Court File and Parties
Court File No.: SCA(P) 1029/18 Date: 2019-03-04 Ontario Superior Court of Justice Summary Conviction Appeal
Between: Her Majesty the Queen – and – Joseph Irving
Counsel: Arish Khoorshed, for the Crown Appellant Shahid Malik, for the Respondent
Heard: February 19, 2019
Reasons for Judgment
[On Appeal from the Judgment of Mr. Justice G.S. Gage, dated April 25, 2018]
J.M. Woollcombe J.
[1] The Crown appeals from the acquittal of the respondent, Joseph Irving, on charges of impaired operation of a motor vehicle and drive over 80.
Summary of Facts and Findings of the Trial Judge
[2] The following facts were found by the trial judge.
[3] By way of summary, on August 10, 2016, two civilians observed a black pick-up truck, owned by the respondent, to be swerving all over the road as it drove north on Highway 410 in Brampton. They called 911 and reported that the truck had exited at Sandalwood. Peel Constable Pallett heard the radio dispatch relating to the 911 call and arrived at the Irving residence at 3:29 p.m. He saw a black pick-up truck with the same license plate parked in the driveway.
[4] The officer went to the front door of the house and knocked. Sarah Irving, the respondent’s wife, answered the door. The officer questioned her about the truck and asked who had been driving it. She responded, “My husband, he just got home.” The officer told her that he needed to speak with her husband. She left and spoke with the respondent. She returned to the front door. Ms. Irving asked the police if they could return the following day or at another time.
[5] Constable Pallett told Ms. Irving that he could not wait and needed to speak with the respondent then. Ms. Irving left the front door again and then returned. This time she asked the officer, “Why now?” The officer did not answer the question, but responded, “Just tell him that he needs to come to the door now”. Ms. Irving left for a third time.
[6] It was Ms. Irving’s evidence that while she was speaking with Constable Pallett, he had his foot on the threshold of her door, something she found “very unusual and, frankly, disrespectful”. She said that normally she would have closed the door at least slightly when she went to look for her husband, but that she could not do so because the officer’s foot was very clearly on the threshold. The trial judge accepted that the officer had placed his foot on the threshold and found that the implication of him doing so was to give a direction to the homeowner that she was not permitted to close the door.
[7] Shortly after Ms. Irving left the officer at the front door for the third time, the respondent attended at the doorway.
[8] An exchange between the respondent and officer then took place at the front door, at between 3:30 p.m. and 3:32 p.m. The officer detected the odour of alcohol on the respondent’s breath, observed that his mouth was full of crackers, that he was walking slowly and sweating, that his eyes were watery and bloodshot, and that he slurred his words when he told police he had been home all day.
[9] Two additional officers, Constables Rogers and Zeppieri also arrived at the front door of the Irving home. The respondent was told that he was being investigated for impaired driving. Constable Pallett’s foot was on the threshold and the respondent was inside the home. Constable Pallett told him that he was not permitted to leave the front door and then he left and went to his cruiser. Constable Rogers put his arm on the front door and his foot on the threshold.
[10] As the respondent attempted to close the front door, Constable Rogers entered the residence to prevent the door from being closed. There was a brief struggle and Constable Pallett returned and arrested the respondent. The arrest was completed at 3:43 p.m. The respondent was taken to a police cruiser where he was read his rights to counsel at 3:46 p.m. and a breath demand at 3:48 p.m.
[11] The respondent was transported to 22 Division where he was afforded the opportunity to consult with counsel of choice. Two breath samples were taken and the readings were 130 mg and 140 mg of alcohol in 100 mL of blood.
[12] The trial judge found as a fact that the evidence supported a conclusion that the respondent was the driver of the truck seen by the civilians on Highway 410. He also held that that after speaking with the respondent at the door of his home, the police had reasonable grounds to arrest him for impaired driving and to make the breath demand.
[13] The trial judge concluded that there had been a short breach of the respondent’s s. 10(b) rights in that there was a delay between the commencement of the investigative detention of the respondent at the doorway and Constable Pallett’s return to the door and the formal arrest. This was a period during which Constable Pallett went to his police cruiser to check aspects of the evidence to be sure of his grounds. Following the arrest, Constable Pallett provided the respondent with his rights.
[14] The more significant issue for the trial judge was whether the police had breached the respondent’s s. 8 rights. The trial judge found that there were really two difficulties with the police conduct. First, he found that Constable Pallett was not permitted to place his foot on the threshold of the doorway as the implication of him doing so was that the homeowner was not permitted to close the door. The trial judge found that this was a direction that the officer could not give as an implied invitee and was not lawful.
[15] Second, the trial judge accepted that Constable Pallet was initially permitted to speak to Ms. Irving and to make inquiries to see Mr. Irving. However, he found that once Ms. Irving implicitly, but clearly, revoked that implied invitation to the officer, by twice returning to the door indicating that her husband did not wish to speak to the police, the officers were required to leave. He was of the view that remaining at the door, and directing that the respondent was required to attend at the door, was unlawful and a breach of the respondent’s s. 8 rights.
[16] When he considered the admission of the observations of respondent made by the police at the door and the breath samples under s. 24(2), the trial judge concluded that breaches were, viewed cumulatively, serious and that the police had not acted in good faith. He found that the first branch of Grant favoured exclusion. The trial judge held that the impact on the respondent’s Charter protected interests were serious because of the level of police coercion utilized in having him attend at the door of his home. Accordingly, he found that this branch of the Grant test also favoured exclusion. While the third branch of the Grant test favoured inclusion, the trial judge ultimately concluded that the breath samples and observations of the police at the door should be excluded.
Positions of the Parties
[17] The Crown frames the issue in the appeal as one of “whether a person who commits a criminal act and makes it home is, in effect, “home free”.
[18] The Crown submits that Constable Pallet was in “hot pursuit” of the respondent and, as such, had the legal authority to enter the home for the purpose of effecting the arrest. I understood Mr. Khoorshed to say that the police could have entered into the Irving home before the officer had seen the respondent.
[19] Further, it is the Crown’s position that the police were entitled to attend at the door of the home, and that there was never a withdrawal of the implied invitation to the police to remain at the door and engage in conversation and discussion with Ms. Irving. The Crown says that the trial judge erred in finding that the implied invitation to the police had been withdrawn in these circumstances and that, as such, there was no s. 8 breach.
[20] The Crown says that if there was a s. 10(b) breach in the delay of the respondent receiving his rights to counsel, that breach was brief and minor.
[21] On the s. 24(2) analysis, the Crown says that the trial judge made multiple errors warranting setting aside his conclusions. If the analysis is re-considered properly, the Crown says that the evidence of police observations of the respondent and the breath samples should be admitted.
[22] The respondent’s position is that there was no hot pursuit or exigent circumstances and that the trial judge made no error in concluding that Constable Pallett was not permitted to enter the home on that basis. Further, the respondent says that the trial judge was correct to find that Constable Pallett exceeded the scope of his authority because Ms. Irving implicitly withdrew the implied consent that the police initially had to speak to her at the door. In these circumstances, the respondent says that the trial judge made no error in finding a s. 8 breach. The respondent submits that the trial judge’s s. 24(2) analysis should be affirmed.
Analysis
i) Did the trial judge err in finding a s. 8 breach?
[23] In my view, this is not a case about hot pursuit or exigent circumstances. The right of police officers to enter a person’s home in hot pursuit is grounded in the notion that police officers should not be prevented from making an arrest because an offender has taken refuge in his or her home: R. v. Macooh, [1993] S.C.J. 28 at paras.19-22. While the Crown submits that this is that sort of case, the critical flaw with this argument is that the police lacked reasonable grounds to make an arrest when they arrived at the Irving home. Accordingly, they could never justify an entry into the home on this basis. The trial judge recognized the possible application of the concept of hot pursuit to this case, but held, correctly in my opinion, that because the police did not have grounds for arrest, this was not available to the police.
[24] There was, of course, an alternative basis for the police to approach the Irving home. While there is no doubt that individuals have a strong reasonable expectation of privacy in their homes, the Supreme Court of Canada has made clear that the police have an implied license to approach the door of a residence and knock: R. v. Evans, [1996] 1 S.C.R. 8. Doing so will not be considered an invasion of privacy constituting a search if the purpose of the police is to communicate with the occupant: R. v. MacDonald, 2014 SCC 3, [2014] S.C.J. No. 3 at para. 26.
[25] In R. v. Atkinson 2012 ONCA 380, Watt J.A. summarized the principles applicable to the “implied license to knock” at paras. 45-49:
45 The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: R. v. Evans, [1996] 1 S.C.R. 8 (S.C.C.), at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant's privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.
46 This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence" to knock: Evans, at para. 15.
47 Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the occupant's home: Evans, at paras. 16, 18, and 21. Likewise, where police specifically advert to the possibility of securing evidence against an accused by "knocking on the door", they have exceeded the authority conferred on them by the implied licence to knock: Evans, at para. 20.
48 In some circumstances, police officers lawfully present at the door of a residence may lawfully enter the premises. An invitation to enter may be implied from the circumstances, for example from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place: R. v. Clarke (2005), 196 C.C.C. (3d) 426 (Ont. C.A.), at para. 28.
49 When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348
[26] In several cases, these principles have been considered and applied. For instance, in R. v. Desrochers, [2007] O.J. NO. 1482 (ONSC); aff’d 2008 ONCA 255, McKinnon J. considered a summary conviction appeal with a situation somewhat similar to the one in this case. The appellant was involved in an accident with his motorcycle and was followed by witnesses to his home. Police knocked at the door and his wife answered. The officer entered the foyer. The wife did not object, though she kept her hand on the door handle. The officer asked if the appellant required medical attention and was told he would be all right. The officer asked if he could speak to the appellant and was told he was in bed. The officer again asked to speak to him and his wife went to get him. The appellant then attended at the door and spoke to the police.
[27] The trial judge found that the officer was conducting a preliminary investigation when he went to the door, as opposed to seeking evidence of a criminal investigation. He found no constitutional violation flowing from the officer stepping inside the door when the wife made no objection and engaged in conversation.
[28] McKinnon J., sitting as the summary conviction appeal court judge, found no error with the trial judge’s approach. Relying on the analysis of Hill J. in R. v. Van Wyk, [2009] O.J. No. 3515 (S.C.J.), the summary conviction appeal court judge found that the police were legitimately conducting an investigation and that they were entitled to do so “until the occupant makes known that his cooperation has been withdrawn”.
[29] On further appeal, the Court of Appeal affirmed that the police had an implied invitation to approach and knock at the house. They also accepted that the trial judge’s conclusion that the officer had stepped into the foyer with the implied invitation of Ms. Desrochers was available on the evidence.
[30] In the case before me, the trial judge’s reasons reveal that he was keenly aware of the guiding principles. Indeed, he summarized them with care. He then applied them to the facts that he found.
[31] The trial judge accepted that Constable Pallett was entitled to go to the door, to speak to Ms. Irving, and, on the basis of what she told him, to ask to speak with the respondent. However, what he was not permitted to do was to put his foot on the threshold and send a message to her that she was not permitted to close the door. Further, he was not permitted to remain at the door and to demand that the respondent attend and speak with him. As a whole, the trial judge found that the facts led to a conclusion that Ms. Irving had removed her consent for the officer to be there.
[32] The Crown says that this legal conclusion was incorrect and unsupportable by the evidence. The Crown rejects any suggestion that the trial judge was troubled by the tenor and tone of the conversation that Constable Pallett had with Ms. Irving, and says that his concern was simply with the fact that the officer had his foot on the threshold. Mr. Khoorshed further submits that the trial judge’s legal conclusion flowing from this concern reveals an error. I disagree.
[33] I accept that the trial judge was very concerned about the fact that Constable Pallett’s foot was effectively blocking Ms. Irving from closing the door. I also accept that there have been other cases in which courts have found no Charter breach by officers actually stepping into a home to engage in discussion, as opposed to putting a foot on the threshold (See, for example, R. v. Desrochers and R. v. Erskine 2015 ONSC 5887 at paras. 48-57). In my view, the trial judge’s conclusion that this conduct on Constable Pallett’s part was concerning and unjustified was available on the evidence, particularly the evidence of Ms. Irving.
[34] Determining whether the police have violated the implied license to knock requires a consideration of all of the circumstances in their proper context. I find that this is precisely what the trial judge did in this case.
[35] Apart from his conclusion that Constable Pallett used his foot to prevent the front door from being closed, I find that the trial judge was also concerned about the interaction between Constable Pallett and Ms. Irving. While the Crown submits that this did not trouble the trial judge, I disagree. Although at one point, the trial judge said that it was “arguable” that Ms. Irving’s statements to Constable Pallett represented a revocation of the implied invitation, there are other points in the judgment in which he used much stronger words to describe this interaction.
[36] More specifically, in the course of his s. 24(2) analysis, the trial judge described the issue of the contact between Ms. Irving and Constable Pallett. He characterized what the officer said to Ms. Irving as a “demand” that the respondent present himself at the door. At another point in his s. 24(2) analysis, the trial judge found that on the basis of “the content and tone of Pallett’s last demand it is a fair characterization that Joseph Irving was coerced by the state from the safety and privacy of his library into the scrutiny of the officers on the front porch”.
[37] Read as a whole, the trial judge’s reasons demonstrate a factual conclusion that Ms. Irving signalled, albeit in a polite manner, that her husband did not wish to speak with the police. She first indicated that he wanted the police to return later or the next day. When she returned a second time, she asked why the police needed to see the respondent then. She was not given an answer. Instead, Constable Pallett chose to effectively demand that the respondent present himself at the door. The trial judge found that this was coercive.
[38] I think that it was open to the trial judge on this record, having seen and heard the witnesses, and the manner in which they described the interaction at the door, to make the factual findings that he did about the interaction. Having made those factual findings, I find no legal error in his conclusion that Ms. Irving revoked the implicit invitation to the police to continue in their discussion.
[39] In these circumstances, I find no error in the trial judge’s conclusion that there was a s. 8 breach.
ii) Did the trial judge err in finding a s. 10(b) breach
[40] The Crown submits that the trial judge also erred in fining a s. 10(b) breach. While the Crown says that while the respondent was under an investigative detention for a period of about three minutes while Constable Pallett went to his cruiser to verify his grounds for arrest, this was a reasonable delay in the circumstances and should not have led to a finding of a breach.
[41] In my view, the trial judge committed no error in finding that the police failed, upon the respondent’s detention, to provide him with his s. 10(b) rights. The trial judge observed that there were two officers at the door with the respondent during this brief period and found that there was no impediment to them providing him with his rights to counsel. I see no error in the trial judge’s legal conclusion that the rights were not provided “without delay” in the manner proscribed by the Supreme Court of Canada in R. v. Suberu, [2009] SCC 33. Significantly, the trial judge acknowledged that the delay was only between one and three minutes.
iii) Did the trial judge err in excluding the evidence under s. 24(2)
[42] The appellant submits that the trial judge erred in both the first and second prongs of the analysis that is required under R. v Grant, 2009 SCC 32, [2009] S.C.J. No. 32.
[43] It is the role of a trial judge to weigh the various factors under s. 24(2) and to determine how to strike the appropriate balance. There can be no dispute that if a trial judge considers the proper factors in a s. 24(2) analysis, his or her ultimate determination as to whether to admit or exclude evidence is entitled to considerable deference: Grant at para. 86.
[44] In respect to the first prong of the test, the Crown says that having found that it was “arguable” that the implied consent to knock had been revoked, it was an error to find that the breach was a serious invasion of the respondent’s privacy rights, particularly when the Crown says that the trial judge’s only real concern was Constable Pallett’s foot on the threshold.
[45] I do not read the trial judge’s analysis in the way that the Crown does. I find that the trial judge was deeply troubled by both Constable Pallett’s foot being on the threshold and by the demand that he made to Ms. Irving in the face of what she said to him. The trial judge was concerned that the police officer demanded, in the absence of any authority to do so, that the respondent present himself at the door. The trial judge’s finding that the officer should have recognized that the placement of his foot was inconsistent with the restrictions on his applied invitation to knock, and thus that he had not acted in good faith was available to the trial judge.
[46] The trial judge correctly recognized that the s. 10(b) breach was relatively short and not particularly serious.
[47] The trial judge made no error in concluding that a finding of more than one breach was a factor to consider in assessing the seriousness of the breach.
[48] In summary, I cannot conclude that there is any error in the trial judge’s finding that the s. 8 breach was sufficiently serious to substantially favour exclusion.
[49] The Crown says that in his consideration of the second prong of the Grant test, the trial judge considered factors that he ought not to have. The Crown submits, on the basis of the Court of Appeal decision in R. v. Jennings 2018 ONCA 260, that the trial judge erred in finding that the impact included anything beyond the minimal effect of the officer having his foot on the doorway threshold.
[50] The trial judge found that Mr. Irving only attended at the door because of the manner in which the police conducted themselves. More specifically, he held that because of the combination of Constable Pallett’s foot in the doorway threshold, and the content and tone of the demand that the respondent attend at the door, the respondent “was coerced by the state from the safety and privacy of his library into the scrutiny of the officers on the front porch”. He found that the impact of that coercion “persists in everything that follows” including his investigative detention, the entry by the other officers into his home and his arrest. Further, he found that the breath sample that was later obtained flowed from the fact that the respondent was “flushed out of his library” and that the breath samples would not have been taken at all, but for the breach.
[51] It is important to remember what it is that is to be considered in the second prong of the Grant test. In its decision, the Court stated
76 This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) -- all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected [page397] interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.
[52] I do not see this case as analogous to Jennings. In that case, the Court of Appeal explained that there is a minimal intrusion of an accused’s Charter protected interests when an accused seeks to exclude breath samples taken following a s. 8 breach flowing from the arrest and breath demand. The Court of Appeal held that this will often be the case even when the arrest leads to a detention and transportation to the police station for the taking of a breath sample (and thus a s. 9 violation). But, I think the court of Appeal made clear that in cases in which the deprivation of an accused’s liberty is more significant, it might well be that the impact of this breach would be greater.
[53] This is not a case in which there was a violation of the respondent’s s. 8 rights from an arrest that lacked reasonable and probable grounds, and an application to exclude breath samples on that basis. It is qualitatively different from Jennings.
[54] In this case, the police were found to have breached the respondent’s reasonable expectation of privacy because of what Constable Pallett did at the doorway, both by putting his foot on the threshold and thereby creating the impression that Ms. Irving was not free to leave the door, and, further, by coercing the respondent, through his wife, to come to the door to be scrutinized by the police. In my view, it was open to the trial judge to conclude that the impact of the Charter breach on the respondent was significant.
[55] While the trial judge accepted that the taking of breath samples is minimally intrusive, he correctly recognized that an assessment has to be made about the extent to which the respondent’s rights were violated as a result of the police conduct. The trial judge’s factual conclusion that there was significant coercion, through which the respondent was “flushed out of his library” is entitled to deference. I find no error in his conclusion that the violation of the respondent’s right to be left alone in the sanctity of his home made the impact of the Charter breach significant.
[56] I conclude that there was no error in the trial judge’s determination that the impact of the breach was significant and favoured exclusion.
[57] The trial judge recognized, correctly, that the third Grant factor favoured inclusion.
[58] In conclusion, it is my view that having made the factual findings that he did, the trial judge made no error in his s. 24(2) Charter analysis.
Conclusion
[59] I have found no error in the trial judge’s conclusions that there were violations of both ss. 8 and 10(b) of the Charter. I also find no error in the trial judge’s s. 24(2) analysis. As a result, the Crown appeal is dismissed.
Woollcombe J. Released: March 4, 2019