Court File and Parties

COURT FILE NO.: CR-2179-22AP DATE: 20230123

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Appellant – and – Dustin Matthews Respondent

Counsel: M. Michaud and R. Iaquinta, for the Crown L. Perzia, for the Respondent

HEARD: January 6, 2023

desotti, j.

A. The Appeal

[1] The Crown is appealing the finding of not guilty of the accused, Dustin Matthews on March 30th, 2022. The accused had been charged with having an excess of blood alcohol concentration within two hours after ceasing to operate a conveyance, contrary to s. 320.14 (1) (b) of the Criminal Code.

[2] The following are the grounds for the appeal:

1. The trial judge erred in concluding that there was a s. 8 breach when the police attended the detached garage to speak with the respondent;
2. The trial judge erred in finding that there was a s. 10 (b) breach by the police in questioning the respondent prior to reading his rights to counsel;
3. The trial judge erred in excluding evidenced following a s 24 (2) analysis.

B. The Facts

[3] On July 10th, 2019, a newspaper delivery person at 2:45 or 3:00 AM heard a loud metal-type crunch. He was delivering his bundle of newspapers at the Northgate Plaza in front of the Bank of Nova Scotia in the city of Sarnia. He observed a black early model Corvette like motor vehicle round a corner from East St. then west onto Exmouth St. with what appeared to be a damaged front hood.

[4] He believed the damaged front hood would have obstructed the driver’s vision.

[5] Officer Ferrera arrived at the scene and was told by the newspaper person that the vehicle was not a black SUV but a late model black Corvette with a damaged hood.

[6] Dispatch looked up this model and determined that some 3-5 blocks away at 936 Greendale was a registered motor vehicle that matched the description given by the newspaper person with a registered ownership name of Dustin Matthews.

[7] The officer attended at this location, parking on the street and noticed that this home had a detached garage with a light that was on and that someone was looking out through the garage window. Then the garage light went off.

[8] A few minutes later Officer Engen also attended at the scene.

[9] They both approached the side garage door and knocked a few minutes later, the accused exited the garage (in cross-examination Officer Ferrera stated that he may have knocked on the garage door, which was the answer that Constable Engen gave about where they knocked). When the door opened, both officers could see a motor vehicle with a damaged hood folded back towards the windshield.

[10] They asked the accused whether he should have left the scene. Constable Engen indicated that the type of questions that were being asked were those normally collected with respect to accident reports.

[11] Constable Ferrera observed Matthews to be wobbly on his feet and there was a strong smell of alcohol on his breath. Ferrera formed the opinion that the accused was impaired and then arrested him at 3:32 AM.

[12] The accused was then read his rights to counsel, cautioned and a breath demand was given.

[13] Readings at the station indicated 129 mg and 125 mg of alcohol.

C. Analysis

[14] The issues of law on this appeal are to be decided on a standard of correctness.

[15] Any occupier of a dwelling is granting permission to a person to knock at his residence, including a police officer to permit convenient communication with the occupant of the dwelling. There is thus an ‘implied invitation or permission’ to knock on a door of a dwelling.

[16] In R. v. Evans, police approached a door and knocked, not in furtherance of any investigation, but to secure evidence to substantiate a criminal charge. This was deemed to be a breach of the Charter and any evidence detected was excluded pursuant to section 24 (2) of the Charter.

[17] In short, approaching a residence as a ruse or pretext to gather evidence will not stand Charter scrutiny and as stated, evidence obtained shall be excluded pursuant to s. 24 (2) of the Charter.

[18] On the other hand, as was found in R. v. Desrochers, 2008 ONCA 255, the Ontario Court of Appeal expressly indicated that police officers investigating accidents may use the implied invitation to knock on a door to investigate driving offences.

[19] The fact that the officers were knocking on the door to the garage in furtherance to their “hit and run” investigation is irrelevant and any communication that occurred does not make their attendance outside the garage unlawful.

[20] In R. v. Le, 2019 SCC 34, the Supreme Court of Canada through Justice Moldaver’s dissent that did not conflict with the majority’s decision as the majority did not discuss the implied licence doctrine, stated as follows:

To be clear, however, this is the sole reason why the implied licence doctrine could not apply in the present case. Although the applied licence doctrine does not permit police to “approach a dwelling with the intention of gathering evidence against the occupant (Evans at para 16), these words should not, in my view, be read as creating a general prohibition against police approaching a dwelling in order to question the owner/occupier for the purpose of furthering a lawful investigation.

[21] In this case, the trial judge made it clear, as a finding of fact, that police officers went to the garage door to speak with the occupant as they were investigating an accident that occurred a short time before and “ had knowledge that the motor vehicle matching the description of the motor vehicle involved in the hit and run accident was in the garage”.

[22] While it is true that after the garage door was opened both officers observed the damaged motor vehicle and thus had confirmatory grounds to believe that the vehicle had been involved in a recent “hit and run”, this did not violate any section 8 Charter rights held by the accused.

[23] Turning now to the s. 10 (b) breach and the right of the accused to counsel immediately upon detention is subject to one exception and that concerns driving offences where that right is briefly suspended to allow for the police to fulfill their obligations under statute (see R. v. Suberu, 2009 SCC 33 and more specifically R. v. Sillars, 2022 ONCA 510).

[24] To put this delay in context, Justice Rosenberg of the Ontario Court of Appeal in R. v. Macmillan indicated about another Ontario Court of Appeal decision in R. v. Quansah, 2012 ONCA 123 as follows:

That the officer had formed an opinion to make a demand in a minute, that the sample was provided seven minutes later and the arrest occurred 2 minutes later. There was no lengthy detention.

[25] Here the accused acknowledges that a mere 2 minutes had elapsed in his communications with Officer Ferrera before he was arrested and then brought to the Sarnia Police Station.

[26] In the result, I find that there was no s. 10 (b) breach by any of the officers involved in this arrest.

[27] While in these results, there is no need to conduct a s. 24 (2) analysis, in the event that I am wrong in my analysis under section 8 or 10 (b) of the Charter, I make the following conclusions first under the possible (not so found) breach of s. 8 of the Charter.

[28] In terms of the seriousness of the breach, the knocking on the garage door and its opening, revealing the damaged motor vehicle is not a serious breach as at no time was the garage entered. I would also note that the trial judge had already determined that the officers were aware that the motor vehicle involved in the “hit and run” would be found in this garage.

[29] Significantly, the officers never forced open the garage door or attempted to enter the side door of the garage and merely asked the accused to exit the garage, which after a few minutes he in fact obliged.

[30] In terms of the impact on the accused, the officer’s questioning of the accused and the determination that the accused was impaired at the time of the accident was a direct result of the accused fleeing the scene of the accident and his failure to report and provide details of the accident at the accident scene.

[31] Upon arrest after a two minute delay, the accused was read his rights to counsel cautioned, and given a breath demand and then taken to the Sarnia Police Station.

[32] In terms of society’s interest in adjudication of the trial on its merits, there is no issue that evidence adduced with respect to the samples of his breath were reliable and frankly the public would have a very strong interest in seeing this case adjudicated.

[33] In the result, the appeal is granted and there is a conviction registered on the s. 320.14 (1) (b) offence.

The Honourable Mr. Justice John A. Desotti

Released: January 23, 2023