OSHAWA COURT FILE NO.: CR-22-15865 DATE: 20240123 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RANDALL DEVRIES Defendant/Applicant

Counsel: Robert Greenway, for the Crown Sahej Athwal, for the Defendant/Applicant

HEARD: November 14 and 15, 2023

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Applicant, Randall Devries, is charged with one count of operate conveyance while impaired by drug, one count of possession of a Schedule I substance (Fentanyl), for the purpose of trafficking and one count of possession of Fentanyl.

[2] The Applicant takes the position that the police were not authorized to enter onto his property to conduct their investigation. The Applicant also argues that his arrest and the subsequent search of his vehicle violated his ss. 8 and 9 Charter rights. According to the Applicant, the breaches require exclusion of the evidence obtained in the search.

[3] I disagree. In my view, the police were authorized to enter onto the Applicant’s property to investigate the 911 complaints of impaired driving. The Applicant’s subsequent arrest and the search of his vehicle were also lawful. The application is dismissed.

[4] These are my reasons for decision.

Summary of Facts

[5] On Tuesday November 5, 2019, at approximately 13:21 hours, a civilian complainant called 911 to report that a silver Chrysler 300, with Ontario marker BRHK348 had run a red light and was swerving all over the road. While speaking with the 911 operator, the complainant advised that the vehicle was driving in the middle of the road in the area of Harmony Road and Adelaide Avenue in the City of Oshawa.

[6] A short time later, a second civilian complainant also called 911 at approximately 13:24 hours relating to concerns of the driver in the subject vehicle. The second complainant indicated the driver of the silver Chrysler 300 appeared to be impaired. This observation was made at the drive-thru of a Tim Horton’s located at 1361 Harmony Road North, Oshawa.

[7] Police Constable Todd Wilson and Police Constable Kyle Klubertanz were working on general patrol when they received this information through dispatch. The officers conducted an investigative check of the subject vehicle and learned that the registered owner was Randall Devries (hereinafter “the Applicant”) with date of birth of December 12, 1959, and who had a listed address of 316 Central Park Boulevard South in the City of Oshawa.

[8] At approximately 13:42 hours, P.C. Wilson and P.C. Klubertanz attended at the registered address associated with the vehicle at 316 Central Park Boulevard South in Oshawa to check if the subject vehicle was present. As they attended the address, officers observed the subject vehicle reversed into the driveway with the Applicant seated in the driver seat.

[9] Both officers noted the male was unconscious with his head and his jaw tilted completely back, with his mouth wide open, facing towards the roof of the vehicle. The Applicant had a dark brown and white substance smeared on his face. He also had an ice cream cone in his hand. P.C. Wilson was initially concerned the Applicant could be deceased.

[10] As officers attended at the vehicle, P.C. Wilson knocked on the driver door window several times loudly. After a number of knocks, the Applicant opened his eyes and looked towards the officers. P.C. Wilson advised the Applicant that they were investigating an impaired driving offence and provided him with a primary caution. P.C. Wilson asked if the male understood. The male indicated he understood with a slurred voice.

[11] As P.C. Wilson interacted with the Applicant, he observed that the male’s eyes were very glossy. The officer also noted the male’s pupils were very small. P.C. Wilson asked the male if he had any medical issues. The male responded that he did not and that he was “just really tired”. P.C. Wilson asked the male if he needed an ambulance, to which he said no.

[12] Both P.C. Wilson and P.C. Klubertanz could not detect any odour of alcohol and believed that he was impaired by drugs. P.C. Wilson directed the male out of the vehicle. As the Applicant exited the vehicle, P.C. Klubertanz noted he was unstable and needed assistance standing.

[13] At 13:46 hours, P.C. Klubertanz arrested the male for operating a conveyance while being impaired. P.C. Klubertanz searched the male incident to arrest and found a pill bottle in the left pocket of the male’s sweatpants. P.C. Klubertanz transferred the pill bottle to P.C. Wilson who found 4.2 grams of suspected heroin within the bottle.

[14] Police Constable Saedi Kendelati attended to the scene at approximately 13:44 hours and observed most of the interactions between the officers and the Applicant. Subsequent to the Applicant’s arrest, at approximately 13:50 hours, P.C. Kendelati conducted a search of the Applicant’s vehicle incident to arrest.

[15] P.C. Kendelati searched on the floor around the driver’s seat and located a used glass pipe used for drugs, a green pouch containing two glass pipes, a blue elastic band, and two ice packs. P.C. Kendelati further searched the trunk of the vehicle incident to arrest and located $2,000.00 in Canadian currency, a black Samsung phone case containing dime baggies and a weigh scale, a white box containing four individual packages of newspaper containing what was believed to be heroin (0.1 gram each) two inhalers, including one belonging to “Melvin French”, a Sprite can with a twist-off top containing 32.9 grams of “loose product” believed to be heroin, and a plastic bag containing 4.4 grams of what was believed to be heroin.

[16] P.C. Kendelati also searched the rear passenger’s seat where she located $1,140.00 in Canadian currency and a grey notebook/calendar believed to be a debt list.

[17] The Applicant was further arrested for possession of a Schedule I substance, and possession of a Schedule I substance for the purpose of trafficking.

[18] At 13:50 hours, the Applicant was advised of his rights to counsel and cautioned by P.C. Klubertanz. The Applicant confirmed he did want to speak with a lawyer.

[19] At 13:52 hours, P.C. Klubertanz read the Drug Recognition Expert evaluation demand. The Applicant indicated he understood.

[20] The Applicant was then transported to 18 Division. While the Applicant was being transported to 18 Division, P.C. Wilson remained with the subject vehicle for impound purposes.

[21] The Applicant arrived at 18 Division at 14:29 hours. The Applicant was paraded before a Cell Sergeant at 14:35 hours. The booking process was completed at 14:52 hours.

[22] After several attempts by P.C. Klubertanz to facilitate a call to counsel, the Applicant spoke with a lawyer at 15:11 hours.

[23] The drugs located on the Applicant’s person and in the trunk of the vehicle were submitted to Health Canada for analysis. All substances located analyzed as Fentanyl.

[24] The CFS tested the Applicant’s urine sample. A Toxicology Report indicated the Applicant’s urine contained the presence of Fentanyl, 6 –Monoacetylmorphine, Morphine, Codeine, Oxycodone, Cocaine, Benzoylecgonine, Methamphetamine, Amphetamine, Etizolam and 7-Aminoclonazepam.

Analysis

Was the Entry on the Property Lawful?

[25] The Applicant argues that the police were not authorized to conduct the investigation on his driveway. In support of his position, the Applicant relies on the cases of R. v. McColman, 2023 SCC 8 and R. v. Singer, 2023 SKCA 123.

[26] In McColman, police decided to conduct a random sobriety stop of McColman pursuant to s. 48(1) of Ontario’s Highway Traffic Act (“HTA”). By the time the police caught up to McColman, he had pulled off the highway onto a private driveway that served his parents’ home. After stopping McColman and speaking with him, the police observed obvious signs of impairment and arrested him. He was charged with impaired driving and with operating a motor vehicle with an excess of 80 milligrams of alcohol in 100 millilitres of blood, contrary to the Criminal Code.

[27] The Supreme Court of Canada dealt with the issue of whether the police had the authority to conduct random sobriety stops on private property pursuant to s. 48(1) of the HTA.

[28] The Supreme Court made clear that while s. 48(1) of the HTA [1] furnished police officers with the legal authority to conduct random sobriety stops of “drivers” of motor vehicles on highways, it did not authorize the police to randomly stop or detain individuals on private property.

[29] That said, the Court made clear that police have not been deprived of other reasonable means to investigate and control impaired drivers on private property. As the Court explained at para. 49:

While police officers may not conduct random sobriety stops of drivers on private property pursuant to s. 48(1) of the HTA, they may stop drivers if they have reasonable and probable grounds: Ladouceur, at p. 1287. This judgment does not constitute a blanket ban on police stops of drivers on private property. Various factual scenarios might give rise to reasonable and probable grounds. [Emphasis added.]

See paras. 49-50 of McColman. See also R. v. Grant, [1993] 3 SCR 223; R. v. Mulligan, 2000 ONCA 5625; Dedman v. The Queen, 1985 SCC 41.

[30] In R. v. Singer, 2023 SKCA 123, the Saskatchewan Court of Appeal also addressed a factual situation somewhat similar to the case here. In that case, the Court concluded that the police decision to enter onto a private driveway, open the driver’s door while he was sleeping and investigate him for the purpose of “gathering evidence” in an impaired investigation was a violation of s. 8.

[31] There is no question that there is a reasonable expectation of privacy potentially engaged when police enter onto a private driveway. Police are not entitled to enter onto a private driveway to investigate writ large, regardless of how that investigation is to be carried out: R. v. Singer, 2023 SKCA 123, at para. 61; R. v. Grant, [1993] 3 SCR 223.

[32] However, as explained in R. v. White, 2015 ONCA 508, at para. 44, “the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers.”

[33] An assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter v. Southam Inc., [1984] 2 SCR 145, at pp. 159–160. This assessment turns on the totality of the circumstances: R. v. Edwards, [1996] 1 SCR 128, at para. 31; R. v. Le, 2019 SCC 34, [2019] 2 SCR 692, at para. 136.

[34] The question is whether or not the police action, given the nature of the privacy interests implicated, is a reasonable exercise of state authority, or whether it required prior judicial authorization: R. v. Wong, [1990] 3 SCR 36.

[35] In R. v. Lotozky, 2006 ONCA 21041, the Court of Appeal addressed the police authority to enter upon a private driveway in the context of an ongoing impaired investigation. The Court concluded that it was reasonable for the police to enter onto a private driveway to speak with a driver in the context of an impaired driving investigation. The Court explained at paras. 35-42:

The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway …

The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. The driver drove the vehicle in an unusual fashion as he approached the driveway. The officers would have been entitled to stop the vehicle on the street under s. 48(1) of the Highway Traffic Act. For reasons of safety, they waited until the motorist had brought the vehicle safely to a stop. This was a reasonable decision to make. It makes no sense that because the officers exercised a reasonable degree of caution their actions should be characterized as illegitimate.

… It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist's house until he or she returns to the street. [Emphasis added]

[36] The Applicant takes the position that R. v. McColman has reversed the decision in R. v. Lotozky.

[37] I disagree. The decision in R. v. McColman dealt with the narrow question of whether police have the authority to invoke s. 48(1) of the HTA to investigate a driver on private property. It does not constitute “a blanket ban” on police investigations of drivers on private property: R. v. McColman, supra., at para. 49.

[38] In my view, the decision in Lotozky is still good law. The comments of the Court in Lotozky outlined above clearly apply to the facts of this case. The police were investigating an impaired driving offence due to two separate complaints made about the driver’s ability to operate the silver Chrysler 300.

[39] When police arrived at the address, the Applicant was seated in the driver’s seat of the subject vehicle and was noted to be in an unconscious state. Based on these observations and the initial complaints, the officers believed the Applicant to be impaired. The officers also had genuine concerns that the Applicant was in distress, or even possibly deceased.

[40] Not only were police authorized to investigate the male in relation to the impaired driving, but they were duty bound to ensure he was not in immediate danger. Even if the Applicant was not in any obvious danger, in my view, the police would be justified in attending at the vehicle on his driveway to speak with him regarding the complaints.

[41] Unlike the cases of R. v. McColman and R. v. Singer, the police here had grounds to suspect that the Applicant was impaired. With the Applicant in the driver’s seat, the risk also remained that he could wake up and drive again while impaired. This was not a baseless entry onto private property, or a fishing expedition to gather evidence.

[42] I agree with the defence that the implied license doctrine must be addressed cautiously. As noted in R. v. Singer, a subsidiary purpose can vitiate the application of the implied licence doctrine where the police purpose is to “secure evidence” against the occupier. I agree that the doctrine of implied licence was never intended to protect “intrusive” police investigations on private property: R. v. Le, supra, at para. 36; R. v. Evans, [1996] 1 SCR 8. [2]

[43] However, the conduct of the police here in attending the Applicant’s property (driveway) to speak with him and investigate the complaints in these circumstances can hardly be characterized as intrusive. [3] The police were not making surreptitious observations from the Applicant’s driveway. They simply attended the property to speak with the Applicant and investigate the complaints: R. v. LeClaire, 2005 NSCA 165. Indeed, to require the police to stop at the driveway in these circumstances would make no sense. It fails to strike the proper balance.

[44] In my view, the police entry onto the property to investigate the Applicant was lawful in the circumstances.

Was the Arrest of the Applicant Lawful?

[45] The Applicant argues that the arrest of the Applicant was unlawful, and the police did not have reasonable and probable grounds at the time of his arrest.

[46] In order for an arrest under s. 495 of the Criminal Code to be lawful, an officer must possess reasonable and probable grounds to effect the arrest: R. v. Storrey, [1990] 1 S.C.R. 241.

[47] The meaning of reasonable and probable grounds was recently considered in R. v. Tim, 2022 SCC 12, where the Court explained, at para. 24:

A warrantless arrest requires both subjective and objective grounds. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The police are not required to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, [1997] 1 S.C.R. 607, at para. 28; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73). [Emphasis added.]

[48] The Applicant here was not detained at the outset of the investigation: See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 28 [4]. He was only detained once he was directed by officers to exit the vehicle and arrested shortly thereafter.

[49] At the time of arrest, both P.C. Wilson and P.C. Klubertanz subjectively believed the Applicant was impaired by drug given the civilian complaints and their observations at the scene.

[50] Upon review of the record, I am satisfied there were ample objective grounds to support P.C. Klubertanz’s subjective belief that the Applicant was impaired by drug while operating the vehicle. The officers’ subjective beliefs were supported by the following:

a. The two complaints of bad driving and concern of the driver’s sobriety made by civilians;

b. The Applicant’s unconscious state in the driver’s seat of the vehicle in the driveway of his residence upon police arrival;

c. The Applicant’s failure to respond to P.C. Wilson’s knocks on the window in a timely manner;

d. The Applicant’s physical appearance, which included him being covered in melted ice cream, where it was noted he had glossy eyes with very small pupils;

e. The Applicant continuously nodding in and out of consciousness while speaking with the officers;

f. The Applicant’s slurred words in responding to officers’ questions;

g. The Applicant’s slow and deliberate movements; and

h. Both P.C. Wilson and P.C. Klubertanz could not smell or detect any alcohol on the Applicant.

[51] In my view, the arrest was reasonable.

Was the Search of the Applicant and his Vehicle Lawful?

[52] Finally, the Applicant alleges his vehicle, specifically the trunk, was unlawfully searched by police officers because a warrant was not obtained and there were no exigent circumstances.

[53] In this case, the police searched both the Applicant and his vehicle/trunk pursuant to their authority to search incident to arrest.

[54] The common law doctrine of search incident to arrest permits an officer to search an accused and the surrounding area incident to lawful arrest, for a valid purpose.

[55] The search must be truly incident to arrest. They must have some valid reason related to the arrest to conduct the search, and that reason must be objectively reasonable. As explained in R. v. Caslake, [1998] 1 S.C.R. 51, at para. 25:

If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation. [Emphasis added]

[56] In this case, the Applicant had been lawfully arrested for impaired operation and searched by P.C. Klubertanz, which resulted in the seizure of 4.2 grams of suspected drugs.

[57] P.C. Kendelati testified that she searched the vehicle to gather further evidence in support of the charge. The officer started her search at the driver’s seat area before moving to the rear passenger seat. P.C. Kendelati then searched the trunk where further drugs were located.

[58] I accept the search here was related to the arrest, and in my view, it was reasonable for the officer to conduct a search of the truck in the circumstances. The police had just arrested the Applicant for operating a conveyance while impaired. Paraphernalia of drug use, and other contraband was located in various locations in the car. It was reasonable to conduct a search with a view to locating further evidence.

[59] Again, there need not be reasonable and probable grounds that further evidence will be located. Rather, the search must be related to a valid objective (locating further evidence), and reasonably connected to the offence: R. v. Polashek (1999), 134 C.C.C. (3d) 187 (Ont. C.A.); R. v. Alkins (2007), 218 C.C.C. (3d) 97 (Ont. C.A.); R. v. Rochwell, 2012 ONSC 5994.

[60] I am satisfied the requisite standard for the search was met in this case.

Section 24(2)

[61] If I am incorrect regarding the arrest and search of the vehicle, and the police actions amounted to a breach of the Applicant’s rights, I would still admit the evidence under s. 24(2).

[62] The Supreme Court elucidated the s. 24(2) analysis in its decisions of R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34. In Grant, at para. 71, the court summarized the framework for determining whether exclusion of the evidence would bring the administration of justice into disrepute:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[63] In this case, if there was a breach, the state misconduct would be at the lower end of the spectrum for seriousness: See R. v. McColman, at para. 65. The police attended the Applicant’s residence due to legitimate road safety concerns. The officers observed significant indicia of impairment by drug, which developed into a further Controlled Drugs and Substances investigation.

[64] If the police were not authorized to enter onto the property and investigate the Applicant in the manner they did, the Charter violation here would be inadvertent. The police were acting on information received, and their conduct was directed at the protection of the public. The law in play at the time would have also been in support of their conduct: R. v. Lotozky, supra.

[65] While the expectation of privacy is high (the search of a person and vehicle on a private driveway and the subsequent arrest), the manner in which the police conducted themselves was measured and not excessive.

[66] Finally, in this case, the state would have a strong interest in an adjudication on the merits. The nature of the alleged criminality is very serious. The trafficking of hard drugs for profit has been repeatedly emphasized to be an extremely serious offence. The evidence itself is real evidence and is necessary to the Crown’s case.

[67] Given the nature of the breach in this case, if any, and the effect of excluding the drugs, reliable evidence that is essential to proof of the Crown’s case at trial, the repute of the criminal justice system would be better served by admitting the evidence. In the circumstances of this case, excluding the evidence would bring the administration of justice into disrepute.

[68] The application is dismissed.

Justice C.F. de Sa Released: January 23, 2024

Footnotes

[1] 48 (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code (Canada). 2007, c. 13, s. 10; 2019, c. 8, Sched. 1, s. 1.

[2] As explained in Evans, when agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

[3] Unlike the cases or R. v. McColman and R. v. Singer, the Applicant here was not detained at the outset of the investigation in the absence of requisite grounds: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 28.

[4] As explained in Suberu, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. In any event, at the time police entered onto the property, P.C. Wilson had reasonable grounds to suspect an offence had been committed and would be justified detaining the Applicant.