BARRIE COURT FILE NO.: CR-20-150-00AP

DATE: 20210305

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIMOTHY HIGGINS

Appellant/Defendant

J. Armenise, for the Crown

J. East, for the Appellant/Defendant

HEARD: December 14, 2020

Dawe J.

I. Overview

[1] Timothy Higgins appeals against his summary conviction on a charge of “over 80”.

[2] Mr. Higgins was arrested and charged after two police officers who drove by his home in the early morning hours noticed an SUV stuck in the snow in an unfenced yard beside the house. They assumed that a motorist had driven off the road and entered the property to investigate. The driver turned out to be Mr. Higgins, who explained to the officers that he lived in the house and had intentionally driven the vehicle into the side yard to test its four-wheel-drive capabilities in deep snow and gotten stuck. During this conversation officers made observations that led them to believe that Mr. Higgins was impaired by alcohol. They proceeded to arrest him for impaired driving and to make a breath demand. He was taken to the police station, where he blew over the legal limit.

[3] Mr. Higgins maintains that the police violated his s. 8 Charter rights by entering his family’s property without lawful authority, and argues further that this undermines the legal validity both of his subsequent arrest and of the compelled production of his breath samples. He also separately challenges the adequacy of the police grounds for arresting him for impaired driving and for making the breath demand. For both reasons Mr. Higgins argues that the trial judge erred by not finding that his Charter rights were breached and by not excluding the breath sample evidence under s. 24(2).

[4] I would not give effect to either of these arguments, and would accordingly dismiss Mr. Higgins’s appeal. On the issue of whether the police had lawful authority to enter onto the property, the trial judge’s analysis discloses what I think are some reasoning errors, but these errors do not affect the validity of his ultimate conclusion that the police had lawful authority to do what they did when faced with the situation they had come across. As I will explain, I am satisfied that it was reasonable in all the circumstances for the officers to conclude as they did that the Jeep had probably accidentally driven off the road, even though this turned out not to actually be the case. I am also satisfied that in this situation the police had lawful authority to enter into the side yard, both under the implied licence doctrine as expanded by the Ontario Court of Appeal in R. v. Mulligan, 2000 CanLII 5625 (Ont. C.A.), as the trial judge found, but also under the common law ancillary powers doctrine. I also find no error in the trial judge’s analysis of whether the police observations after entering the side yard gave them reasonable grounds to arrest Mr. Higgins and make a breath demand.

[5] Accordingly, I am satisfied that Mr. Higgins’s Charter rights were not breached that night, and that the trial judge did not err in declining to exclude the breath sample evidence under s. 24(2) and in finding Mr. Higgins guilty on the “over 80” charge.

II. The facts

A. The 479 Essa Road property

[6] In February 2017 Mr. Higgins was living with his parents and siblings in a house at 479 Essa Road in Barrie. The house sits on a large triangular parcel of land at the southwest corner of the intersection between Essa Road and Harvie Road, which meet at an oblique angle. The house is at the end of the property closer to Harvie Road, and there is a driveway leading from Essa Road to an attached two-car garage on the north side of the house. To the south there is a large unfenced yard that forms part of the property and separates the house from its southern neighbour, a multi-storey seniors residence.

B. The initial police observations and entry to the side yard

[7] At around 1:30 a.m. on the morning of Friday, February 7, 2017, Barrie police constables Michael Velema and PC Madeleine Holden were driving south along Essa Road in their police cruiser. PC Holden was a trainee officer and PC Velema, a police veteran, was acting as her recruit training officer.

[8] As they drove past 479 Essa Road the officers noticed a Jeep Cherokee SUV with its lights on in the side yard to the south of the house, apparently stuck in the snow. They had somewhat different memories of exactly what they did next. PC Velema testified that after they observed the Jeep PC Holden, who was driving, stopped the cruiser. He then got out and walked across the lawn towards the Jeep while PC Holden did a U-turn and parked on the other side of the street south of the driveway.

[9] PC Holden’s recollection was that PC Velema actually stayed in the car with her until after she made the U-turn and parked. However, she agreed that he got out and entered the property first, explaining that she stayed behind to let “dispatch know where we are and what’s going on” before following him into the yard.

[10] PC Velema explained that when he entered the side yard he was “absolutely” sure it was part of the 479 Essa Road property. He explained that he believed that the Jeep had “come off Essa Road in an uncontrolled manner [and] wound up on this person’s lawn”, adding: “[i]ts’s our job to find out who that person is and why they are there and sometimes that does take us onto private property.” PC Velema testified that he recalled seeing tire tracks leading to the Jeep that came “over a snowbank into that large lawn on the south side of that property”. He described these tracks as having come “directly off Essa Road” and not from the 479 Essa Road driveway. However, he agreed that he did not examine these tracks to confirm exactly where they started, and also acknowledged that when he later took photographs of the scene he did not take any photos of the driveway or of Essa Road. (As discussed further below, the photos of the scene that PC Velema took were entered as an exhibit at trial but have since gone missing).

[11] PC Holden’s evidence on these points was somewhat different. She testified that she was unsure if the yard she and PC Velema were entering was part of the 479 Essa Road property, describing it as:

… an open field that goes onto that retirement [home]. So at that time, we were unsure if it was the property of that house.

Like PC Velema, PC Holden also initially described the tire tracks the led to the Jeep as starting from the curb of Essa Road rather than from the driveway. However, in cross-examination she acknowledged that the photos taken by PC Velema, as well as some other photos later taken by Mr. Higgins’s father, both appeared to show the tire tracks actually entering the yard from the side of the driveway. PC Holden nevertheless maintained that her belief at the time had still been that the Jeep had started out on Essa Road and driven into the side yard by cutting across the driveway.

[12] PC Velema acknowledged that when he first entered the side yard he did not have grounds to believe that a criminal offence had been committed. He did expect that they “were likely about to discover an impaired driver”, since he “didn’t believe there’d be any other reason for that motor vehicle to be there”. However, he was open to other possibilities, and recognized that the investigation might end with the officers “arranging a tow truck for them and shaking hands”. In cross-examination PC Velema added that one alternative possibility he considered was that the Jeep’s driver might need medical attention, testifying that when he and PC Holden entered onto the property they “were going to determine what it was, be it impaired or medical assist.”

[13] PC Holden’s evidence was similar, although she placed more emphasis on the possibility of the Jeep driver needing medical assistance, explaining: “[i]t was our intention to figure out if the person in the vehicle was okay, if it was medical related or whatever the case may have been.” She explained further:

[I]t appeared to be that they were in an accident as the tire tracks were coming from the road and they lost control of the vehicle and it ended up in the field. So yes, there was an intention to go there criminally, to make sure that that person was okay and we could get the assistance if they needed that.

C. The police observations of Mr. Higgins that led to his arrest

[14] PC Velema testified that when he approached the Jeep Mr. Higgins got out of the driver’s seat. As they talked he noticed that Mr. Higgins was “having trouble speaking” and was “kind of really labouring and chewing his words”. He could also smell alcohol on Mr. Higgins’s breath, and noticed that his eyes were watery and shiny. PC Velema thought that Mr. Higgins appeared unsteady on his feet, recalling that he seemed to nearly lose his balance when he tried to lean over and put a collar on a dog that came over to where they were standing. When Mr. Higgins was asked if he had been drinking he replied: “Yeah, beers”.

[15] PC Holden gave a substantially similar account, testifying that by the time Mr. Higgins got out of the Jeep she had joined PC Velema and could smell “a strong odour of alcohol” on Mr. Higgins’s breath. She also recalled noticing that his speech was slurred and that “[h]is eyes were extremely glossy and he was unsteady on his feet when he was trying to put the collar on his dog”. PC Holden also recalled that when asked Mr. Higgins said that he had had “a few beers”.

[16] Mr. Higgins told the two officers that he lived at 479 Essa Road with his family, which they confirmed through the police dispatcher. He explained that the Jeep Cherokee was a rental he was driving because his own Jeep was in the shop for repairs, and that he had driven it into the side yard to compare its off-road capabilities to those of his own SUV and had then become stuck in the snow.

[17] PC Holden testified that after consulting with PC Velema she decided that she had grounds to arrest Mr. Higgins for impaired driving and to make a breath demand. She characterized this as her decision, but PC Velema disagreed, testifying that while they discussed their grounds it was actually his decision to arrest Mr. Higgins and to make a breath demand, and that he left it to PC Holden to actually do these things “[f]or instruction purposes”.

[18] Mr. Higgins was read his rights to counsel and cautioned by PC Holden, and she then made a breath demand. PC Velema then took some photographs of the scene, which as noted earlier were entered as exhibits at trial but have since gone missing. A short while later, PC Holden later drove Mr. Higgins to the police station, where he spoke to counsel and eventually blew over the legal limit.

[19] Another officer, PC Andrew Young, arrived at the scene after Mr. Higgins had been arrested but before PC Holden drove him to the police station. PC Young was tasked with making arrangements for a tow truck to come and extricate the stuck Jeep. He recalled that the tire tracks leading to the Jeep “appear[ed] to be coming from the side of the driveway”.

[20] Mr. Higgins’s brother Patrick testified that they had spent the previous evening playing a board game with their sister and Patrick’s girlfriend, and that during this time nobody had been drinking alcohol. They had finished the game at around 10:30 p.m. and Patrick went to bed about half an hour later. He woke up some later that night when his brother came in from outside and reported that “the Jeep was bottomed out”. Patrick then went back to sleep and only awoke some time later when he heard their dog barking and saw a police car out front.

[21] Mr. Higgins’s father took his own photographs of the scene that night after Mr. Higgins was arrested, and took some additional photos the next morning. These photos were also made an exhibit at trial, but unlike PC Velema’s photos they are still available.

[22] However, by the time Mr. Higgins’s father took these photos several other police vehicles had parked in the driveway and a tow truck had driven into the side yard to pull out the stuck Jeep. As a result, his photos do not show just the tire tracks that would have been observable to the officers when they first arrived at the scene, but also show numerous other tire tracks that were only made later.

III. Procedural history

[23] Mr. Higgins was charged with both impaired driving and “over 80”. The Crown elected to proceed summarily on these charges, and Mr. Higgins’s trial in the Ontario Court of Justice was conducted over two days in November 2017. The trial judge, Mr. Justice M. Harpur, released his written reasons for judgment on February 5, 2018. He rejected Mr. Higgins’s Charter-based arguments and found him guilty on the over 80 charge.

[24] However, the trial judge found Mr. Higgins not guilty on the impaired driving charge, explaining that he was not satisfied that Mr. Higgins’s poor balance as observed by the officers at the scene was not due to him having been standing in deep snow. He noted that Mr. Higgins did not show any signs of poor balance or motor coordination difficulties later, after he was brought to the police station, and concluded:

The venture into the deep snow in the backyard with the rental car at 1:30 a.m. does smack of bad judgement but Mr. Higgins is a young man, a stage when errors in judgement can readily be found for no reason at all.

[25] Mr. Higgins has filed an affidavit explaining that shortly after the trial judge rendered his decision in February 2018 he formed the intention of appealing the conviction. The 30-day appeal period prescribed by Rule 40.05(1)(a) of the Criminal Proceedings Rules for the Superior Court of Justice only began to run nine months later, on October 24, 2018, when Mr. Higgins was sentenced and received a fine. However, Mr. Higgins did not file a notice of appeal within 30 days of this sentence being imposed. It then took him more than a year to retain appellate counsel, Mr. East, who eventually filed a notice of appeal on Mr. Higgins’s behalf in March 2020, by which time the onset of the COVID-19 pandemic had caused the shutdown of court operations. Mr. East did not apply for an extension of time within which to file the notice of appeal before he filed it, but prepared supporting material for such an application which he then filed later along with the materials for the appeal itself.

[26] Crown counsel very fairly took the position before me that I should retroactively grant Mr. Higgins an extension of time to file his notice of appeal and go on to decide his appeal on its merits. I agree, and that is what I will do.

[27] However, I should also note that Mr. Higgins’s delay in formally launching his appeal is unfortunate, since it has resulted in an important trial exhibit, PC Velema’s photographs of the scene, going missing. One of the consequences of filing a notice of appeal is that it alerts both the trial court and the summary conviction appeal court of the need to take steps to preserve the trial exhibits: see Rule 40.07. In this case it appears that Ontario Court of Justice staff, having no idea that Mr. Higgins planned to pursue an appeal, eventually returned the trial exhibits to the police. By the time Mr. Higgins’s appellate counsel filed a notice of appeal in March 2020, more than a year after the end of the trial, the photographs that PC Velema took of the scene could no longer be located. Their loss is potentially significant, since these photos have some direct bearing on Mr. Higgins’s main ground of appeal concerning the lawfulness of the police entry onto his family’s property. However, I am ultimately satisfied that I can fairly decide the appeal on its merits even though I have been unable to examine these photos myself.

[28] Nevertheless, it would have been much better if the photographs had been properly preserved, which they almost certainly would have been if Mr. Higgins had filed his notice of appeal in a timely manner. I appreciate that he needed time to raise funds to retain counsel for his appeal. However, it is very unfortunate that his trial counsel and/or his prospective appeal counsel, knowing that Mr. Higgins wanted to appeal, did not help him prepare and file an in-person notice of appeal in his own name within the 30-day appeal period. Had they done so, this would very likely have ensured that the full trial record was properly transmitted to the summary conviction appeal court and preserved for the appeal.

IV. Analysis

A. Did the police have lawful authority to enter the Higgins family’s yard?

[29] Mr. Higgins argues that in the circumstances here the police had no lawful authority to enter onto his family’s private property, and that their trespass onto the property violated his s. 8 Charter rights. He argues further that this also undermines the lawfulness of his arrest and of the breath demand. I agree that the police would probably not have been able to make the observations that led them to arrest Mr. Higgins and make the breath demand if they had not entered onto the property, and accordingly agree that if the initial entry onto the property breached Mr. Higgins’s s. 8 Charter rights further breaches of his s. 9 and s. 8 rights when he was arrested and samples of his breath were seized would also be made out: see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at pp. 251-52; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263 at p. 274; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 291; R. v. Masjedee, 2017 ONSC 4920 at paras. 55-56.

[30] The trial judge rejected Mr. Higgins’s argument that the police could not lawfully enter onto the property in the circumstances here, relying primarily on the Ontario Court of Appeal’s decision in R. v. Mulligan, supra, to conclude that they were entitled to enter under the “implied invitation” doctrine. He stated:

I accept PC Holden’s evidence that (i) she was proceeding onto the property thinking it was not property belonging to 479 Essa Road; (ii) her primary concern as she proceeded was the safety of the occupants of the vehicle; and (iii) she thought the driver of the vehicle had lost control on Essa Road and thus advanced onto the property.

[31] In my view, this passage reveals two reasoning errors. First, I think it was wrong for the trial judge to focus his attention on PC Holden’s state of mind. While he was certainly entitled to prefer PC Holden’s testimony over that of PC Velema on the points where their accounts differed, he seems not to have appreciated that both officers agreed that it was PC Velema who entered the property first. PC Velema was the senior officer and PC Holden was his trainee, and there was no suggestion that he was following her orders when he did so. In these circumstances, I think the proper focus should have been on PC Velema’s own reasons and justification for deciding to enter the property, not on the thought processes of his subordinate, PC Holden: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at pp. 1166-67.

[32] Second, I think the trial judge was wrong to attach any significance to PC Holden’s evidence that she did not realize at the time that the yard was part of the 479 Essa Road property, for two reasons. As I have already explained, it was PC Velema and not PC Holden who entered the side yard first, and his evidence was that he did know at the time that it was part of the 479 Essa Road property. In any event, the officers’ subjective awareness that they were entering private property was irrelevant to the question of whether they were trespassers. As Rand J. explained in East Crest Oil Co. v. The King, 1945 CanLII 24 (SCC), [1945] S.C.R. 191, 83 C.C.C. 211 at p. 195 S.C.R.:

Trespass does not depend upon intention. If I walk upon my neighbour's land, I am a trespasser even though I believe it to be my own …

Accordingly, I think the lawfulness of the police entry onto the property in this case has to stand or fall on the question of whether there was some lawful authority that permitted them to enter, in the circumstances that they were dealing with.

[33] At trial, the issue of the lawfulness of the police entry was litigated entirely on the basis of the “implied licence” doctrine. As Brown and Martin JJ. explained in their majority reasons for the Supreme Court of Canada in R. v. Le, 2019 SCC 34 at para. 125:

[T]his doctrine allows the police, or any member of the public, on legitimate business to proceed from the street to the door of a house so as “to permit convenient communication with the occupant of the dwelling” (R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 15, per Sopinka J.).

However, in R. v. Mulligan, supra, the Ontario Court of Appeal expanded the scope of the implied licence doctrine to also allow the police to enter onto private property in order to investigate suspected crimes against the property owner or occupants. Sharpe J.A. explained:

The implied licence to knock discussed in Tricker, supra, [R. v Tricker (1995), 1995 CanLII 1268, 96 C.C.C. (3d) 198 (Ont. C.A.)] and Evans, supra, appears to be specifically related to activities reasonably associated with the purpose of communicating directly with the owner or occupant. However, it seems to me that the underlying principle is a broader one. Licences may arise at common law by implication from the nature of the use to which the owner puts the property. As Prof. Ziff notes in Principles of Property Law (Carswell, 2d ed., 1996) at 274, licences may be implied “such as where a shop is open for business to the public at large.” In my opinion, the implied invitation principle extends to situations where the very purpose of entry is to protect the interests of the property owner or occupant, particularly where the entry occurs on an area of the property to which all members of the public ordinarily have access to do business with the property owner. It is plainly in the interests of a property owner or occupant that the police investigate suspected crimes being committed against the owner or occupant upon the property. For that reason, absent notice to the contrary, a police officer may assume that entry for that purpose is by the implied invitation of the owner, particularly where entry is limited to areas of the property to which the owner has extended a general invitation to all members of the public.

[34] Mr. East argues that the extended reach of the implied licence doctrine in Mulligan does not apply here, for two different reasons. First, he argues that if the police had conducted a proper examination of the tire tracks they would have realized that the Jeep had actually driven into the side yard from the driveway rather than from Essa Road. Mr. East argues that this would have undermined their grounds for believing that a crime was “being committed against the owner or occupant”, correctly pointing out that when the police suspect that the owners or occupants of property are themselves engaged in criminal conduct they may only rely on the implied licence doctrine for the limited purpose of going directly to the door to communicate with the occupant: see Evans, supra; Le, supra.

[35] Second, Mr. East argues that the case at bar can be distinguished from Mulligan on its facts. In Mulligan, the police had entered the parking lot of a commercial business in order to investigate what they suspected was a break-in or theft, but instead found the business owner sitting in his vehicle in an intoxicated state. In his reasons for judgment, Sharpe J.A. noted several times that the inference that a property owner would actively want the police to enter to investigate a suspected crime against the property will be “particularly” strong “where the entry occurs on an area of the property to which all members of the public ordinarily have access to do business with the property owner.” Mr. East observes that in this case the police entered the side yard of a private residence, which while it was unfenced was still not a place the householders could be taken to have extended a general invitation to the public to enter, either to conduct business or any other purpose.

[36] I agree that the police could not rely on the implied licence doctrine to investigate a crime they suspected was being committed on the property by one of its lawful occupants. In this situation the premise that the occupants are waiving their privacy interests and actively inviting the police to enter, to their own detriment, becomes untenable. However, on the facts here I think it was reasonable for the police to infer as they did that the Jeep had probably driven onto the property from Essa Road without the knowledge or permission of the residents. Although this turned out to not actually be the case, the reasonableness of the officers’ conclusions and actions must be assessed on the basis of what it was reasonable for them to think given what they knew at the time.

[37] In my view, the officers’ assumption that a passing driver had lost control of the Jeep and driven it into the side yard by accident would have reasonably seemed a far more likely scenario than what turned out to be the actual explanation, namely, that one of the residents of the house had purposely driven the Jeep into the deep snow in the yard at 1:30 a.m. in order to test its off-road capabilities. I think this is true even though I accept that PC Velema’s recollection of seeing tire tracks that came directly from Essa Road was almost certainly mistaken. PC Holden and PC Young ultimately both agreed that the tire tracks that went into the side yard actually came from the side of the driveway. Moreover, the photos Mr. Higgins’s father took the next morning show a large and undisturbed plowed snowbank on the side of Essa Road to the south of the driveway in the area where PC Velema purported to remember seeing tire tracks.

[38] However, in the circumstances here I do not think it was incumbent on either PC Velema or PC Holden to test their hypothesis that the Jeep had accidentally driven off Essa Road by carefully scrutinizing the path of the tire tracks before they entered the yard to investigate what was going on. I reach this conclusion for several reasons. First, both officers had adverted to the possibility that the Jeep driver may have lost control and driven off the road because of a medical emergency. This made it a matter of potential urgency that they go check on the driver’s condition immediately, and in this situation I do not think it would have been reasonable for the officers to have taken the time to carefully investigate the tire tracks before they did so.

[39] Second, the officers had no subjective reason to question their conclusion that the Jeep must had come from Essa Road, because it did not occur to either of them at the time that the Jeep might actually have been driven into the yard on purpose in the middle of the night by one of the residents of the house. In my view, it was not unreasonable in the circumstances here for the officers not to take this possibility into account. To the contrary, even if they had thought of it, I think they would have reasonably been justified in immediately discounting this possibility as far less likely than the alternative that the Jeep had been accidentally driven off the road, even though the first explanation turned out to actually be the truth. They would also have had to balance this possibility against the risk that the driver was experiencing a medical emergency and needed immediate help. In my view, having regard to the relative harms that could reasonably flow from their acting or not acting quickly, the officers would have been entirely justified in not taking the time to carefully check the tire tracks before entering the property even if the possibility of the Jeep coming from the driveway rather than the road had occurred to them.

[40] Third, I do not think that a closer examination of the tire tracks was likely to have been very revealing. I agree that such an examination would probably have led PC Velema to realize that the Jeep had not driven directly into the side yard without going through the driveway, as he thought. However, I do not think that this would have reasonably caused him to reassess his belief that the Jeep had started out on Essa Road. Although it turned out that Mr. Higgins had actually driven the Jeep directly into the side yard from the driveway that night, he must have driven the Jeep into the driveway from Essa Road at some earlier time. There is no evidence one way or the other about when he did this or whether the resulting tire tracks would still have been observable at 1:30 a.m. However, PC Holden testified that it was snowing that night, so even if the officers had examined the driveway and seen no tire tracks coming from Essa Road, it might very well have been reasonable for them to assume that any tracks had been concealed by falling snow. It should also be noted that their ability to examine the driveway would have been severely hampered by the poor lighting conditions that are revealed in the photos Mr. Higgins’s father took later that night.

[41] In this regard, I should note that PC Velema testified that the photos he took of the scene did not include any shots of the road or the driveway entrance. Accordingly, I am satisfied that the loss of these photos has not substantially compromised my ability to assess what a close examination of the scene at 1:30 a.m. might have revealed. I should also note that the photographs taken by Mr. Higgins’s father later that night and the next morning are of only limited assistance, since they show multiple tire tracks leading from the road to the driveway, including ones that were left by the police vehicles and the tow truck that arrived after Mr. Higgins was arrested, as well as tracks that appear to be have left by the Higgins family’s own vehicles at unknown times. If the condition of the driveway at 1:30 a.m. had resembled the state it was in when Mr. Higgins’s father took his photos, I think it can be safely said that the officers would have learned nothing by conducting a close examination of the tire marks. However, while it seems clear that the driveway would have been in a much less disturbed state at 1:30 a.m., I think it is speculative to imagine that the officers would have been able draw any firm conclusions even if they had conducted a close examination of the tire tracks before they entered the side yard.

[42] In summary, I think it was reasonable for the officers in this case to infer as they did that the Jeep had probably driven into the yard from the road by accident. I do not think it was unreasonable for them to fail to consider the possibility that driver was actually a resident of the property who had driven into his own side yard on purpose, and I do not think they would reasonably hav been required to act differently if this had occurred to them. I also do not think they were obliged to test their assumptions by closely inspecting the tire marks before entering the property. They had no good reason to think such an examination would lead them to a different conclusion, nor would it likely have done so, and the time it would have taken them to conduct such an examination would not have been reasonably justified given the possibility of the Jeep driver being in medical distress.

[43] I also do not think that the fact that the side yard was not a place that was “generally open … to the public at large” meant that the officers were required to go to the front door of the house and seek express permission from a resident before they entered the side yard. In my view, the main holding in Mulligan is the Ontario Court of Appeal’s recognition that an implied invitation can be seen to exist in “situations where the very purpose of entry is to protect the interests of the property owner or occupant”. It follows from this that the critical question is whether it is reasonable to think that the property owners or occupants would have wanted the police to enter the property without their express permission if the situation had actually been as the police reasonably believed it to be at the time. The degree of privacy the owner or occupant has in the part of the property the police enter will be a relevant consideration when making this assessment, but will not be dispositive. In some circumstances it will be reasonable to imagine property owners or occupants wanting the police to enter even very private parts of their property in order to prevent the commission of serious crimes.

[44] In this case, I accept that the occupants of the 479 Essa Road house were entitled to expect members of the public not to enter their unfenced side yard without their express permission, unlike the situation that arises when a business proprietor makes a general invitation to the public to enter property for commercial purposes. However, their expectation of privacy in the yard was substantially diminished by the fact that it was unfenced and left open to public view.

[45] Considering all the circumstances, I think that if the police had been correct in their belief that a driver travelling down Essa Road had lost control of the Jeep, driven into the side yard, and become stuck in the snow, it is reasonable to suppose that the people in the house would have both wanted and expected the officers to enter the side yard and deal with the situation without first waking them up and obtaining their express permission, even though they did not generally expect members of the public to freely enter the side yard at other times of the day or night for other reasons. As the trial judge noted in his reasons (at para. 43):

Justice Sharpe says that the implied invitation exists “particularly where the entry occurs on the area of the property to which all members of the public ordinarily have access”, [but] he did not say that the entry must necessarily involve such an area to qualify for the implied licence. I see no reason why the licence described in Mulligan would not extend to other areas of a property, at least to those in which the property owner’s privacy rights must be seen as quite limited, such as the readily-viewed, unfenced grounds of a house.

I agree with this analysis and with the trial judge’s conclusion.

[46] I would also go further. While I agree with the trial judge that the police were entitled to enter the property pursuant to the implied licence doctrine, I do not think this was the only basis on which they could claim legal authority to do what they did. Rather, I think they could also claim lawful authority to enter the property under the common law ancillary powers doctrine, which does not depend on inferring implied consent from the owners or occupants. Indeed, I think that in the circumstances here the officers would have been entitled to enter the side yard to check on the Jeep driver even if the owners or occupants of the property had expressly refused to give them permission to enter.

[47] It is now well-settled that the common law gives the police the powers they reasonably require to carry out their assigned duties. As Lamer C.J.C. explained in R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 at para. 12:

If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.

These two key questions are frequently referred to as the Waterfield test, after the leading English case, R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.).

[48] The legal duties that are assigned to police officers in Ontario include the “duties ascribed to a constable at common law”,[^1] which include “the preservation of the peace, the prevention of crime, and the protection of life and property”.[^2] In this case, the situation the officers reasonably believed they were dealing with had the potential to engage all three of these common law police duties. If the Jeep driver had turned out to be intoxicated, which PC Velema considered the most likely explanation for why the Jeep had driven off the road, their common law duties to preserve the peace and prevent crime would have been triggered, as well as their statutory duties to apprehend criminals and lay charges.[^3] If it turned out that the driver had experienced a medical emergency or was injured – a possibility that was at the forefront of PC Holden’s mind, and which PC Velema also considered when he assessed the situation – their duty to protect life would have been squarely engaged. Even if the situation had turned out to be more innocuous and to have simply involved a sober and healthy driver who had driven off the road by accident, the officers would still have been obliged to render aid to the motorist as part of their duty to protect property. Accordingly, it seems clear that the first branch of the Waterfield test is satisfied here.

[49] In my view, the second branch of the test is also satisfied. As Doherty J.A. explained in R. v. Simpson, 1993 CanLII 3379, 79 C.C.C. (3d) 482 at p. 499 C.C.C. (Ont. C.A.):

[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

In the circumstances here, I think these factors strongly support recognizing that the police were authorized to make a limited incursion into the private side yard of 479 Essa Road to investigate what they reasonably supposed was a motor vehicle accident. The interference with the property owners and occupants’ reasonable expectations of privacy resulting from this intrusion onto the property was minimal, since the side yard was unfenced and open to public view. Conversely, the importance of the police being able to perform the duties that were potentially engaged was high. If it had turned out that the Jeep driver actually did need emergency medical aid, the police duties would have been at their highest ebb. There was also a strong public interest in the police preventing a potentially impaired driver from resuming his or her journey on the public highway. Even if it had turned out that there was neither a medical emergency or a crime, I think the public good in allowing the police to render aid to a stranded motorist would have outweighed the Higgins family’s interest in keeping people off their private property. If the police had been correct in their assumption that a motorist had accidentally driven off Essa Road, some interference with the Higgins family’s privacy would have already occurred, and it would have been in both their interest and in the public interest for the police to take steps to try to set things right.

[50] Conversely, I think it is revealing to consider the implications of not recognizing a police power in these circumstances that is independent of the actual or implied consent of the property holders. On Mr. East’s view of the law, the police were obliged to first go to the door of the house and knock in order to obtain permission to enter the side yard from one of the occupants. The logical implication is that if nobody had answered the door, or if one of the Higgins family members had answered and refused the police entry, the officers would have been powerless to do anything. In my view this would have put them in an untenable position, particularly since they considered it at least reasonably possible that the Jeep driver might require medical aid. Given this concern, many of reasons articulated by Lamer C.J.C. in Godoy, supra at paras. 19-20 would seem to apply.

[51] I think that in the circumstances here the police would have been entitled to enter the side yard to check on the driver even over the express opposition of the property owners or occupants, and that it therefore makes more sense to root their ability to do so in the ancillary powers doctrine rather than in the doctrine of implied consent. However, on either basis I agree with the trial judge that the police in this case acted lawfully, and that their warrantless entry onto the Higgins’ family’s property did not infringe Mr. Higgins’s s. 8 Charter rights.

[52] I should emphasize that the question of whether the police acted lawfully is highly fact-specific. On a different set of facts their powers to enter private property might well have been much more limited. However, based on what the officers in this case knew and reasonably inferred, and considering all of the surrounding circumstances, I think that on the particular facts here they did not exceed their lawful authority.

B. Did the police have grounds to arrest Mr. Higgins and make a breath demand?

[53] If the police were lawfully on the property, it follows that they were entitled to rely on the observations made after entering to form reasonable grounds to arrest Mr. Higgins and to demand that he provide a breath sample. However, Mr. Higgins argues that the trial judge erred by concluding that the police observations gave them proper grounds to arrest him and make the breath demand.

[54] The trial judge based his conclusion that the police did have reasonable grounds primarily on PC Holden’s evidence about what she observed, explaining:

PC Holden testified to her conclusion that Mr. Higgins was impaired. The oddity of the off-road enterprise, his admission of consuming alcohol, and his slurred speech and glossy eyes provided the objective reasonableness of that conclusion.

Significantly, while the trial judge did not refer to PC Velema’s evidence on these same points, the observations he described making of Mr. Higgins were essentially indistinguishable.

[55] Mr. Higgins does not suggest that the trial judge erred by finding that this constellation of factors described by PC Holden rose to the level of giving the police reasonable grounds. Rather, the main thrust of his argument is that the trial judge should have scrutinized both PC Holden and PC Velema’s evidence more carefully in light of the inconsistencies between their evidence when it came to other matters, such as the path of the tire tracks, the sequence of events that led PC Velema to first enter the side yard, and which officer made the actual decision to arrest Mr. Higgins.

[56] I would not give effect to this argument. The assessment of the reliability and credibility of witnesses was a matter squarely within the trial judge’s province. His reasons indicate that he generally accepted PC Holden’s evidence, even in the areas where it was expressly contradicted by PC Velema’s evidence. This was a determination he was entitled to make. In any event, there was no material conflict between the two officers’ accounts of the observations that led them both to conclude that grounds existed to arrest Mr. Higgins and make a breath demand. I do not think that the trial judge was obliged to discount PC Holden’s evidence on points where her testimony was actively confirmed by PC Velema’s evidence, merely because PC Velema had given contradictory evidence about other unrelated matters.

[57] Accordingly, I see no error in the trial judge’s determination that the police had reasonable grounds to arrest Mr. Higgins and to make the breath demand. It follows that I agree with the trial judge’s conclusions that Mr. Higgins’s ss. 8 and 9 Charter rights were not infringed by his arrest or the ensuing seizure of samples of his breath, and that there was accordingly no basis for excluding the breath sample evidence under s. 24(2).

V. Disposition

[58] In the result, Mr. Higgins is granted an extension of time, nunc pro tunc, within which to file his notice of appeal pursuant to Rules 3.02(1) and 40.03(1) of the Criminal Proceedings Rules, but his appeal is dismissed.

Released: March 5, 2021 The Honourable Justice Dawe

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TIMOTHY HIGGINS

REASONS FOR JUDGMENT

The Honourable Justice Dawe

Released: March 5, 2021

[^1]: Police Services Act, R.S.O. 1990 c. P. 15, s. 42(3).

[^2]: Godoy, supra at para. 15.

[^3]: Police Services Act, supra, s. 42(1)(d) and (e).