Court File and Parties

Date: August 28, 2018

File No.: 2811-998-16-37517-00

Ontario Court of Justice

Her Majesty the Queen

v.

Gavin Mendonca

Proceedings at Judgment

Before the Honourable Mr. Justice G.R. Wakefield

on Tuesday, August 28, 2018 at Oshawa, Ontario

Appearances

• B. Morgan, Counsel for the Crown
• S. Khehra, Counsel for G. Mendonca

Reasons for Judgment

WAKEFIELD, J: (Orally)

Charges and Procedural History

Mr. Mendonca was charged with one count of impaired care and control and one count of refuse demand for breath samples. The impaired count was withdrawn on the first day of trial.

Both counsel have responsibly narrowed the issues down to two very discrete questions arising from a Charter application contesting the lawful ability of an officer's attendance at the defendant's residence door while continuing an impaired investigation and, secondly, then whether there was consent to his entering the residence resulting in a subsequent arrest of the defendant within his own residence once the officer observed sufficient indicia of impairment.

I note that the entry and arrest within the residence results in presumed Charter breaches with the onus on the Crown on a balance of probabilities test.

This trial was so focused that the only witnesses were the arresting officer and the defendant. It was conceded by the defence that should the Charter application fail, that the conviction for refusing would result. Defence conceded quite properly the officer's reasonable and probable grounds for arrest, the provision of rights to counsel and cautions after arrest.

Facts

An overview of the facts to this trial are quite succinct. P.C. Park received a dispatch to attend for a possible drunk driver. He receives additional information as to the name and address of the registered owner of the subject vehicle. The officer attends that address. It is a snowy cold day and the neighbourhood vehicles are all snow covered except one, the subject vehicle in the driveway of the registered owner's residence. In walking up the path of that residence the officer touches the car and confirms it is indeed still warm. He continues up to the porch and knocks on the door.

The defendant opens the front door. The officer enquires whether the defendant was the owner of the car in the driveway. The officer observes he had to ask the question more than once before getting an affirmative reply. He also observes the defendant eating a pasta meal from a can. While not in his notes he has an independent recollection of sauce smeared over the defendant's face. He asked the defendant for his name and is told "Gavin".

The officer says that the defendant invited him in; the words the officer "thinks" were said were "come in". The officer lacks any notes as to the words used by the defendant. There is no notation at all on his scratch pad or his duty memo book and only in the occurrence report is found the note that the officer was invited in, without any particulars as to the wording or gestures or the basis for that conclusion. While the officer testified he believed the defendant said "come in" it was said with little confidence and ultimately the officer agreed he did not have a clear recollection of the exact words, he was confident in his memory of the defendant inviting him in.

P.C. Park also confirmed that given how freezing it was outside that it was easier to take the continuation of the investigation inside the warm house.

The officer describes entering and the defendant moving further into the residence and going into the kitchen, which the officer describes as the defendant leading him into the kitchen.

At some point upon entry, and the officer again used the word "believed", he cautioned the defendant that he was investigating an impaired driving complaint. The officer again used the word "believed" when saying that caution occurred as he was stepping inside. The caution certainly was not provided before entering the residence prior to the defendant making an informed invitation to enter, if invitation was indeed made to the officer. In any event, there was no reply by the defendant to that caution.

There were further questions of the defendant regarding if he had driven, when he returned home and in answering these questions the officer observed slurred speech, difficulty in answering the questions (a trait observed in the defendant when testifying presumably in a sober state), in a carefree and jovial mood apparently unconcerned with the officer's attendance and investigation. He smelled a strong odour of alcohol. The officer asked if the defendant had consumed alcohol since returning home answered in the negative.

The officer interpreted the defendant's reactions being confusion over the officer being there, as opposed to an officer being inside the house.

The officer was forthright in conceding that prior to entering the house he did not have any grounds at all to arrest let alone even demand an ASD. The formal arrest took place inside the kitchen area upon which the defendant's demeanour was described by the officer as argumentative and derogatory towards the officer.

Defendant's Testimony

The defendant testified. I am disabusing myself of his derogatory and misogynistic references to his lady friend who was apparently at home in his bedroom when the officer arrived. His attitude towards women, while reprehensible, is not relevant to the issues in this trial, other than possibly corroborative of P.C. Park's description of the defendant's reaction to being arrested, albeit without an evidentiary basis for what was actually said to the officer.

The defendant was one of the most discreditable witnesses I have had the misfortune to observe, with most of his answers being unresponsive to the actual questions asked of him in cross-examination, then contradicting himself almost in the same breath. The Crown terminated the cross-examination after a short period of time quite rightly anticipating that I would view the defendant's testimony as carrying no weight whatsoever. All I have left in this equation is the denial of an invited entry asserted by a witness whose testimony was discredited and a police officer who said he was invited in albeit with a lack of specificity.

Legal Analysis: The Implied Licence to Knock

Were the test herein a defence onus for finding a Charter Section 8 breach for failing to obtain a Feeney warrant, there would be no evidence to support a breach.

However, given that justification for the entry is a Crown onus on a balance of probabilities standard, I must continue the enquiry as to whether the entry into the defendant's residence amounted to a breach of Section 8 and if so, whether such a breach warrants exclusion of the evidence obtained from the breath samples.

Firstly, it is my view that in Ontario, an officer walking up a residential path to the front door of that residence falls within the rubric of the implied invitation to knock on such a front door (R. v. Atkinson, 2012 ONCA 380, [2012] O.J. No. 2520, citing R. v. Evans, [1996] 1 S.C.R. 8). In the case at bar, there was no evidence of any expression of intent of the homeowner to exclude police from that implied invitation. However, that implied licence ends at that door (R. v. Tricker (1995), 21 O.R.(3d) 575, at p. 579).

I do acknowledge that in the Evans case, the Supreme Court at paragraph 20 states that:

"Where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through "knocking on the door", the police have exceeded the authority conferred by the implied licence to knock."

And further at paragraph 21:

"I conclude that individuals in the position of the Evans have a reasonable expectation of privacy in the approach to their home, an expectation that is waived for the purpose of facilitating communication with the public (including the police) exceed the terms of this waiver, and approach the door for some unauthorized purpose, they exceed the terms of this waiver, and approach the door for some unauthorized purpose, they exceed the implied invitation and approach the door as intruders."

In Evans, the police approached the door with the intent to make enquiries and "sniff" at the front door. That sniff smelled of marijuana and only then were the premises entered to be secured pending a search warrant.

I also note that notwithstanding the police breach of the "bulwark" of a residence, the physical evidence was not excluded in that former case.

However, in the case at bar, at the time P.C. Park approached the defendant's front door, while he was investigating an impaired driving complaint, his only intent regarding the defendant was to make further enquiries which arose from the information that the defendant was the registered owner of the identified car.

Entry into the Residence

Not every entry of a residence by an officer is a Charter breach. The obvious exception related to the case at bar is where the officer is invited into the residence, such an invitation "may be implied from the circumstances for example, from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place" (R. v. Clarke (2005), 196 C.C.C.(3d) 426 (Ontario Court of Appeal) at paragraph 28).

On a balance of probabilities standard, has the Crown demonstrated here a lawful entry by P.C. Park?

While I accept P.C. Park's assertion that he only went to the door to confirm who had been driving and was open to any number of different causations for the driving observed by the complainant, ultimately, he was going to the door to continue the investigation into an impaired complaint. On his testimony, the officer was unaware whether the driver was an occupant of the house or not, nor even if the maligned driving was the result of alcohol consumption or not. As such I am not prepared to find as a fact that approaching the defendant's door breached the implied licence due to the officer's intent to gather evidence against an occupant (Atkinson, para. 48). The investigation had not yet reached the point of gathering evidence of impaired (as opposed to determining the car had recently been used) and as such the officer was not yet engaging in a search of the occupant's home which would breach the implied licence to knock (Atkinson para. 47).

Consent to Enter

Was the entry into the home lawful by way of an invitation spoken or implied?

"When determining whether to imply an invitation to enter a residence from the words or conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with the police. We should not too readily imply an invitation to enter from the absence of objection of mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances" (Atkinson para. 49, citing R. v. Wills (1992), 7 OR(3d) 337 at p. 348).

If I were able to find as a fact that the officer's entry was met with mere acquiescence or compliance in equivalent circumstances, then I would find the entry to be unlawful. Given the lack of credibility of the defendant together with the officer's testimony that the defendant not only verbally invited the officer in but invited him by action to follow him into the kitchen amounts to substantially more than mere acquiescence by the defendant.

I acknowledge disturbing lacunae in the officer's memory and note taking regarding the specific circumstances of the invitation to enter.

The weather was bitterly cold that evening, so I could understand either an officer perhaps pressing forward into the warmth of a residence rather than conduct a conversation outside. I can also understand a residential occupant inviting an officer into the warmth of a house to preserve the officer from the cold.

The officer had a scratch pad and duty memo book with him on both of which he made entries. Upon returning to the station, he made more fulsome entry on a typed occurrence report.

The scratch pad, which to the officer's credit was quite properly preserved, only had entries regarding the shift start time and another time entry, but no notes at all regarding the defendant.

The duty memo book noted details of the defendant such as eating pasta and observing a book about alcoholism once in the house. The officer did not document at all the precise words of the defendant's entry, only having an independent memory that he was invited in together with an undocumented belief that the defendant said come in or words to that effect. None of the specific details regarding the door the officer entered through, or how they ended up in the kitchen were documented. Indeed, the invitation itself was only documented upon returning to the station when preparing the typewritten report and even in that report was a dearth of details. The purpose of the officer's attendance was not disclosed until just after the entry, potentially causing the defendant of possibly not being sufficiently informed in order to make a voluntary informed invitation, nor aware of the right to refuse entry and sense of the potential consequences of giving consent (Atkinson, para. 56).

Had the defendant any credibility in his testimony I would have found a denial invitation sufficient to find that the Crown had not met its burden for the Charter breach given the defects in the officer's testimony. However, where the defendant's testimony is discounted, I find that while the lack of proper documentation is worrying, the officer had a recollection of an invitation which has not been rebutted, and I find the Crown has met its burden on a balance of probabilities. I would not have found the Crown meeting any higher standard on justifying the Charter breach if there was one.

Evidence Exclusion Analysis

To ensure a clear record, had I found the Crown not having met its burden, and that the entry was unlawful, I would have excluded the circumstances of refusal from evidence. The exclusion would be a result of the need for the Court to disassociate itself from such unlawful conduct, especially where the breach is into the personal residence of the occupant.

The evidence of refusal is clearly essential to the Crown case. However, I perceive a warrantless forced entry, and by forced I mean officer conduct resulting in mere acquiescence, into a residence so odious it must be characterized as a most serious breach had I made findings of those facts.

The public has a strong interest in both the prosecution of conduct which causes such carnage on our roads, but the public has a far greater interest in the protection of the privacy and sanctity of residences within our community.

Interpretation of Case Law

I have been provided R. v. Rogers [2016] S.J. No. 442 of the Saskatchewan Court of Appeal, but am not bound by it even where leave to appeal was denied by the Supreme Court. At para. 49 the Court interpreted Evans as rescinding the licence to knock by any officer having the mere possibility of securing evidence against an accused. My difficulty is that any police-citizen contact has that possibility even if all the involved officers are doing is perhaps a mere community outreach, notifying neighbourhoods of community events or warning of increased risk of crime in that neighbourhood. I understand Evans to require an officer's mindset to look for specific evidence in a specific crime.

I acknowledge apparent friction between Atkinson and Evans in R. v. Lotozky, 81 OR(3d) 335 (OCA) which I would resolve by noting the main concern in Lotozky was regarding the public view of the subject automobile on that defendant's driveway who having just returned and parked, was still in the automobile when approached by the police, as opposed to the more intrusive door knock. In Lotozky the driver was still in his vehicle and further the Court confirmed he had the right to tell the police to leave his property by revoking the implied licence if done prior to grounds for arrest (para. 23 and 24).

One can only imagine the conflicting versions between suspect and officer as to when each asserted their respective positions and a trier of fact can only hope a widespread use of body cameras will prevent too much lost court time in such a credibility battle whether R. v. Lotozky or even the case at bar.

Conclusion

In the case of Mr. Mendonca however, there is no proven breach, the samples are admissible and there will be a conviction.

Released: August 28, 2018 G.R. Wakefield, J.