Court File and Parties

Date: March 9, 2017

Court File No.: Brampton 16-4227

Ontario Court of Justice

Between:

Her Majesty the Queen

– and –

Daniel Mali

Before: Justice P.A. Schreck

Heard on: February 8-9, 2017

Reasons for Judgment

Counsel:

• J. Nadel, for the Crown
• M. Johal, for Daniel Mali

SCHRECK J.:

[1]

Daniel Mali drove home while intoxicated, parked his car, and began urinating against his front porch. A police officer responding to a call about a possible impaired driver arrived, walked onto Mr. Mali's property and began to ask him questions. Mr. Mali initially told the officer that he "had to pee" and did not want to speak to him, but then began to answer the officer's questions. Mr. Mali submits that when he told the officer he did not want to speak to him, the officer was obliged to leave the property. His failure to do so means that Mr. Mali's subsequent arrest for impaired driving and a demand for breath samples violated his s. 8 and 9 Charter rights.

[2]

After his arrest, Mr. Mali was taken to a police station, where he provided breath samples which revealed that his blood alcohol concentration ("BAC") was almost three times the legal limit. Following the tests, Mr. Mali was placed in a cell for about six and a half hours and then released. He submits that the failure to release him sooner violated his s. 9 Charter rights.

[3]

Mr. Mali was charged with driving while impaired and while his BAC exceeded the legal limit. At his trial, he applied to exclude the evidence of the breath test results, statements he made and observations made by the police as a remedy for the alleged Charter violations. For the reasons that follow, the application is dismissed and Mr. Mali is found guilty on both counts.

I. EVIDENCE

A. The Arrest

[4]

In the early morning hours of March 28, 2016, Dharminder Bhella, a tow truck driver, saw a black Honda Accord swerving across lanes and bumping against the curb. He called 911 and reported what he had seen, as well as the car's location and licence plate number. At 1:30 a.m., Cst. Tyler Leal of the Peel Regional Police responded to the call. From the licence plate number, he was able to determine the registered owner's home address and proceeded to that location.

[5]

Upon arriving, Cst. Leal observed a black Honda Accord with the same licence number parked in the driveway. It was parked on an angle with the two right side wheels slightly on the lawn. Cst. Leal heard clicking noises coming from the vehicle, which led him to believe that it had recently been driven and was cooling down.

[6]

Standing near the vehicle was a male whom Cst. Leal described as "east Indian" and who was later identified as the defendant, Daniel Mali. His appearance and clothing matched a description that had been provided to Cst. Leal by the dispatcher. When Cst. Leal first arrived, Mr. Mali was standing next the front porch of the house. He was facing the porch wall, leaning on it with one hand and urinating.

[7]

Cst. Leal walked onto the property and approached Mr. Mali. He agreed that at this point, he did not have grounds to arrest Mr. Mali, although he would not have permitted him to leave if he had tried to do so. During his examination-in-chief, Cst. Leal described his initial interaction with Mr. Mali:

I approached the male, and I advised him, I'm a police officer. The male – I asked the male if he was driving the vehicle recently. The male doesn't acknowledge me, he keeps his back to me, and continues to urinate. I asked the male to complete urinating, and cover himself and speak with me, and he said "No, he had to pee, and he didn't want to talk."

Cst. Leal acknowledged that he did not record this conversation verbatim. In cross-examination, he gave the following evidence:

Q. You ask him to stop, you ask him to cover himself, and to speak with you, is that fair?

A. That's correct.

Q. Okay, he responds, "nope," is that right?

A. That's correct.

Q. He tells you he has to pee?

A. Yes.

Q. You ask him to speak with you and I'm going to suggest his response is that he does not want to speak to you. Is that your recollection of what transpired?

A. Yes, while he was urinating, he stated he did not want to speak.

Q. He doesn't invite you onto his property?

A. No.

Q. He makes it clear that you're not welcome. He doesn't want to speak to you?

A. Again, while he was urinating, he said he didn't want to talk.

Q. Okay, and that's a fact that you included in your notes?

A. Yes, it is.

Q. Okay, and you have an independent recollection of that today?

A. I do.

Q. Okay, you continue to question him despite his clear indication that he doesn't want to speak to you, is that fair?

A. I asked him if he resided at 26 Rusthall, yes.

Mr. Mali responded that he did reside at that address. In response to further questions, he told Cst. Leal that he was the owner of the Honda and produced his car keys from his pocket. His also provided Cst. Leal with his driver's licence.

[8]

While speaking to Mr. Mali, Cst. Leal detected an odour of an alcoholic beverage and noted that Mr. Mali had red and watery eyes and appeared to be unsteady on his feet. Cst. Leal returned to his vehicle, contacted his dispatcher and asked for a check to be conducted on Mr. Mali. He also asked for the description provided in the initial call to be repeated. Cst. Leal decided at that point that he grounds to believe that Mr. Mali had been operating a motor vehicle while impaired.

[9]

At 1:40 a.m. a second officer, Cst. Sherman, arrived. Both officers advised Mr. Mali that he was under arrest for impaired operation of a motor vehicle. Mr. Mali initially pulled away from the officers, but then allowed them to handcuff him. The officers tried to place Mr. Mali in the back seat of a police car, but he responded "Don't you fucking touch me" and tried to pull away from the officers. After a struggle, the officers managed to put him into the police car. Cst. Leal then advised Mr. Mali of his right to counsel, cautioned him and made a demand for a breath sample.

B. The Breath Tests

[10]

At 1:58 a.m., Cst. Leal and Mr. Mali left the scene and drove to 22 Division police station, arriving there at 2:06 a.m. After Mr. Mali spoke to duty counsel, he was turned over to Cst. Holmes, a qualified breath technician. The breath tests were recorded on video. During the test, Mr. Mali told the breath technician that he had just arrived home when Cst. Leal arrived and that he had consumed alcohol earlier that day. It is clear from the video that Mr. Mali was significantly intoxicated.

[11]

Mr. Mali provided two breath samples at 3:06 a.m. and 3:28 a.m., resulting in readings of 220 and 228 mg. of alcohol per 100 ml. of blood.

C. Detention Following the Breath Tests

[12]

After the breath tests were completed, Mr. Mali was lodged in the cells. At 5:08 a.m., he was served with a certificate of analysis and other documents. Cst. Leal's explanation for why it took over two hours to serve Mr. Mali with these documents was that the breath technician had to prepare them and that he had been "doing notes" and "a number of paperwork items". Although Mr. Mali had made numerous requests to contact his father, the police made no attempts to contact him.

[13]

Sgt. Mark Noble was the officer in charge of the station at the time Mr. Mali arrived there and was responsible for making decisions as to his release from custody. At 2:15 a.m., he was advised of Mr. Mali's arrival and the circumstances of his arrest. He observed Mr. Mali to have watery eyes and slurred speech.

[14]

Sgt. Noble testified that the Peel police have a written policy outlining the factors to be considered in determining if and when a prisoner is released, including whether the person will be charged with impaired driving, whether a responsible adult is available to pick him up, the results of the breath tests, the person's level of comprehension, demeanour, attitude and judgment. In this case, Sgt. Noble noted that the results of Mr. Mali's second breath test were higher than the first, which led him to be concerned that Mr. Mali's blood alcohol concentration was rising. His biggest concern with Mr. Mali was that his level of comprehension was insufficient for him to understand the requirements of his release. Sgt. Noble acknowledged that he did not make any notes with respect to his decision to hold Mr. Mali.

[15]

At 5:45 a.m., Sgt. Jason Hobson relieved Sgt. Noble after being briefed by him. Sgt. Hobson testified that his general concern in such situations was the level of comprehension. It was his general practice to consider the person's blood alcohol concentration which he calculated by assuming that the person eliminated alcohol at a rate of 15 mg per 100 ml of blood per hour. As well, it was his general practice to have the cells officer check on prisoners every 30 minutes and report back to him about their observations of each prisoner's sobriety. Sgt. Hobson did not have an independent recollection of any specific conversation he had with the cells officer about Mr. Mali. Mr. Mali was released at 9:46 a.m.

II. ANALYSIS

A. Sections 8 and 9 of the Charter – The Arrest and Breath Demand

[16]

Mr. Mali submits that by arresting him and making a breath demand while on his private property, the police violated his s. 8 and 9 Charter rights. He accepts that Cst. Leal, like any member of the public, had an implied licence to enter onto the property. The scope of the implied licence doctrine is well established and was described by Sopinka J. in R. v. Evans, [1996] 1 S.C.R. 8 (at paras. 13-15):

. . . [T]he common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock. . . . 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.

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. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court in Bushman stated, at p. 19:

The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.

I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.

[17]

That the implied invitation existed in this case was made clear in R. v. Lotozky (2006), 81 O.R. (3d) 335 (C.A.), a case factually similar to this one, the only difference being that the officer in Lotozky personally observed the accused driving. In that case, Rosenberg J.A. held (at paras. 36-37):

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. For reasons of safety, they waited until the motorist had brought the vehicle safely 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.

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.

[18]

In this case, counsel for the applicant accepts that when Cst. Leal entered onto his property, he was entitled to do so. However, she submits that when Mr. Mali told Cst. Leal that he did not wish to speak to him, this was effectively a withdrawal of the implied invitation. The implied invitation is for the purpose of communication and once Mr. Mali made it clear that he did not wish to communicate, the purpose of the implied invitation ceased to exist and Cst. Leal became a trespasser.

[19]

I am unable to accept this submission for two reasons. First, there was no "clear expression of intent" that Mr. Mali no longer wished to communicate with Cst. Leal and wanted him to leave. He said "he had to pee, and he didn't want to talk", or words to that effect. While this could be interpreted as an outright refusal to speak, in my view a more likely interpretation is that Mr. Mali did wish to speak until he had finished urinating. This is how Cst. Leal appears to have interpreted the statement, and that interpretation is also consistent with Mr. Mali's subsequent willingness to answer questions.

[20]

Second, although Cst. Leal may not have had grounds to arrest Mr. Mali when he first engaged him in conversation, in my view he nonetheless did have grounds to detain him. The Highway Traffic Act clearly would have given Cst. Leal the authority to detain Mr. Mali on the road. While the Highway Traffic Act did not apply on private property, there is authority that suggests that a corresponding common law power to detain exists, provided that the police were lawfully entitled to enter onto the property: R. v. Dillon (2006), 32 M.V.R. (5th) 13 (Ont. S.C.J.) at paras. 22-40; R. v. McGregor, 2015 ONCJ 692 at paras. 9-15; R. v. Hopmans, 2010 ONCJ 55 at paras. 16-28.

[21]

In Lotozky, Rosenberg J.A. stated (at para. 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.

It is clear from this that once a police officer who has entered onto private property pursuant to an implied licence arrests an individual, he may remain on the property to effect the arrest regardless of whether the implied invitation is withdrawn. In my view, the same reasoning applies to any lawful detention. In this case, Cst. Leal lawfully entered the property to conduct an investigation. Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

[22]

For these reasons, I conclude that the initial arrest of Mr. Mali and the subsequent breath demand did not violate his s. 8 or s. 9 Charter rights.

B. Section 9 of the Charter – "Overholding"

[23]

Mr. Mali's last breath test was at 3:28 a.m. He was released at 9:49 a.m., just under six and a half hours later. He submits that this was a case of "overholding" resulting in a breach of his s. 9 Charter rights.

[24]

Claims of s. 9 violations based on "overholding" are not uncommon in this jurisdiction. The law is clear that the police are entitled to hold an individual for a period of time after breath tests are administered, but only if the decision to do so is made for legitimate reasons and based on proper considerations. In R. v. Price, 2010 ONSC 1898, Durno J. set out that the types of factors the police must consider before justifiably continuing to detain an individual arrested for a drinking and driving offence (at para. 93):

The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[25]

In this case, Sgt. Noble testified that he considered the factors in Price in making a decision about Mr. Mali's release. While Sgt. Hobson appears to have relied primarily on Mr. Mali's readings, he testified that he also received reports about Mr. Mali's sobriety from the cells officer, who checked on him every 30 minutes. While Sgt. Hobson acknowledged that he had no independent recollection of any conversations with the cells officer, his assertion that this was his usual practice was not challenged. Assuming that Mr. Mali eliminated alcohol at the rate considered by Sgt. Hobson, his blood alcohol concentration at the time of his release would still have been significantly over the legal limit. In these circumstances, I am not persuaded on a balance of probabilities that the decision to hold Mr. Mali was arbitrary or in violation of his Charter rights.

[26]

For the foregoing reasons, the Charter application is dismissed.

III. DISPOSITION

[27]

Based on the evidence of Mr. Bhella and Cst. Leal, as well as the statements made by Mr. Mali in the breath testing room after he had spoken to counsel, I am satisfied beyond a reasonable doubt that Mr. Mali operated a motor vehicle a short time prior to Cst. Leal's arrival at his home. Based on the Cst. Leal's testimony and my own observations of the breath room video, as well as the breath test results, I am satisfied beyond a reasonable doubt that when Mr. Mali operated a motor vehicle, his ability to do so was impaired by alcohol and the concentration of alcohol in his blood exceeded the legal limit.

[28]

Mr. Mali is found guilty on Counts 1 and 2.

Justice P.A. Schreck

Released: March 9, 2017