Her Majesty the Queen v. Lotozky [Indexed as: R. v. Lotozky]

81 O.R. (3d) 335

Court of Appeal for Ontario,

Weiler, Rosenberg and MacPherson JJ.A.

June 23, 2006

Charter of Rights and Freedoms -- Search or seizure -- Privacy -- Police officers receiving information accused's car driven by impaired driver -- Police arriving at accused's home observing car being driven oddly and pulling into accused's driveway -- Police walking onto driveway to talk with driver -- Driver (accused) showing obvious signs of impairment and police making breathalyzer demand -- Trial judge and summary conviction appeal court judge erring by finding that police walking onto driveway amounting to search for s. 8 of Charter -- Police entry justified by implied licence doctrine -- Accused not asking officers to leave -- Officers being lawfully on private property when they made breathalyzer demand -- Demand not violating accused's rights under s. 8 of Charter -- Canadian Charter of Rights and Freedoms, s. 8.

Criminal Law -- Drinking and driving offences -- Breathalyzer demand made on private property -- Whether police walking onto accused's driveway amounting to s. 8 search under the Charter -- Police officers receiving information accused's car driven by impaired driver -- Police arriving at accused's home observing car being driven oddly and pulling into accused's driveway -- Police walking onto driveway to talk with driver -- Accused driver showing obvious signs of impairment and police making breathalyzer demand -- Trial judge and summary conviction appeal court judge erring by finding that police walking onto driveway amount to search for s. 8 of Charter -- Police entry justified by implied licence doctrine -- Accused not asking officers to leave -- Officers being lawfully on private property when they made breathalyzer demand -- Demand not violating accused's rights under s. 8 of Charter -- Canadian Charter of Rights and Freedoms, s. 8. [page336]

Responding to a call about a possibly impaired driver, police officers went to the residence of the owner of the car, arriving shortly before the driver pulled into the driveway of the residence. Accused's car being driven oddly; going very slowly, stopping, high beams flashed on and off and then pulling very slowly into driveway. The officers walked onto the driveway and one of the officers knocked on the car window. When the driver (the accused) got out of the car, he appeared to be impaired. The officers arrested him for impaired driving and made a breathalyzer demand. At the accused's trial on charges of impaired driving and driving over 80, the trial judge found that the officers were not entitled to walk up the driveway attached to a dwelling house to conduct a criminal investigation and that, in doing so, they infringed the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms. The evidence discovered in the course of the investigation was excluded under s. 24(2) of the Charter and the accused was acquitted. The summary conviction appeal judge upheld the acquittal. The Crown appealed.

Held, the appeal should be allowed.

Merely walking onto a driveway, even with an intent to conduct an investigation involving the owner, does not constitute a sufficient intrusion to be considered a search. The only thing that amounted to a search in this case was the breathalyzer demand. The entrance of the police officers onto the driveway was justified by the implied licence doctrine. 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 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 exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway. Given the report which they received from their dispatcher and the unusual manner in which the accused's car approached the driveway, the officers in this case had a legitimate basis for entering on the driveway. 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. While the owner is entitled to withdraw the licence, the accused in this case never asked the officers to leave his driveway. Thus, the officers were lawfully on the property when they made the breathalyzer demand, and the demand did not violate the accused's rights under s. 8 of the Charter.

APPEAL from the judgment made by McCombs J., 2005 ONSC 5859, [2005] O.J. No. 893, [2005] O.T.C. 185 (S.C.J.), of a summary conviction appeal court, dismissing an appeal from the acquittal by Budzinski J. of the Ontario Court of Justice, dated July 16, 2003, on charges of impaired driving and driving over 80.

Cases referred to R. v. Mulligan, 2000 ONCA 5625, [2000] O.J. No. 59, 142 C.C.C. (3d) 14, 70 C.R.R. (2d) 189, 31 C.R. (5th) 281, 4 M.V.R. (4th) 271 (C.A.); R. v. Soal, [2005] O.J. No. 3543, 19 M.V.R. (5th) 176, 67 W.C.B. (2d) 646, 2005 CarswellOnt 3850 (C.A.), affg 2005 ONSC 2323, [2005] O.J. No. 319, [2005] O.T.C. 73, 14 M.V.R. (5th) 256, 63 W.C.B. (2d) 343 (S.C.J.); R. v. Tricker (1995), 1995 ONCA 1268, 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198, 8 M.V.R. (3d) 47 (C.A.) [Leave to appeal refused (1996), 199 N.R. 156n, 16 M.V.R. (3d) 235 (S.C.C.)], consd R. v. Evans, 1996 SCC 248, [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, 131 D.L.R. (4th) 654, 191 N.R. 327, 33 C.R.R. (2d) 248, 104 C.C.C. (3d) 23, 45 C.R. (4th) 210, distd Other cases referred to R. v. Amey, [2005] O.J. No. 3890, 2005 ONCJ 395, 66 W.C.B. (2d) 519 (C.J.); R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Curic, [1999] O.J. No. 5786 (C.J.); R. v. Gomes, [2004] O.J. No. 1636, [2004] O.T.C. 343, 61 W.C.B. (2d) 440 (S.C.J.); R. v. Grant, 2006 ONCA 18347, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.); R. v. Johnson, 1994 BCCA 2108, [1994] B.C.J. No. 1165, 45 B.C.A.C. 102, 4 M.V.R. (3d) 283, 23 W.C.B. (2d) 620 (C.A.); [page337] R. v. Kaczor, 2004 ONSC 46654, [2004] O.J. No. 5024, [2004] O.T.C. 1094, 12 M.V.R. (5th) 205 (S.C.J.); R. v. Kokesch, 1990 SCC 55, [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117, 51 B.C.L.R. (2d) 157, 121 N.R. 161, [1991] 1 W.W.R. 193, 50 C.R.R. 285, 61 C.C.C. (3d) 207, 1 C.R. (4th) 62; R. v. Law, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 208 D.L.R. (4th) 207, 281 N.R. 267, 90 C.R.R. (2d) 55, 160 C.C.C. (3d) 449, 2002 SCC 10; R. v. Maciel, [2003] O.J. No. 126, 33 M.V.R. (4th) 152 (C.J.); R. v. Mellenthin, 1992 SCC 50, [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 5 Alta. L.R. (3d) 232, 144 N.R. 50, [1993] 1 W.W.R. 193, 12 C.R.R. (2d) 65, 76 C.C.C. (3d) 481, 16 C.R. (4th) 273, 40 M.V.R. (2d) 204; R. v. Moher, [1996] O.J. No. 4261, 19 O.T.C. 244, 33 W.C.B. (2d) 41 (Gen. Div.); R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 195 Man. R. (2d) 161, 253 D.L.R. (4th) 385, 335 N.R. 342, 351 W.A.C. 161, [2005] 9 W.W.R. 203, 196 C.C.C. (3d) 481, 2005 SCC 37, 29 C.R. (6th) 205, 19 M.V.R. (5th) 23; R. v. Petri, [2003] M.J. No. 1, 2003 MBCA 1, 170 Man. R. (2d) 238, 104 C.R.R. (2d) 95, 171 C.C.C. (3d) 553 (C.A.); R. v. Stillman, 1997 SCC 384, [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Tax-Bivi, [2004] O.J. No. 1446, 2004 ONCJ 2, 61 W.C.B. (2d) 112 (C.J.); R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 192 O.A.C. 168, 244 D.L.R. (4th) 541, 326 N.R. 228, 123 C.R.R. (2d) 257, 189 C.C.C. (3d) 129, 2004 SCC 67, 23 C.R. (6th) 207; R. v. Waterfield, [1964] 1 Q.B. 164, [1963] 3 All E.R. 659 (C.A.); R. v. Wise, 1992 SCC 125, [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, 133 N.R. 161, 8 C.R.R. (2d) 53, 70 C.C.C. (3d) 193, 11 C.R. (4th) 253; Schreiber v. Canada (Attorney General), 1998 SCC 828, [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, 147 F.T.R. 309n, 158 D.L.R. (4th) 577, 225 N.R. 297, 51 C.R.R. (2d) 253, 124 C.C.C. (3d) 129, 16 C.R. (5th) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48 [as am.]

Philip Perlmutter and Leanne Salel, for appellant. Adam Steven Boni, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The issue in this case is whether police officers who have reasonable grounds to suspect a motorist is impaired are entitled to walk a short distance up a driveway to further their investigation. The trial judge, Budzinski J., and the Summary Appeal Court judge, McCombs J., concluded that the officers were not entitled to walk up the driveway attached to a dwelling house to make that investigation. As a result, they found that the respondent had been subjected to an unreasonable search and seizure and that the fruits of the investigation were inadmissible on the respondent's trial for impaired driving and "over 80". In my view, they erred. Accordingly, I would allow this Crown appeal. [page338]

The Facts

[2] In the early morning hours of August 30, 2001, two uniformed police officers on patrol in Toronto received a call from their dispatcher that a suspected impaired driver had been causing trouble at the drive-through window of a fast-food restaurant. The dispatcher informed the officers that the driver was too intoxicated to order. The officers received a general description of the driver and the vehicle and its licence plate number. They used their computer to identify the owner of the vehicle and they drove to the address associated with the vehicle, 50 Cardigan Road. They arrived at the address at 1:02 a.m. and parked in front of the residence. One minute later, a car turned on to the street. The driver of the vehicle was driving in an odd manner. The driver was driving very slowly and stopped at one point and flashed his high-beam lights. The driver resumed movement but then stopped a second time and finally made a slow turn into the driveway of the residence.

[3] Once the vehicle had stopped, the officers approached the driver's window. They watched the driver for a few moments; he had not noticed their approach and was fumbling with a fast-food bag. One of the officers knocked on the window. The respondent left the car and leaned against the door. The officer asked to see the respondent's license, ownership and insurance. The respondent fumbled with the documents and had to be asked again. Both officers saw that the respondent was having difficulty maintaining his balance. He looked somewhat dishevelled and his eyes appeared watery. There was a smell of alcohol on his breath. The officer asked the respondent how much he had to drink and the respondent replied that he had one beer. At 1:05 a.m., the officer formed the opinion that the respondent's ability to drive was impaired by alcohol and he was arrested for that offence and removed from the property. The officers called for a tow truck to remove the vehicle. [See Note 1 below]

[4] The arresting officer testified that he did not stop the vehicle while it was on the street because he could see that it was going to come to a stop in the driveway. Thus, the safest thing to do was to wait for it to stop rather than jump out in front of the vehicle on the street.

[5] The respondent's father testified that the respondent lived with his parents at the 50 Cardigan Road address and that the respondent was the registered owner of the vehicle. [page339]

Reasons of the Trial Judge

[6] The trial judge found that the officers had violated the respondent's rights under the Canadian Charter of Rights and Freedoms because their primary purpose in entering onto the driveway was for investigating a criminal offence. The trial judge relied upon the decision of Wake J. in R. v. Curic, [1999] O.J. No. 5786 (C.J.). In that case, Wake J. found a violation of s. 8 where a police officer followed a suspected impaired driver on to the latter's porch. The trial judge excluded the certificate of analysis under s. 24(2), again applying Curic. That ruling disposed of the "over 80" charge. In Curic, Wake J. held that evidence of a refusal to comply with a breathalyzer demand was conscriptive evidence "and based on R. v. Stillman, [1997 SCC 384, [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34] it must be excluded" (para. 23).

[7] It appears that the trial judge did not exclude the officer's observations of the respondent's condition but that this evidence alone was not sufficient to establish that the respondent's ability to drive was impaired. Accordingly, he dismissed both of the charges.

Reasons of the Appeal Court Judge

[8] The appeal court judge found that the respondent had a reasonable expectation of privacy on his driveway and thus s. 8 of the Charter was engaged. He found that the officers exceeded the implied licence to enter on to the premises because they were investigating a suspected criminal offence. Relying upon R. v. Evans, [1996 SCC 248, [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, 104 C.C.C. (3d) 23], the appeal court judge held that the conduct of the officers constituted a warrantless search and that the Crown had not rebutted the presumption that the search was unreasonable. He also found no reason to interfere with the trial judge's decision that the evidence should be excluded under s. 24(2). He therefore dismissed the Crown appeal.

Positions of the Parties on the Appeal

[9] Crown counsel submits that the trial judge and the appeal court judge erred in law in several respects. First, they erred in finding that the respondent had a reasonable expectation of privacy in respect of the driveway so as to trigger s. 8 of the Charter. Alternatively, it is argued that the entrance on to the driveway was lawful and therefore there was no violation of s. 8, on one or all of the following bases:

(1) The officers had an implied licence to walk on to the driveway. [page340]

(2) The entrance on to the driveway could be justified under s. 48 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

(3) The officers were entitled to enter on to the private property under the common law ancillary powers doctrine (the doctrine in R. v. Waterfield, [1964] 1 Q.B. 164, [1963] 3 All E.R. 659 (C.A.)).

[10] Finally, counsel for the appellant argues that the trial judge erred in applying a rule of automatic exclusion under s. 24(2) of the Charter.

[11] Counsel for the respondent supports the decisions of the trial judge and the appeal court judge. He submits that Crown counsel conceded at trial that the respondent had a reasonable expectation of privacy sufficient to invoke s. 8. He submits that police do not have an implied licence to enter private property to conduct a criminal investigation; that s. 48 applies only to investigations on a highway; and that the ancillary powers doctrine cannot be used to justify a warrantless entry on to private property. He relies in particular on the Evans decision and the reasons of this court in R. v. Mulligan, [2000 ONCA 5625, [2000] O.J. No. 59, 142 C.C.C. (3d) 14 (C.A.)]. Finally, he argues that the breathalyzer results were conscriptive evidence and properly excluded under s. 24(2).

Analysis

(a) Was there a [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) breach?

[12] The simple facts of this case present a surprisingly complex Charter issue that engage, among other things, the fundamental question of what constitutes a search and seizure for the purposes of s. 8. The Supreme Court of Canada has generally taken a broad view of search and seizure, using such expressions as the following:

-- "If the police activity invades a reasonable expectation of privacy, then the activity is a search": R. v. Wise, [1992 SCC 125, [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, 70 C.C.C. (3d) 193, at p. 533 S.C.R., p. 291 C.C.C.]

-- "Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a 'search' within the meaning of the provision": R. v. Law, [2002 SCC 10, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, 160 C.C.C. (3d) 449, at para. 15.]

-- "Clearly, it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory [page341] technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a 'search' for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a search within the meaning of s. 8": R. v. Evans, supra, at para. 11, p. 29 C.C.C.

[13] The breadth of police activity found to constitute a search demonstrates the reach of the s. 8 protections. In Evans, the police activity consisted of no more than approaching the door of the accused's residence and knocking with the intent of sniffing for marijuana when the occupant opened the door. In R. v. Kokesch, [1990 SCC 55, [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117, 61 C.C.C. (3d) 207], the Crown conceded that the police activity in going on to private property to peer into windows and attempt to detect the odour of marijuana, constituting a so-called perimeter search, was a search within s. 8. There are, however, some limits. It seems that merely peering into a car window at night with the aid of a flashlight on a public highway is not a search. See R. v. Mellenthin, [1992 SCC 50, [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 76 C.C.C. (3d) 481, at pp. 486-87 C.C.C.] Admittedly, it is unclear whether the conduct in Mellenthin was not a search because there was no reasonable expectation of privacy or because the interference or intrusion was not sufficiently invasive.

[14] In R. v. Tessling, [2004 SCC 67, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 189 C.C.C. (3d) 129], the Supreme Court of Canada identified three notions of privacy, namely: personal, territorial and informational privacy. In Tessling, which involved use of infrared technology to detect heat emanations from a private home, both territorial and informational privacy were implicated. In that case, Binnie J. concluded that the external pattern of heat distribution on the external surfaces of a house is not information in which the homeowner has a reasonable expectation of privacy. Interestingly, in reaching that conclusion, he looked at the nature of the intrusion as a facet of the reasonable expectation of privacy analysis on the theory, it seems, that "privacy 'is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual'" (referring to Schreiber v. Canada (Attorney General), [1998 SCC 828, [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42, at para. 19]).

[15] In this case, at least until the breathalyzer demand, the respondent invokes only territorial privacy. He says that he has a reasonable expectation of privacy while sitting in his car in his parents' driveway. He does not expressly identify the intrusion that he says interfered with that reasonable expectation. He says [page342] simply that the police conduct infringed that reasonable expectation of privacy.

[16] It seems to me that there are four elements to the police conduct. First, the police walked on to the driveway. Second, the police tapped on the window to get the respondent's attention. Third, the police questioned the respondent about his licence, ownership and insurance. Fourth, the police made the breathalyzer demand. The conduct at the two ends of the spectrum can most easily be categorized.

[17] The breathalyzer demand was clearly a search or seizure. The police sought by demand personal information. That demand was, however, authorized by law and there was no attack on either the validity of the demand or the validity of the legislation authorizing the demand. If, however, the police were trespassing at the time they made a demand, it might be argued that the demand was an unreasonable search and seizure. In R. v. Collins, [1987 SCC 84, [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 278 S.C.R.], Lamer J. held that a search will be reasonable "if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable". It might be argued that the search was not carried out in a reasonable manner if the police were trespassers at the time they made the demand.

[18] At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure.

[19] As regards the other two aspects of the police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search. Asking routine questions of a motorist about licence, ownership and insurance similarly would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy. See R. v. Grant, [2006 ONCA 18347, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at para. 36]. Finally, cases concerning questioning of motorists in drinking and driving situations have turned on issues such as right to counsel and detention, not search and seizure. See most recently: R. v. Elias, [2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481]. Obviously, the fact that the courts have not dealt with this element of the drinking and [page343] driving paradigm as a search issue is not determinative, but it does suggest to me that in most cases the search and seizure threshold is not crossed until the breathalyzer demand is made. Elias, at para. 41, is also helpful in clarifying that checking sobriety of drivers is lawful at common law. If the police conduct was unlawful in this case it was only because it took place on the driveway as opposed to a public highway. Since, as I explain below, I have concluded that the police were not unlawfully on the driveway, the fact that they questioned the respondent on his driveway to check his sobriety did not render that particular investigative technique unlawful.

[20] Accordingly, I am of the view that the violation of the respondent's s. 8 rights must relate to the fact that the police made the demand while they were on private property. If, contrary to the findings of the trial judge and the appeal judge, the police were lawfully on the property when they made the demand, the search was reasonable having been authorized by a reasonable law and carried out in a reasonable manner.

[21] As I have said, Crown counsel offers three different bases for justifying the officers entering on to the driveway. I find it unnecessary to consider the second and third bases since I am satisfied that the entrance on to the driveway was justified by the implied licence doctrine. In my view, this court's decision in R. v. Tricker (1995), [1995 ONCA 1268, 21 O.R. (3d) 575, [1995] O.J. No. 12, 96 C.C.C. (3d) 198 (C.A.)] is determinative of this issue.

[22] Tricker was a police officer charged with manslaughter. While on routine patrol, he saw a car speeding on a residential street. The car drove on to a private driveway and into a garage. Constable Tricker followed the car and parked on the driveway. There was a confrontation on the driveway between the officer and the deceased. The evidence as to what occurred was confusing. However, on one version of the evidence, the officer told the deceased that he had been speeding and asked him for his licence and insurance papers. The deceased refused to produce them and ordered the officer off his property. When the deceased refused to identify himself, the officer attempted to arrest him. The two struggled and the struggle continued into the deceased's home where unfortunately the deceased died while the officer was attempting to restrain him. The officer was convicted of manslaughter. One of the crucial issues was whether the officer had a lawful reason for being on the driveway. The Crown contended that the officer was a trespasser from the moment he entered on to the driveway. This court disagreed.

[23] Speaking for the court, Galligan J.A. held at p. 579 O.R., p. 203 C.C.C. that "the occupier of a dwelling gives implied [page344] 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 [house]". He further held at p. 580 O.R., p. 204 C.C.C. that a police officer carrying out the statutory mandate under the Highway Traffic Act to obtain reasonable identification of a motorist has lawful reason to speak to the person. Therefore, when the officer entered on to the driveway to obtain the deceased's identification he was "within the ambit of the implied licence recognized by the common law" [at p. 580 O.R., p. 204 C.C.C.]. Galligan J.A. noted that the property owner was entitled to withdraw the licence and if he did so before grounds for lawful arrest came into existence, the officer would have been required to leave.

[24] In this case, the respondent never asked the officers to leave his parents' driveway. Thus, if the implied licence doctrine applied, the officers were lawfully on the property and there could be no violation of s. 8. The respondent submits that the implied licence doctrine articulated in Tricker has been limited by the subsequent decision of the Supreme Court of Canada in Evans.

[25] In Evans, the police had received an anonymous tip that the accused were growing marijuana in their home. After an investigation that did not disclose any illegality, the officers decided to knock on the door and question the occupants regarding the complaint. They knocked on the door and when one of the accused opened the door, the officers smelled marijuana. They arrested the accused.

[26] Sopinka J. speaking for the majority at para. 13 referred to this court's decision in Tricker [at p. 579 O.R.] and quoted with approval this excerpt from that case:

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.

[27] Sopinka J. then drew this conclusion [at para. 13]:

As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. 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.

[28] Two issues present themselves. First, when are police acting in accordance with the implied invitation? Second, do the same limitations on the implied invitation doctrine apply to the driveway as to the dwelling house? [page345]

[29] In resolving these issues I think it important to bear in mind the differences between this case and Tricker and the Evans case. In the Evans case, the conduct sought to be brought within the implied licence doctrine was the knocking on the door of the dwelling house to investigate a criminal offence. In Tricker and in this case, the conduct sought to be justified was investigation on a driveway. Thus, in Evans, after referring to Tricker, Sopinka J. applied the implied licence doctrine to the police actions in conducting an investigation that required questioning of the occupant in his own home. This case and Tricker, however, do not include the greater level of intrusion found in Evans and do not depend upon licence to question occupants of the dwelling house, only to conduct an investigation on the driveway.

[30] To return to Evans, Sopinka J. held at para. 15 that in 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. He held that the implied invitation to knock is "to facilitate communication between the public and the occupant" [emphasis added]. At para. 16, he found that the police approached the home "not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them". He concluded as follows:

Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

(Emphasis added)

[31] At para. 18, Sopinka J., after referring to the participant surveillance cases, summed up the law in this way:

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.

(Emphasis added)

[32] In my view, there is a fundamental difference between the police conduct of knocking on the door of a dwelling house to investigate the occupants discussed in Evans and merely entering on to a driveway. The latter does not involve an investigation of persons in their own home. A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an [page346] open area that is visible to the public. The scope of the implied invitation must be analyzed in that context.

[33] As Sharpe J.A. said in R. v. Mulligan at para. 24, the holdings in Tricker and Evans are examples of a broader principle; that licences "may arise at common law by implication from the nature of the use to which the owner puts the property". In Mulligan, the court held that a police officer was entitled to enter a parking lot attached to commercial premises to investigate a possible break-in of the premises. As he said [at para. 24], "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".

[34] Counsel for the respondent fairly points out that in Mulligan the officer did not have an intention to investigate criminal activity of the owner or occupant of the property and had no intention to secure incriminating evidence against the owner or occupier. In Mulligan, it was unnecessary to consider what the result would have been had the officer had such an intention. The case, in my view, does not, however, stand for the proposition that had the officer had such an intention, no matter the circumstances, the entry would have turned into a trespass.

[35] The 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.

[36] 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. [See Note 2 below] For reasons of safety, they waited until the motorist had brought the vehicle safely [page347] 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.

[37] 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.

[38] I 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.

[39] In that vein, I note that there are several decisions from trial and summary appeal courts that support the proposition that the officers acted lawfully in this case. In R. v. Soal, [2005] O.J. No. 3543, 19 M.V.R. (5th) 176 (C.A.), this court upheld the decision of Durno J., [2005 ONSC 2323, [2005] O.J. No. 319, 14 M.V.R. (5th) 256 (S.C.J.)] made on facts very similar to this case. In Soal, the police received a call that an intoxicated man had left a bar in his vehicle. As in this case, the officer went to the address associated with the vehicle where she found the vehicle parked in the driveway. The vehicle was running. The officer went up to the vehicle and found the driver apparently passed out in the driver's seat. After the man left the vehicle, the officer formed the belief he was impaired and she made a breathalyzer demand. [page348]

[40] Durno J. held that the police officer was entitled to enter on to the driveway to investigate the driver. As I have done here, he found it important to distinguish between entering on to private property and entering a dwelling house. He relied upon Tricker to find that the police officers have the right to enter private property to conduct an investigation in some circumstances. Durno J. also referred to several cases with almost identical facts to this case where courts have upheld the lawfulness of the police conduct. See R. v. Maciel, [2003] O.J. No. 126, 33 M.V.R. (4th) 152 (C.J.), R. v. Kaczor, [2004 ONSC 46654, [2004] O.J. No. 5024, [2004] O.T.C. 1094 (S.C.J.)], and R. v. Gomes, [2004] O.J. No. 1636, [2004] O.T.C. 343 (S.C.J.). Also see R. v. Amey, [2005] O.J. No. 3890, 2005 ONCJ 395 (C.J.), R. v. Moher, [1996] O.J. No. 4261, 19 O.T.C. 244 (Gen. Div.), R. v. Tax-Bivi, [2004] O.J. No. 1446, 2004 ONCJ 2 (C.J.), and R. v. Petri, [2003 MBCA 1, [2003] M.J. No. 1, 171 C.C.C. (3d) 553 (C.A.)].

[41] To a similar effect is R. v. Johnson, [1994 BCCA 2108, [1994] B.C.J. No. 1165, 45 B.C.A.C. 102 (C.A.), at para. 8] where on facts very like this case the British Columbia Court of Appeal found "that the driveway leading to the residence constituted . . . an implied invitation to enter upon the property". [See Note 3 below]

[42] To summarize, the police officers were lawfully on the driveway in accordance with an implied invitation. They were not asked to leave the property before they formed reasons for arresting the respondent and making a breathalyser demand. For these reasons, I am of the view that the respondent's rights under s. 8 were not violated.

(b) Exclusion of the evidence

[43] In the result, it is not strictly necessary to consider whether the trial judge erred in his application of s. 24(2) of the Charter. However, I should not be taken as agreeing with the view of the trial judge that the decision in R. v. Curic determined the issue of admissibility of the breathalyzer results. First, in Curic, the evidence sought to be excluded was a statement. Admission of a statement is more likely to affect trial fairness.

[44] Second, and more importantly, it would appear that the trial judge in Curic interpreted R. v. Stillman as providing for an automatic rule of exclusion of conscriptive evidence. As is made clear in more recent decisions of the Supreme Court of Canada, [page349] most notably in the concurring opinion of LeBel J. in R. v. Orbanski; R. v. Elias, supra, the fact that evidence is conscriptive does not necessarily mean that admission of the evidence would render the trial unfair. In any event, the trial court must still consider the seriousness of the violation and the effect of exclusion, even of conscriptive evidence. It is only after considering all three sets of Collins factors [See Note 4 below] that a court is in a position to determine whether admission of the evidence would bring the administration of justice into disrepute.

[45] To deal with the seriousness of the violation, the trial judge made no finding that the officers were acting in bad faith. Even [if] I am wrong and there was a violation of s. 8, it was because of a minor trespass on to a driveway. Had the officers exercised their powers under the Highway Traffic Act, as they were fully entitled to do, or had the respondent parked his vehicle at the curb instead of in the driveway, there would have been no violation of the Charter. The respondent did not dispute that the breathalyzer demand was otherwise properly made, the officers had reasonable grounds to make the demand, and before he was required to comply with the demand the respondent was informed of his right to counsel. In those circumstances, the seriousness of the violation factors would have strongly favoured admission of the evidence.

Disposition

[46] Accordingly, I would grant leave to appeal, allow the appeal, set aside the dismissal of the charges and order a new trial.

Appeal allowed.

Notes

Note 1: It was unclear why the officers felt the need to have the respondent's car towed away. Assuming that this was an unreasonable seizure, no evidence was obtained as a result of this action by the police.

Note 2: Section 48(1) provides that a "police officer, readily identifiable as such, may require the driver of a moter vehicle or operator of a vessel to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada)".

Note 3: The court in Johnson at para. 7 also reasoned in the alternative that the accused had no reasonable expectation of privacy with respect to any inquiry about the operation of her vehicle where the inquiry is made at the address she provided for the purpose of obtaining the vehicle's licence.

Note 4: R. v. Collins, supra.