Court File and Parties

Court File No.: Brampton 4811 998 11 14943 00 Date: 2013-01-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Amrick Dhindsa

Before: Justice K. Caldwell

Heard on: November 19 and 20, 2012

Reasons for Judgment released on: January 30, 2013

Counsel:

• Mr. S. Doyle, for the Crown
• Mr. G. Dorsz, for the accused Mr. A. Dhindsa

Caldwell J.:

Introduction

[1] In November, 2011, Mr. Dhindsa was charged with driving while his ability was impaired and he was "over 80".

[2] The Crown alleges that Mr. Dhindsa drove to the liquor store to buy vodka. He had been drinking prior to driving. His behaviour at the store led the LCBO employees to call the police. He was investigated once he reached his home and ultimately provided breath samples of 298 and 301 mg of alcohol per 100 ml of blood.

[3] Mr. Dhindsa agreed with the Crown witnesses that he went to the liquor store to buy vodka but disagreed that he had been drinking before he drove and therefore denied that he was drunk when he arrived home. He contended that his drinking occurred after he parked his car in his driveway but before he was confronted by the police.

[4] Mr. Dhindsa also alleges that his section 8 and section 10(b) rights were violated and that the remedy should be exclusion of both his breath readings and any observations made by the officers of impairment. The section 8 violation is based upon the officers' entry into Mr. Dhindsa's garage. The section 10(b) allegation is based upon the delay in providing him with his rights to counsel.

[5] I agree with the evidence of the Crown witnesses and I reject Mr. Dhindsa's evidence as I do not believe it. Further, I find that not only do I not believe his evidence but I am not left with any reasonable doubt by it. Further, I dismiss the Charter applications. Even if I had found that there were Charter violations, I would not exclude the evidence pursuant to section 24(2).

Overview of the Relevant Evidence

[6] Ms. Patricia Dodd, a new employee at the LCBO, initially dealt with Mr. Dhindsa when he attempted to pay for his alcohol. He attempted to purchase two bottles using his debit card but it timed out after he tried a few times to punch in his PIN number. He then tried with credit, but the same problem arose. She noticed that his hands were shaking but she didn't smell any alcohol though she said she dealt with him briefly, perhaps five or ten minutes.

[7] Ms. Mary Mazzone-Walt is a much more experienced LCBO employee and is the assistant manager of the Rodeo Drive store in Mississauga. She went over to Ms. Dodd's cash to determine why things were slowing down; it was now around 1:15 pm. She took over the transaction and watched Mr. Dhindsa make further attempts to pay using debit and credit. She also noticed that his hands were shaking and that he was swaying backwards, almost losing his balance. She thought he might be drunk given both the shaking and the swaying. She couldn't smell alcohol, however, so she continued to serve him.

[8] She asked if he was driving; he assured her that he wasn't. She told him that if he was driving she would have to do something about it. She then watched at a discreet distance as he left the store, and turned to leave the area. She then saw him return and get into a black Mercedes. As he was exiting the mall, he made a left hand turn onto Rodeo Drive, almost cutting off another car, nearly causing an accident. She made sure that the police were contacted.

[9] PC Bryan Turner and PC Ryan Farrow got a call around 1:18 pm concerning a possible impaired driver in a black Mercedes headed from the Rodeo Drive LCBO. They ran the plate and found that it was registered to 924 Drysdale Drive.

[10] The officers knew that they were near the address so they continued eastbound on Bancroft towards Drysdale. As they were travelling they saw a black Mercedes travelling in the opposite direction, towards them, and it turned southbound on Drysdale as they were approaching that street. They followed the car as it turned into 924 Drysdale which was only 50 metres or so from Bancroft. According to PC Farrow, this took but seconds after they left Bancroft.

[11] The officers pulled right in behind the car at 1:24 pm. The license plate matched the plate that was called in. PC Turner, the driver, said he parked right behind Mr. Dhindsa as he was afraid Mr. Dhindsa might flee. As they pulled in, Mr. Dhindsa got out of his car. He appeared to see the officers, then got back into his car and appeared to use a remote to open the garage door. He then drove into the garage.

[12] The officers approached the car, with PC Farrow approaching first. They saw a brown LCBO bag in Mr. Dhindsa's right hand. PC Farrow got Mr. Dhindsa's license and gave it to PC Turner to check. PC Farrow remained in the garage.

[13] PC Farrow then asked Mr. Dhindsa to walk towards him, leaving the garage and walking onto the driveway. He estimated that they had been in the garage less than a minute. Mr. Dhindsa was unsteady on his feet. He asked Mr. Dhindsa where he was coming from, and was told "the liquor store" but Mr. Dhindsa wasn't able to tell him which liquor store. The officer could smell the odour of alcohol on Mr. Dhindsa's breath, and noted red rimmed eyes. Mr. Dhindsa admitted to drinking earlier, appeared very nervous and began crying.

[14] PC Turner got out of the cruiser when he saw his partner walking Mr. Dhindsa out of the garage to the police car. His partner told him that Mr. Dhindsa was under arrest for impaired driving.

[15] They testified that Mr. Dhindsa tensed up, flexing his arms and legs, so that it was difficult to put on the handcuffs. PC Farrow had to give him two knee strikes to the thigh to obtain compliance. There was a short struggle and they had to bend Mr. Dhindsa over the cruiser to handcuff him. He is finally placed in the rear of the cruiser. He told the officers he didn't know how much he had to drink that day.

[16] Shortly after he was seated in the cruiser, PC Turner noticed the very strong odour of alcohol in the car. PC Turner gave him his rights to counsel, caution and breath demand shortly after he was placed in the car.

[17] PC Kozuska was the breath technician. His entire dealings with Mr. Dhindsa were recorded and the DVD was played in court thus there is little dispute about what took place in the breath room. One of the most striking aspects of the recording was its portrayal of an extensive and very personal discussion between the officer and Mr. Dhindsa about Mr. Dhindsa's recent personal problems, the breakdown of his marriage, loss of his job, and his drinking problem. He told the technician that he had had nothing to drink that day, but had finished half a bottle of vodka and a couple of shots the night before.

[18] Mr. Dhindsa testified that he had a bad drinking problem at the time he was stopped by the police. He denied, however, drinking anything before he went to the LCBO. Around noon he began to get the shakes from withdrawal so he went to the liquor store to get more alcohol. He had vodka at home but he was afraid he'd run out.

[19] He agreed that his hands were shaking when he attempted to pay but said it was due to withdrawal symptoms. He left the liquor store, walked toward the grocery store to buy a few groceries and then realizing that he had no cash he went back to his car. He stopped at the Tim Horton's drive through, bought a bagel and coffee, then headed home. At no time did he see any police officers.

[20] Once home, he pulled the car into the garage. He was sweaty and getting shakier so he carried his bagel and coffee to the house, but not the vodka, and opened the full bottle of vodka already in the house. He then chugged it down like water, drinking between ½ a bottle and ¾ of a bottle in three to five minutes.

[21] He then went back to the garage and noticed a police car driving at a high rate of speed past his house. He went to the entranceway of his garage to watch what was going on but then ignored the situation and got the bottle of vodka out of his car. It was only then that he saw the police car parked in his driveway. Shortly thereafter he was arrested. He was in shock during the arrest but didn't resist. Despite the lack of resistance, he received a couple of kicks to his thigh.

[22] He told the officers he didn't know how much he had to drink that day because at the time he was uncertain. He said that he didn't tell the breath technician about his alcohol consumption that day because he was still nervous and because he thought the breath technician was referring to any alcohol drunk before he drove.

[23] The defense also called a toxicologist, Dr. Krishnan. I will not refer to his evidence at this point as the bulk of it would be relevant only if I found the Mr. Dhindsa drank the vodka in his house before the police arrived. I will refer to aspects of his evidence at various points, however, during my factual findings.

My Factual Findings

[24] I make the following factual findings:

The LCBO employees called the police shortly after Mr. Dhindsa left the LCBO. This call makes sense given Ms. Mazzone-Walt's concerns about Mr. Dhindsa driving. I accept such concerns based upon both her own evidence and Mr. Dhindsa's evidence; he also acknowledged that she asked if he was driving. Given these concerns, I accept that she was watching him closely after he left and saw him narrowly avoid an accident as he left the plaza.

The officers saw Mr. Dhindsa's black Mercedes on Bancroft and then followed Mr. Dhindsa immediately onto his driveway. They did not drive past initially at a high rate of speed and then return. I reject Mr. Dhindsa's evidence on this point. The officers were clear and detailed in their observations of the car, their location and Mr. Dhindsa's location when they saw the car. The timing of their observations and subsequent arrival at Mr. Dhindsa's home fits the LCBO employees' evidence of the timing of the call.

Mr. Dhindsa did not enter his house immediately upon his arrival home and drink most of a bottle of vodka before the police arrived. This contention, quite frankly, just defies all reason and I find it has no air of reality. I accept that Mr. Dhindsa had a serious drinking problem at the time and I accept that he would suffer from the shakes if he went without alcohol for too long a period of time. It makes absolutely no sense, however, that he would leave on the car seat the very item that would remedy his shakes and enter the house to drink from another bottle out of desperation. It makes no sense that he would down that much alcohol so quickly and then return to get the other bottle from his car. It also makes no sense that he would have failed to mention this fact to the breath technician if this is what happened. The tenor of his conversation with the breath technician was very personal; he appeared relieved to have someone to talk to about his problems, particularly someone who seemed so genuinely concerned. I find it impossible to accept that he wouldn't have mentioned this highly unusual drinking event to the technician. I have considered the LCBO employee evidence that they didn't smell alcohol but I have also considered Dr. Krishnan's evidence that degree of consumption does not equate to degree of odour and that the odour stems from the additives in the beverage, not the alcohol itself. Some drinks with alcohol have a stronger odour than others.

PC Farrow was in the garage with Mr. Dhindsa for a very brief period of time, less than a minute. It only makes sense that the officer would want to leave the garage in order to make the subsequent observations of Mr. Dhindsa's walking and to return to the vicinity of his partner at the scout car. There was no reason to remain in the garage.

Mr. Dhindsa did resist arrest. He was clearly upset about the arrest. Further, the resistance explains the two blows to the thigh which were testified to by both the officer and Mr. Dhindsa.

The Section 8 Application

[25] Both section 8 and section 9 violations were raised at the outset of the trial; however, the section 9 application was abandoned at the trial's conclusion. I will address, therefore, the entry to the garage only in the context of a section 8 application. The allegation, as I understand it, is that the officers, in stepping into the garage, were there without lawful authority thus were trespassers and that any observations that followed constituted an unreasonable search.

[26] Justice Rosenberg addressed a somewhat similar issue in R v Lotozky. He dismissed allegations of a section 8 violation based upon the officers' entry onto a driveway to investigate and subsequently arrest an impaired driver. Early in the judgment he questioned what aspects of the police conduct could be defined as an impermissible search and pointed out that not every trespass onto private property constitutes a search.

[27] Justice Rosenberg divided the police conduct in Lotozky into four segments: (1) walking onto the driveway; (2) tapping on the driver's window; (3) questioning the driver about his license, ownership and insurance; (4) making a breath demand.

[28] He found that the demand was clearly a search or a seizure and that it was arguably an unreasonable search and seizure if the officers were trespassing at the time the demand was made. At the other end of the spectrum he found that merely walking onto a driveway, even with the intent to conduct an investigation, could not constitute a sufficient intrusion to be considered a search. There had to be "something more" such as the sniffing for marijuana that flowed from the officers' attendance at a homeowner's door in the Supreme Court of Canada decision R v Evans.

[29] He found that the other two aspects of conduct – the window tapping and questions about license etc – were in the middle of the spectrum but did not go far enough to constitute an intrusion into a reasonable expectation of privacy such that they would be classified as a search. He also went on to note that in most cases "the search and seizure threshold is not crossed until the breathalyser demand is made". He then considered whether the demand in Lotozky violated the respondent's section 8 rights as it was made on private property but ultimately held that the officers were lawfully on the property at the time thus the demand (the search) was reasonable.

[30] In this case, virtually all of the police activity occurred on the driveway. The officers' observations of Mr. Dhindsa's walking, red rimmed eyes, smell of alcohol on his breath and the demand itself were made after everyone had exited the garage. Given Lotozky, clearly such conduct examined in isolation cannot constitute an unreasonable search.

[31] Unlike in Lotozky, however, the officers did enter the garage, albeit briefly. Further, arguably the officers' observations and the subsequent demand could not have been made but for Mr. Dhindsa's exit from the garage which in turn flowed from the officers' entry. If the officers were unlawfully on Mr. Dhindsa's property when they told him to exit then was the demand sufficiently tainted that it constituted an unreasonable search? Given Lotozky, I find that it is questionable that the observations themselves constituted a search; however, I will assume at this point that they do. Further, do their observations in the garage and subsequent seizure of the LCBO bottle also constitute an unreasonable search?

[32] I turn to whether the officers were lawfully in the garage and I find that they were. Mr. Doyle urged me to find that their entry was justified on the basis of exigent circumstances or hot pursuit but, respectfully, in my view to extend those justifications to situations such as this would carry the concepts beyond what was intended by cases such as R v Golub.

[33] Instead, I find that the officers were not unlawful trespassers and I make this finding upon applying the principles outlined in Lotozky and Evans.

[34] This determination requires an examination of the purpose of section 8. In Evans, the Court reiterated that it is to preserve the privacy interests of individuals and to protect people from unjustified state intrusions on that privacy.

[35] People are, however, deemed to extend to all members of the public, including the police, an implied license, or "invitation to knock". That license ends at the door of the dwelling. It can be revoked by a "clear expression of intent". Its purpose in relation to the police is to allow a police officer who "has lawful business with the occupant" to reach a point at which he can "conveniently and in a normal manner communicate with the occupant".

[36] Evans must be interpreted in context. What clearly disturbed the Court was that the officers' purpose in knocking at the door of the home was not just to have a chat with the occupants but to use the opportunity presented by the open door to have a sniff to see if they could detect marijuana. The Court pointed out that the true purpose of the police attendance was to secure evidence against the occupants and that no occupant would invite someone to approach his home in order to secure evidence against him. As a result, the implied license was exceeded.

[37] The Court also found that there were sound policy reasons to make its findings. To find otherwise would allow the police to randomly check homes for evidence of criminal activity and could allow surprise "spot checks" in high crime areas, conduct which the Court viewed as "Orwellian".

[38] At first blush, it appears that the police conduct matches that in Evans in that the police were clearly approaching in order to investigate an impaired driving call. A deeper examination, however, reveals that the situation in this case bears no resemblance to Evans for a number of reasons.

[39] First, there was nothing "surreptitious" in the police conduct; they were very clear with Mr. Dhindsa about their reasons for being on his property.

[40] Secondly, the type of behaviour in this case can be differentiated from that in Evans. It is helpful to turn to Justice Hill's decision in R v Van Wyk. Justice Hill differentiated between instances of the police attempting to facilitate communication, including investigative questioning, and the conduct in Evans.

[41] In Van Wyk the officers knocked on a door of a home listed as the address of a vehicle suspected in a hit and run incident. The officers did not tell Mr. Van Wyk's wife the purpose of their visit when she answered the door and she invited them in. They then proceeded to question Mr. Van Wyk about the accident and ultimately arrested him. Mr. Van Wyk never told the officers to leave. Mr. Van Wyk argued that the police conducted an impermissible warrantless search by attempting to secure evidence through questioning and thus engaged in the conduct expressly prohibited by the Court in Evans by approaching the home with the intent to gather evidence.

[42] Justice Hill disagreed. Justice Hill noted that in Evans the officers were attempting to use the implied license to knock in the hope that in answering the door the occupant would "reveal some part of the interior to the ears, eyes and olfactory facilities of the government agents". By contrast, in Van Wyk the officers were simply attempting to ask questions and the occupant could, of course, refuse to answer.

[43] I find the situation in this case to be far closer to that in Van Wyk than that in Evans.

[44] Thirdly, there is a very significant difference in an entry to a garage versus an entry to a home. The garage in this case is fully enclosed, with a garage door and a door leading from the garage into the home. The privacy interests in the home are based, however, upon the age old concept of a man's home as his castle, and the privacy rights that allow people to conduct all those intimate details of private life behind closed doors, free from prying eyes. Such activities occur within the four walls of the home itself, however, not in the garage. The garage is simply a place we park our cars, as Justice Rosenberg found the driveway to be in Lotozky. It is enclosed, unlike a driveway, however the privacy interests are not those found within the home itself, particularly when the garage door is wide open.

[45] I am aware of the Ontario Court (General Division) decision R v Noerenberg, decided November 12, 1997. In that case, the Court found that an attached garage was part of the home. Noerenberg was decided sixteen years ago, however, and ten years prior to Lotozky. It is an open question as to whether it would be decided in a similar fashion now given developments over the past decade.

[46] Fourthly, the Court found in Evans that the "invitation to knock" extended to allow reasonable communication between police and occupant. There are significant differences between the logistics of such communication in a garage and at the home's doorway. When the door is opened, much of the home still cannot be seen. When a garage door is open, however, the entire garage is open to view thus it would follow that the privacy interests within the garage are less. Further, unlike with a home, there is nothing physical that the police can knock on once the door is open. Stepping briefly into the garage, as was done in this case, is an appropriate way of facilitating the necessary communication.

[47] Finally, the policy interests in this case are totally different than those in Evans. The George Orwell inspired concerns found in Evans simply don't exist in this case. To the contrary, the policy interests favour entry as outlined by both Justice Rosenberg in Lotozky and Justice Duncan in R v Maciel. Justice Rosenberg commented that it would not be good policy to interpret the law such that drivers were encouraged to rush for home in order to avoid impaired driving investigations. Such acts could encourage dangerous high speed police chases and force the police to spend valuable resources waiting outside a home until the driver returned to the street. Similarly, Justice Duncan commented that "it is not reasonable to regard the edge of one's property as a moat that gives sanctuary" against investigations of this type. These policy interests apply equally to situations requiring the officers to cross the threshold of an open garage.

[48] Of course, the simple fact that this case can be differentiated from Evans does not fully decide the issue. It is the reasons for this differentiation that lead me to conclude that the officers had not exceeded the implied license. Further, both section 33 and section 48 of the Highway Traffic Act give the police lawful authority to demand a driver's license and allow for an investigation of a driver to determine if there is a basis for a breath demand.

[49] I find, therefore, that the police did not exceed the implied invitation when they stepped into the garage. I therefore find that Mr. Dhindsa's section 8 rights were not violated.

[50] Even if I am incorrect in my section 8 analysis, I would not exclude the breath readings, or the observations of the officers under section 24(2). The officers were in the garage for less than a minute and little occurred while they were there. Any impact on Mr. Dhindsa's privacy interests, even if there was a section 8 breach, was minimal. Finally, there is a strong societal interest in a trial on the merits.

The Section 10(b) Application

[51] I have found that Mr. Dhindsa resisted arrest and thus that it took the officers some time to control him and place him in the scout car. I find, therefore, that it was reasonable to delay providing him with his rights to counsel until he was seated in the car. I therefore dismiss the section 10(b) application.

The Substantive Offences

[52] I have dismissed Mr. Dhindsa's Charter applications thus the evidence of his breathalyzer readings is admitted into evidence. Further, I have rejected Mr. Dhindsa's evidence that he drank between the time he parked his car and the time he was approached by the officers. I therefore find Mr. Dhindsa guilty beyond a reasonable doubt of the "over 80" charge.

[53] I also am convinced beyond a reasonable doubt that Mr. Dhindsa drove his car while his ability was impaired. I base my conclusion on his near accident, his actions in the LCBO, the observations of the police officers, and the testimony of the toxicologist, Dr. Krishnan. He agreed that with Mr. Dhindsa's readings his ability to operate a motor vehicle would be impaired. He noted that physical dexterity, memory and motor functions all would be negatively affected.

[54] I therefore find Mr. Dhindsa guilty beyond a reasonable doubt of the impaired driving charge.

Released: January 30, 2013

Signed: Justice K. Caldwell