REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE S. LATIMER on July 30, 2021 in BURLINGTON, Ontario

Appearances: C. Eastwood Counsel for the Crown R. Patel Counsel for G-Randolph Howden

LATIMER, J. (Orally):

These are my reasons for decision in Mr. Howden’s matter. He is charged with driving with excess blood alcohol and impaired driving. He was arrested and investigated by the police on his own private property in his driveway; he challenges the police officer’s authority to detain and investigate him without cause on his own property and seeks to exclude the evidence obtained as a result.

The Crown does not dispute that the statutory authority to detain and investigate motorists for sobriety purposes without cause on public highways does not extend to a private driveway, but submits that, on these facts, the officer had a reasonable suspicion that Mr. Howden was committing a crime, and that reasonable evidentiary basis justified the investigative detention that followed.

For the reasons that follow, I accept that a Charter violation has occurred, and, consistent with the Court of Appeal’s recent decision in McColman, 2021 ONCA 382, the breath samples obtained, and the observations made on private property, are excluded from evidence.

Facts

I have heard from two witnesses on this application. What follows are my findings of fact regarding what occurred and the relevant officer’s state of mind during the investigation.

Constable Rivers is an experienced member of the Halton Regional Police Service. His specialization is impaired driving investigations. He is designated as a breath technician and a drug recognition evaluator. As of August 2019, he was tasked with proactive enforcement in our community. On the 4th of August, 2019, he started an afternoon shift by making a decision to investigate a tip the police had received regarding a driver who they were told would drive a motor vehicle while intoxicated home from the Acton Legion. While the suspect’s address was not provided in the tip, the description of the home was sufficient to permit the officer to reasonably infer the address. It was near a gas station at the intersection of Hornby and Steeles in the northern part of Halton Region.

The precise nature of the information that Constable Rivers received, and how he received it, and precisely when he received it, is unclear on this record. He recalled, in his testimony, being told the information by another officer, Constable Melton, at the start of his shift on the 4th of August. However, Melton does not recall such a conversation, nor is the fact of such a conversation noted on Constable Rivers’ notebook. The only notes related to the tip that exist are later in the fall of 2019, following a disclosure request for more information regarding the tip. In those notes, Constable Rivers testified that he may have confused at least one detail, the colour of the truck, as coming from the investigation and not the tip. What I mean is Constable Rivers noted the tip included the colour red, but in his testimony he allowed that that particular detail may have only become known to him during the traffic stop.

In cross-examination, he advised that while he was “pretty confident” that he spoke to Constable Melton on the 4th of August, it was possible that it was a day or two earlier. Again, Melton has no memory of such a conversation.

Rivers described the information as, “very informal.” I would say that such words accurately describe his notetaking on this point, as well. At the end of the day, however, I am prepared to find that it is likely that Constable Rivers did receive this information from another officer, possibly Melton, and that he received it proximate to August 4th.

I do not believe much turns on the precise timing and receipt of the tip. What matters in this case is the quality of the tip, or lack thereof. It is clear to me that Constable Rivers viewed the tip as simply a bit of unsourced information. He did not seek to corroborate it or otherwise assess it before he made the decision to spend much of his August 4th shift simply waiting near the suspect’s address for someone to pull into the driveway. As long as it was not a commercial driver or someone who obviously did not live at the home, Constable Rivers advised he planned on detaining and investigating driver sobriety. That is precisely what he did. He waited three hours before Mr. Howden drove into his driveway.

I believe it is important on this motion to make a factual finding regarding Officer Rivers’ state of mind at the time of this investigation. I find that he believed that, as long as he saw the vehicle driving on a public highway, he had the authority to conduct a sobriety check on private property. Parenthetically, that may not have been an unreasonable belief in August 2019, before McColman was released by the Superior Court in September of that year, and then the Court of Appeal in June of 2021. However, as we now know, the law in Ontario is contrary to what Officer Rivers believed.

In McColman from the Court of Appeal, 2021 ONCA 382, a police officer formed an intention to conduct a random sobriety check while a driver was on a public highway, but only executed that intention and only stopped the driver on a private driveway. The majority of the court held that the detention and subsequent investigation was without legal authority, in the absence of a basis to suspect that the motorist was impaired or that some other offence had or was about to be committed. At paragraphs 36 and 37, Justice Tulloch, writing for the majority, stated:

“[36] “[T]he Crown contends that the officers intended to stop the respondent for a sobriety check while he was still a ‘driver’ under the HTA, and therefore they were authorized to do so even though the stop occurred on private property.”

Moving down to paragraph 37, the Court said:

“[37] I cannot accept this argument. The issue is whether the police were acting pursuant to lawful authority at the moment when they conducted the stop. That authority must be exercised within the confines stipulated by the HTA, including the precondition that the person subject to the stop is a “driver” on a “highway”. The officers’ intentions in the moments preceding the stop do not render an otherwise unlawful stop lawful.”

Constable Rivers testified that he believed he had authority to check for sobriety when he observed the vehicle on a public highway. All parties in this case agree that on the facts of Mr. Howden’s case, the HTA statutory authority did not apply. This case then pivoted to an assessment of whether Officer Rivers alternatively had a reasonable suspicion that Mr. Howden, on the 4th of August, was driving a motor vehicle with excess blood alcohol or impaired. As explained in McColman, the existence of such a suspicion would ground an investigative detention of this kind on an applicant’s private property. I interpret Officer Rivers’ answers to these questions as largely considering the issue for the first time in the witness box. What I mean is, I am not satisfied I do not believe - that he engaged in a similar reasoning process when he made the decision to detain Mr. Howden. I interpret his testimony before me to be an after-the-fact assessment of whether the information he knew amounted to a subjective suspicion in his mind. In fairness to him, the questions he was asked invited such an inquiry.

While I am not sure that such an approach could ever justify an investigative detention, particularly the one done in this case, I will proceed to analyze the quality of this suspicion on the basis of how it was argued, as it will become clear that this approach leads to the same result. The question of whether a reasonable suspicion exists rises and falls on an assessment of the tip Rivers possessed and acted upon during this investigation.

Assessing the reliability of a tip is determined by a consideration of the Debot factors, whether the tip is compelling, credible, and corroborated. See Debot, 1989, 2 SCR 1140. In that case, the Supreme Court said:

“[T]here are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.”

In the present case, the information Rivers possessed has not been demonstrated to be from a credible source, nor was it corroborated in any way.

First, credible. There was no evidence regarding the tipster’s credibility, reliability, or their motivation in providing the information to the police.

Next, corroboration. Constable Rivers did not seek to corroborate the information. His investigation on private property was essentially his first attempt to corroborate. Obviously, this cannot justify the entrance onto private property in the first place. I suppose, to be fair to the officer, the reason he did not try and corroborate the tip was because he did not believe he had to, because he was acting on the erroneous belief that he could conduct a random sobriety check on a driver’s private property, so long as he had previously seen them driving on a public highway. That flawed reasoning, however, prevented him from trying to corroborate the information he received in any meaningful way.

Finally, compelling. I am not convinced this information was particularly compelling. It does not specify when these prior acts of drunk driving were committed, or at what time of the day. While slightly more than a bald assertion, I am not satisfied it is proper to call this information compelling and, in any event, it is certainly not sufficiently compelling to compensate for the enormous weaknesses in the other two Debot factors. When he made the decision to stop Mr. Howden, Constable Rivers had no idea where that driver was coming from. In totality, very little weight can reasonably be placed on this information. It falls well short of meeting the test of a reasonable suspicion, which is not a mere suspicion, but something more. In Chehil, 2013 SCC 49, the Supreme Court described it as follows at paragraph 26 through 27,

“[26] Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

[27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.”

With that law as a guide, I look to the entirety of the information available to Constable Rivers and, as I said, I am not satisfied that it meets the reasonable suspicion threshold. Nor am I satisfied there was any other lawful basis for Rivers to enter Mr. Howden’s private property and detain him. I am satisfied, consistent with the majority’s finding in McColman, that a Charter violation has occurred.

Further, having considered the matter, I see no meaningful basis to depart from the result in McColman under 24(2). There is no reason to distinguish this result from the one that occurred in McColman. See paragraphs 83 through 91 of the judgment. The same result should occur.

The Charter Application is granted. Pursuant to Section 24(2) I exclude the breath samples obtained and all evidence and observations made by the police during their investigation on Mr. Howden’s driveway.

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)

I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of R. v. G- Randolph Howden in the Ontario Court of Justice, held at 2021 Plains Road East, Burlington, Ontario, taken from Recording No. 1213_11_20210730_093251 5_LATIMESC.dcr, dated July 30, 2021 which has been certified in Form 1 by Nancy Burke.

Date (Authorized Transcriptionist) Helena Tsapoitis-Barbesin

ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca

R. v. Howden, 2021 ONCJ 536

Case Summary

REASONS FOR JUDGMENT

Facts

Judge

Counsel

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Areas of Law