R. v. Oulton, 2011 ABQB 243

Court of Queen ’ s Bench of Alberta Citation: R. v. Oulton, 2011 ABQB 243 Date: 20110414 Docket: 081396525S1 Registry: Wetaskiwin Between: Her Majesty the Queen Appellant - and - Bryon Bennet Oulton Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley on Appeal of a

Summary Conviction _______________________________________________________ Introduction [ 1 ] While at a gas station, a civilian spotted a person stumbling, tripping and falling as he entered a motor vehicle and tried to put it in motion. The person was a Caucasian male, 30 to 40 years of age, around six feet tall, weighing less than 200 pounds, with a moustache. He formed the opinion that the person was extremely drunk and called 911. The civilian followed the vehicle to a residence, witnessing very erratic driving on the way which obliged other drivers to take evasive maneouvres.

The driver entered the residence. Within a few minutes, two RCMP cruisers arrived. The civilian witness directed them to the house and entered one of the police vehicles. Checks on the license plate indicated it was registered to the Respondent at that address.

[ 2 ] RCMP Cst. Henley knocked briefly on the front door. The Respondent opened the door to the attached garage, swaying, wobbling, slurring and exuding an odour of alcohol. Cst. Henley asked the Respondent if there were any other males in the house and whether he had been driving that evening. The Respondent answered “no” to the first question, and “yes” to the second. Cst. Henley then arrested the Respondent and brought him to the window of the police vehicle, where the civilian witness confirmed that he was the driver.

The Respondent was ultimately charged with impaired driving and driving “over 80". [ 3 ] The learned trial judge found that Cst. Henley’s two questions breached ss. 8 of the Charter as they exceeded the implied licence under which a person may approach a residence and communicate with the occupants. The judge also found the Respondent was psychologically detained at the door and Cst. Henley breached s. 10(

a) when he failed to inform the Respondent promptly of the reasons for his detention. (Defence counsel had abandoned a s. 10(

b) argument.) The answers were excluded under s. 24(2). [ 4 ] The Appellant appeals on the basis that the learned trial judge erred in finding ss. 8 and 10(

a) breaches, and in excluding the evidence under s. 24(2). Parties’ Positions [ 5 ] The Appellant submits that in the absence of evidence that the Respondent had withdrawn his implied licence, Cst. Henley was entitled to remain and communicate with him. This was an immediate police response to a credible 911 call reporting a serious public breach of compliance with safety provisions. A police officer is clearly in the course of his duties when he attends and even enters a residence in response to a 911 call.

Someone’s privacy interest must always yield in response to a 911 summons for police assistance. [ 6 ] The Appellant argues that there was no evidence that the Respondent felt detained or constrained to answer the questions. It was only after he answered the questions that Cst. Henley had any grounds to arrest, and it was at that point that s. 10(

a) was engaged. [ 7 ] Finally, the Appellant asserts that there was no basis upon which to find that Cst. Henley acted in bad faith. The trial judge gave no reasons for finding that the impact of the breaches on the Respondent’s Charter protected interests was substantial. The police, in the course of responding to a public 911 call about the public conduct of the Respondent, did not enter his home and asked only two brief questions. In the circumstances, the Respondent had a vastly reduced privacy interest. As he was provided his s. 10(

b) rights before providing any breath samples, any impact on his interests by a breach of s. 10(

a) was greatly reduced, if not completely cured. [ 8 ] The Respondent submits that Cst. Henley entered onto private property without consent or authorization in order to conduct an impaired driving investigation, thereby exceeding any authority implied by the licence to knock. He was not responding to a 911 call from within the home and therefore there were no exigent circumstances, nor was he in hot pursuit. His conduct constituted an unlawful search. The trial judge’s finding that the Respondent was detained was appropriate.

Further, the trial judge properly exercised her discretion under s. 24(2) to exclude the evidence. Standard of Review [ 9 ] There is no significant dispute regarding the facts relevant to the scope of the implied licence. Whether the facts as found by the trial judge at law come within the scope of the implied licence is a question of law: R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 . The standard of review of questions of law on

summary conviction appeals is correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. [ 10 ] The finding that the Respondent was in fact detained is primarily a fact-driven determination, and therefore the standard of review is strongly deferential, reviewable only for palpable and overriding error: R. v. Vandenbosch , 2007 MBCA 113 , 220 Man.R. (2d) 125 at para. 14 , leave denied [2007] S.C.C.A. No. 554; R. v. Rajaratnam , 2006 ABCA 333 at para. 10 .

[11] Finally, the decision to exclude evidence under s. 24(2) is reviewed on a standard of reasonableness, and a reviewing courtwill not interfere with a trial judge's conclusions absent an apparent error as to the applicable principles or rules of law, or anunreasonable finding: R. v. Harding, 2010 ABCA 180, 482 A.R. 262 at para. 14; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para.32. Analysis Scope of the Implied Licence [12] Cst. Henley did not enter the dwelling in this case, nor was there evidence that he asked to do so. Cst.

Henley testified thatuntil he communicated with the Respondent, he had no way of knowing who was inside the residence. He was searching for the subjectdescribed to him and the Respondent who opened the garage door matched that description. However, he did not know the Respondentso he thought it may be possible that the subject standing before him was a person who resembled him. [13] The Respondent relies heavily on R. v. Evans, (SCC), [1996] 1 S.C.R. 8.

In that case, Sopinka J. stated: 13 I agree with Major J. that the common law has long recognized an implied licence for all members of the public, including police,to approach the door of a residence and knock. As the Ontario Court of Appeal recently stated in R. v. Tricker (1995), (ON CA), 21 O.R. (3d) 575, at p. 579: The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, onlegitimate business to come on to the property. The implied licence ends at the door of the dwelling.

This proposition was laid down bythe English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939. As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant.

Theimplied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual mightotherwise have in the approach to the door of his or her dwelling. ... 15 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind thepurpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), (BCCA), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant.

As theCourt in Bushman stated, at p. 19: The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who haslawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he canconveniently and in a normal manner communicate with the occupant. I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permitconvenient communication with the occupant of the dwelling.

The "waiver" of privacy rights embodied in the implied invitation extendsno further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose ofcommunicating with the occupant are authorized by the "implied licence to knock".

Where the conduct of the police (or any member ofthe public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectivelybeen breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder. 16 In the present case, I am of the view that the actions of the police went beyond the forms of conduct permitted by the implied

licence to knock. Although I accept that one objective of the police in approaching the Evans' door was to communicate with theoccupants of the dwelling in accordance with the implied licence to knock, the evidence makes it clear that a subsidiary purpose ofapproaching the Evans' door was to attempt to "get a whif [sic] or a smell" of marijuana. As a result, the police approached the Evans'home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them.

Clearly,occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiatinga criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails toextend that far.

As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against theoccupant, the police have exceeded any authority that is implied by the invitation to knock. [14] In Evans, Sopinka J. accepted that one police objective in approaching the Evans' door was to communicate with theoccupants of the dwelling in accordance with the implied licence to knock. What appeared to take the conduct outside of the impliedlicence was the subsidiary purpose of approaching to smell for marijuana.

Nevertheless, Sopinka J. made the broad statement that wherepolice approach a dwelling with the intention of gathering evidence against the occupant, they have exceeded any authority that isimplied by the invitation to knock. Does Evans effectively prevent officers from approaching a dwelling to communicate with occupantsin all cases where they are engaged in an investigation and the suspect may be on the premises? [15] In R. v. LeClaire, 2005 NSCA 165, leave denied [2006] S.C.C.A. No. 63, the Court noted that the application of theprinciples set out in Evans to similar scenarios has produced divergent results.

Roscoe J.A. stated: 13 There is an implied licence for all members of the public, including the police, to approach a door of a residence and knock.(Evans, para. 13) If the police act in accordance with this invitation, there is no intrusion upon the privacy of the occupant. The purposeof the approach to the door is determinative of whether they have operated within the implied invitation to knock.

If the purpose of thepolice officer is to simply communicate with the occupant in a normal manner, proceeding from the street to "reach a point in relation tothe house where he can conveniently" do so, is permitted within the implied licence ... 14 At para. 19 in Evans Justice Sopinka illustrated the difference between approaching a residence for the purposes of communicationand investigation and approaching a residence to gather evidence by citing, with approval, the decision of the British Columbia Court ofAppeal in R. v. Campbell (1993), (BC CA), 36 B.C.A.C. 204.

There, the police acknowledged that they had knockedon the accused's door not only to make inquiries as a follow up to the tip they had received, which was a proper investigative purpose,but the police were also trying to see if stolen furniture was visible through the open front door when the occupant answered the knock,which was an evidence gathering purpose. 15 The Evans principle has been helpfully summed up by commentators.

For example, Alan Gold, in Search and Seizure Evidence,ADGN/RP-028 (1997) said that Evans holds that police "knock ons" are searches where a residence is approached to see if evidencebecomes apparent when the door is opened. Renee Pomerance, in "Parliaments' Response to R. v. Feeney: A New Regime for Entry andArrest in Dwelling Houses" (1998), 13 C.R. (5th) 84 at para. 9 suggests that it is permissible for the police to approach a residence with abona fide investigative inquiry and that the communicative nature of the activity takes it out of the realm of a search according to theprinciples in Evans.

I agree with these statements. 16 On the facts in Evans, Justice Sopinka concluded that not only did the police want to talk to the occupants, they also wanted to geta whiff of marijuana, that is, to secure evidence against them by obtaining the scent of marijuana from inside the house once the doorwas opened.

Since occupiers cannot be presumed to invite police to enter upon their property with the specific purpose of substantiating acriminal charge, the police in Evans were found to have exceeded the authority implied by the invitation to knock and in so doing wereengaged in a search... [16] Roscoe J.A. reviewed a number of cases. In R. v. Van Wyk, [1999] O.J. No. 3515 (Sup.Ct.Just.), appeal dismissed: [2002]O.J.

No. 3144 (C.A.), Hill J. distinguished between cases where the police knock on a door with the intention of gathering evidenceagainst the occupant by mere use of their senses, by taking a look or a whiff, and those cases where the intention is to ask questions tofurther the investigation. In the latter case, the occupant can refuse to answer the questions.

Hill J. noted at para. 26 that the police havean obligation to investigate crimes, and it is an appropriate exercise of that function to ask questions of people, including suspects, todetermine the identity of a perpetrator, reasoning: 33 Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, inthe sense of unwitting disclosure by the occupant, until he or she chooses to speak.

The police intent of facilitating communication, eveninvestigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory orin breach of s. 8 of the Charter.

[ 17 ] In R. v. Petri , 2003 MBCA 1 , 170 Man.R. (2d) 238, a woman observed a truck driving erratically, placed a 911 call and provided the licence plate and vehicle description. Officers eventually attended at the address of the vehicle's registered owner, noted a truck matching the description. The hood was still warm. They knocked on the door and a male in his nightclothes answered. After a brief exchange, the officers determined the male was the registered owner of the vehicle and they entered the residence.

Kroft J.A. for the Court stated: 26 I must repeat that when the police officers first entered the accused's home, they were still engaged in an open-ended investigation based on the apparent invitation that had been given to them. They had no grounds for an arrest (warrantless or otherwise), and did not obtain reasonable grounds until they had observed the condition of the accused and until he had voluntarily acknowledged that he had just been the driver of the truck.

Thus, the implied consent asserted by the Appellant was simply the accused's consent for the police to enter his residence in the course of conducting an investigation, not for the purpose of making an arrest. 27 In any event, had the entire conversation occurred outside the doorway rather than a step or two inside, the grounds for arrest would still have crystallized only after the accused confirmed that he was the driver and the police had made note of his impaired condition. The officers could have made the arrest just as easily outside the doorway as inside on the landing.

Thus, far from being the pivotal factual component in this case, the entry of the police onto the landing was quite incidental to the legal issues at play. The ultimate arrest was justifiable as a reasonably associated purpose arising out of the communications between the accused and the police in the course of an investigation conducted pursuant to an implied invitation and without suggestion of coercion. [ 18 ] In R. v. Desrochers (2008), 47 M.V.R. (5th) 315, [2007] O.J.

No. 1482 , aff’d 2008 ONCA 255 , the Appellant, who showed signs of intoxication, was involved in an accident witnessed by civilians who then followed him to a residence and called 911. The witnesses remained at the residence until the police arrived. An officer obtained a description from the witnesses, who said they had seen the Appellant enter the garage on his motorcycle. The officer approached the Appellant's front door and knocked. His wife answered the door. She did not object when the officer stepped just inside the door. The officer asked to speak to the Appellant.

Another officer went to the rear of the house to ensure no one would leave through the back. On appeal, MacKinnon J. found that the first officer was fulfilling his obligations by investigating circumstances that might have constituted criminal conduct resulting in possible injury. He distinguished Evans on the basis that in Evans there was no necessity of engaging the occupants in conversation or questioning. The only purpose in having them open the door was to determine whether there was the odour of marijuana within.

In dismissing the further appeal, the Ontario Court of Appeal noted that the trial judge accepted the officer's evidence that he went to the door to speak with the Appellant in connection with the accident. Unlike Evans , the officer did not go to the door under a pretext and with the intention of conducting an unlawful search of the home. The Court of Appeal concluded that the implied invitation doctrine applied and rendered the police conduct in approaching the house and knocking on the door lawful. [ 19 ] In R. v. Grotheim , 2001 SKCA 116 , leave denied [2002] S.C.C.A.

No. 17, an RCMP constable received a telephone call informing him that a vehicle had struck a tree. On examining the site, he noticed a trail of fluid and a long black skid mark leading up a nearby driveway on which was parked a truck with extensive damage to the front end. He knocked on the door of the house, intending to ask them about the accident, and was invited in. On entering the house, he met with the accused, who appeared to be drunk and immediately presented the constable with a mechanical work-order relating to the truck's steering. The constable asked him who had been driving the vehicle.

The accused said he had been driving it, explaining that he had accidentally run into the tree while attempting to turn into the driveway. The Court held that the constable was lawfully in the home at the time of the arrest. He went to the door, not for the purpose of making an arrest or of conducting a search or seizure, but for the sole purpose of talking to the occupants about the apparent accident. [ 20 ] In R. v. Vu , 1999 BCCA 182 , 121 B.C.A.C. 66, leave denied [1999] S.C.C.A. No. 330, an undercover officer had purchased cocaine from the accused at a residential dwelling.

Based on that information, two officers attended at the premises and questioned the accused about an assault. The officers noted that his face and clothing matched the description provided by the undercover officer. The trial judge ruled that the attendance by the two officers to confirm the description given by the undercover officer was an unreasonable search and that their evidence confirming identification was inadmissible. The Court of Appeal held that the conduct of the officers was reasonable.

They believed on reasonable grounds that an offence had been committed, and walking to the door and knocking on it constituted a minimal interference with the privacy interest of the occupant. McEachern C.J.B.C. stated: 40 Moreover, as argued by Mr. Frankel, the police in each of the cases cited above were acting on suspicion. In this case, the officers were not acting on suspicion. Sidhu had personal knowledge of the offence and her colleagues accordingly had reasonable and probable grounds to believe Mr. Vu had committed an offence.

They wished only to confirm that the person they believed had committed the offence was on the premises. They sought no other evidence. On that basis, Mr. Frankel argued, their conduct ought not to be classified as unreasonable or unlawful.

41 With respect, I would agree with that submission were it not for the authorities I have just mentioned which appear, in thecircumstances of this case, to represent the replacement of common sense and reasonableness with extended logic gone astray. 42 But I do not have to decide that question in this case. That is because I would admit the evidence in any event under s. 24(2)... [21] The facts in R. v. Lotozky (2006), (ON CA), 81 O.R. (3d) 335, 212 O.A.C. 3, are distinguishable in thatthe officers observed a reported impaired driver drive into his driveway, and proceeded to investigate in that location.

Both lower courtsfound that the officers had exceeded the implied licence to enter onto the premises because they were there to investigate a suspectedcriminal offence. The Court of Appeal held that the Appellant’s s. 8 rights had not been violated and if they had, the violation was minorand the evidence should have been admitted. The Court held: 18 ...despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct aninvestigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search.

There must besomething more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put anotherway, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a drivewayopen to public view in the category of a search or seizure. ... 37 There are other reasons for viewing the officers' actions as legitimately within the scope of the implied licence.

It would not begood policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home andthus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated there was a risk that animpaired driver would re-enter the vehicle and drive while impaired.

It is not reasonable to expect the police to devote resources towaiting outside the motorist's house until he or she returns to the street. [22] Evans has sometimes resulted in unnecessary artificial distinctions, laboured reasoning, and inconsistent and sometimesabsurd results.

While there is divergent case law regarding the effect of Evans on the implied licence of the police to knock on the doorof a private dwelling, the above authority supports the proposition that the police generally act within the implied licence where theyapproach a dwelling house to communicate with the occupants in furtherance of an investigation.

That being the case, it will usually bemore appropriate to analyze a situation such as the one at bar under ss. 9 and 10 of the Charter, rather than s. 8. [23] In this case, the civilian witness had provided evidence regarding an individual he believed was in the house. Cst. Henleyapproached the residence in order to communicate with the occupants. Had a third party opened the door and entered into a voluntarydiscussion with him regarding a reported crime, there would likely be no reason for concern. As it turned out, the Respondent appearedat the garage door. Although there was no evidence that Cst.

Henley approached the house in order to observe the Respondent’s state ofintoxication, in the circumstances one might expect that if the Respondent answered the door, signs of his intoxication might be evidentto Cst. Henley. If the officer had an implied licence to approach in order to communicate with the occupants, it would be nonsensical insuch circumstances to require that he close his eyes, and plug his ears and nose, for fear that he might detect such evidence. Cst. Henleydid not enter the house. The Respondent did not ask him to leave. [24] In my view, Cst.

Henley was acting within the scope of the implied licence to knock, and the trial judge’s conclusion to thecontrary was incorrect. The real issue in this case revolves around ss. 9 and 10(

a) of the Charter. Detention and s. 10(a) [25] Individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for thedetention: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. [26] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court held that a "detention" for the purposes of the Charter

refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state - a deprivation of liberty which may have legal consequences. [ 27 ] The majority in R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, confirmed that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter .

Police do not have to abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime, and not every police encounter, even with a suspect, will trigger an individual's s. 10 rights. When police believe a crime has recently been committed, they may engage in preliminary questioning of bystanders without giving rise to a detention.

However, even where there is no legal obligation to comply, if a reasonable person in the subject's position would conclude that he or she had been deprived of the liberty of choice, a detention is established. [ 28 ] In Suberu , the officer responded to a call about a male person attempting to use a stolen credit card at a store. A second officer already inside advised him by radio that there were two male suspects in the store. The first officer entered the store and Suberu walked past him saying, "He did this, not me, so I guess I can go." The officer followed him and said, "Wait a minute.

I need to talk to you before you go anywhere", while Suberu was getting into a minivan. The officer asked him: “Who's the guy inside you were with?”, “What is your friend's name?”, “Where are you from?”, “How did you come to be in Cobourg today?”, “Who's van is this?”, “Who is your girlfriend?” The officer received further information by radio, including a description and licence plate number matching the van. The officer asked for Suberu's ID and vehicle ownership documents.

While Suberu retrieved the documents, the officer saw shopping bags between and behind the front seats which he decided gave him reasonable and probable grounds to arrest Suberu for fraud. The majority in Suberu affirmed the finding that the interaction in this case did not amount to a significant psychological detention. [ 29 ] The Court in Grant noted that in the context of investigating a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination.

However, this does not preclude the police from continuing to question the person in the pursuit of their investigation, because s. 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. [ 30 ] In Grant , an officer approached a young pedestrian, stepped in his path, and made general inquiries. The Court held that at this stage, a reasonable person would not have concluded he was being deprived of the right to choose how to act.

Nor was the pedestrian necessarily detained when told to keep his hands in front of him.

However, when two other officers approached, flashed their badges and took tactical adversarial positions behind the first officer, and the nature of the questioning changed, the encounter developed into one where the subject was singled out as the object of particularized suspicion. [ 31 ] In Grant and Suberu , the Supreme Court clarified that a finding of psychological detention is an objective determination, in light of the circumstances of an encounter as a whole, and requires striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. [ 32 ] The Court in Grant explained: 41 As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice.

On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject... [ 33 ] The Court noted the following factors as being relevant:

a) the circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence, or singling out the individual for focused investigation;

b) the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter; and

c) the particular characteristics or circumstances of the individual where relevant, including: age, physical stature, minority status, level of sophistication. The Court explained that determining whether there has been a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. [ 34 ] The trial judge in this case did not evaluate the facts in light of these factors. Rather, she concluded, without explanation or analysis, that the facts she had outlined in great detail supported a finding that the accused was psychologically detained by Cst.

Henley at the door of his garage. However, the only relevant facts earlier recited were that Cst. Henley approached the residence late at night in the course of an impaired driving investigation in order to determine the identity of the impaired driver, knocked on the door and asked two brief questions. [ 35 ] Applying the framework provided in Grant , Cst. Henley’s knock on the door, without more, would not reasonably be perceived by the Respondent as singling him out for a focused investigation. Further, Cst.

Henley’s first question, “Are there any other men present in the residence” would reasonably be perceived as being in furtherance of a search for someone other than the Respondent. The nature of Cst. Henley’s conduct was seemingly benign. He asked a short question. Following the Respondent’s response to the first question, Cst. Henley asked whether the Respondent had been driving that evening. Cst. Henley used no contact, nor was there any evidence that he approached the Respondent. There was no other officer present at the door.

There is no evidence that the Respondent was aware of the presence on the street of the second officer and witness. The encounter to that point was exceedingly brief. [ 36 ] One might infer, because the questioning occurred outside his dwelling, that the Respondent felt compelled to answer since the police knew where he lived in any event. However, one might equally infer that, since he was at his own home, he had considerable control over the degree, if any, of his participation in such questioning.

The latter inference is in keeping with the proposition that the reasonable person assessment must be informed by the fact that a bystander is under no legal obligation to comply. [ 37 ] As for particular characteristics or circumstances of the Respondent, he was a tall, mature male who had consumed alcohol and who had just arrived home. [ 38 ] Again, focused suspicion, in and of itself, does not turn an encounter into a detention. In light of all of these factors, in my view it is unreasonable to conclude on the facts of this case that the Respondent was psychologically detained.

As in Suberu , it occurred to Cst. Henley that the Respondent might be the driver, but he did not at the time of the questioning believe he had sufficient information to act on his suspicion by detaining him. Cst. Henley was orienting himself to the situation rather than intending to deprive the Respondent of his liberty. Based on the information known to him after the two brief questions, Cst. Henley had reasonable grounds to suspect that the Respondent ought to be investigated further. The detention was reasonably necessary on an objective view of the totality of the circumstances, informing Cst.

Henley’s suspicion that there was a clear nexus between the Respondent and the reported alleged offence. Following the responses to his questions, he had the right to detain the Respondent, who matched the description of the suspect given by the witness and was the only male in the house which the witness had seen the driver enter. He detained the Respondent for the purposes of facilitating identification by the witness. [ 39 ] The trial judge in this case concluded that the Respondent was psychologically detained at the door.

While there is no obligation on the Respondent to testify as to his perceptions of the encounter, his contention of a significant deprivation of liberty must find support in the evidence. I am mindful that the standard of review on the trial judge’s finding is strongly deferential. Nevertheless, in my view, there is no evidential support for such a finding until such time as Cst. Henley arrested the Respondent. As in Suberu , the questioning at the door amounted to an exploratory investigation in which Cst.

Henley was fully justified and duty bound to pursue a cursory questioning of the Respondent to determine if there was any involvement by this person before him, and to determine how to proceed thereafter. [ 40 ] Given my conclusion on the issue of detention, it follows that the Respondent’s s. 10(

a) rights were not breached. Section 24(2)

[41] If I am wrong in the above conclusions, then s. 24(2) is relevant. The trial judge in this case referred to the correct test forexclusion under s. 24(2). Her decision to exclude evidence is reviewable on a standard of reasonableness. [42] Under the previous s. 24(2) test, as set out in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, the first considerationwas whether the evidence would undermine the fairness of the trial by effectively conscripting the accused against himself or herself.That branch of the test posed numerous conceptual difficulties over the years, leading to reformulation of the entire test.

In Grant, themajority noted that it is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumptionthat admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained.

The newtest requires the Court to consider: (1) the seriousness of the Charter-infringing state conduct (admission may send the message thejustice 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 itsmerits. [43] With respect to the first branch of the test, the trial judge found that Cst. Henley did not act with willful or reckless disregardfor the Respondent’s Charter rights.

She did find that his acts reflected either ignorance, neglect or willful blindness of Charter standardswhich would not equate to good faith. [44] The question is whether admission in this case would send the message that the justice system condones serious statemisconduct. I note that the law demarcating the point at which a detention occurs and the scope of the implied licence are often not clear,as evidenced by the lengthy argument and numerous cases submitted by counsel. If indeed I am wrong and Cst.

Henley exceeded thescope of the implied licence, or the Respondent was detained during the two brief questions at the garage door, then in my view the stateof the law in this regard is so unclear as to provide little guidance to police officers, and Cst. Henley’s good faith in pursuing theinvestigation to that point, given the information he was provided, is not undermined by that lack of clarity. [45] Had Cst. Henley been the one to observe the Respondent one can presume that he, like the witness, would have been able toidentify the Respondent on the garage door being opened. However, Cst.

Henley was relying on witness information. He could havebrought the witness to the door, but such a practice may well raise witness safety issues and discourage reporting of possible offenceswitnessed by the public.

The latter is at odds with campaigns that encourage the public to report suspected impaired drivers. [46] On the second branch of the Grant test, the trial judge held that the admission of answers to the two questions would tend torender the trial unfair and the impact of the breaches on the accused would be substantial. [47] Would admission of the evidence send the message that individual rights count for little? The stated purpose of thequestioning was to ensure that Cst. Henley did not detain the wrong person in relation to the reported driving infraction.

In this sense, thecircumstances were respectful of individual rights. As for the Respondent’s rights in particular, the witness was in a position to identifyhim and had remained to assist the police. (The trial judge took into account the fact that the witness was unable to identify theRespondent in the courtroom, which in my view is irrelevant to s. 24(2). He did identify him at the scene.) [48] Again, Cst. Henley cannot be faulted for failing to bring the witness to the door.

In effect, he was balancing protection of thewitness and ensuring he did not detain the wrong person, with furtherance of the investigation. The witness was available and wouldhave been in a position to confirm the Respondent’s identity as the driver regardless of the Respondent’s answers to the two briefquestions.

I conclude that the trial judge’s assessment of this second branch of the test overstated the impact on the Respondent’sCharter-protected interests. [49] On the third branch of the test, the trial judge held that the long term interests of the administration of justice are better servedby exclusion. [50] The repute of the administration of justice is enhanced by responsible civilian reports of commission of offences posing adanger to the public. Civilians are encouraged to report drivers who appear to be impaired.

The repute of the administration of justice isalso raised when officers take seriously such reports and respond with further investigation. It is further raised where such officers do notput witnesses in jeopardy. And it is raised when police officers take steps to ensure that they do not unnecessarily detain the wrongperson.

[ 51 ] In this case we have a civilian witness who reported a person he observed to be “falling down drunk”, and who he saw enter a vehicle and drive in a very dangerous fashion to a residence. We have a constable, relying on a report, knocking on the door of the dwelling which the driver has just entered. The constable takes steps to ensure that he does not detain the wrong person. The waiting witness is available to identify the driver.

In my view, nothing in this scenario supports exclusion in order to protect the long term interests of the administration of justice. [ 52 ] As for the fact that the investigation required knocking on a dwelling door, as noted in Lotozky 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. As well, until the impaired driving complaint was investigated there was a risk that the Respondent would re-enter the vehicle and drive while impaired.

I too am of the view that it would not be reasonable to expect Cst. Henley and his colleague to devote their resources to waiting outside the Respondent’s house until he returned to the street. [ 53 ] Finally, the charges which the Respondent faced are serious. Impaired driving is a significant societal problem which causes significant death and injury and puts members of the public in danger. [ 54 ] If I am wrong in my earlier determinations, I nevertheless conclude, given all of the circumstances, that exclusion of the evidence in this case was unreasonable.

Conclusion [ 55 ] Accordingly, I allow the appeal, set aside the dismissal of the charges and order a new trial. Heard on the 18 th day of March, 2011. Dated at the City of Edmonton, Alberta this 13 th day of April, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Rod Clark

for the Appellant Peter J. Shipanoff for the Respondent