Ontario Court of Justice

Date: 2023 05 11 Guelph

BETWEEN:

HIS MAJESTY THE KING

— AND —

Joseph Thibodeau

Before: Justice Lorelei Amlin

Heard on: April 5th and 6th, 2023 Reasons for Judgment on the Charter application released on: May 11th, 2023

Counsel: Paul Erskine, counsel for the Crown Perrin Valli, counsel for Joseph Thibodeau

Amlin, J.:

[1] Mr. Thibodeau is charged with refusing to provide a sample of his breath into an approved screening device (“ASD”). There is an application before the court for a declaration that Mr. Thibodeau’s rights under section 8, 9 and 10 of the Charter were breached. This is my ruling on that Charter application.

[2] Mr. Valli, on behalf of Mr. Thibodeau, raised a number of Charter violations. I will address the following:

1. The ASD demand was invalid as the officer did not have a reasonable suspicion that Mr. Thibodeau had operated a conveyance within the preceding 3 hours, thereby breaching sections 8 and 9 of the Charter;

2. the ASD demand was invalid because of the absence of the roadside screening device at the scene, thereby breaching sections 8 and 9 of the Charter;

3. the officers trespassed on Mr. Thibodeau's property, exceeding the implied licence to enter onto private property, thereby breaching sections 8 and 9 of the Charter;

4. Mr. Thibodeau’s section 10b rights were violated.

[3] Therefore, defence submits, Mr. Thibodeau is entitled to an acquittal because the breath demand was invalid and further, pursuant to a s. 24(2) analysis, the evidence that formed the basis for the demand and the refusal itself should be excluded.

[4] A general overview of the facts will suffice at this point. Police received information from staff at a bar in Guelph that a male left the bar in an intoxicated state, that the male’s name was possibly Joe and he left in a red GMC Sierra pickup with another person, heading in a certain direction. “Joe” was described as a male in his 30s with certain physical and clothing descriptors and the other individual was described as a male in his 60s with a Newfoundland accent.

[5] The license plate of the pickup truck was provided to police. By the time the information was dispatched over the police radio, police had secured the name and address of the registered owner of the pickup truck: Joseph Thibodeau of 135 Emma St. in Guelph.

[6] Within approximately 4 minutes of receiving the dispatch call, Constable Hiebert arrived at the address and within approximately 8 minutes, Constable Nightingale arrived.

[7] The red GMC pickup with the noted license plate was seen parked at the back of the driveway near the garage, across from the back porch which is attached to the house. Mr. Thibodeau was on that back porch and was confronted there by officers. The officers both describe Mr. Thibodeau as uncooperative and confused. He was asking questions about why the police were there and officers were trying to explain, repeatedly, their purpose in attending. Ultimately, as Constable Hiebert testified “we got to the point where we were going in circles”.

[8] After approximately 10 - 12 minutes of speaking with Mr. Thibodeau and making observations consistent with impairment, Constable Nightingale made the ASD demand. During that time, police also obtained from Mr. Thibodeau his first name of Joseph. Mr. Thibodeau refused to comply with the demand and was ultimately arrested. During those 10 – 12 minutes, the officers were standing on the driveway for some of the time and on the porch for some of the time.

[9] At no point did Mr. Thibodeau ask the officers to leave his property.

[10] It is not disputed that officers observed indicia of impairment while speaking with Mr. Thibodeau, which could, in the absence of a Charter breach, provide grounds for the ASD demand.

Was the ASD demand invalid as the officer did not have a reasonable suspicion that Mr. Thibodeau had operated a conveyance within the preceding 3 hours, resulting in a breach of sections 8 and 9 of the Charter?

[11] I state at the outset that for the purpose of this argument, defence counsel has invited me to leave aside the issue of whether the indicia of impairment were obtained as result of a Charter breach, that is, by officers trespassing on Mr. Thibodeau’s property, in violation of the implied invitation doctrine.

[12] Subject to that qualification, while admitting that the indicia of impairment were present, the defence argues that the police never had a reasonable suspicion that Mr. Thibodeau had operated a conveyance within the preceding 3 hours based on the following:

(a) Police never observed him driving; (b) Police never observed him inside a conveyance; (c) Police never elicited any admission or utterance from Mr. Thibodeau about having driven the vehicle or just arriving home; in fact, Mr. Thibodeau told police it wasn’t him and that he wasn’t driving impaired; and (d) the information from dispatch was not sufficient to provide a reasonable suspicion that Mr. Thibodeau was driving.

[13] Therefore, without a reasonable suspicion that Mr. Thibodeau was driving, his Charter rights were breached. It follows therefore, if the court determines that the ASD demand was made in violation of the Charter, then it is not a valid demand for the purposes of s. 320.15 and Mr. Thibodeau is lawfully entitled to refuse to provide a breath sample and is entitled to an acquittal.

[14] Mr. Erksine, for the crown does not dispute that is an accurate statement of the law. However, he disputes that the officer did not have a reasonable suspicion Mr. Thibodeau was driving.

[15] As Constable Nightingale was the officer who made the demand, the argument focused on what he reasonably suspected.

[16] Section 320.27(1) of the Criminal Code states:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

[17] In order to prove the existence of a lawful demand under section 320.27(1)(b), the Crown must prove, beyond a reasonable doubt, that:

1. The person making the demand was a peace officer;
2. The peace officer who made the demand had reasonable grounds to suspect that the person of whom the demand was made: a) Had operated a conveyance within the preceding three hours, and b) Had, at the time of the demand, alcohol in his or her body.

R v Morris-Rainford, 2020 ONCJ 447 at para 50.

[18] The legality of the demand made by Constable Nightingale turns on whether he had a reasonable suspicion that Mr. Thibodeau

1. operated a conveyance within the preceding three hours and
2. had alcohol in his body at the time.

[19] As stated earlier, the argument focused on the first point: whether or not Mr. Thibodeau operated a conveyance within the preceding 3 hours.

[20] With respect to the “reasonable grounds to suspect” standard required to justify a lawful investigative detention under the provision in question:

(a) the officer must subjectively believe that there is a reasonable suspicion that the person is connected to a particular offence or particular criminal activity; and (b) reasonable suspicion must be grounded in objectively discernible facts which objectively indicate a possibility, as opposed to a probability, that the person is involved in the offence or criminal activity.

R v. Mann, 2004 SCC 52, at paras. 27, 34 and 45; R v. MacKenzie, 2013 SCC 50, at paras. 71-74; R v. Darteh, 2016 ONCA 141 (Endorsement), at para. 4; R v. Nesbeth, 2008 ONCA 579, at para. 19.

[21] Reasonable suspicion, unlike mere suspicion, is supported logically by facts held by the ‘holder of suspicion’ at the time of the demand. The reasonable suspicion standard has been described by the court in R. v. Morris-Rainford at para 52:

Reasonable suspicion is "something more than a mere suspicion and something less than a belief based on reasonable and probable grounds." The modifier "reasonable" means that the suspicion must be "in accordance with reason; not absurd": The Canadian Oxford Dictionary, edited by Katherine Barber, supra, at p. 1202. As Justice Binnie said in Kang-Brown, supra, "[r]easonable suspicion must be supported by factual elements which can be adduced into evidence and which permit an independent judicial assessment".

[22] The court in R. v. MacDermott, [2020] N.S.J. No. 307 at paragraph 80 provides a useful overview of applicable principles considered when determining the reasonable suspicion threshold:

(a) The reasonable suspicion test has a subjective and an objective element. Reasonable suspicion must be assessed against the totality of the evidence, which is sometimes described as a "constellation of objectively discernible facts." The hallmarks of the test are "common sense, flexibility and practical everyday experience:" See R. v. Flight, 2014 ABCA 185 (Alta. C.A.) at paras 35 to 37, citing R. v. Chehil, 2013 SCC 49 (S.C.C.)

(b) If there is an admission of consumption of alcohol, it is not necessary for the officer to clarify or quantify the amount or timing of that consumption. Admissions of consumption alone will generally be sufficient to ground an objectively reasonable suspicion of alcohol in the body. Flight supra at paras 49-50 and 59-61.

(c) An odour of alcohol alone would also be sufficient to form reasonable grounds to suspect the presence of alcohol in the body of a person, who has within the proceeding [sic] three hours operated or had care or control of a motor vehicle: see R. v. Schouten, 2016 ONCA 872 (Ont. C.A.) at para. 25.

(d) It is not necessary that a person show signs of impairment to ground a basis for making a roadside breath demand. It is not necessary that the police officer suspects that the person is committing a crime, rather all that is required is that the police officer making the demand have reasonable grounds to suspect that a person has alcohol in their body: see Schouten, supra, at para. 26.

(e) The standard of "reasonable grounds to suspect" involves possibilities, not probabilities: see Chehil, supra, at para. 27.

[23] As stated, Mr. Valli for the defence disputes that the officers had a reasonable suspicion that Mr. Thibodeau was driving. He does not dispute that the officers had a reasonable suspicion that Mr. Thibodeau had alcohol in his body.

[24] Prior to arriving at 135 Emma Street and observing the GMC Sierra Pick-up truck in the driveway, the only basis for police to suspect that Mr. Joseph Thibodeau had operated a conveyance within the preceding 3 hours was the 2nd hand information that they had received from dispatch. That information was that a male “possibly named Joe” had left the bar around 10:13 pm in a pick-up truck believed to have license plate number 4H3032 (which police determined was registered to Joseph Thibodeau at 135 Emma Street).

[25] Police also had received information about the possibility of a second individual in the vehicle.

[26] Defence argues that this information needed further investigation before police had reasonable suspicion that the person on the porch, Mr. Joseph Thibodeau, the resident at 135 Emma Street and registered owner of the GMC Sierra Pick-up truck, had been the person operating the pick-up truck from the bar and was the subject of the complaint of a possible impaired driver. Nothing that took place during that 10-12-minute interaction on the back porch with Mr. Thibodeau gave them the reasonable suspicion that he was the driver.

[27] While I agree that the police needed to do further investigation to establish grounds to arrest the person on the back porch for the offence of impaired driving (reasonable grounds to believe he committed the offence), I find the lower standard of reasonable suspicion has been met on the facts of this case.

[28] Constable Nightingale testified in chief that he received the following description of the driver of the GMC truck: white male, 30, brown hair, brown beard, black shirt and name possibly Joe. He further testified that he received the following information related to the second party: possible passenger, 60, grey hair, Newfoundland accent. The information received was that these two had been drinking together and they left the bar at same time.

[29] While Constable Nightingale did admit in cross examination that they had to do further investigation to determine who the driver was and that before arriving at the property, he no grounds for making the ASD demand of the registered owner of GMC truck, he articulated his grounds for making the demand as follows: the person on the back porch matched the description of one of the males who left bar in the truck, that person had identified himself to Cst. Hiebert as Joseph, the same truck that was reported was in driveway, Mr. Thibodeau was at the door of the house in close proximity to the truck and Cst. Nightingale believed he had recently exited the vehicle after driving impaired.

[30] In addition, the police received information that the registered owner lived at 135 Emma St. in Guelph which is in the direction the GMC was travelling when it left the bar. They proceeded to that address and within minutes, found a person matching the description of one of the males.

[31] In summary, the police had the following information:

• A specific description of the two males that had been drinking together, one whose name is possibly Joe, a description of the motor vehicle involved, as well as the direction the vehicle was heading in; and
• the specific address associated to that vehicle being a short distance from the starting point of the driving.

[32] Then they attended to the specific address within a short time after receiving the radio dispatch (4 - 8 minutes) and Constable Nightingale made the following observations:

• the vehicle matching the description in the radio call in the driveway of the address;
• after walking up the driveway, he saw a male, whose first name was Joseph, matching the description of one of the males indicated in the radio call and that male was standing in close proximity to the motor vehicle; and
• the physical observations of Mr. Thibodeau’s indicia of impairment: glossy eyes, slurred speech, alcohol on breath, confused state, unsteadiness on his feet.

[33] As stated earlier, reasonable suspicion must be grounded in facts which objectively indicate a possibility, as opposed to a probability, that the person is involved in the offence or criminal activity. Even if I find that Officer Nightingale may not have information that the male in his 30s was the driver specifically, as he stated in his evidence in chief, and only had information that one of the males who got into the truck was a male in his 30s, the information he did have, when viewed objectively, indicates a possibility that the person on the back porch was the driver of the vehicle and that is all that is necessary to form a reasonable suspicion.

[34] I find that in all of the circumstances, it was reasonable for Constable Nightingale to suspect that the man on the back porch, who turned out to be Mr. Thibodeau, was the driver of the motor vehicle and had alcohol in his system.

[35] The application fails on this ground.

Was the ASD demand invalid because of the absence of the roadside screening device at the scene?

[36] After asserting his initial position that the demand was invalid as the crown could not establish the ASD was present at the scene when the demand was made, Mr. Valli, in his usual fair and candid fashion, brought to the court's attention the case of R. v. Degiorgio, [2011] O.J. No. 3337 Ont. CA.

[37] The applicable passages from that case are as follows:

53 There is a well-established line of authority holding that where an accused is charged with refusing to provide a sample, the Crown does not have to prove that the sample could in fact have been taken in accordance with the provisions of the Criminal Code to secure a conviction on a charge of refusing to comply with the demand: see R. v. Lemieux (1990), 41 O.A.C. 326 (C.A.); R. v. McCauley (1997), 1997 NSCA 139, 161 N.S.R. (2d) 154 (C.A.); R. v. Wilson (1999), 1999 BCCA 110, 121 B.C.A.C. 111 (C.A.).

54 There is no requirement that a police officer have a reasonable belief that he or she could "make the demand good" at the time it is made: Latour at paras. 30-33. Contrary to the submissions of the appellant, neither is there a requirement for the Crown to prove that the police could have made the demand good (i.e. that an ASD would have been available) within the "forthwith" period...

69 …[W]here there has been an outright refusal to provide a breath sample, the offence is made out if the demand was properly made. The Crown is not required to establish that the ASD was present at the scene, or that it could have been present at the scene within the "forthwith" period.

[38] Based on Degiorgio, Mr. Valli conceded that the validity of the demand may not depend on whether or not the device is present at the scene, at least on a charge of refuse.

[39] However, between the time counsel finished their submissions in this matter and my rendering this judgment, the Supreme Court of Canada released its decision in R v. Breault, 2023 SCC 9, departing from the reasoning adopted by the Ontario Court of Appeal in R. v. Degiorgio. I therefore directed that further submissions be made on this point and counsel provided those in writing.

[40] According to Breault, where there is an absence of an approved screening device at the scene, the crown must show that there was an unusual circumstance that would account for that (para. 55). Otherwise, the demand will be invalid and a refusal attracts no criminal liability.

[41] Therefore, I must determine whether the evidence establishes, on the balance of probabilities, that there was an ASD at the scene. Cst. Hiebert testified that there was a device at the scene. He testified: “I believe one of the tac officers, I don't remember if it was Constable Dumbreck or the other member that was on scene, went to grab the approved screening device, the ASD. So there was one on scene.”

[42] Officer Dumbreck, one of the tactical officers, testified that he “couldn't quite remember if someone had it in hand or not, I didn't take a particular note”.

[43] Constable Nightingale testified that he had a device in his cruiser which was parked on the road in front of the house, but not with him at the back porch. His evidence was that he keeps his ASD in the front seat of his police cruiser.

[44] Although conceding that he did not have a specific note about having the device in his cruiser, Constable Nightingale testified that at the start of every shift, he does what’s called a circle check. This is done to ensure certain things, including the ASD, which he keeps in a yellow pelican case and which is assigned to his cruiser, are in the cruiser, which is also assigned to him. This is a regular part of every shift and is his regular practice: to verify an ASD is present in the cruiser at the beginning of his shift.

[45] Based on this evidence, which I accept, the conflicting evidence from Csts. Hiebert and Dumbreck is not significant. I find that the ASD was present at the scene and therefore the crown does not have to establish any unusual circumstances to explain the absence of it.

[46] The application fails on this ground.

Did the officers trespass on Mr. Thibodeau's property, exceeding the implied licence to enter onto private property, thereby breaching his Section 8 and 9 rights?

[47] It is the crown's burden to establish the authority for the search. The crown here relies on the doctrine of implied licence.

[48] The crown submits that the officers were lawfully on the property to investigate the offence of impaired driving pursuant to the doctrine of implied licence and therefore the observations were lawfully obtained and provided valid grounds for the demand.

[49] Mr. Valli submits that the implied license doctrine does not extend to the facts of this case and therefore the officers were trespassing on private property. Any observations made during that trespass result in an unlawful seizure. Therefore, the grounds for the ASD demand were obtained in breach of Mr. Thibodeau's Section 8 rights.

[50] It is not disputed that evidence obtained during a Charter breach cannot be used as a basis for reasonable suspicion. In R v. Pearson, (2012) ABCA 239 at para 81-82, the court stated

“It seems counter-intuitive to permit evidence obtained during Charter breaches to provide the foundation for further police activity that-without information obtained from earlier Charter breaches-would clearly have breached other Charter rights. Such an approach would simply encourage the police to breach Charter rights in the hopes of finding something to justify their behaviour that, without the first Charter breaches, would otherwise be illegal. That is hardly the promise of the Charter. Possible support for this view comes from the emphasis the Supreme Court has put on looking at "the entire chain of events during which the Charter violation occurred in the course of obtaining evidence." R. v. Strachan, [1988] 2 S.C.R. 980 (S.C.C.), at 1005-6, (1988), 56 D.L.R. (4th) 673 (S.C.C.).”

[51] Therefore, if the officers exceeded their authority under that doctrine and obtained their grounds while violating of Mr. Thibodeau’s Section 8 Charter rights, the demand is invalid and Mr. Thibodeau was entitled to refuse to provide a sample of his breath. That would be a complete defence to the charge.

[52] Under the implied licence doctrine, the occupant of a residential dwelling invites the public, including police officers, to enter the property to knock on the front door of the dwelling.

R. v. Evans, [1996] 1 S.C.R 8 at paras 6-8 (S.C.C.)

[53] Mr. Valli argues that police made no attempt to knock on the front door but instead, walked up the driveway, directly to the back of the property and those actions exceed the implied license doctrine.

[54] Mr. Erskine for the crown argues that the defence’s interpretation of implied license is far too narrow. He submits that there is authority for the proposition that implied license does not end at the front door but extends to this situation and other situations when officers are investigating, including when individuals are seen driving into the driveway, or police see a person in a car in the driveway or there is a close connection between the car and the person, for example the person is seen exiting the car which is parked in the driveway.

[55] Mr. Valli does not take issue with the implied doctrine extending to cases where there is an individual who police can see in the driveway. However, he insists that where no one is seen in the driveway and is out of sight on the back porch, the implied license does not allow police past the front door and down the driveway to that back porch to try and find someone to talk to or investigate.

[56] The case law supports the view that officers are entitled to enter onto a driveway for the legitimate purpose of furthering their investigation. In R. v. Lotozky, the Ontario Court of Appeal explains the basis for this:

[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 onto 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.

[57] The court there found that the police were lawfully on the driveway in accordance with an implied invitation and Mr. Lotozky’s section 8 rights were not violated.

[58] At first blush, Lotozky appears to support the officers’ actions in this case. However, there is a significant distinguishing feature here: Mr. Thibodeau was not in his driveway. In Lotozky, the investigation took place in the driveway and police observed the vehicle arrive and approached the driver’s window to find Mr. Lotozky in the driver's seat. Other cases the crown relies on are also factually different as the subject of the investigation is in the driveway at the time of the police arrival or, even where they cannot see the driver in the vehicle in the driveway, police observe that the car engine is running and hear the radio playing loudly and then find the driver slumped over the steering wheel (see for example R. v. Soal, [2005] O.J. No. 319 (S.C.J.)), again, all of which takes place in the driveway.

[59] Those circumstances are entirely different from what happened in the case at bar. Mr. Thibodeau was not in his driveway, but on his back porch, which was attached to the residence. This is not an extension of his driveway. He was out of view in a place where he had a high expectation of privacy.

[60] I agree with defence counsel that seeing someone drive in or seeing them in the driveway is what provides the basis of the implied license. This is clearly demonstrated in R. v. Van Wyk, 1999 OJ No. 3515. In that case, civilian witnesses advised police that a major collision had been caused by a large truck which had not actually come into contact with any other vehicle and which had not stopped at the time of the collision. Police were provided with a license plate for the truck and to identify the driver, they attended the residence of the registered owner. Prior to knocking on the front door, investigators walked up the driveway at the side of the residence and walked around a tractor and trailers that they had seen in plain view. The purpose was to search for damage and to try and match the license numbers.

[61] Justice Hill found that these actions exceeded the scope of the implied license to be on private property without a warrant. This was not a direct approach to the front door but rather a trespassory detour elsewhere on the property to secure evidence. The police conduct was not incidental to an approach to the front door and they trespassed to conduct a search and in doing so breached Mr. Van Wyck's section 8 Charter rights.

[62] In the case at bar, officers did not see Mr. Thibodeau in the driveway. Constable Nightingale testified that the police were not aware of him until they were more than halfway up the driveway and found him on the back porch. Although the officers discussed knocking on the front door, that was never done. Instead, once Constable Nightingale arrived, the two officers decided to check the back door and walked approximately 15 metres to where the truck was parked, at the back of the house near the garage and across from the back porch, which is ½ way or 2/3 up the length of the driveway. It is only at that point they were able to see Mr. Thibodeau on the back porch. To get to that position, they had to walk the length of the house and past the front door. This was not incidental to an approach to the front door; it was a trespassory detour.

[63] This amounts, as in Van Wyk, to a trespass to conduct a search.

[64] I am mindful that Cst. Hiebert testified that while he was waiting for backup, he stepped off of the sidewalk in front of the property, two steps onto the driveway and at that time, he could see Mr. Thibodeau on the back porch. His intention in stepping onto the driveway was to look inside the truck. When he saw Mr. Thibodeau on the back porch, he stopped and waited for backup.

[65] Cst. Hiebert’s evidence thus contradicts Constable Nightingale's that they were not aware of Mr. Thibodeau until they were halfway or 2/3 up the driveway. Where their evidence differs in this regard, I prefer the evidence of Constable Nightingale for the following reasons:

[66] First, Constable Hiebert said they walked up the driveway approximately 10 meters or even less to speak to Mr. Thibodeau. Constable Dumbreck, another officer who arrived on the scene, estimated that the distance from the sidewalk in front of the property to the back porch was approximately 50 - 60 feet (over 15 metres) or 3-1/2 car lengths. This is consistent with the photos that were marked as exhibits in this trial and consistent with Cst. Nightingale’s evidence that it was 15 metres (approximately 50 feet) up the driveway before they could see Mr. Thibodeau on the back porch.

[67] Further, Constable Nightingale testified that the house and driveway were in darkness and he was not able to see the license plate from the sidewalk. He also recalled that it was dark in that area because when dealing with Mr. Thibodeau after the arrest, the officers brought him to the cruiser which was parked on the street, partly because the lighting was better at the street than at the back of the house in the driveway. I accept that it was dark around the vehicle and at that part of driveway and that would make it difficult to see Mr. Thibodeau from 2 steps off the sidewalk which was at least 50 feet away.

[68] As well, Cst. Hiebert testified that he could not recall if he told Cst. Nightingale that he saw a male on the back porch. It is incredible to me that Cst. Hiebert could not recall whether he told Cst. Nightingale this. In my view, this important information would have been relayed to Cst. Nightingale by Constable Hiebert immediately if Cst. Hiebert had indeed seen a male on the back porch and Cst. Hiebert would recall telling Cst. Nightingale such an important fact. Constable Nightingale testified that the conversation they had when he first arrived was just about doing a door knock to see if anyone was home and that they would try the back door because there was no light at the front. This confirms that Cst. Hiebert did not tell him that a male was on the back porch, something that would have been done, as I have already stated, had Cst. Hiebert actually seen Mr. Thibodeau earlier.

[69] Finally, Constable Hiebert testified that he radioed in when he saw the truck in the driveway but he did not, on his own evidence, radio that he had seen a male on the back porch. Cst. Nightingale confirmed that he heard the information about the presence of the truck on the radio but there was no evidence of any information about a male on the back porch being conveyed over the radio. Again, it is incredible to me that Constable Hiebert would radio in that he found the truck but not that he’d seen the male who potentially was the target of the investigation, if in fact, he had.

[70] For all of these reasons, I find that the officers did not know there was a male on the back porch until they walked approximately 50 feet onto the private property of Mr. Thibodeau. They were at the bottom of the stairs to the back porch before they could ascertain whether anyone was outside of the residence on that porch. It wasn’t until they were there that they saw Mr. Thibodeau.

[71] Even if I accept that Cst. Hiebert could see Mr. Thibodeau after taking two steps on to the driveway, at that point, I find Constable Hiebert was already trespassing because he took those two steps in the direction of the truck, which was parked well up the driveway, again approximately 50 feet, to look inside of it. That would amount to the type of search Van Wyk prohibits.

[72] In all the circumstances therefore, I find that despite the Cst. Nightingale having grounds to make the ASD demand, those grounds were obtained in violation of implied license doctrine, which amounts to an unlawful search. As stated earlier, grounds obtained in violation of the Charter cannot be relied on to make an ASD demand. The demand is therefore invalid and on that basis, Mr. Thibodeau was entitled to refuse to provide a sample of his breath and is entitled to an acquittal.

[73] I also consider whether the detention of Mr. Thibodeau was arbitrary in breach of his section 9 rights and I conclude that it was. As stated in R v. Crowley, [2020] O.J. 2945, an addendum to the initial Charter ruling, at paragraph 2, because the officers were trespassers at the point of detention, the detention was unlawful. Any unlawful detention must be considered inherently arbitrary (see R. v. Suberu, 2009 SCC 33). Therefore, Mr. Thibodeau’s section 9 rights were also breached by the officers’ actions.

[74] If I am wrong and the officers did not breach Mr. Thibodeau's Section 8 rights by trespassing on his property in violation of the implied license doctrine for the reasons above, I find that the implied license doctrine was exceeded because the officers’ purpose in attending was to secure evidence against Mr. Thibodeau.

[75] For this proposition, I rely on the earlier ruling in R v. Crowley, 2020 ONCJ 271. In that case, Justice Parry conducted a thorough review of the law related to s. 8 rights in investigations on private property and I can do no better than to quote His Honour. Starting at paragraph 39, he states:

Nevertheless, the following binding Ontario cases stand for the proposition that the implied invitation to enter onto private property doctrine can include police action intended to investigate an impaired driving offence, even investigative questioning: R. v. Desrochers at paras. 10-23, aff’d 2008 ONCA 255; R. v. Dehaney, 2014 ONSC 4182 at paras. 23-35; R. v. Lotozky at paras. 35 to 42; and R. v. Van Wyk, 1999 O.J. No. 3515 at para. 33, aff’d [2002] O.J. No. 3144](https://www.canlii.org/en/on/onca/doc/2002/2002canlii41000/2002canlii41000.html).

[40] These binding cases draw a distinction between attending for the purpose of facilitating lawful communication and attending for the purpose of gathering evidence. These binding authorities conclude that lawful communication includes investigative questioning of suspects at their doorways. They declare that this kind of lawful communication falls within the implied invitation that the court deems members of the public provide to law enforcement.

[41] In my respectful view, the judicial distinction between door-step investigative questioning of suspects and door-step evidence collection is a difficult one to draw and potentially one without a meaningful difference. Show me an officer who is questioning a suspect, and I will show you an officer who is collecting evidence. As the police caution says, “anything you say may be used in evidence against you.”

[42] The recent case of R. v. Le, 2019 SCC 34, gives me pause to wonder whether the Supreme Court has affirmed the proposition that door-step investigative questioning of a suspect constitutes a form of evidence gathering that vitiates any implied invitation to knock at the suspect’s door. In Le, several police officers entered a residential backyard and questioned several occupants of that backyard. They questioned the men about “what was going on, who they were, and whether any of them lived there.” They also required the young men to produce documentary proof of their identities. The majority of the court [Brown, Martin, and Karakatsanis] examined the purpose of the police entry and concluded that their purpose rendered them trespassers. They accepted the characterization of the police purpose as follows: “the police entry was no better than a speculative criminal investigation, or a fishing expedition.” It is tempting to conclude that the majority would have found the police presence in that backyard lawful if they had articulable cause to question one of the occupants. The logic of that temptation, however, does not stand up to scrutiny. The more grounds the police possess to suspect an occupant is engaged in criminal activity, the more likely the occupant is actually engaged in criminal activity. The more likely the occupant is actually engaged in criminal activity, the less likely it will be that the occupant will extend an invitation to the police to attend and question [sic] ask questions in furtherance of an investigation of that activity. I am therefore more inclined to infer that the majority concluded that the implied invitation to knock does not extend to situations where the purpose of the attendance involves an effort to obtain, through the act of questioning, evidence against the occupant. My inference about the majority’s reasoning in the Le decision would appear to be consistent with the Saskatchewan Court of Appeal’s interpretation of appellate jurisprudence that preceded the Le decision: R. v. Rogers, 2016 SKCA 105; leave to appeal refused: [2016] S.C.C.A. No. 438. However, the Rogers decision is not binding upon me.

[43] In my view, the inference I draw from Le is also consistent with the rubric constructed by the Supreme Court for identifying a psychological investigative detention. One of the factors considered in this rubric is a reasonable person’s perception of the police purpose: whether (1) the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, (2) singling out the individual for focused investigation: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. This dichotomy between generalized policing inquiries, on the one hand, and focused investigation of a suspect, on the other, lends itself nicely to a consideration of the boundaries of the implied invitation to knock. I have no hesitation in concluding that reasonable people would invite and welcome police communication that involved providing general public assistance, maintaining general order, or making general inquiries about a particular occurrence. On the other hand, as noted, I have trouble accepting that any reasonable member of the public would willingly invite an officer on their property for the purpose of being interrogated and possibly charged by that officer. I read the majority’s decision in Le as declaring the inquisition of the backyard occupants, which was inherently an evidence gathering procedure, as being the subsidiary purpose that rendered the police trespassers. However, I am not satisfied that the majority’s decision in Le definitively draws the line I have inferred it drew. The ambiguity of the language leaves me unable to conclude with enough certainty that the Le decision supersedes the previously decided and binding case-law noted above.

[44] As noted, however, the binding authorities draw a distinction between investigative questioning and evidence gathering, in other words, between the “intention to investigate a crime” and the “intention to secure evidence.” In Mr. Crowley’s case, I have found that Sergeant Mace intended to secure evidence when he approached Mr. Crowley’s door. Specifically, I have concluded that Sergeant Mace attended for the purpose of searching for physical indicia of impairment and to make any visual, auditory, and olfactory observations necessary to form grounds to believe an offence occurred. He also intended to ask investigative questions of Mr. Crowley and to use those answers to potentially substantiate grounds for arrest. I therefore conclude that Sergeant Mace’s attendance at Mr. Crowley’s door exceeded the bounds of the implied invitation doctrine. His attendance at the door therefore infringed Mr. Crowley’s right to be free from unreasonable searches, as guaranteed by section 8 of the Charter.

[76] I am mindful that I am not bound by the findings in this case. Nevertheless, I adopt Justice Parry's very compelling reasoning and find similarly, that in the case at bar, the evidence is very clear that the officers attended for the purpose of finding Mr. Thibodeau, searching for physical indicia of impairment and to make any visual, auditory, and olfactory observations necessary to form grounds to believe an offence occurred. In Crowley, as here, the officers attended and made observations that they concluded established sufficient grounds to make an ASD demand. They also intended to and did ask investigative questions of Mr. Thibodeau (for example, what is your name?) and to use those answers to potentially substantiate grounds for arrest. Constable Nightingale agreed in cross-examination, and I find, that it was when he started the interaction on the back porch that he formed his grounds to make the ASD demand.

[77] On that basis also then, the police attendance exceeded the boundaries of the implied invitation doctrine and therefore infringed Mr. Thibodeau's right to be free from an unreasonable search. The evidence that provided the officers’ grounds was obtained in violation of his rights, thereby rendering the demand unlawful. Once again, Mr. Thibodeau was entitled to refuse to provide a breath sample and that is a complete defence to the charge.

[78] The application succeeds on this ground.

[79] Given my findings in relation to the Section 8 and 9 violations, it may be unnecessary to deal with the issue of rights to counsel. However, for completion, I will do so.

Were Mr. Thibodeau’s section 10b rights violated?

[80] Defence does not dispute that section 320.27 of the Criminal Code constitutionally suspends s. 10(b) rights to counsel where an officer is making a valid demand pursuant to the statute. See R. v. Kelly, [2021] N.J. 219 at para 70 citing R. v. Grant, [1991] 3 S.C.R 139.

[81] However, I have determined in this case that the ASD demand was not valid. It follows, then, that Mr. Thibodeau’s 10b rights were not constitutionally suspended as they would have been if the demand was valid.

[82] As described by the court in R v. Melville, 2002 ABPC 43 at para 52:

“An invalid s.254(1) demand does not constitute a constitutionally permissible suspension of an accused’s s.10(b) rights pursuant to s.1 of the Charter. Therefore, the suspension of an accused’s 10(b) rights is not excused”.

[83] Section 10(b) of the Charter states: “Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right”.

[84] Therefore, Mr. Thibodeau was entitled to be informed of his rights to counsel without delay upon his arrest or detention.

[85] The Supreme Court in R v. Suberu, 2009 SCC 33, [2009] 2 at para 42 (S.C.C.), defines the words “without delay” to:

mean “immediately” for the purposes of s.10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[86] It is important therefore to determine the time of the initial detention. I find that Mr. Thibodeau was detained by the officers at just after approximately 10:21 or 10:22 PM when Constables Hiebert and Nightingale began their interaction with him on the porch, which I have found to be an illegal search. Between that time and the time the ASD demand was made at 10:33, one (or possibly two more officers from the tactical unit – the evidence was unclear on this point) arrived and attended to where the interaction was taking place.

[87] Also during this time, according to Cst. Hiebert, in an effort to have Mr. Thibodeau come down off of the porch for his own and their safety, Cst. Hiebert and Cst. Nightingale went onto the porch and each held Mr. Thibodeau by one arm to guide him down the stairs. Mr. Thibodeau refused to come down the stairs and stayed on the porch. The officers continued their investigation, staying on the porch to make sure Mr. Thibodeau didn’t fall off.

[88] Although Constable Nightingale testified that there was no physical contact with Mr. Thibodeau until the time of the arrest at 10:37pm, I find Constable Hiebert’s evidence on this point more reliable. Constable Nightingale only had one note relating to the whole 10 - 12 minute time period between 10:21 pm when they locate Mr. Thibodeau and 10:33 pm when the ASD demand is read and that notation was a general reference to Mr. Thibodeau being confused and unable to understand what was happening.

[89] Further, Cst. Nightingale acknowledged in his evidence in chief, that they were detaining Mr. Thibodeau during the interaction on the porch. He testified: ”…we’re detaining him, essentially, to discuss what’s going on, and he did not want to come down off the porch”. Cst. Nightingale also confirmed they were on the porch, on opposite sides of Mr. Thibodeau at this time.

[90] Therefore, in circumstances where Mr. Thibodeau was:

A) confronted by 2 officers initially who are then joined by at least one more officer within minutes, B) confined to the back porch; and C) at one point, physically held by officers;

where all the officers are trespassing on Mr. Thibodeau’s property conducting an illegal search and the police acknowledge they were detaining him, the detention crystallizes just after the first point of contact with police. With at least 2 officers on the porch, one on each side of him or at the very least, standing at the bottom of the porch for some of the time, Mr. Thibodeau was physically limited in his ability to move. A reasonable person in these circumstances would have concluded that they were not free to leave the area or enter the dwelling house.

[91] In this case, then, the detention crystallizes just after 10:21 pm when officers first became aware of Mr. Thibodeau and started their investigation by engaging in conversation to elicit evidence from him. It is at that time that Mr. Thibodeau should have been provided with his rights to counsel. That did not happen. Mr. Thibodeau was arrested at 10:37 pm and not provided with his rights to counsel until 10:45pm, approximately 24 minutes after his detention.

[92] While the officers testified that Mr. Thibodeau being on a porch with no railing gave them concerns for his and their safety, there was no evidence that this was the reason for not providing Mr. Thibodeau with his rights to counsel.

[93] In addition, there is a further delay between the arrest and rights to counsel which is 8 minutes. Constable Hiebert explained that during this time, they walked Mr. Thibodeau to the police cruiser which was parked on the road in front of the property, searched him and put him in the cruiser. I appreciate that the officers are not required to provide a minute-by-minute account of the delay in providing rights to counsel. However, that explanation does not excuse an 8 minute delay. Even if the officers felt that the suspension of Mr. Thibodeau’s rights to counsel initially was justified because they believed they had made a valid demand, there is no reason why Mr. Thibodeau could not have been provided with his rights to counsel as soon as he was arrested.

[94] In all the circumstances, I find Mr. Thibodeau’s 10b rights were violated.

[95] I also find there was a violation of the implementational component of section 10b. According to Cst. Hiebert, when Mr. Thibodeau was read his rights to counsel at 10:45pm, he provided officers with the name of his personal lawyer, which happens in this case, to be Mr. Valli, counsel on this trial. Constable Hiebert testified he was not familiar with that name, but he testified that Constable Nightingale was beside him when he read Mr. Thibodeau his rights to counsel and that Cst. Nightingale told him that he had information from another case that Mr. Valli was not available as he was out of town and/or was on vacation. Therefore, Cst. Hiebert offered Mr. Thibodeau duty counsel which Mr. Thibodeau refused.

[96] Constable Nightingale testified and also had a note that the first time he heard about Mr. Thibodeau wanting to contact Mr. Valli was 11:47 pm, over one hour after his arrest and after they were preparing to release him the first time at 11:23pm.

[97] For the purpose of deciding this issue, I find that Constable Nightingale is mistaken about the time at which he heard Mr. Valli's name mentioned. I find Mr. Thibodeau asked for his personal lawyer, Mr. Valli, and that Constable Hiebert was given the information about Mr. Valli’s absence by Constable Nightingale, at the time rights to counsel were provided at 10:45pm.

[98] Constable Nightingale testified that he told Mr. Thibodeau that Mr. Valli was not available and Constable Hiebert heard that. Mr. Thibodeau was then given the option of calling duty counsel which he declined. In the circumstances, I don’t accept that this conversation happened over an hour after rights to counsel were given. There would be no reason to have a discussion about counsel and offering duty counsel over an hour after Mr. Thibodeau was arrested and was in the process of being released.

[99] Nevertheless, being provided with information that Mr. Valli was on vacation does not obviate the need for officers to at least attempt to facilitate contact with counsel of choice.

[100] The evidence was clear that not one officer made any effort to facilitate contact with Mr. Thibodeau’s counsel of choice, Mr. Valli. Believing that Mr. Valli was away on holidays, Constable Hiebert and Constable Nightingale assumed that Mr. Valli was not able to be reached. Acting on this assumption, no call was placed to counsel’s office to confirm this or to determine if counsel may have made arrangements to be contacted while on vacation.

[101] It is well established case law that impracticality does not negate the duty of police to facilitate access to counsel. Barriers to accessing counsel must not be assumed, as they were in this case, and proactive steps are still required to turn the right to counsel into access.

R v. Suberu, 2009 SCC 33, [2009] 2 at para 3 (S.C.C.) R v. Taylor, 2014 SCC 50, [2014] 2 S.C.R 495 at para 33 (S.C.C.)

[102] Failure to make any efforts resulted in a further violation of 10(b).

Should the evidence be excluded pursuant to Section 24(2)?

[103] In light of my determination that the ASD demand was made in violation of the Charter, resulting in an acquittal, a 24(2) analysis is not necessary. Nevertheless, again for the sake of completeness, the analysis follows.

[104] Recently, in R. v. McColman, 2023 SCC 8, [2023] SCJ 8, the Supreme Court Canada gave the following direction in relation to a 24(2) analysis:

53 Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

54 Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, "[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision": para. 140.

(1) The Seriousness of the Charter-Infringing Conduct

[105] Trial courts are directed to focus, in this line of inquiry, on the extent to which the state conduct at issue deviates from the rule of law. This line of inquiry "requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct". (See Grant, 2009 SCC 32 at para. 72.)

[106] Stated another way, "Did the police conduct involve misconduct from which the court should be concerned to dissociate itself?" see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22.

[107] The graver the state's misconduct, the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court's processes from that misconduct: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4 para. 23.

[108] To properly situate state conduct on the "scale of culpability", courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75.

[109] The court must adopt a holistic analysis of all the surrounding circumstances when situating the state conduct on a scale of culpability: McColman at para 58

[110] In this case, these were not technical breaches but they were also not bad faith violations.

[111] In relation to the section 8 breach, police were compelled to act quickly to prevent the disappearance of evidence. While trespassing onto private property with no legal justification is serious, the officers believed, although I find wrongly, that they had authority to conduct their investigation in the manner that they did.

[112] Further, arbitrarily detaining someone for 24 minutes without providing rights to counsel is also serious but again, this was not done in bad faith. The officers clearly believed they were conducting a lawful investigation into the serious offense of impaired driving.

[113] In relation to the 10b violation for not facilitating access to counsel of choice, I accept that they genuinely believed that Mr. Valli was not available.

[114] Acting in good faith attenuates, to some degree, the seriousness of trespassing onto private property and of the arbitrary detention without informing of the rights to counsel and making no efforts to contact counsel of choice. This situates the culpability of the police actions in the middle of the scale when it might otherwise be at the more serious end of the scale. In the case at bar, this first line of inquiry pulls moderately in favor of exclusion.

(2) The Impact of the Breach on the Charter-Protected Interests of Mr. Thibodeau

[115] The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Like the first line of inquiry, the second line envisions a sliding scale, from a fleeting and technical impact to profoundly intrusive: McColman, para 66. However, as the court in McColman directs, courts must be careful not to collapse the first two lines of inquiry into one, unstructured analysis (paragraph 59).

[116] I find that the impact of these breaches is significant and pulls strongly in favor of exclusion. Not only did the 3 police officers exceed their implied license to enter onto his private property but in doing so, they all walked a significant distance to the back of the property and confronted Mr. Thibodeau on his own back porch, an area where he had a high expectation of privacy. While confining him there, they obtained his identity, physically grabbed him, and gathered evidence against him related to impairment.

[117] In McColman, the circumstances were similar in that the stop there also occurred on private property and also resulted in significant evidence being gathered against Mr. McColman related to impaired driving. The court there found that the impact moderately favored excluding the evidence. [1]

[118] However, here, there are the added violations in relation to rights to counsel and access to counsel of choice. In relation to the latter, this had a specific impact on Mr. Thibodeau. The officers believed that Mr. Thibodeau was required to sign release papers prior to being released on a Form 9 appearance notice. Mr. Thibodeau expressed confusion regarding that documentation and therefore refused to sign it. The officers’ mistaken understanding in this regard resulted in Mr. Thibodeau being held until 12:10 AM, over one hour and 30 minutes from the time of his arrest and over 40 minutes from the time officers intended to release him initially at 11:23 pm. Most of this time, he spent in the back of the police cruiser. During this time of confusion in particular, Mr. Thibodeau would have benefitted from speaking to someone he trusted.

[119] However, during all of that time, none of the officers attempted to contact Mr. Valli, thereby depriving Mr. Thibodeau of the right to speak to his counsel of choice. He described Mr. Valli as his personal lawyer, someone therefore, with whom he had a pre-existing relationship of trust, a fundamental tenant of the constitutionally-protected right under section 10.

[120] These added considerations slide the impact on Mr. Thibodeau’s Charter-protected rights from what may have been moderate to significant.

(3) Society's Interest in the Adjudication of the Case on Its Merits

[121] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: McColman, paragraph 69.

[122] Factors to consider are the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the alleged offence, although the final factor can cut both ways. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: McColman para. 70.

[123] Drinking and driving offences are serious. However, this is one of those rare cases where exclusion of the evidence, that is the fact of the refusal and indicia of impairment, would not alter the outcome of the case on its merits. Because Mr. Thibodeau is charged with refusal, this is unlike a case where the Charter application seeks to exclude results of the breathalyzer tests on an 80 plus charge or indicia of impairment on an impaired driving charge.

[124] The section 8 breach, as I have repeatedly stated in these reasons, results in an invalid ASD demand which entitles Mr. Thibodeau to an acquittal, even if the evidence of his refusal to blow was ultimately admitted in the face of the Charter breaches.

[125] Therefore, the third line of inquiry does not pull strongly in favor of inclusion, despite the fact that drinking and driving offences are serious. Any evidence of the refusal is reliable. Its admission, however, would not assist the crown's case in these circumstances and therefore, there would be no impact on the administration of justice in not admitting the evidence in this case.

Balancing of the Grant factors

[126] Although the result may be obvious, I find balancing of the Grant factors results in exclusion of the evidence. The cumulative weight of the first two lines of inquiry, the first inquiry moderately favouring exclusion and the second inquiry, strongly favouring exclusion, is not outweighed by the third line of inquiry, which in this rare case, does not pull strongly in favour of inclusion.

Conclusion

[127] For all of the above reasons, Mr. Thibodeau is entitled to an acquittal and the charge is dismissed.

Amlin, J.

[1] Query whether this overrules the analysis in R. v. Jennings, 2018 ONCA 260 in relation to the impact on Charter-protected rights.