COURT FILE NO.: 675/10
DATE: 2012/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STEVEN JOHN TONNER
Appellant
Kimberly Moore, for the Crown
Steven John Tonner, Self-represented
HEARD: January 4, 2012 (Perth)
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
KERSHMAN J.
[1] This is a Summary Conviction Appeal from the decision of March J. of the Ontario Court of Justice rendered on September 9, 2010, wherein the Appellant was found guilty of the offence of obstructing a peace officer, contrary to s. 129(a) of the Criminal Code of Canada.
[2] The Appellant argues that:
• the trial judge erred by misapprehending the issue of whether the Crown had established the identification of the Appellant as the person who spoke with Constable Leaver, on July 28, 2008. The actual identification issue to be determined was not whether the Appellant was the man arrested by the police on August 13, 2008, which is undisputed, but whether the man arrested was the same person who had obstructed police on July 28, 2008;
• the trial judge erred by failing to instruct himself on the frailties of identification evidence, particularly with regard to the risk that the evidence was tainted by the flawed pre‑trial identification process which occurred in this case;
• the trial judge erred in law by failing to apply the correct test for the determination of whether the Crown had proven the essential element of whether the material police officer was acting in lawful execution of his duty; and
• the trial judge erred by misapprehending the evidence as to which part of the dwelling house property was entered by the police officer and that this evidence was material to the determination of whether the Crown had proven the essential element of whether the material police officer was acting in the lawful execution of his duties.
Relevant Law
[3] The following is the relevant section of the Criminal Code of Canada:
- Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
R.S., c. C-34, s. 118; 1972, c. 13, s. 7.
Factual Background
[4] On July 28, 2008, Constable Leaver of the Ontario Provincial Police attended at the Fall River Coffee Shop and learned that there had been a dispute between the staff and a customer they knew as Steven Tonner. The officer was advised that the staff had requested Steven Tonner not to return to the premises. They advised the officer that if he did return, they would have him charged with trespassing. The staff informed the officer that Steven Tonner was driving a green pickup truck on that day and that his residence was on Zealand Road on Silver Lake.
[5] Constable Leaver left to find Steven Tonner to advise him of the complaint and what the consequences would be if he returned to the coffee shop. His aim was to prevent any further breach of the peace, and to avoid Mr. Tonner being charged with trespass.
[6] The officer got directions from someone in the neighbourhood who knew Mr. Tonner and saw the Tonner name on a sign and arrow on a post on Zealand Road. He located the residence. There was a green pickup truck on the property. Constable Leaver approached the residence, but could not approach the door on the side away from the lake because there had been excavation of the area, with the septic tank open. He walked around to the lake side of the cottage and found a patio, an open glass patio door, and a person sitting behind a computer at a desk.
[7] The officer, in full uniform, identified the Appellant as the person he saw behind the desk working at a computer.
[8] The officer said that the person was three to five metres away, and easily identifiable. The two of them made eye contact. The officer saw his full face which was unobstructed. The person proceeded to duck behind the desk in an apparent attempt to hide. The officer remained outside the cottage.
[9] Constable Leaver told the person that he was with the OPP, but the person would not sit up. He then tapped a glass table with his keys and stated that he could see the person behind the desk and the person then sat up.
[10] The person the officer identified as the Appellant was dressed in women’s attire. His hair was down with bangs, he had large earrings on, and he was wearing a purple blouse and white shorts, both of which were in a style typically worn by women.
[11] The two of them then had a conversation that lasted a “few minutes”. Constable Leaver told the person about the complaint at the coffee shop, and that he was looking for Steven Tonner. They conversed freely. Constable Leaver said that he and the person were within close enough proximity that they could communicate without raising their voices and they spoke in a fairly relaxed tone. The person he identified as Steven Tonner stated that Steven Tonner was not there, that he had left to give five people a ride to the highway.
[12] When asked to do so, the person identified himself as John Tonner and gave a date of birth of October 10, 1957. There was other information exchanged. The person was hesitant when he answered questions. The officer found him suspicious. He felt the person was caught off guard by his presence.
[13] Officer Leaver asked the person for identification. The person patted the desk, shuffled papers around, stood up and went into another room in the cottage. When he returned, he stated he was unable to provide identification.
[14] The officer informed the person about the complaint and about the consequences of re-attending at the coffee shop. He also warned the person that misidentifying himself to the police is a different matter and could have consequences as well. He then left.
[15] Constable Leaver checked the records for the name “John Tonner” with the date of birth provided by the person, and he could find no records for that name. He then queried the name “Steven Tonner” and found that a person by that name was bound by court orders with the Toronto Police which required him to remain at his residence in Pickering unless accompanied by his surety.
[16] On August 13, 2008, Constable Leaver drove by the cottage. He observed a blue Mercedes in the driveway. There was a male in the yard who ran to the residence when the police vehicle came into view. It appeared to be the same person he had spoken to on July 28, but he was some distance away. The officer drove past and stopped some distance past, did some paperwork, and then drove back. This time he saw the person peering through a hedge in the direction of the cruiser, and then he ran back toward the residence. The officer believed it was the same person he spoke to when he originally attended, and he found it suspicious that someone would run from the police.
[17] Constable Leaver went out to Zealand Road, and did some more paperwork. After a time, the blue Mercedes went by with the Appellant driving. The officer testified that it was the same person who had identified himself on July 28 as John Tonner. The Constable pulled the vehicle off the road. The Appellant produced his driver’s licence. The Appellant tried to explain that sometimes he goes by his middle name. The officer confirmed the conditions binding the Appellant.
[18] The officer arrested the Appellant because he falsely identified himself on the first occasion when he was in the lawful execution of his duty. At trial, the defence called no evidence. The Appellant was found guilty of obstructing a police officer contrary to s. 129(a) of the Criminal Code of Canada.
Issues
[19] The issues are as follows:
Did the trial judge misapprehend the issue of identification?
Did the trial judge err in relation to the frailties of identification evidence and the flawed investigation process?
Did the trial judge err in relation to the legal test for the finding of lawful execution of duty and did the trial judge misapprehend the evidence relating to the lawful execution of duty?
Analysis
[20] The Court notes that on pp. 53 and 54 of the Transcript (“Transcript” or “Reasons for Decision”) which include the Reasons for Decision given by March J., he states that there were two photo identifications of the Appellant made by the police officer. This was an error, because later on in the Reasons for Decision, March J. speaks about two identifications of the Appellant by the police officer. The Court notes that there was only one photo identification of the Appellant which was on July 28, 2008. The Court believes that the trial judge likely misspoke when he said that there were in fact two photo identifications of the Appellant before his arrest. The Court does not deem this misspoken statement to be fatal to the conviction because, at p. 54, line 17 in the Reasons for Decision, March J. refers to it as two identifications, not two photo identifications.
[21] The Court has reviewed the factums and the case law and has heard the submissions of both parties.
Issue # 1 – Did the Trial Judge Misapprehend the Issue of Identification?
Appellant’s Position
[22] The Appellant argues that the trial judge erred when he determined that the Appellant was the person that Constable Leaver spoke with on July 28, 2008, and that the person arrested on August 13, 2008, was the same person.
[23] The Appellant says that the trial judge presumed that the police officer saw the same person on July 28 and August 13, 2008. He says that the trial judge failed to turn his mind to consider the key issue of whether he was satisfied beyond a reasonable doubt that the individual arrested on August 13 was the individual from July 28, based on the police officer’s single observation of the man who identified himself as John Tonner.
[24] The Appellant relies on the case of R v. Boucher (2000), 2000 CanLII 3270 (ON CA), 134 O.A.C. 82, at para. 19:
19 We are not here dealing with a police officer's civil liability or the question of reasonable and probable grounds. Nevertheless, it seems to me that the principles set out in these passages apply in this case. In view of the dissimilar feature of the pants, there was no identification, merely a resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence. If there were other inculpatory evidence it may be that a trier of fact would have good reason for finding that the customer's testimony was unreliable. Since there was no other evidence, the dissimilarity at worst renders the resemblance of no probative value and possibly stands as an exculpatory feature.
Crown’s Position
[25] The Crown argues that there was direct evidence of identification from Constable Leaver, which was accepted by the Court.
[26] The Crown also argues that in relation to the claims made by the Appellant at paras. 21 and 22 of his factum, that the evidence comes down to Constable Leaver’s description of the Appellant resembling the individual from July 28, the Crown respectfully submits that such evidence only arose when describing the brief and distant observations made by the officer as he drove by the property on August 13. The Crown argues that the Appellant completely ignores the direct evidence of identification on both July 28 and August 13 arising from face‑to‑face encounters with the Appellant.
Analysis
[27] In this situation, there were three contacts between the Appellant and the police officer. The first two contacts were direct and over a period of time while the third was a fleeting contact. The contacts were:
(1) July 28, 2008, when Constable Leaver was on the patio of the Zealand Road property. He spoke directly to the Appellant who was inside the cottage. During that time, the officer’s evidence was that his view of the Appellant was unobstructed for a few minutes, at least three, and possibly up to five minutes. No evidence to the contrary was provided.
(2) August 13, 2008, when Constable Leaver drove by the Zealand Road property. At that time, he saw a person resembling the individual from July 28, 2008, fleeing towards the residence after the individual saw the clearly identified police vehicle. The police officer only saw the person for a few seconds and said that the person he saw running towards the house appeared to be the individual that he saw on July 28, 2008. He did not say that it was the same person. He said, “I believed it to be” at p. 28, line 12 of the Transcript.
(3) August 13, 2008, when Constable Leaver observed a blue Mercedes at the Zealand Road property and then saw that vehicle on the road later. The Constable stopped the vehicle and received identification from the driver who identified himself as Steve Tonner. At that time, Mr. Tonner produced his driver’s licence.
[28] The Court notes that a birth certificate was provided at trial which identified the Appellant as Steven John Dempsey Tonner.
[29] When the Constable stopped the blue Mercedes on August 13, 2008, he made a direct identification of the person that he saw on July 28, 2008. It was Steven Tonner.
[30] As such, there were two direct observations made by the police officer of the Appellant and one observation of a man resembling the person seen on July 28, 2008.
[31] The Court does not accept the Appellant’s argument that the police officer saw the Appellant only once. In fact, he saw him twice, both on July 28, 2008, at the cottage and again at the time that the vehicle was pulled over on August 13, 2008.
[32] The trial judge made a note of this in his Reasons for Decision at p. 50, line 5 and onwards.
[33] The Court notes that R v. Boucher is distinguishable on its facts because it dealt with the issue of identification of a pair of pants. In that case there was no identification of the pair of pants but merely a resemblance in relation to this piece of clothing. The two cases are distinguishable.
[34] Accordingly, the argument made by the Appellant that the trial judge misapprehended the issue of identification fails.
Issue # 2 - Did the Trial Judge Err in Relation to the Frailties of Identification Evidence and the Flawed Investigation Process?
Appellant’s Position
[35] The Appellant argues that the trial judge erred in law by failing to instruct himself as to the frailties of the identification evidence, specifically, that the police officer’s identification evidence was tainted by the flawed pre‑trial identification process.
[36] The Appellant argues that the Ontario Court of Appeal in R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 at p. 424, supports his position:
The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passage from the decision of R. v. Smierciak, (1946) 1946 CanLII 331 (ON CA), 87 C.C.C. 175 Laidlaw J.A., in writing for the Ontario Court of Appeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence. His words are particularly useful to the review of this case (at p. 177):
The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person.
[37] The Appellant argues that the police officer saw a picture of Steve Tonner when accessing various databases and that he conducted a photo line-up of him by doing so.
[38] The Appellant also argues that R. v. Bethune, 2010 ONCJ 556, at para. 26, addresses a similar situation with regard to tainted identification evidence as a result of a witness police officer viewing a single photo of the subject:
26 The integrity of the identification was compromised once Eliades looked at the single photograph of Mr. Bethune. Unlike the situation in the Hoffer case, [[1195] S.J. No. 693, 1995 CanLII 6007 (SK KB), 138 Sask. R. 219 (Sask. Q.B.)] the probative value of the potential confirmatory evidence is tainted because it is inextricably linked to the problematic identification made by Eliades. The officer knew he was looking at the photograph of a man connected to both the car and criminal activity involving money and contraband, if not also guns. The officer had seen money and feared the presence of drugs or weapons when he first approached the car and its driver. The facts that Mr. Bethune was connected to the car, may have had a proprietary interest in the vehicle and had a criminal history involving drugs are not independent corroborative facts because they were part of the officer's knowledge when he looked at the single photograph of the accused. The possibility of influence or suggestion in the circumstances under which the photograph was viewed by the officer cannot be discounted. [Footnote omitted.]
Crown’s Position
[39] The Crown argues that there is absolutely no evidence to support the statement in para. 31 of the Appellant’s factum that the officer saw a photo of the Appellant while searching databases.
[40] The Crown argues that evidence that a witness has identified the accused prior to the initial observation is admissible to assist the trier of fact in assessing the reliability of the witness who identifies the accused in court. The trier of fact will consider the entirety of the identification process, evidence of the circumstances surrounding any prior identifications will soon be central to that assessment. The Crown relies on the case of R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at paras. 36 to 39:
36 Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification: e.g. R. v. Langille, supra, at 555; DiCarlo v. The United States, 6 F.(2d) 364 at 369, per Hough J., concurring, (2d cir. 1925); Clemons v. The United States, 408 F. (2d) 1230 at 1243 (D.C. cir. 1968). The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of cases which have considered the reasonableness of verdicts based upon identification evidence: e.g. see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.).
37 If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.4
38 Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. In his influential article, Evidence of Past Identification, supra, Professor Libling explains the admissibility of the out-of-court statements where the witness makes an in-court identification in this way, at pp. 271-72.
There is no hearsay problem with this kind of evidence. It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court. As a general rule, a witness is not permitted to testify as to his own previous consistent statements because they add nothing to the in-court testimony. But evidence of previous identification strengthens the value of the identification in court by showing that the witness identified the accused before the sharpness of his recollection was dimmed by time. Furthermore it is important, in assessing the weight of the identification in Court, to know whether the identifying witness was able to identify the accused before he was aware that the accused was the person under suspicion by the police.
39 I agree with Professor Libling's analysis. When such evidence is tendered, the trier of fact is not asked to accept the out-of-court statements as independent evidence of identification, but is told to look to the entirety of the identification process before deciding what weight should be given to the identifying witness' testimony. In this respect, evidence that the witness previously gave a description which matched the accused or previously selected the accused in a line-up serves no different evidentiary purpose than would evidence showing that the identifying witness had an ideal vantage point from which to observe the perpetrator of the offence. Both are factors which will assist in weighing the witness' in-court testimony.
[41] The Crown also argues that the Court may take the failure of the Appellant to testify into account in assessing the reasonableness of verdict. Silence is not to be used as evidence, but the Court factors the absence of any innocent explanation into its consideration of whether a conviction based on the evidence was reasonable. The Crown cites the case of R. v. Black, [2001] O.J. No. 709 (C.A.), at para. 3:
3 None of the appellants testified. This court may consider the failure to testify in assessing the reasonableness of a verdict. In doing so, it does not use that silence as evidence, but rather factors the absence of any innocent explanation into its consideration of whether a conviction based on the evidence was reasonable: R. v. Noble (1997), 1997 CanLII 388 (SCC), 114 C.C.C. (3d) 385 at 426-29 (S.C.C.).
Analysis
[42] March J. properly instructed himself as to the frailties of eye witness identification evidence and of the dangers of convicting a person on the basis of eye witness identification. He considered the following:
(1) The length of time that the police officer was able to observe the person;
(2) Whether there was more than one opportunity to observe the person; and
(3) The circumstances surrounding the interaction between the police officer and the witness, i.e. whether it was a glance or something happened unexpectedly or whether the witness was looking for a particular individual, and whether the actions of the person aroused the suspicions of the witness.
Reasons for Decision p. 52, line 1 – p. 53, line 1.
[43] The police officer had a few minutes to observe the Appellant on July 28 and had a conversation with him. He again identified the individual when he stopped the Appellant on August 13, 2008.
[44] Under these circumstances, the Court is satisfied that the trial judge properly instructed himself as to the frailties of eye witness identification evidence and the dangers of convicting a person on the basis of eye witness identification.
[45] The Court rejects the Appellant’s claim that the police officer should have conducted a line‑up in order to identify him. A line‑up would apply in a situation where the witness was a civilian but not a police officer acting in the line of duty. Furthermore, that issue was not raised at trial.
[46] The Bethune case can be distinguished on its facts from the present case because in the Bethune case, there was a minimal opportunity for viewing the person while at the side of the road and approaching the vehicle. The incident took place at 6:20 in the evening. The police officer saw the back of the driver’s head, then his left profile, and finally, his full face. There was no conversation and the car sped off from the location very quickly after Constable Eliades opened the car door.
[47] Accordingly, the argument made by the Appellant that the trial judge erred in relation to the frailties of the identification evidence and the investigation process fails.
Issue # 3 - Did the Trial Judge Err in Relation to the Legal Test for the Finding of Lawful Execution of Duty and Did the Trial Judge Misapprehend the Evidence Relating to the Lawful Execution of Duty?
Appellant’s Position
[48] The Appellant argues that the trial judge erred in failing to apply the correct test when finding that the police officer was in lawful execution of his duty when he spoke to the individual on July 28, 2008. The trial judge’s analysis of whether the Constable was in lawful execution of his duty was based on an assessment of the purpose to which Constable Leaver attended at the residence on July 28.
[49] The Appellant does not dispute that Constable Leaver’s attendance at the residence constituted a lawful duty of a police officer. The issue is the manner in which the duty was executed. The Appellant argues that the manner in which it was executed was unlawful because Constable Leaver was trespassing on private property without express or implied permission and without common law or statutory authority.
[50] The Appellant relies upon the case of R. v. Lauda (1999), 1999 CanLII 970 (ON CA), 45 O.R. (3d) 51, at paras. 106 and 107, when the Court determined that the convictions could not stand:
106 The convictions for obstructing a peace officer in the execution of his duty and escaping lawful custody can only be sustained if Constable Parsons was engaged in the lawful execution of his duty when he arrested the appellant.
107 The analysis that I have brought to bear on Constable Parsons' warrantless entry and search of the cornfield leads me to conclude that at the time of arrest, he and his partner were unlawfully trespassing on private property and their presence on the property constituted a violation of the appellant's s. 8 rights. Under these circumstances, bearing in mind that the appellant was lawfully in possession of the leasehold property, it cannot be said that Constable Parsons was acting in the lawful execution of his duty when he arrested the appellant. (See R. v. Thomas (1991), 1991 CanLII 2736 (NL CA), 67 C.C.C. (3d) 81 (Nfld. C.A.); aff'd (1993), 1993 CanLII 117 (SCC), 78 C.C.C. (3d) 575 (S.C.C.).) Accordingly, the convictions on the Criminal Code offences cannot stand.
[51] The Appellant argues that Constable Leaver entered into the private backyard of the premises without permission and without Constable Leaver having any statutory authority to do so.
[52] The Appellant argues that the trial judge misapprehended the material evidence relating to whether Constable Leaver was in lawful execution of his duty because the trial judge misapprehended which part of the residence and the residential property was entered upon by Constable Leaver.
[53] Furthermore, the Appellant argues that Constable Leaver did not attend at the front door of the residence, but rather attended at the backyard of the residence and entered onto a private patio. The inability to approach the front door does not grant the police authority to enter private outdoor areas of the premise, to enter the residential backyard and look for individuals through patio doors.
[54] The Appellant relies upon the case of R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at paras. 6 and 8, that Constable Leaver had implied authority to proceed from the gate to the front door of the residence and that authority ended at the door of the residence.
Crown’s Position
[55] The Crown argues that the officer was on the property for the lawful purpose of communication with Steven Tonner.
[56] As to the assertions made by the Appellant, in paras. 41-47 of his factum, that the learned trial judge misapprehended the evidence when he stated that the officer attended at the “front or lakeside” of the cottage, the Crown submits that there was no such error. The evidence was clear and the trial judge found that the side of the cottage closest to the road could not be approached due to disrepair and the septic tank being dug up which meant that the officer had to go around to the lake side of the cottage.
[57] The Crown argues that the occupier of a dwelling gives implied licence to any member of the public, including a police officer on legitimate business, to come onto the property. The implied licence ends at the door of the dwelling. The purpose of the implied licence is to enable a police officer to reach a point in relation to the house where he or she can conveniently and in a normal manner, communicate with the occupant. R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 128 O.A.C. 224, at para. 23, and R. v. Evans, supra, at para. 15:
23 In R. v. Tricker, supra at 203, this court considered the common law implied invitation or licence to members of the public granted by occupants of private property:
The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling.
As explained in R. v. Evans, supra at 30:
The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.
15 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind the purpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 1968 CanLII 802 (BC CA), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court in Bushman stated, at p. 19:
The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.
I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.
Analysis
[58] The trial judge considered the evidence in relation to the officer attending at the Zealand Road premises at p. 48, lines 8-17:
He talked to a pedestrian and asked where Steven Tonner would live and was given directions to the cottage. He then attended at that address and saw a green pickup truck that matched the description from the Fall River Coffee Shop. As I am understanding the evidence, the back area of the cottage was in disarray with the septic tank dug up. As a result, Constable Leaver had to go around to the front or the lake side of the cottage where he saw a glass patio door.
[59] The police officer was not able to go to the front door due to the disrepair and the septic tank being dug up. He went to where he could contact the occupant, which meant going around to the patio door.
[60] The police officer gave evidence that he did not enter the house and spoke to the occupant from the patio door. It is the Court’s view that the trial judge did not misapprehend the evidence about why the police officer went to the patio door near the lake. The trial judge knew that it was because the door near the road was inaccessible due to the disrepair and the septic tank being dug up.
[61] The police officer was going to the property:
(1) to prevent a repetition of what had occurred at the coffee shop, i.e. to preserve the peace;
(2) to protect the public; and
(3) as a courtesy to Mr. Tonner, to advise him of the complaint against him.
[62] Having reviewed para. 15 of the Evans case, the implied licence to knock does not say that the licence to proceed is from the street to the front door of a house but rather from the street to the door of a house. In this particular case, the police officer attended at the door that he was able to access, that being the patio door, as opposed to the door that he could not access, being the door facing the road. Accordingly, in the Court’s view, there was no breach of the implied licence to knock rule.
[63] Furthermore, there was no evidence that the Appellant asked the police officer to leave when he saw the officer at the patio door.
[64] The Appellant argued that the case of R. v. Thomas, 1993 CanLII 117 (SCC), [1993] 1 S.C.R. 835 applies to this situation. That case can be distinguished from the case before the Court because in Thomas, the police officers were invited into the house and actually entered the house; while in this case, the police officer was not invited into the house and did not enter the house.
[65] The court finds that the trial judge considered all of the available evidence and there was no error in fact or in law. Furthermore, there was no error or misapprehension of the evidence relating to the lawful execution of the police officer’s duty. This ground of the appeal fails.
[66] Looking at the evidence as a whole and the reasons given by the trial judge, the Court is satisfied that March J. considered the totality of the evidence having seen and heard the witness. Looking at the evidence as a whole, the Court is satisfied that the trial judge reached the proper conclusion when he found the Appellant guilty of the charge of obstructing a police officer.
[67] Accordingly, the appeal is dismissed and the conviction stands.
Original Notice of Appeal and Amended Notice of Appeal
[68] The Court notes that in the original notice of appeal the Appellant appeals against his conviction and sentence while in the amended notice of appeal the Appellant appeals the conviction only.
[69] Since the amended notice of appeal takes precedence, the Court will not give any consideration of the appeal as to the sentence in the original notice of appeal.
[70] As stated previously, the appeal is dismissed.
[71] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: February 13, 2012
COURT FILE NO.: 675/10
DATE: 2012/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
STEPHEN JOHN TONNER
Appellant
REASONS FOR decision
on summary conviction appeal
Kershman J.
Released: February 13, 2012