Court File and Parties

Court File No.: Brampton 16/10612 Date: 2018-04-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Joseph W. Irving

Before: Justice George S. Gage

Heard: January 15-17, and April 19, 2018

Reasons for Charter Ruling and Judgment released: April 25, 2018

Counsel:

• Sean Bradley, counsel for the Crown
• Shahid Malik, counsel for the defendant Joseph W. Irving

GAGE J.:

Introduction and Background

[1] Joseph Irving was arrested on a charge of impaired operation of a motor vehicle on August 10, 2016. The arrest occurred at his home. A demand was made for breath samples. Mr. Irving complied. The breath samples – proven through a Certificate of Qualified Breath Technician – produced two readings in excess of 80 mg of alcohol in 100 ml of blood.

[2] Mr. Irving maintains that his rights under the Canadian Charter of Rights and Freedoms (hereinafter cited as the Charter) were breached by the officers of the Peel Regional Police Service who were involved in his arrest.

[3] In his Charter application he alleges: that his right to privacy was breached when officers entered his home without his consent or invitation; that he was unlawfully detained because the arresting officer did not have reasonable and probable grounds to make the arrest, and in any event, he was not provided with rights to counsel forthwith; and, that he was subjected to unlawful search and seizure because the demand for a sample of his breath was not made as soon as practicable. The remedy he seeks is exclusion of the evidence of the analysis of the samples taken of his breath.

[4] Concerning a defence on the merits on both charges Mr. Irving maintains that the evidence presented at the trial falls short of establishing to the requisite standard that he was the operator of a motor vehicle at any time relevant to the prosecution.

[5] Pertaining to the charge of impaired driving it is submitted on Irving's behalf that if it is found to be proven that he was the operator that the evidence does not establish impairment in the ability to operate a motor vehicle arising from alcohol.

[6] The following are the written reasons promised at the disposition of these charges on April 19.

The Evidence

Beverly Hillier

[7] Ms. Hillier is a health care worker. On August 10, 2016 she was driving home in the early afternoon. Her tenant, Kim Reed, was with her. Reed was sitting in the front passenger seat.

[8] Hillier was travelling northbound on Highway 410. She saw a black Ford pick-up truck ahead of her that was swerving all over the road and going in and out of the ditch. It was crossing over lanes. She could not see who was driving the truck.

[9] Hillier told Reed to phone the police.

[10] The pick-up truck exited at Sandalwood Parkway. Hillier followed the truck up the ramp. She was able to record the licence plate identifier and pass that along to the police who were on the phone with Reed at that time. At Sandalwood the pick-up truck turned right and she turned left.

Kimberly Reed

[11] Ms. Reed is retired. She was a front seat passenger in Bev Hillier's motor vehicle on August 10, 2016 in the early to mid-afternoon. They were going home. They live in Orangeville. The weather was clear. The roads were dry. About two or three cars ahead she saw a black pick-up truck swerving all over the road. It was all over the highway. It came close to and appeared to hit the cement barriers lining the left side of the northbound lanes.

[12] Reed called 911 and reported what she was seeing. Reed was on the phone with police for about 2 minutes. During that time, she identified the vehicle as a black Ford F150 with licence identifiers "250 5RN".

[13] She did not see the face of the driver. She assumes that the driver was a male because she saw the arm of the driver sticking out the driver side window. That arm was hairy and appeared to her to be the arm of a male.

Sarah Irving

[14] Sarah Irving is the spouse of the accused Joseph Irving. She lives with Joseph Irving at 121 Braidwood Lake Road in Brampton. They have two motor vehicles. Ms. Irving drives a white Ford Fusion sedan. Her husband drives a black Ford pick-up truck.

[15] On August 10, 2016 Ms. Irving was involved in running errands in Toronto and returned to her home in the late afternoon. She was not sure if anyone was home but she saw her husband's truck in the driveway. She rushed into the house because she had to go to the bathroom.

[16] Within a couple of minutes of her arrival at her home she heard a loud knock at the front door. She answered the door. There were two police officers at the door. They asked who the owner of the truck was. She told them that it was her husband's truck. They asked if the owner was home and said they wanted to speak to him. They told her that someone had seen a truck swerving on the 410 Highway.

[17] Ms. Irving went into the house to find her husband. He was in one of the rooms in the house. He went to the door to speak to the police. Ms. Irving went to the kitchen to get a glass of water for her husband. When she got back from the kitchen he was being led away.

[18] The Crown applied for and received permission to cross examine Ms. Irving on the basis of a statement inconsistent with her evidence in chief.

[19] On the voir dire to determine permission to cross examine PC Dane Pallett testified that he arrived at the Irving residence at 3:23 pm and that Sarah Irving answered his knock on the front door. He asked her who was driving the pick-up truck and the answer he recorded in his notes was: "My husband, he just got home".

[20] Ms. Irving denied making the statement and her evidence on that point did not change in the course of the authorized cross examination by the Crown. She insisted throughout that she could not have said "he just got home" because she did not know if he was at home or not until she saw him after the arrival of the police.

[21] The officer asking the question had his foot on the threshold of the door.

[22] When she found her husband she told him the police were at the door to talk to him. He asked if it could wait. She went back to the door. The officers made it clear that they needed to speak to him now. She went back to her husband and told him that they needed to speak to him now. She did not follow him to the door.

Police Constable Dane Pallett

[23] Pallett was working uniform patrol on a day shift on August 10, 2016. He got a radio call for a possible impaired driver on the 410 Highway. He noted that the address of the registered owner was 121 Braidwood Lake Road. He was at Queen Street West and McLaughlin. He drove to the address of the registered owner. He arrived at 3:23 pm. He noted upon arrival that there was a Black Ford pickup truck in the driveway. He confirmed that the licence particulars on the truck matched the particulars provided in the dispatch.

[24] He knocked on the door. A female, later identified as Sarah Irving, answered. He asked who was driving the truck. The reply was: "My husband, he just got home". He told Ms. Irving that he needed to speak to her husband.

[25] Pallett was cross examined on the basis that he had actually asked who the owner of the truck was – as testified by Sarah Irving. He responded that he already had the identity of the owner as a result of the dispatch and he therefore had no need to ask for the identity of the owner. He is certain that he would not have asked Sarah Irving who the owner was.

[26] He admitted that he likely had his foot on the door step to make sure that the door was not closed.

[27] She departed and came back. She asked why he needed to speak to her husband and asked if it could wait until tomorrow. Pallett told Ms. Irving that due to the nature of the call he needed to check on the driver's well-being. He told her that the pick-up truck had been observed driving in and out of the ditch.

[28] Ms. Irving departed and returned. She asked: "Why now?" Pallett told her: "Just tell him he needs to come to the door now".

[29] Pallett was standing at the door when the male, he later identified as the accused Joseph Irving, came to the door. Pallett observed that Irving was walking slowly, that he was swaying, that his eyes were bloodshot and red and that his mouth was rammed full of crackers such that there were crumbs falling to the floor from his mouth.

[30] Pallett asked Irving when he got home. Irving responded: "I have been home all day". Pallett noted that Irving slurred the words "have" and "day". He also noted the strong odour of an alcoholic beverage. By this point officers Rogers and Zeppieri had arrived at the door.

[31] Irving told Pallett that he was going to get a glass of water. Pallett told him he could not get water or leave the front door because he was being detained for an impaired driving investigation. Pallett entered the home to secure Irving's detention. Pallett entered far enough to secure Irving. It was a few steps inside the front foyer. Irving was passively resistant.

[32] Pallett left Irving with Rogers and Zeppieri and went back to his cruiser to check on the time frames and the statements of witnesses in order to be sure of his grounds. He noted that the log indicated that the 911 call came in at 3:11 pm. He satisfied himself that he had grounds to believe that Irving had been operating a motor vehicle. He returned from the cruiser after one minute.

[33] Irving was with Rogers and Zeppieri in the front foyer. Pallett told Irving that he was under arrest. Irving refused to leave the residence. Pallett asked Irving to accompany him without a struggle. Irving refused. Irving was cuffed within the residence with the assistance of the other officers and thereafter was escorted to the cruiser.

[34] The arrest was completed at 3:43 pm. Pallett read rights to counsel after Irving was seated in the rear of the cruiser. This occurred at 3:46 pm. Irving indicated a wish to speak to an identified counsel. At 3:48 pm Pallett read the standard breath demand to Irving. Irving's response was: "fill your boots".

[35] Pallett transported Irving to 22 Division by taking the most direct route. They left the Irving residence at 3:50 pm. They arrived at 22 Division at 4:06 pm. There was a brief delay on the ramp to the sally port. At 4:09 pm they arrived at the 22 Division sally port. At 4:14 and 4:16 pm calls were made to Irving's counsel of choice. At 4:21 pm Irving was placed on the phone with his counsel. By 4:32 pm Irving's phone call was complete and at that time he was transferred to the custody of the breath technician. At 5:08 pm the breath testing was complete and Irving was served with the Certificate of Qualified Breath Technician. The readings were, respectively, 130 mg and 140 mg of alcohol in 100 ml of blood.

[36] Irving was released from 22 Division at 6:07 pm.

Police Constable Daniel Zeppieri

[37] On August 10, 2016 Constable Zeppieri was working a day shift under the supervision of training officer Rogers. He was dispatched to the Irving residence at 3:29 pm. He and Rogers arrived at 3:32 pm. He observed two vehicles in the driveway one of which was a dark pick-up truck.

[38] Zeppieri observed Pallett standing at the front door. He and Rogers went and stood behind Pallett. Pallett was speaking to Joseph Irving when they arrived. Pallett was standing on the veranda in front of the front door. Irving was standing inside the house.

[39] Zeppieri noted that Irving was eating. Rogers had his arm on the door, keeping it open. Pallett went to his cruiser.

[40] Irving attempted to close the door. Rogers prevented the door from being closed and entered the front hallway of the residence where he spoke to Irving. Zeppieri noted that Rogers was explaining to Irving why they were there. He recalls that Irving put his hand on Rogers and said: "you have crossed the threshold".

[41] Pallett returned and told Irving that he was under arrest. There was a minor struggle during which Irving was escorted outside the residence and to Pallett's cruiser.

Police Constable Sarah DeLeeuw

[42] Constable DeLeeuw arrived, with her partner Constable Ferguson, at the Irving residence on August 10, 2016 at 3:37 pm. She observed that the front door was open and that her fellow officers, Pallett, Rogers and Zeppieri were inside the residence with Joseph Irving.

[43] Irving had a bottle of water in his hand. She saw Irving throw his arm up and the officers restrain him. She heard Pallett ask Irving to cooperate and come outside. Irving was refusing to be escorted out. She heard Irving tell the officers that if they left the residence first he would follow behind them. She saw Irving begin to take a drink from the water bottle and Pallett take the water bottle from him. She heard Irving telling the officers to keep their hands off of him and she heard Irving refer to Pallett as "steroid boy".

[44] She saw Irving escorted out of the residence. When she was in proximity to Irving she could smell alcohol coming from his breath. She spoke to Sarah Irving after the arrest.

Police Constable Michael Ferguson

[45] Constable Ferguson arrived at the Irving residence with DeLeeuw at 3:37 pm. He observed from the roadway that there were three officers speaking to a male, later identified as Irving, inside the Irving residence.

[46] He could see Irving raising his arms. It looked like the was trying to get away from the officers. Pallett asked he and DeLeeuw to standby as Irving was being uncooperative.

[47] He heard Irving say that if the officers left the residence he would follow them out. He heard Pallett continue to insist that Irving accompany him outside. He saw Sarah Irving come into the front hall and ask her husband to cooperate with the police.

[48] He saw Rogers and Pallett take control of Irving and bring him out to the front porch where handcuffs were applied with his (Ferguson's) assistance.

[49] He could smell the odour of alcohol on the breath of Irving.

Police Constable Michael Rogers

[50] Constable Rogers is a 12-year veteran of the Peel Regional Police Service. He received a radio call at 3:29 pm instructing him to go to the Irving residence. He was the coach officer for Constable Zeppieri who was riding with him. They arrived at the Irving residence at 3:32 pm. He noted the presence of a Ford F-150 truck parked in the driveway. He is uncertain if there was another vehicle in the driveway.

[51] Upon arrival Rogers noted that Pallett was speaking to a male, later identified as Joseph Irving, at the front door. Irving was standing in the doorway. He observed that Pallett's foot was on the threshold in a position that would have resulted in the door hitting his foot if an attempt were made to close it.

[52] Rogers overheard Pallett say words to the effect of "if you did not have your car just now then who was driving it" in answer to which inquiry Irving shrugged. Irving indicated an intention to go and get some water. Pallett advised Irving that he needed to stay where he was because he was being investigated for impaired driving.

[53] Pallett asked Rogers to stand with Irving in the doorway. While Rogers was standing at the doorway with his hand on the door and his foot on the doorstep Irving attempted to close the door. Rogers prevented Irving from closing the door with his hand and in the same motion stepped inside the residence. He did not ask permission to enter the residence. He felt that he was preserving evidence by going inside to continue the detention.

[54] Rogers entering the residence caused Irving to become aggressive. Irving said to Rogers: "You have crossed the threshold". Irving grabbed Rogers arm. Sarah Irving came to the front door and Irving settled down. Rogers noted an odour of alcohol on Irving's breath. Rogers permitted Irving to get a bottle of water. Rogers estimates that Irving was out of his sight for about 20 to 45 seconds while Irving was retrieving the bottle of water.

[55] Pallett returned to the front door after an absence of about one minute. Pallett advised Irving that he was under arrest. There was some passive resistance to the application of handcuffs. Eventually Irving was handcuffed. At some point Irving complained that the cuffs were too tight and Rogers loosened them.

Joseph W. Irving – Charter Application Only

[56] Mr. Irving is 66 years old. He is a lawyer by profession. His legal practice includes work in the field of criminal law.

[57] On August 10, 2016 at around 3:30 in the afternoon Mr. Irving was inside his home. He heard his wife enter the house. Shortly after that he heard the doorbell for the front door ring. His wife came to where he was sitting. She told him that the police were at the door and wanted to speak to him. He told her to tell them to come another day. His wife eventually insisted that he go to the door to see the police and he relented.

[58] Irving attended at his front door. Constable Pallett asked Irving if he had been driving. Irving made no response. Irving was standing a distance of 4 feet from the front door threshold. One of the officers at the door – there were three – had his foot on the doorway threshold. Prior to attending at the door Irving had consumed some scotch whiskey and crackers.

[59] Not long after he first arrived at the front door he was advised that he was being detained for an impaired driving investigation and he was instructed by the officers present that he was not to leave the immediate area.

[60] Constable Pallett left the front door. Rogers had his foot on the threshold. Irving started to close the door. At that point Rogers entered the residence by ducking under Irving's arm. Irving grabbed Rogers with his left hand and drew back his right arm. He intended to "clock" the officer. Before he could swing his fist another officer (Irving believes this was Ferguson) grabbed his right arm.

[61] Irving told the officers to "get the fuck out of my house". At this point Pallett had returned and told Irving that he was under arrest for impaired driving. Thereafter he was dragged through the door by the belt to the porch where handcuffs were applied and the arrest was completed.

Judicial Notice

[62] At the suggestion of counsel and order to secure assistance with distance and driving times the Court consulted with Google Maps. From that source it was determined that the distance from the intersection of the Highway 410 Sandalwood northbound exit with Sandalwood Parkway to the Irving residence at 121 Braidwood Lake Road is 3.8 km and the estimated driving time is 6 minutes.

Findings of Fact

[63] All of the witnesses presented their evidence in a clear and straightforward manner. I am satisfied that all of them made a genuine attempt to recollect the events they described as accurately as they were able. While, for reasons set out later herein, I prefer the evidence of Constable Pallett where it conflicts with Sara Irving as to the content of her utterances during their exchange at the front door, I am mindful that the key statement – "my husband, he just got home", was not adopted by Ms. Irving and it is therefore inadmissible for the truth of its content on any of the issues on the trial proper – the most prominent being identification.

[64] I also recognize that there were inconsistencies between the evidence of the various officers in particular as it relates to the sequence of events at the doorway of the Irving home. For that reason, wherever there is an inconsistency involving interactions with Joseph Irving I have accepted the narrative provided by Joseph Irving. Relating to the verbal exchanges between Sarah Irving and Constable Pallett prior to the arrival of Joseph Irving I have credited the account given by Constable Pallett.

[65] Based on the evidence that I accept I make the following findings of fact:

• While travelling northbound on Highway 410 in the City of Brampton Bev Hillier and Kim Reed observed a black Ford F-150 pick-up truck travelling northbound in front of them;

• The truck was swerving all over the road – she observes that it almost enters the ditch and then comes out again;

• The driving conduct was so erratic that Reed worried that the truck will hit someone and she telephoned 911 from Hillier's vehicle and provided a running commentary for the police dispatcher;

• The Ford F-150 that they were observing exited Highway 410 at the Sandalwood Parkway exit. At that point Reed was able to provide the police with the Ontario licence plate identifiers of 250 5RN;

• The point at which the 410 exit ramp intersects with Sandalwood Parkway is the last location at which Hillier and Reed had visual observation of the Ford F-150;

• At a point 1 minute and 45 seconds into the 911 call Reed and Hillier report that the truck has turned onto Sandalwood and is proceeding in a direction opposite to the one that they are about to turn to;

• The entire 911 call lasts 3 minutes and 28 seconds;

• 3:14 pm - Constable Pallett hears the radio dispatch relating to the 911 call – assuming that the dispatch would have been sent out immediately after the call was completed this is consistent with Pallett's note that the 911 call came in at 3:11 pm and it would situate the last observation by Hillier and Reed of the Ford F-150 at around 3:13 pm plus or minus 60 seconds;

• 3:23 pm – Pallett arrives at the Irving residence, he sees the Ford F-150 in the driveway, he confirms that the licence plate identifiers are a match, he goes directly to the front door, he knocks and waits, Sara Irving answers the door and Pallett speaks to Sara Irving – Pallett asks questions about the truck and then tells Sara Irving that he needs to talk to her husband;

• Sara Irving departs and consults with her husband who tells her to tell the police to come another day – Sara Irving returns to the doorway where she asks Pallett if they can come back tomorrow or another time – Pallett advises her that it cannot wait and he needs to speak to her husband now – Sara Irving departs again and returns to ask Pallett "Why now?" to which Pallett responds: "Just tell him he needs to come to the door now" – Sara Irving then departs and shortly thereafter Joseph Irving appears at the doorway;

• 3:30-3:32 pm – Joseph Irving comes to the door and begins a verbal exchange with Pallett during which Pallett detects the odour of alcohol on Irving's breath, that Irving has his mouth full of crackers, that Irving is walking slowly and swaying, that Irving's eyes are watery and bloodshot and that Irving slurs the words "have" and "day" in the course of saying "I have been home all day";

• 3:32 pm – Constable Rogers arrives and joins Pallett at the door – he hears Pallett tell Irving that he is being investigated for impaired driving;

• 3:32-35 pm – Zeppieri arrives – he also hears Pallett telling Irving that he is under investigation for impaired driving – he attends at the front door;

• At this point Pallett, Rogers and Zeppieri are standing on the front porch of the Irving residence, Pallett's foot is on the threshold and Irving is standing at the doorway within the front entrance area close to the front door;

• Pallett instructs Irving that he is not to move from the immediate area and then leaves the front door and goes to his cruiser;

• When Pallett leaves Rogers puts his arm on the front door to hold it open and puts his foot on the threshold;

• Irving attempts to close the door in response to which Rogers enters the Irving residence to prevent the door from being closed – Zeppieri follows closely behind – Irving struggles briefly with Rogers – Irving is restrained – Pallett returns and utters words of formal arrest – Ferguson and DeLeeuw arrive and assist – Irving is asked to accompany the officers to the cruiser – Irving says that he will follow the police officers out of the house if they leave the residence first – the police decline this invitation – Irving is escorted out of his residence and handcuffed on his porch;

• The arrest is completed at 3:43 pm;

• Irving is escorted to the cruiser and placed in the back seat where Pallett reads the rights to counsel recitation and makes a demand for samples of breath – rights to counsel are provided at 3:46 pm and the demand is made at 3:48 pm;

• Pallett departs from the residence with Irving at 3:50 pm and arrives at 22 Division at 4:06 pm;

• Irving's counsel is called at 4:14 pm and Irving speaks to counsel at 4:21 pm;

• At 4:32 pm Irving is placed in the custody of the Qualified Breath Technician who completes the testing at 5:08 pm and issues a Certificate.

Analysis

Identification

[66] The Charter issues are irrelevant unless the Crown has proved beyond a reasonable doubt that Irving was the driver of the Ford F-150 pick-up truck observed by Reed and Hillier on Highway 410.

[67] There is no direct evidence that places Mr. Irving in the driver seat of the Ford F-150.

[68] Identification may be established by circumstantial evidence so long as the trier of fact is "satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn from the evidence."

[69] The evidence in this case that bears on the issue of the identification of the driver is as follows:

• Joseph Irving is the owner of a black Ford F-150 pick-up truck bearing an Ontario licence plate with the identifiers 250 5RN;

• 121 Braidwood Lake Road in Brampton is the residence of Joseph Irving;

• Sara Irving is the only other resident of 121 Braidwood Lake Road;

• The Ford F-150 is ordinarily used by Joseph Irving;

• Sara Irving did not operate the Irving Ford F-150 on August 10, 2016;

• There is no evidence that the Irving Ford F-150 was reported stolen;

• No other consensual user of the Irving Ford F-150 is identified;

• As of 3:23 pm the Irving Ford F-150 was in the driveway of 121 Braidwood Lake Road;

• The Irving Ford F-150 was observed on Highway 410 and on the Highway 410 exit ramp to Sandalwood Parkway within 15 minutes of 3:23 pm;

• The observations of the civilian witnesses Hillier and Reed are not inconsistent with Joseph Irving being the operator;

• The distance from the point at which Hillier and Reed last observed the Irving Ford F-150 is 3.8 km from the Irving residence at 121 Braidwood Lake Road and the ordinary driving time between the two points is not inconsistent with the Irving Ford F-150 being in the driveway of the Irving residence when Constable Pallett arrives at 3:23 pm.

[70] The evidence outlined above reasonably and logically supports the inference that Joseph Irving was the operator of the Irving Ford F-150 at the time that it was observed on Highway 410 and the Highway 410 exit ramp by Reed and Hillier and it is the only reasonable inference, not founded in pure speculation, which arises from those facts.

Reasonable and Probable Grounds

[71] The analysis of this issue as well as the analysis the issue of arbitrary detention assumes that Constables Pallett, Rogers and Zeppieri were all lawfully situated at the Irving residence front doorway up to and including the moment at which Joseph Irving arrives at the front hall.

[72] The Criminal Code requires that in order to justify a demand for breath samples under section 254(3) a peace officer must have reasonable grounds to believe that the person to whom the demand is made is committing, or at any time within the preceding three hours has committed, an offence under section 253 – that is to say either impaired driving or driving with a blood alcohol concentration above the legal limit.

[73] The onus is on the Crown to prove reasonable and probable grounds exist:

The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown (R v. Bartle, [1994] 3 S.C.R. 173, p. 210).

[74] The standard of reasonable and probable grounds in the context of drinking and driving prosecutions exists within a continuum of findings beginning with a reasonable suspicion the driver has alcohol in his body (ASD test threshold) and ending with the standard of proof beyond a reasonable doubt required to sustain a conviction. Reasonable and probable grounds lies between the two ends of the spectrum.

[75] The arresting officer must not only have reasonable grounds in the subjective sense of a personal, honestly held belief, but also the asserted grounds must be justified on an objective measure of a reasonable person standing in the shoes of the officer. The reasonable grounds to believe standard consists of compelling and credible information that provides an objective basis, or objectively discernable facts, for drawing inferences as to the existence of factual circumstances – in other words, credibly based probability.

[76] The reasonable and probable grounds standard is not an onerous test. It is not to be inflated to the equivalent of "prima facie case" or balance of probabilities but by the same token it must discernably rise above mere suspicion or possibility and it must not be so diluted as to threaten individual freedom.

[77] I am mindful of the following additional factors relevant to the assessment of reasonable and probable grounds:

• Reasonable grounds can be based on information received from third parties without infringing the hearsay rule;

• Reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol will suffice;

• In deciding whether reasonable grounds exist the arresting officer must conduct the inquiry which circumstances reasonably permit taking account of all available information and disregarding only such information as he or she has good reason to believe is unreliable – the officer is not required to seek out exculpatory facts or rule out possible innocent explanations – a trial judge should not engage in a minute dissection of the officer's grounds looking at each in isolation nor is the objective assessment of grounds the equivalent of an impaired driver scorecard with a list of present and absent indicia;

• Reasonable and probable grounds do not involve a mathematical assessment of facts and circumstances but rather a non-technical approach.

[78] As of 3:14 pm Pallett had a report from civilian witnesses of erratic driving on Highway 410. He had a description of the motor vehicle involved including the licence plate identifier and he had the name and address of the registered owner.

[79] Within 10 minutes Pallett had located the vehicle at the residence of the registered owner and he had confirmed that the licence identifier provided by the civilians matched the vehicle in the driveway.

[80] Notwithstanding her refusal to acknowledge the statement, I am satisfied on the evidence and find that Pallett asked Sara Irving who had been driving the Ford pick-up truck and that her response was: "My husband, he just got home". Pallett had no reason to ask who the owner was – he already knew – and every reason be interested in who had been driving the truck. The statement attributed by Pallett to Sara Irving is also consistent with the fact, given the observations of Hillier and Reed that the truck must have arrived in the driveway within the previous 5 to 10 minutes.

[81] When Joseph Irving arrived at the doorway Pallett was able to detect the strong odour of an alcoholic beverage coming from Irving, that Irving's eyes were bloodshot and watery, that Irving was swaying and walking slowly, and that Irving's speech was slurred.

[82] I find that at that point in time Pallett had credibly based probable grounds to believe that Joseph Irving had been operating a motor vehicle within the previous three hours at a time when his ability to do so was impaired by alcohol. He had evidence that the driving had occurred within the previous 15 minutes to half an hour and he had no evidence, from Irving or otherwise, that any alcohol had been consumed after the driving had ended.

Arbitrary Detention

[83] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. A detention will not be arbitrary if it is lawful. One type of lawful detention is a common law "investigative detention" as recognized and defined by the Supreme Court of Canada in R v Mann.

[84] This power allows the police to detain people for investigation "if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary."

[85] However, the investigative detention must be brief in duration and conducted in a reasonable manner.

[86] For the reasons set out in paragraphs 73 through 77 herein, it is my finding that Pallett, following his brief interaction with Joseph Irving at the door step of the Irving residence, had reasonable and probable grounds to arrest Irving for impaired driving. He did not arrest Irving at that point but instead opted to check the call log and review his grounds before making a formal arrest.

[87] It follows that Pallett had a sufficient basis to support the lesser standard of reasonable suspicion and to initiate an investigative detention. He initiated the investigative detention with clear language and direction – effectively – you may not get some water and you must remain at the door because you are under investigation for impaired driving.

[88] Pallett then left to check the log and review his grounds. According to Irving, Pallett was gone for about a minute before he returned and made the formal arrest. There were other estimates of the time that Pallett was absent from the doorstep but none exceeded 3 minutes.

[89] I am satisfied that Pallett had the necessary reasonable suspicion, that the length of the investigative detention was brief and that the steps taken by Pallett to restrict the liberty of Irving – essentially to remain in sight and forbear from the consumption of any liquids – were reasonable within the context of an impaired driving investigation.

Right to Counsel

[90] The rights relating to retaining counsel and securing legal advice as set out at section 10(b) crystallize at the moment that there is a detention. The obligation is to inform the citizen at that point "without delay".

[91] The investigative detention here was initiated by Pallett at the Irving residence doorstep prior to his brief departure to review and consolidate his grounds. At least two other officers remained at the doorstep with Irving. Officer safety was not implicated. There was no impediment to Pallett providing rights to counsel before he left. There was no impediment – apart from the action of Irving himself in seeking to close the door – to Rogers or Zeppieri providing Irving with rights to counsel while Pallett was absent.

[92] Irving was not informed of his right to retain counsel until after Pallett had returned and effected the arrest.

[93] While the interlude in issue was no more than 3 minutes, and could have been as short as one minute, it does not qualify as "without delay" after the onset of the investigative detention.

[94] I find that in this respect the informational component of Irving's section 10(b) Charter right was breached.

Warrantless Entry of Residence

[95] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure.

[96] The sanctity of a private dwelling has long been recognized. The recent decisions of the Supreme Court of Canada in R v. MacDonald and R v. Patterson highlight the importance of the right against unreasonable search and seizure of a private dwelling.

[97] The history and underlying rationale for the sanctity of the home principle together with an identification of recognized exceptions to the principle are summarized by Justice Code in his decision in R v Zurgar at paragraphs 19-22 as follows:

[19] The answer to this question turns on the longstanding common law precept concerning the "sanctity of the home". Although this principle dates back to seventeenth century English common law, it has repeatedly been applied in a strong line of modern Canadian authority. For example, R. v. Colet (1981), 57 C.C.C. (2d) 105 at 110-113 (S.C.C.) was a case where the police had a warrant to "seize" Colet's firearms. However, the warrant did not expressly authorize entry onto his premises in order to effect that seizure. Ritchie J. gave the unanimous judgment of the Court and stated:

It is true that the appellant's place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the City of Prince Rupert, but what is involved here is the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne's Case (1604), 77 E.R. 194, where it was said: "That the house of every one is to him as his (a) castle and fortress, as well as his defence against injury and violence, as for his repose …". This famous dictum was cited by my brother Dickson in the case of Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 129, (S.C.C.), in which he made an extensive review of many of the relevant authorities.

…it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.

As I have indicated, I am of opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner.

In the result, I am of opinion that the police officers were acting without authority in attempting to enter and search the appellant's property and they were therefore trespassers.

[20] In R. v. Thomas (1993), 78 C.C.C. (3d) 575 (S.C.C)., affirming (1991), 67 C.C.C.(3d) 81 at 91 (Nfdl. C.A.), the "sanctity of the home" principle was concisely stated in the following terms:

The police must, therefore, rely entirely upon a valid and unrevoked invitation to enter and remain in the house. The law is quite clear on this and there is no need to refer to many cases. Unless authorized by statute or the common law, a police officer may not enter the premises of another without that other's permission and must leave if and when that permission is revoked.

See also: Eccles v. Bourque (1974), 19 C.C.C. (2d) 129 (S.C.C.); R. v. Kokesch (1990), 61 C.C.C. (3d) 207 at 218 and 230 (S.C.C.).

[21] Given the clarity and strength of the above common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called "exceptions" to the general rule include the following:

• Where the police are in "hot pursuit" or "continuous pursuit" of an offender who has "gone to his home while fleeing solely to escape arrest". See: R. v. Macooh (1993), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 2007 ONCA 824, 226 C.C.C. (3d) 289 (Ont. C.A.);

• Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 12 C.C.C. (3d) 372 (Sask. C.A.);

• Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.);

• Aside from the above three exceptions, the common law did not recognize any broad residual "exigent circumstances" basis for forced entry. See: R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in "exigent circumstances", provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, "exigent circumstances" are defined as "imminent bodily harm or death" and "imminent loss or imminent destruction of evidence";

• Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

[22] Given the relatively small number of exceptions to the rule against forced entry of residential premises by the police, and given their narrow definitions, the courts have repeatedly held that there is no power to enter a dwelling simply for purposes of furthering an investigation. This is precisely what P.C. Mota thought he had the power to do in the case at bar. In R. v. Ryan (1956), 116 C.C.C. 239 (B.C.C.A.), it was held that "the mere desire to make an investigation gives no such right of entry". In R. v. Custer, supra at p. 386, Chief Justice Bayda stated:

"… the circumstances confronting Cst. Haughn involving, as they did, no more than the investigation of an offence with a view to apprehending the offender, would not have justified Cst. Haughn to enter the defendant's home against the defendant's will … The investigation of an offence with a view to apprehending the offender is not an exception at common law entitling a police officer to enter a dwelling house against the householder's will, and in consequence, Cst. Haughn was acting outside his lawful authority and thus not engaged in the execution of his duty …"

See also: R. v. Thomas, supra at p. 94; R. v. Plamondon (1997), 121 C.C.C. (3d) 314 at paras. 33-35 (B.C.C.A); Davis v. Lisle, [1936] 2 K.B. 434.

[98] Absent consent, a warrantless search is prima facie an unreasonable one.

[99] Where a warrantless search is conducted of a person's residence, the Crown has the onus of showing that the search was lawful.

[100] The occupier of a dwelling gives implied licence to any member of the public, including police officers, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling.

[101] The property owner is, however, entitled to withdraw the licence. Once the licence is withdrawn the person who has entered under the licence must leave the property within a reasonable time or become a trespasser.

[102] The implied invitation to knock principle was considered and affirmed by the Supreme Court of Canada in R v Evans. In the course of that decision Justice Sopinka identified certain limitations to the principle as follows:

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.

In the present case, I am of the view that the actions of the police went beyond the forms of conduct permitted by the implied licence to knock. Although I accept that one objective of the police in approaching the Evans' door was to communicate with the occupants of the dwelling in accordance with the implied licence to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans' door was to attempt to "get a whiff [sic] or a smell" of marijuana. As a result, the police approached the Evans' home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. 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. (my emphasis)

[103] In R v Lotozky the Ontario Court of Appeal expanded the parameters of permissible inquiry by indicating that the police could rely upon the implied invitation doctrine to enter onto private property to the extent of conducting an investigation in the driveway, notwithstanding that their clear intention was to secure evidence in relation to an impaired driving investigation. Justice Rosenberg was careful to make it clear however that the extension of the doctrine in that case was closely tied to the fact that the entry and investigation was in relation to the driveway of the residence which he distinguishes in paragraph 32 from inquiries made at the doorway to the home.

[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 open area that is visible to the public. The scope of the implied invitation must be analyzed in that context.

[104] Later in the decision Justice Rosenberg makes the following remarks that are also directly applicable to the case at bar:

[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.

[105] Justice Duncan, in R v Golubentsev, makes an eloquent and compelling argument that same principles that inspired the Court of Appeal in Lotozky to expand the parameters of the implied invitation exception, in the context of impaired driving investigations, beyond the restrictions imposed by the language in Evans (see paragraph 99 herein) in relation to searches conducted on the driveway should logically and reasonably be extended at the least to the doorway and perhaps beyond the threshold.

[106] While I find the argument he makes both sensible and attractive I am constrained to note the following: (a) that in the context of the decision he was required to make the reasoning was obiter inasmuch as he found that the police were invited to enter; (b) I am not able to locate any subsequent jurisprudence at any level that adopts the Golubsentev argument with the possible exception of the decision of Rose J. of this Court in R v deMedieiros Arruda; (c) the argument is not consistent with the decision of the Ontario Court of Appeal in a somewhat different context in R v Atkinson; and (c) I am not able to reconcile the reasoning suggested by Justice Duncan with paragraph 32 of the Lotozky decision.

[107] While the time frame present in this case would arguably fall within the parameters of the concept of hot pursuit the application of that exception is dependent upon the police having grounds to arrest prior to entry on the property. It is clear that here the necessary grounds do not exist prior to the entry. The situation might have been different if either of Reed or Hillier had been able to provide more information about identity but that was clearly not the case and Pallett did not suggest that he had grounds for an arrest until he had secured information from Sara Irving and he had observed Joseph Irving at the doorway.

[108] None of the other exceptions identified by Code, J. in Zurgar are applicable to this case.

[109] Although he candidly admitted that impaired driving is always in the back of his mind in a situation like this, Constable Pallett insisted that his intention in approaching the doorway at least included a concern for the well-being of the driver of the vehicle observed on Highway 410 and to ascertain if he was suffering from some form of medical emergency.

[110] To that extent, accepting his evidence on that point at face value, his approach to the front door was lawfully within the parameters identified in Evans.

[111] He was entitled on that basis to make enquiries of Ms. Irving and to ask to see Mr. Irving.

[112] What he was not entitled to do, at that or any other point, is to place his foot on the threshold of the doorway. The implication of the placement of the foot is clear – it is a direction that the homeowner is not permitted to close the door – and in that sense it was a direction that the officer was not entitled to give as an implied invitee and it was an encroachment upon the sanctity of the home that he was not lawfully entitled to make. The same observations apply to Constable Rogers' foot on the threshold.

[113] It is my view that, whatever implied invitation the officers might have had at the commencement of the exchange with Ms. Irving, the situation changed after Ms. Irving subsequently returned on two occasions with advice to the effect that Mr. Irving was not interested in coming to the door at that time.

[114] At that point Pallett made no inquiries about Mr. Irving's well-being or medical condition and Sara Irving gave no indication that there was anything amiss, medically or otherwise. Pallett nevertheless insisted, not once but twice, that Joseph Irving come to the door immediately. Pallett's direction to Sarah Irving following her second return was patently a demand and not a request. In these circumstances I conclude that at that point in time Pallett's intentions had shifted from permissible information gathering to impermissible evidence gathering and, based on the quoted dicta in Evans, the legitimacy or lawfulness of his presence at the front door is at an end and the lawful course of action at that point is to withdraw and seek a warrant.

[115] Furthermore, although the implied invitation to attend at the front door is never explicitly revoked by either of the Irvings, it is arguable that Sara Irving's statements to Pallett on her first and second return from consulting with her husband, to the effect that he was not interested in speaking with them until sometime later, represent an implicit but clear revocation of the implied invitation which would likewise terminate the lawfulness of Pallett's continued presence at the front door.

[116] For these reasons I find that there was a breach of Mr. Irving's section 8 right which began, at the latest, at the point that Sara Irving returned from her second consultation with Joseph Irving and continued thereafter up to and including the arrest of Mr. Irving.

[117] This is a conclusion that I reach with some considerable reluctance inasmuch I am of the view that the social policy imperatives identified by Justice Rosenberg in Lotozky at paragraph 37 of his decision and Justice Duncan in Golubsentev, and the scourge on society that impaired drivers represent, ought to justify, largely for the reasons eloquently identified by Justice Duncan, investigative inquiries and observations that occur at the doorway irrespective of whether the primary intention of the officers is to gather evidence against the homeowner.

[118] Those same considerations, it seems to me, should also justify the police being constitutionally permitted to insist that the suspected driver attend at the doorway.

[119] It is not for me however to expand or reinterpret the boundaries of the implied invitation principle identified in the jurisprudence by which I am bound.

[120] If I had found that the continuation of the police presence at the doorway was lawful up to point of Joseph Irving's presentation at the doorway I would have found that the actions of the officers and the process followed thereafter was measured, sensible and reasonable. In that case the basis for investigative detention was, as reasoned earlier, properly formed, the reasonable and probable grounds for arrest were present and Pallett's direction that Irving refrain from the ingestion of liquid and remain in sight were appropriate and reasonable.

[121] Further, in that scenario, Constable Rogers actions in stepping into the doorway to prevent the closing of the door would have been justified under section 529.3(2)(a) of the Criminal Code as a reasonable, measured and lawful response to exigent circumstances created by Irving and based on a need to preserve evidence. I am satisfied that Constable Rogers's intentions were confined to preventing the closing of the door and to ensuring that Irving stayed in the front hall. While there was a physical altercation that occurred at that point it is clear on Mr. Irving's own evidence that the altercation was initiated by Irving and that Rogers and Zeppieri did nothing more in response than was necessary to prevent an assault.

[122] Since the jurisprudence, as I understand it, does not support the continued presence of the officers at the doorway at the time of Joseph Irving's arrival at the doorstep these considerations do not apply and the police are not entitled to rely on exigent circumstances that they themselves created by remaining at the doorway and insisting on the presence of Mr. Irving.

Section 24(2) Analysis

[123] In his Charter application Mr. Irving asked that the evidence of the breath sample readings be excluded under the authority of section 24(2). Under the analysis mandated by the Supreme Court of Canada decision in R v Grant the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system under three lines of inquiry:

• The seriousness of the Charter infringing state conduct;
• The impact of the breach on the Charter protected interests of the accused; and
• Society's interest in the adjudication of the case on the merits.

Seriousness of the Charter infringing state conduct

[124] The analysis begins with the observation that the law has recognized the sanctity of the private home for centuries. As Justice Cory stated in R v Silveira "there is no place on earth where persons can have a greater expectation of privacy than within their dwelling house" and "It is hard to imagine a more serious infringement of an individual's right to privacy. The home is the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy."

[125] The evidence of Constable Pallett, in particular relating to checking on the well-being of the driver of the pick-up, demonstrated that he was cognizant that the lawfulness of his presence at the doorstep of a private home, and the activities he could legitimately engage in at that location was restricted. While the law may be in need of adjustment it cannot be said that the ambit of the implied invitation to knock doctrine is unclear. Constable Pallett should have appreciated that his foot across the doorway threshold was inconsistent with the restrictions on his implied invitation and it likewise ought to have occurred to him, at least after the second return by Sarah Irving to the foyer, that his implied licence to engage with the homeowner at the front door under the invitation to knock doctrine was at an end and he was not therefore in a position to demand that Joseph Irving present himself at the door. This is conduct that cannot be fairly categorized as good faith.

[126] Without that demand and the subsequent appearance of Joseph Irving in the front hall there are no grounds for investigative detention, there are no reasonable and probable grounds for an arrest, there is no breach of Irving's right to counsel and Rogers and Zeppieri are not justified in entering the home to prevent the door from being closed.

[127] While the breach of Irving's section 10(b) informational right, given the relatively short duration, would not by itself warrant exclusion, the fact that there is more than one breach is a factor that weighs in the calculus under this heading.

[128] Given all the circumstances I assess the cumulative breaches and the breach of section 8 to be sufficiently serious to weigh substantially in favour of exclusion.

Impact on Charter Protected Interests

[129] The intrusion into the Irving home was confined to the space within 4 or 5 feet of the front door. Of all of the areas within the home the front door and foyer area is the portion of the house into which members of the public are most likely to be invited. The privacy interests exposed or compromised in that location are arguably less extensive and less serious than in other areas of the home.

[130] That said, Mr. Irving was in his library when he was approached by his wife on three occasions before he acceded to the combination of the demand of Pallett and the urging of his wife. Given the influence of the presence of between three to five officers on the front porch, the implied direction of the foot in the doorway threshold and the content and tone of Pallett's last demand it is a fair characterization that Joseph Irving was coerced by the state from the safety and privacy of his library into the scrutiny of the officers on the front porch. The impact of that coercion persists in everything that follows including his investigative detention, the entry by Rogers and Zeppieri into his home and his arrest within his home.

[131] The evidence gathered as a direct result of the breach was conscriptive, in the sense that Mr. Irving was flushed out of his library, and, not likely to have been otherwise discoverable by reason of the impracticalities of the warrant process identified by Duncan J. in Golubsentev.

[132] While the taking of breath samples is as minimally intrusive and highly reliable as it is in all cases it is a significant and distinguishing feature in this case that the breath samples do not get taken at all without the Charter breach of the sanctity of the home which is not in any sense minimally intrusive.

[133] I assess the impact on Charter protected interests as significant and favouring exclusion.

Society's Interest in Adjudication on the Merits

[134] The evidence of the breath sample analyses is reliable. Society has a strong interest in seeing the adjudication on the merits of prosecutions of impaired drivers, particularly where the prosecution includes evidence of erratic driving that is potentially dangerous.

[135] This factor leans toward inclusion.

Balancing

[136] I have assessed two of the three factors as favouring exclusion. The seriousness of the Charter infringing state conduct being the stronger of those two factors. In this situation, as Justice Doherty observed in R v McGuffie, "if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the scales in favour of admissibility."

[137] The evidence of the breath sample readings is excluded.

Over 80 and Impaired Operation of a Motor Vehicle

[138] Without the evidence of the analyses of the breath samples the "over 80" prosecution fails.

[139] The vehicle observed on Highway 410 was being operated by Joseph Irving. Two civilians observed that the vehicle was being operated recklessly though they did not observe the operator lose control and they did observe the operator to make a safe exit from the highway.

[140] The time frames in issue do not exclude the possibility that the indicia of alcohol consumption observed by Pallett resulted from post driving consumption.

[141] The observations made by Pallett and Rogers at the doorway are sufficient, with the evidence of driving, to establish reasonable and probable grounds but not sufficient, without the breath readings, to meet the much higher burden required to establish proof beyond a reasonable doubt.

[142] In any event, on my analysis of the section 8 Charter breach, those observations should logically be excluded as well.

[143] There is not a sufficient foundation for a finding of guilt on the impaired operation charge.

Final Comments

[144] I wish to express my gratitude to Mr. Bradley who conducted a thorough and fair prosecution throughout. He was adept at identifying the key issues and he was generous in assisting the court with understanding both sides of the argument on each of those issues.

Released: April 24, 2018

Signed: "Justice George S. Gage"