ONTARIO COURT OF JUSTICE

DATE: 2024 09 20

COURT FILE No.: Central West Region - Brampton – 21-10371

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jaideep Singh

Before: Justice Andrew F. Falls

Heard on: May 14, 15, June 27 and August 14, 2024

Reasons for Judgment released on: September 20, 2024

Counsel: J. Ng, counsel for the Crown A. Bahra, counsel for the defendant, Jaideep Singh

Falls, J.:

Introduction

[1] The ultimate issue in this case concerns the police authority to approach a dwelling on private property to investigate a motorist they suspect has been drinking and driving.

[2] On April 21, 2021 in the evening hours between 9:30 and 10:15, Fiona Docherty was operating her motor vehicle westbound on Williams Parkway in the City of Brampton. As she approached the intersection at Kennedy Road, she noticed a white car travelling southbound on Kennedy Road. Ms. Docherty watched the white car proceed through a red light without slowing, turning right on Williams Parkway. In doing so, the car cutoff another car immediately in front of Ms. Docherty. The white car hit the curb as it sped west on Williams Parkway.

[3] All three cars travelled west on Williams Parkway. Ms. Docherty followed in the left lane and the white car in the right. As they approached the next intersection at Centre Street, Ms. Docherty observed the white car weave between both lanes without any signal indication of an intention to do so. Upon entering the intersection, the white car, now in the left lane, swerved to the left, almost “taking out” the light standard on the median.

[4] Ms. Docherty decided to follow the white car to take note of the licence plate. She was also concerned about the health and safety of the driver. She observed the white car to twice strike a curb with its tires.

[5] At the intersection at Hurontario Street, Ms. Docherty pulled her car directly beside and to the left of the white car. She noted the driver’s side window was down. Ms. Docherty lowered her passenger window and asked the driver if he was OK. He was nodding his head. His eyes were opening and closing. Ms. Docherty observed the male to be extremely tired. When she tried to engage him, he did not respond. She did not hear any music that would have impeded his ability to hear her questions. Her impression was that the male seemed “out of his element” for someone driving a motor vehicle.

[6] The cars were stationary at the red light for approximately a minute and a half. It was during this time that Ms. Docherty attempted to engage the driver. I accept her evidence that she had a good opportunity to observe the driver. When the traffic light turned green, the white car did not proceed. The third car, the one initially cut off at Kennedy Road, honked its horn to alert the driver of the white car.

[7] All three cars continued traveling along Williams Parkway. Ms. Docherty observed the white car to travel at inconsistent speeds, speeding up and slowing “right down” at speeds ranging from 30 km/h to 55-60 km/h.

[8] As the cars approached McLaughlin Road, Ms. Docherty contacted the police. She followed the white car for a short distance further, however, was instructed by the police to stop following the white car.

[9] Ms. Docherty advised the police of the licence plate for the white car. She observed the car to be a white, four door Jaguar sedan.

[10] In court, Ms. Docherty described the driver of the white Jaguar as a male, 25-27, possibly of “East Indian descent”. He had a faded beard that was clean cut. His hair was faded at the sides of his head and clean cut around the ears. The top of his hair was longer and pulled back into a ponytail. Ms. Docherty observed the male to be wearing a light-coloured sweater or shirt, possibly grey or yellow. He was not wearing a jacket.

[11] On consent, the Crown tendered a portion of a videotaped statement Ms. Docherty provided to the police. Ms. Docherty provided this statement within an hour of the incident at 11:13pm on April 21, 2021. This statement was tendered as prior identification evidence: R v Tat, [1997] O.J. No. 3579 (ONCA). I remind myself that repetition of this evidence does not make it more likely to be true. Nor can I use this statement to corroborate Ms. Docherty’s in-court evidence.

[12] In her police statement, Ms. Docherty described the driver of the white Jaguar as follows:

Um, he looked to me like, um, east Indian of some sort. He was about maybe for me, 25 to 27 years of age, maybe a little bit younger. I can't really say a hundred percent, but he had like clean shaven on the sides and uh, like a little bit of bristle or whatever. And then up this part here was pulled back into a ponytail. He had a light-coloured shirt vest or uh, shirt or t-shirt or sweater or something on, but not a jacket. And uh, I think he had like, um, like a five o'clock or, you know, the, the faded some maybe facial hair down and around here. But all here was all clear and he didn't have glasses on or anything like that. And all this was all pulled back.

Referring to the colour of the male’s shirt:

Me it was like a, almost like what I'm wearing, like a, a lighter yellow or a mustard colour or something like that. It wasn't dark brown. It wasn't black. It wasn't blue.

Referring to the male’s facial hair:

I believe he had like, you know, they have that that faded. They can do the fading. Okay. And it's a very like clean cut. Okay. Like that. I'm not a hundred percent sure he didn't have a moustache.

Looked black. Okay. The same colour as the top of his head. Okay.

[13] Albeit an in-doc identification, Ms. Docherty identified Mr. Singh in court as the driver of the motor vehicle.

[14] These were the observations I accept from Fiona Docherty. She was an excellent witness that left me with a very clear picture of the white Jaguar’s movements on the roadway.

[15] This was also the information the Peel Regional Police received when they responded to Ms. Docherty’s 911 call. Ms. Docherty had called 911 while she was following the white car. She advised the police of the observations she made.

[16] Having received the licence plate information from Ms. Docherty, the police used their computer system to discover that the Defendant, Jaideep Singh, was the registered owner of the white Jaguar. Two police officers attended his home address to see if they could investigate a potential impaired driver. From the dispatch call, the officers received a description of the driver as described by Ms. Docherty.

[17] Constables D’Souza and Aden attended Mr. Singh’s residence at 10:40pm. Upon arriving, they observed a white Jaguar parked in the driveway. It had the same licence plate that was relayed to the police dispatch by Ms. Docherty. There was no one in or near the motor vehicle.

[18] The residence was a detached, single dwelling home. The officers attended the front door of the residence and spoke with the homeowner. They were advised the owner of the Jaguar was a basement tenant. The front door to his unit was on the side of the residence. To access Mr. Singh’s door the officers had to walk down a pathway along the side on route to the back of the residence. The officers were required to pass through a closed wooden gate. Officer Aden reached through and opened the latch on the far side of the gate.

[19] The officers knocked on a side door to the residence. A male answered. This was the Defendant, Jaideep Singh. The officers asked Mr. Singh about the operation of the Jaguar. The officers observed Mr. Singh to be slurring his words heavily. Mr. Singh was wearing a yellow or beige t-shirt and dark pants. The officers noticed a strong odour of an alcoholic beverage coming from Mr. Singh’s breath.

[20] Both officers formed a belief that Mr. Singh was impaired, however, they were not confident in their identification of Mr. Singh as the driver of the white Jaguar. They candidly advised Mr. Singh they believed he was the person driving the car but were not confident enough to make an arrest. Constable D’Souza left the side of the residence and returned to the roadway.

[21] At the roadway, the Constable D’Souza met Constable Patterson. They advised of their interaction with and observations of Mr. Singh. Constable Patterson telephoned and spoke directly to Ms. Docherty. He asked her to describe the driver of the white Jaguar. Based on this information, Constable Patterson was confident that Mr. Singh was the driver of the Jaguar.

[22] The police reattended Mr. Singh’s residence, asked him to exit and arrested him for impaired operation of a motor vehicle.

[23] Mr. Singh was taken to a police division and ultimately provided two samples of his breath providing truncated readings of 190 and 170 mg of alcohol in 100ml of his blood.

[24] In the video from Constable D’Souza’s body worn camera I was able to observe that, at the time of his arrest, Mr. Singh had a faded beard. The sides of his head were shaved. The hair at the top of his head was longer, though not in a ponytail. To my ear, he was slurring his words when he spoke.

[25] Witness credibility and evidence reliability were not issues raised by the Defence. In my view, correctly so. I found each witness that testified in this trial to be credible, and I have no issues accepting the reliability of their evidence.

[26] Additionally, there was no issue that Mr. Singh was impaired by the consumption of alcohol. His blood alcohol concentration was in excess of the legal limit.

[27] As I noted the central issue in this trial concerns the police authority to enter onto the property where Mr. Singh lived. To frame the question more specifically, did the police exceed any implied licence to knock authority that may exist in common law?

[28] The defence challenges the police actions when they entered onto his property to conduct their investigation. Mr. Singh enjoyed certain privacy rights with respect to his residence. Their presence on the property was solely to gather evidence of a crime. As such, they exceeded any implied authority to attend on the property. In effect, the police were trespassers. The defence, additionally, argues that any implied licence to knock as permitted by common law was exhausted after speaking with the owner of the property. The police should have obtained the homeowner’s permission to attend the side of the property. The defence seeks an exclusion of any evidence obtained by the police after they attended the side of the residence in breach of section 8 and 9 of the Charter of Rights and Freedoms.

[29] The Crown argues that the police actions were constitutionally permissible. They acted reasonably and in good faith in exercising their legal obligation to investigate crime. In approaching the Defendant’s residence, the police did not exceed the implied licence to knock.

Reasonable Doubt and the Burden of Proof

[30] I must keep in mind that Mr. Singh, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". [1]

The Police Attendance on Private Property

[31] In R. v. Evans, [1996] 1 S.C.R. 8, the Supreme Court of Canada established that the police have an implied licence to approach the door of a residence and knock. This is often referred to as an implied licence to knock. If the police approach the front door of a residence with the purpose of communicating with the occupant, this will not result in an invasion of privacy: R. v. MacDonald, 2014 SCC 3, at para. 26. However, where the police conduct extends beyond what 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": Evans, at para. 15. Where the police act as intruders, their actions constitute a search within the meaning of s. 8 of the Charter: MacDonald, at para. 26.

[32] In Ontario, this implied invitation to approach a residence and knock has essentially been codified: see Trespass to Property Act, R.S.O. 1990, c. T.21, s. 3(2).

[33] The defence argues that the police exceeded this authority in two ways. First, the officers’ true intention for approaching Mr. Singh’s door was to gather evidence for their investigation. They had received information regarding a possible impaired driver and knocked on Mr. Singh’s door to continue their investigation. Second, the implied licence to knock only extends as far as the primary door of a residence. The officers exceeded their authority by attending beyond a closed gate to a door at the side of the residence.

[34] Respectfully, in my view, both arguments must fail.

[35] The defence is correct that, when the police attend a residence with the intention of gathering evidence, they have moved beyond what would be a permissible intrusion on a homeowner’s privacy: R v Thibodeau, 2023 ONCJ 308 at para. 75.

[36] This is distinct from permissible police action entering onto private property with an intention to speak with a resident.

[37] In a factually similar case, R. v. Van Wyck, [1999] OJ No 3515 (S.C.J.), Justice Hill noted at paragraph 26:

A police investigator is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions to solve a crime. This entirely appropriate exercise by the police of their investigatory function, directed to any person whether suspected or not, includes inquiries directed to the identity of the party who may have committed an offence: Regina v. Hicks, supra, at 398; Regina v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.) at 94 per Martin J.A. (leave to appeal refused [1986] 1 S.C.R. viii); Regina v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) at 258 per Martin J.A. (leave to appeal refused [1988] 1 S.C.R. xi).

[38] At paragraph 33, His Honour further noted:

Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s. 8 of the Charter.

[39] The Ontario Court of Appeal arrived at a similar finding in R v Desrochers, 2008 ONCA 255, affirming a summary conviction appeal from the Superior Court of Justice. I note in Desrochers the trial judge found that a police officer stepping into the threshold of a home to conduct a preliminary investigation was not unconstitutional. The Summary Conviction Court found it permissible for a police officer to knock on a residence door and make inquiries.

[40] In the present case, Constables D’Souza and Aden attended the residence to investigate a report of a possible impaired driver. I accept and find as a fact that their purpose for attending the residence was to speak with the potential driver of the Jaguar. They had received from the dispatch a description of the driving, a description of the motor vehicle, and a description of the driver. They approached the front door to the residence and were directed by the homeowner to a side entrance to the residence where of the owner of the white Jaguar resided. The officers attended the door to Mr. Singh’s residence. They ultimately spoke with Mr. Singh to inquire if he was the operator of the Jaguar. When speaking with Mr. Singh the officers noticed other indicia of impairment, including slurred speech and a strong odour of an alcoholic beverage coming from Mr. Singh.

[41] I accept and find as a fact that the officers did not attend the residence with an intention to gather evidence of Mr. Singh’s impairment. At that point, they were simply trying to ascertain who was the driver of the motor vehicle. They engaged Mr. Singh in conversation to determine just that. Mr. Singh was free to choose whether to communicate with the officers.

[42] I note that the officers did not encroach on the residence beyond knocking and engaging in a conversation. They did not enter the residence. The did not exhibit any coercive conduct capable of exercising compulsion upon Mr. Singh. They did not engage in any other form of search beyond accessing the door. They were never asked to leave the property. There was no trespassing sign affixed to the gate. Indeed, Constable D’Souza left the property initially believing that they did not have sufficient grounds to believe Mr. Singh was the driver. It was only after additional information was obtained by Constable Patterson that the officers formed a belief that Mr. Singh was the operator of the Jaguar.

[43] In my view, the officers were permitted to attend Mr. Singh’s residence to speak with him about their investigation. Even if that conversation included investigative questioning.

[44] In the end result, I do not find a breach of Mr. Singh’s section 8 rights based on the police attendance at the door of his residence.

[45] The defence additionally argued that the officers exceeded any implied licence to attend Mr. Singh’s residence by traversing beyond the front door of the residence and beyond a closed gate.

[46] At paragraph 15 of Evans, the Court outlined that the implied licence to knock extends from the street to the door of a residence. The purpose of the implied invitation to knock is to permit convenient communication with the occupant of a residence. A distinction was not drawn as to which door.

[47] In the present case, the officers first attended the front door and spoke with the homeowner. They learned that this was not the door to Mr. Singh’s residence. Mr. Singh’s unit could be accessed by travelling down the side of the residence.

[48] As directed by the homeowner, the officers attended down the side of the residence, passing through a closed tall wooden gate as they did so. Constable Aden reached over and opened the gate permitting access to the door of Mr. Singh’s residence within the house.

[49] In considering this argument, I note the comments of Justice McKinnon in the R v Desrochers summary conviction appeal:

While citizens are entitled to a high expectation of privacy with respect to their homes, a criminal is not immune from arrest in his own home and there are strong policy considerations militating against making a home a sanctuary against arrest and encouraging individuals to see the police: see Eccles v. Bourque, [1975] 2 S.C.R. 739 at 743; R. v. Macooh, [1993] 2 S.C.R. 802 at para. 32.

[50] In my view, it would lead to an ineffectual interpretation of the law to prohibit the police from attending the door of a residence solely because it is not the dwelling’s primary door or is located at the side of the residence. So long as the police presence at the door is for a legitimate purpose, the implied licence must extend to a side entrance to a basement apartment.

[51] In the circumstances of this case, it matters not that the officers had to travel through a closed gate. Any member of the public seeking to access Mr. Singh’s residence would be forced to open and go through this gate. Visitors. Deliveries. Service Providers. All would have a permissible purpose for attending Mr. Singh’s residence by passing through the same gate.

[52] Accordingly, I find that the police attendance at the door to Mr. Singh’s residence did not breach his charter rights.

Identification of the Driver of the Jaguar

[53] The defence additionally argues that there is insufficient evidence to establish the identity of the driver. Counsel points to inconsistencies in the description of the driver, together with no observation of anyone in or near the car when it was parked as support for his argument.

[54] Respectfully, I disagree. There is ample evidence to establish that Jaideep Singh was operating his white Jaguar during the times it was observed by Ms. Docherty.

[55] In consideration of all the viva voce and documentary evidence in this trial, I make the following findings of fact:

(a) Fiona Docherty observed a white, 4 door Jaguar sedan with licence plate CRKX 805 being operated by a South Asian male. (b) At the time of this occurrence, Jaideep Singh was the registered owner of a white, 4 door, Jaguar sedan. [2] (c) The licence plate for Mr. Singh’s Jaguar was CRKX 805. This was the same licence plate number provided by Fiona Docherty to the police. (d) The licence plate CRKX 805 was registered to Jaideep Singh at 6 Kim Court, Brampton, ON L6Y 4L4. [3] This was the address the police attended and located Mr. Singh less than an hour after being observed by Ms. Docherty. (e) A white, 4 door Jaguar sedan with licence plate CRKX 805 was parked in the driveway of 6 Kim Court, Brampton when the police attended at 10:40pm. (f) Jaideep Singh was present at 6 Kim Court, Brampton when the police attended at 10:40pm. (g) Mr Singh upon arrest matched the physical description of the person observed by Fiona Docherty. I note Mr. Singh was wearing a similar colour shirt. His hair and facial hair were distinct features identified by Ms. Docherty. I acknowledge the difference in his hair being in a ponytail at the time of driving and not at the time of arrest. This variance does not trouble me. I note that his hair upon arrest was long on top. I agree with the Crown’s submission that it was capable of supporting a ponytail. (h) At the time of arrest, Mr. Singh was displaying symptoms of intoxication. Though not precisely the head nodding as described by Ms. Docherty, I take note of this as a factor in assessing identity. I find as a fact that the behaviours of the driver were the result of excess alcohol consumption. (i) I accept as accurate Fiona Docherty’s evidence of Mr. Singh in court as the driver of the Jaguar. I am mindful that in many circumstances, an in-doc identification carries very little weight. However, in this circumstance, Ms. Docherty had a full minute and a half to directly observe Mr. Singh. She was unobstructed in her view of him. She was approximately eight feet from him. In these circumstances, a minute and a half was a long time for her to take note of the driver. Her description of the driver was detailed and precise. Her in-court identification was not based on vague descriptors. I also had the benefit of her police statement identification evidence to aid me in assessing the accuracy of her in court identification.

[56] I remind myself that when the Crown relies on circumstantial evidence to prove guilt, I must consider other reasonable possibilities inconsistent with guilt. [4] This is especially true when a finding of guilt rests largely on the use of circumstantial evidence and common-sense inferences.

[57] If I make a finding of guilt based on a commonsense inference, it must be grounded in the facts as I accept them. In other words, I should stray away from inferences that have no support in the evidence.

[58] As I am obliged to do, I have also considered other inferences that can be drawn from my findings above. Aside from the upstairs neighbour the police initially spoke with and Mr. Singh’s girlfriend, no other people were present at the residence. I have considered the possibility an unknown party was the driver of the motor vehicle. Given the similarity in physical descriptions, vehicle ownership, and the timing of the police attendance at the residence, I am satisfied this is not a reasonable inference that can be drawn from these facts.

[59] Viewed collectively, I have no doubt about the identity of the person who was operating the white Jaguar. That was the Defendant, Jaideep Singh.

[60] All of these factors considered together, I am satisfied that the Crown has established that Jaideep Singh was operating his white Jaguar on April 21, 2021 as described by Fiona Docherty.

Conclusion

[61] I find there has been no breach of Mr. Singh’s Charter rights.

[62] I am not left with any doubt that Mr. Singh was operating his motor vehicle while impaired by alcohol, and with a blood alcohol concentration in excess of the legal limit.

[63] Accordingly, I find Jaideep Singh guilty of both impaired operation and operating his motor vehicle with a blood alcohol concentration in excess of the legal limit. Considering the Kienapple principle, the excess blood alcohol offence will be conditionally stayed.

Released: September 20, 2024 Signed: Justice Andrew F. Falls

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242. [2] See Exhibit #4, Ontario Ministry of Transportation VIN History, page 3 of the record (page 4 of the exhibit). See also exhibit #5. [3] See Exhibit #5, Ontario Ministry of Transportation Plate by Date, page 1 of the record (page 2 of the exhibit). [4] R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33.