted the respondent’s legal argument with respect to the legal definition of the offence and, consequently, she applied the correct legal test. The only issue is whether she made a reversible error of fact. To make out the offence, it is only necessary to show that another vehicle “may be affected” and proof that another vehicle is actually affected is not required. The question of whether another vehicle “may be affected” was very much a fact-specific judgment call upon which the trial judge’s finding is entitled to deference on appeal. Although the police officers may well not have been alive to the subtleties of the definition of the offence, in my opinion their evidence was capable of supporting the trial judge’s finding.
[24] Second, even if I were prepared to affirm the appeal judge’s reversal of this factual finding, I am not persuaded that it follows that the police officers were acting outside the scope of their lawful authority when they demanded that the respondent stop. The authority of a police officer to demand that a motorist stop for the purpose of enforcing various laws relating to highway safety and the operation of motor vehicles is not limited to situations where the motorist has committed an offence. Indeed, the Supreme Court has held that police may stop motorists at random for the purposes of enforcing highway traffic legislation with pressing and substantial objectives relating to safety, whether or not they have reasonable and probable grounds to believe that such legislation has been contravened. R. v. Husfsky, 1988 72 (SCC), [1988] 1 S.C.R. 621; R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257.
[25] The respondent in this case was not pulled over at random. Rather, he was stopped by police officers who had observed him driving in a manner which was capable of giving them reasonable grounds to believe a Highway Traffic Act offence had been committed. Accordingly, even if, contrary to the findings of the trial judge, the respondent committed no offence when he failed to signal his turn, it is my view that as the police were acting within the lawful scope of their authority pursuant to s. 216(1) when they demanded that he stop.
[26] I do not accept the respondent’s submission that we should approach this case on the basis that the police purported to arrest the appellant for an offence that does not exist in law. There is an offence of failing to signal a turn and that is what the police, on reasonable grounds, thought he had done. Even if the Crown was unable to establish that the police car was close enough to be a vehicle affected by the movement, to justify the actions of the police, the Crown only needs to prove the existence of reasonable grounds, not the actual commission of the offence
[27] The respondent’s failure to stop pursuant to the s. 216(2) provided the police with grounds to arrest him pursuant to s. 217(2). Accordingly, subject to my analysis of the second issue relating to the police entry into the parking garage, I conclude that the summary conviction appeal judge erred in finding that the respondent had been arbitrarily detained.
2. Did the summary conviction appeal judge err in finding that the police had unlawfully entered the parking garage?
[28] The trial judge found that the respondent had an expectation of privacy, albeit diminished, in the underground parking garage. She found, however, that the doctrine of implied invitation was applicable, citing R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont. C.A.), leave to appeal to S.C.C. refused, 103 C.C.C. (3d) vi. This doctrine holds that members of the public are given an implied license to pass over private property leading up to the point of access or entry (typically the front door) of a dwelling where they have a lawful reason to seek the consent from a resident to enter the dwelling. I agree with the respondent that by entering the garage, the police went beyond the limit of private property leading up to the respondent’s door. However, even if Tricker does not apply to police officers’ entry into the parking garage, it was open to the trial judge to infer an implied invitation for the police to enter the garage from the respondent’s own evidence. The respondent testified that when he pulled into the driveway leading to the garage, he realized that the police wanted him to stop but that there was nowhere for him to go but down into the garage. Knowing that the police wanted him to stop, he indicated to them that because of the narrow drive, he was going to proceed to pull into the garage. Although the trial judge did not refer to this aspect of the respondent’s evidence in her reasons for judgment, in my view, it supports her inference of implied invitation.
[29] In any event, even if the inference of an implied invitation was not available, in my opinion, the police were nonetheless entitled to follow the respondent into his garage. As I have already concluded, the respondent’s failure to stop when directed to do so by the police constituted an offence for which the respondent could be arrested without a warrant pursuant to s. 217(2). This was one continuous transaction with the police in constant pursuit. The respondent could not thwart their demand that he stop by escaping to the sanctuary of his garage. The parking garage was an element of the respondent’s dwelling but, as the trial judge found, one does not have the same reasonable expectation of privacy in such a parking garage as one has in one’s dwelling. In the circumstances of this case, if the police were entitled to demand that he stop his vehicle on the street, they were entitled to pursue it into his garage when he failed to comply with their demand: Eccles v. Bourque (1974), 1974 191 (SCC), 19 C.C.C. (2d) 129 (S.C.C.); R. v. Macooh (1993), 1993 107 (SCC), 82 C.C.C. (3d) 481 (S.C.C.); R. v. Boughen, [2002] O.J. No. 4060 (Ont. C.A.) at para. 4.
[30] Accordingly, I conclude that the appeal judge erred in finding that the police unlawfully entered the parking garage. As the police were entitled to enter the garage in pursuit of the respondent, their subsequent actions in questioning him regarding drinking and driving, demanding a breath sample, arresting him for driving over 80 and then obtaining breathalyzer samples at the police station were not tainted.
3. Did the summary conviction appeal judge err in finding that the respondent’s right to counsel had been denied?
[31] The trial judge had found as a fact that the police informed the respondent of his right to counsel, that he understood his right to counsel, and that he was afforded that right at the station when he spoke to duty counsel without expressing any wish to speak to some other lawyer.
[32] Again, in my view, the appeal judge impermissibly interfered with the trial judge’s findings when he concluded that the respondent “clearly expressed an intention to speak to his lawyer” and “was not afforded that opportunity.” Indeed, it seems to me that the weight of the evidence supported her findings. Officer Boyd advised the respondent of his right to counsel using the standard formula that included an explicit statement that the respondent had the right to call any lawyer he wished. The respondent gave no indication that he did not understand his right and made no complaint when invited to speak to duty counsel. For evidence of his desire to speak to a particular lawyer, he could rely only on his statement to P.C. Tallon: “I am not telling you anything until I speak to my lawyer” and his assertion on the voir dire in response to a question from own counsel that had he understood that he could speak to any lawyer, he would have called him. It was plainly open, on this evidence, for the trial judge to find that the respondent understood his right to counsel and that he failed to assert his wish to speak to a specific lawyer with reasonable diligence: R. v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Baig (1987), 1987 40 (SCC), 37 C.C.C. (3d) 181 (S.C.C.); R. v. Littleford, 2001 8559 (ON CA), [2001] O.J. No. 2437 (C.A.).
[33] I conclude, accordingly, that the appeal judge erred in reversing the trial judge’s findings and holding that the respondent’s right to counsel had been denied.
CONCLUSION
[34] As I disagree with the appeal judge’s conclusion that the respondent’s Charter rights were breached, I would also set aside his finding that the evidence of the breathalyzer samples should have been excluded.
[35] Accordingly, I would grant leave to appeal, allow the appeal, and restore the conviction at trial.
“Robert J. Sharpe J.A.”
“I agree J.M. Simmons J.A.”
“I agree H.S. LaForme J.A.”