Court Information

Ontario Court of Justice

Date: 2017-11-07

Court File No.: Peterborough 161701

Parties

Between:

Her Majesty the Queen

— And —

Robert Hamilton

Before the Court

Justice: S.W. Konyer

Heard: October 3, 2017

Reasons for Judgment Released: November 7, 2017

Counsel

Mr. P. Tsuing — counsel for the Crown

Mr. N. Baker — counsel for the defendant Robert Hamilton

KONYER J.:

Introduction

[1] Robert Hamilton is charged with operating a vessel, specifically his boat, while his ability to do so was impaired by alcohol, and while his blood-alcohol concentration exceeded the legal limit on July 7, 2016. At the start of his trial, I heard evidence and argument on an application under sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms arising from the manner in which Mr. Hamilton was detained, searched and arrested. This is my decision on that application.

[2] Specifically, Mr. Hamilton claims that his Charter-protected rights to be secure from unreasonable search and seizure, and to be free from arbitrary detention or arrest, were infringed because the police boarded his boat, detained him and searched him without lawful authority. Mr. Hamilton claims that the boat was his dwelling-house, that the police were therefore required to obtain a warrant to board his boat without permission, and that no exigent circumstances existed that would justify a warrantless entry onto his boat. Accordingly, Mr. Hamilton argues that the warrantless entry, detention and search were all unlawful and constitute breaches of his Charter rights. The defence says that this result flows from an application of the principles set out by the Supreme Court of Canada in R. v. Feeney, [1997] 2 S.C.R. 13. As a remedy for the breaches claimed, Mr. Hamilton seeks an order excluding the results of the analysis of his breath samples from evidence at his trial.

[3] The Crown's position is that Mr. Hamilton's boat was not a dwelling-house, and therefore the police were not required to obtain a Feeney warrant in order to board the boat. In the alternative, if I find that Mr. Hamilton's boat was a dwelling-house, the Crown argues that exigent circumstances existed, specifically a concern for Mr. Hamilton's health and safety, which justified the entry onto his vessel by the police.

Burden of Proof and Evidence

[4] It is common ground that the search at issue was warrantless. The Crown therefore bears the onus on the s.8 application to prove, on a balance of probabilities, that the police had reasonable grounds to conduct the search, and that the search was carried out in a reasonable manner. Counsel have specifically asked that I not deal with the issue of whether the arresting officer had sufficient grounds to make a breath demand on this Charter voir dire, as that issue will be litigated on a blended voir dire on the trial proper. On the s.9 application, Mr. Hamilton as the claimant bears the onus of proving on a balance of probabilities that he was arbitrarily detained or arrested. Mr. Hamilton testified on the voir dire, while the Crown called the arresting officer. The evidence on the Charter voir dire can be summarized as follows.

Facts

Police Response and Initial Observations

[5] Sgt. Marc Gravelle of the OPP was dispatched at 2:10 p.m. to the Buckhorn Locks following a complaint received from the lockmaster. Sgt. Gravelle arrived at the lock at 2:26 and spoke to the lockmaster, Kirk Andrews. Mr. Andrews told the officer that he had seen a boat being operated erratically within the lock at about 2:00. He said the boat almost struck another vessel, and then did collide with the wall of the lock. He said he had spoken to the operator as a result of his observations, and that the operator was slurring his words. Mr. Andrews told Sgt. Gravelle that he suspected the operator was either intoxicated or suffering from some sort of medical distress. He then pointed out the boat in question to Sgt. Gravelle. It was at that time moored at a public docking area about 25 metres away, within plain sight of the lock.

[6] As a result of this information, Sgt. Gravelle approached the boat, described as 22 to 24 feet in length with no roof structure. Sgt. Gravelle had an unobstructed view into the interior of the boat, and he immediately noticed a lone shirtless male figure lying facedown and motionless. The upper half of the male's body was lying on sleeping quarters contained underneath the bow, while the lower half of the male's body was protruding into the open portion of the boat. Sgt. Gravelle did not call out to the male, or announce himself as a police officer. Instead, he immediately boarded the boat and shook the male by the shoulder. He said he boarded the boat for two reasons – in furtherance of his investigation into a suspected impaired boater, and out of a concern that the prone male may be in medical distress.

[7] The male, later identified as Mr. Hamilton, roused himself, and exhibited routine signs of alcohol intoxication. Sgt. Gravelle formed a belief that Mr. Hamilton had operated a vessel within the preceding three hours while impaired by alcohol, and arrested him at 2:32. Sgt. Gravelle said that Mr. Hamilton became argumentative at this point, so he removed him from the boat due to safety concerns and lodged him in the rear of his cruiser. The officer then searched the boat, returning to Mr. Hamilton and demanding a sample of his breath for analysis by an approved instrument at 2:42.

Accused's Evidence

[8] Mr. Hamilton testified that he had been using his boat as his primary residence, at least during summer months, since a recent separation from his spouse. They had previously shared a home together for many years on a lake close to Buckhorn. Since the separation, he had kept a small apartment in Lakefield, and split time between the apartment and his boat. He lived on the boat as much as he could, but returned to the apartment regularly for clothing, and stayed there during poor weather. He said the boat was equipped with sleeping quarters under the bow, as well as a toilet, sink, cooler for food and beverage storage, and small barbecue for cooking. He rented a slip for the boat at the Lakefield Marina, and would either dock the boat there or at public docking available on local lakes, which are connected by a lock system.

[9] On the day in question, Mr. Hamilton said he had been boating on Lower Buckhorn Lake. He anchored his boat and enjoyed a swim and glass of wine shortly before traveling to the locks between Lower and Upper Buckhorn lakes. He was not asked whether he had any difficulty manoeuvering his boat within the lock, but he did say that he told Mr. Andrews of his intention to tie up at the location where he was discovered by police. Mr. Hamilton said his intention was to spend the night at that location, something he had done many times before. He said he was then informed by Mr. Andrews that police had been called. He was distraught by this news, quickly consumed most of a "mickey" of vodka, and fell asleep in his boat.

[10] Mr. Hamilton said that he was awakened by Sgt. Gravelle when the officer was still on shore, and that they had a conversation before the officer boarded his boat. Mr. Hamilton testified that he specifically told the officer that the boat was his residence. Further, he claimed that he asked to see a warrant, that he was told a warrant was not required, and that Sgt. Gravelle boarded his boat against his express wishes.

Credibility Assessment

[11] I accept Mr. Hamilton's testimony that he frequently used his boat as overnight sleeping quarters. I do not believe him, however, that he had a conversation with Sgt. Gravelle before being woken up. Mr. Hamilton's account of events on the date of his arrest generally is hard to credit. His claim that he consumed a large quantity of vodka after learning that police had been summoned is illogical and defies common sense. I accept the testimony of Sgt. Gravelle that Mr. Hamilton was lying face down on his boat and that he remained in that position until shaken by the officer.

Legal Analysis

The Feeney Warrant Requirement

[12] I agree with the defence that Sgt. Gravelle required a warrant to board Mr. Hamilton's boat if his purpose was to arrest Mr. Hamilton and if the boat was a dwelling house within the meaning of the Criminal Code. Prior judicial authorization by way of an arrest warrant is generally required to arrest within a dwelling house: see Feeney, supra, paras. 44-51. To obtain an arrest warrant, the police will need to satisfy a judicial officer that reasonable grounds exist to believe the person sought has committed an offence, and that the person is within the dwelling. Further, even if an arrest warrant were obtained, the police are generally required to announce their presence before forcibly entering the dwelling. The Feeney requirements have largely been codified since the Supreme Court released its decision in 1997: see ss. 529 - 529.4 of the Criminal Code.

[13] In this case, the defence argues that it would have been a simple matter for the police to obtain an arrest warrant under s.529 in order to lawfully enter Mr. Hamilton's boat. I do not agree. Sgt. Gravelle did not have a subjective belief, prior to speaking with Mr. Hamilton, that he had committed an offence, which is a prerequisite for obtaining an arrest warrant. Nor can it be said that objectively reasonable grounds existed at that stage. At most, when he approached Mr. Hamilton's boat, the officer had an unconfirmed suspicion, based on hearsay, that Mr. Hamilton may have been operating his boat while impaired. He could not possibly have obtained an arrest warrant at that stage, and his purpose, in approaching the boat was to continue the investigation, not to effect an immediate arrest.

The Correct Legal Question

[14] Therefore, in my view, the defence is asking the wrong question. The question is not whether Sgt. Gravelle failed to comply with the requirements of Feeney and ss. 529-529.4 of the Criminal Code, since it was not his intention to arrest Mr. Hamilton at the time he boarded the boat. The real issue, in my view, is whether Sgt. Gravelle was entitled to board the boat in order to continue his investigation into his suspicion that Mr. Hamilton had committed the offence of impaired operation.

Reasonable Expectation of Privacy in Vessels

[15] The Supreme Court provided the following useful guidance on this question in Feeney, supra, at para. 26:

Eccles, supra, set out the following requirement for announcements prior to entry of private premises without permission: except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.

[16] In my view, Sgt. Gravelle was entitled to continue his investigation by speaking to Mr. Hamilton to determine whether there was any basis for the suspicion reported to him by the lockmaster that Mr. Hamilton might be impaired. I accept that Mr. Hamilton had a reasonable expectation of privacy while on his boat, and I also accept that his privacy interests were higher when the boat was docked and he was asleep on it as compared to when the boat was in motion. In my view, however, he could not have the same reasonable expectation of privacy on his boat as he would have in his home because of the character of the vessel.

[17] Mr. Hamilton's boat was capable of being used both as a motorized vessel and a temporary residence. It was also capable of being quickly converted from one use to the other. In my view, the reasonable expectation of privacy attached to the vessel must be dependent on its use at the time. Boats when in motion on public waterways are highly regulated, just like motor vehicles on public roadways, and would attract a lessened expectation of privacy at such times. They are subject to regulation, inspection, and random stopping by law enforcement personnel, and one would reasonably have a lower expectation of privacy in a vessel being operated as a pleasure craft. On the other hand, had Sgt. Gravelle approached Mr. Hamilton's boat in the middle of the night while he was asleep on it docked in his slip at the Lakefield Marina, Mr. Hamilton's reasonable expectation of privacy would be heightened, and would approach that of a private dwelling.

[18] In R. v. Nolet, 2010 SCC 24, the Supreme Court reached a similar conclusion with respect to the sleeping compartment in a long-transport truck. The court held that while even rudimentary and temporary living quarters are "not Charter-free zones", the reasonable expectation of privacy is lessened because the truck is also used as a commercial vehicle on public roads, a highly regulated industry: see Nolet, supra, para 31.

[19] In the circumstances of this case, Mr. Hamilton's boat was tied off at a public dock in the early afternoon. The boat could have been easily and quickly been untied and set back in motion. The operator and lone occupant, whose behaviour and speech had led to the lockmaster calling the police, was apparently passed out aboard the boat in a strange position, less than a half hour after being told by the lockmaster that police had been called. In those circumstances, in my view, Mr. Hamilton could not reasonably expect the same degree of privacy as he would have been entitled to had he been inside his residence.

The Announcement Requirement and Section 8 Breach

[20] Having said this, I still find that Sgt. Gravelle was required to announce his presence before boarding the boat. Although lessened, Mr. Hamilton nevertheless had an entitlement to a reasonable amount of privacy in the circumstances. In my view, this required Sgt. Gravelle to announce his presence, give notice of his authority and purpose, and request permission to board the boat. Mr. Hamilton was entitled to notice of the officer's presence and his intention to conduct a criminal investigation. I find that Sgt. Gravelle's failure to comply with the announcement requirement constitutes a breach of Mr. Hamilton's rights to be secure from unreasonable search and seizure. Although Sgt. Gravelle undoubtedly had grounds to conduct an investigation and to collect evidence for this purpose, any search had to be conducted in a reasonable manner. By failing to announce himself, I find that the officer failed to carry out the search in a reasonable manner. Mr. Hamilton's s.8 rights were therefore infringed.

Section 9 Application – Arbitrary Detention

[21] I am not persuaded, however, that Mr. Hamilton has proven a breach of his right not to be free from arbitrary detention or arrest. In my view, Sgt. Gravelle had a lawful basis to briefly detain him for investigative purposes, which is precisely what occurred. Once he formed grounds for arrest, which were not challenged on this application, then it cannot be said that Mr. Hamilton's continued detention was arbitrary. The s.9 application is therefore dismissed.

Section 24(2) Analysis – Remedy for Charter Breach

[22] I now turn to the issue of the appropriate remedy under s.24(2) for the breach of Mr. Hamilton's s.8 rights. In order to determine whether the admission of results of the analysis of Mr. Hamilton's breath samples would bring the administration of justice into disrepute, I must "assess and balance the effect of admitting the evidence on society's confidence in the justice system": R. v. Grant, 2009 SCC 32 at para. 71. There are three branches to the section 24(2) inquiry: first, I must consider the seriousness of the Charter-infringing state conduct; second, I must weigh the impact of the infringement on Mr. Hamilton's Charter-protected interests; and third, I must also consider society's interest in an adjudication of the case on its merits.

First Branch: Seriousness of State Conduct

[23] The first branch of the Grant test requires me to consider the seriousness of the state conduct arising from Sgt. Gravelle's entry onto Mr. Hamilton's boat without prior announcement. In Grant, the Supreme Court recognized a spectrum of seriousness from inadvertent or minor breaches to wilful or reckless disregard of Charter rights. Of the former, the court held that "admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law": Grant, supra, at para. 74.

[24] In this case, the Charter-infringing conduct was not serious. I accept Sgt. Gravelle's testimony that he was motivated to board the boat immediately partly out of concern for Mr. Hamilton's welfare. He was lawfully entitled, in fact duty bound, to continue the investigation into a suspected impaired operator. Taken in context, his failure to announce his presence prior to boarding the boat was an inadvertent misstep and not part of a pattern of deliberate or wilful disregard of Mr. Hamilton's Charter rights. The fact that the Charter-infringing conduct by the police was less serious means that there is less need for the court to disassociate itself from that conduct by excluding evidence obtained as a result.

Second Branch: Impact on Charter-Protected Interests

[25] With respect to the second branch of the test, "[t]he impact of a Charter breach can range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, supra, at para. 76. An unreasonable search that impacts on an area in which the individual reasonably enjoys a high degree of privacy is more serious than one that does not.

[26] Here, the impact on Mr. Hamilton's Charter-protected interests was minimal. He had a reduced expectation of privacy while on board his boat tied to a public dock minutes after he had been operating the boat as a vessel. Sgt. Gravelle was entitled to continue his investigation to determine whether Mr. Hamilton had been operating the boat while impaired by alcohol shortly before his arrival. He was entitled to speak to Mr. Hamilton in furtherance of that investigation in order to assess his level of sobriety. The officer's failure to immediately announce his presence therefore had no effect on the course the investigation would have ultimately taken in any event. Mr. Hamilton's privacy interests while aboard his boat did not immunize him from investigation for impaired operation.

Third Branch: Societal Interest in Adjudication on Merits

[27] Finally, there is a strong societal interest in resolving allegations of impaired boating on their merits for the same well-known reasons that apply in cases of impaired driving. Operation of a vessel while impaired by alcohol gives rise to similar public safety concerns. Accordingly, the public has a strong interest in seeing that cases of this nature are resolved on their merits.

Conclusion on Section 24(2)

[28] Balancing the three branches of the Grant inquiry, I conclude that the admission of the results of the analysis of Mr. Hamilton's breath would not bring the administration of justice into disrepute. The breath readings are therefore admissible despite the breach of Mr. Hamilton's s.8 rights described above.

Released: November 7, 2017

Signed: Justice S.W. Konyer