This week's top three summaries: R v Singer, 2023 SKCA 123: s.8 car in #driveway, R v Lowry, 2023 BCCA 5: 3rd party fresh #evidence, and R v Edwards, 2023 ONSC 6573: 3rd party #suspect disclosure. Our firm focuses...
This week’s top three summaries: R v Singer, 2023 SKCA 123: s.8 car in #driveway, R v Lowry, 2023 BCCA 5: 3rd party fresh #evidence, and R v Edwards, 2023 ONSC 6573: 3rd party #suspect disclosure.
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R v Singer, 2023 SKCA 123
[November 15, 2023] Charter s.8 - Sleeping in a Car on your Driveway (Impaired Driver Report) [Scwann, Barrington-Foote, and McCreary JJ.A.]
AUTHOR’S NOTE: Private property still provides a measure of protection against investigation by the state. This case reinforces case law that confirms that the common law invitation to knock on the front door for legitimate business cannot be used by police officers as a subterfuge to gather evidence against the property owner. This case law is explained in this decision. If the implied license to knock does not authorize entry onto the property, then law enforcement are trespassers the moment they step onto the property. The case also describes the phenomenon of an implied licence to enter an uncontrolled driveway (ie. a meter reader or a courier, or a police officer investigating an impaired driver). The SKCA holds that reasonable grounds have to be present for police to enter the uncontrolled driveway to investigate an impaired driver. Here, they lacked the requisite grounds until they opened the door of the car to find the sleeping driver within.
I. INTRODUCTION
[1] On March 20, 2019, RCMP Constables Sandra Lapointe and Morgan Fisher found the appellant, Wayne Singer, asleep in the driver’s seat of a truck that was parked in the driveway of his residence at Big Island Lake. Having failed to wake him by knocking on the windows, they opened the doors of the truck and roused him from his sleep. As Mr. Singer exhibited signs of having consumed alcohol, he was asked to take a roadside breath test, which he failed. Thereafter, Cst. Lapointe advised Mr. Singer that he was charged with having care and control of a motor vehicle with an excessive blood alcohol level and demanded that he provide a breath sample. Mr. Singer was transported to the local RCMP detachment, where he refused to provide a sample.
[2] Mr. Singer was charged with failing or refusing to comply with a demand made by a peace officer under s. 320.27 or 320.28 of the Criminal Code and with operating a motor vehicle while his ability to do so was impaired by alcohol. At his trial in the Provincial Court of Saskatchewan, he argued that his s. 8 Charter rights had been breached when the officers walked up the private driveway of his residence to his vehicle for the purpose of investigating a complaint of impaired driving. The trial judge concluded that there was no Charter violation and found Mr. Singer guilty of failing to provide a breath sample. The impaired driving charge was stayed.
[4] For the reasons that follow, we have concluded that Mr. Singer’s appeal should be allowed.
[5] At approximately 11:00 p.m. on March 20, 2019, the RCMP received a call from a person who reported that Mr. Singer was speeding while driving on Big Island Lake Cree Territory, and that she believed he might be driving while impaired because he sped off when she saw him. The complainant described Mr. Singer’s vehicle as a white single cab Ford truck.
[6] Constables Lapointe and Fisher were dispatched to investigate, each in their own vehicles. Something more than an hour after the call was made to the police, Cst. Lapointe identified a vehicle matching the description provided by the caller, parked on the driveway of a private residence at the Big Island Lake Cree Nation townsite. She contacted Cst. Fisher, who joined her at the residence. The officers could readily see the vehicle from the public road and observed that it was running with its lights on. They could not see anyone in the vehicle from the road. They did not know that Mr. Singer lived at the residence, but they knew that the driveway was private property. Constable Lapointe testified that she did not think of obtaining a tele-warrant because she was investigating an impaired driver.
[7] The police approached the vehicle, which was parked a short distance from the road, by walking up the driveway. Constable Lapointe testified that her purpose for entering the driveway was to investigate the impaired driving complaint. As they approached the vehicle, the police officers observed a man in the front seat on the driver’s side of the vehicle, lying down with his head toward the passenger door. He appeared to be asleep. Constable Lapointe knocked on the driver’s side window, but the man did not respond. She then opened the driver’s side door and immediately smelled a strong odour of liquor. Constable Fisher opened the passenger side door, but the man still did not wake up, so Cst. Fisher shook him until he awoke.
[8] Constable Lapointe testified that the man appeared sleepy, had red, bloodshot eyes, and had a strong odour of alcohol on his breath....
[9] Constable Lapointe advised Mr. Singer that she suspected he was in the care and control of a vehicle with alcohol in his body and that he would be required to provide a sample of his breath into an approved screening device [ASD]....
....After speaking to legal aid duty counsel by telephone from the detachment, Mr. Singer declined to provide a breath sample and was charged with refusal.
[13] At trial, Mr. Singer argued that the police had no implied licence to enter onto the driveway and that they should not have entered his property without permission. It was his position that having failed to obtain permission, they were trespassers, their entry was unlawful, and his Charter rights were violated.
[14] The trial judge found that Mr. Singer had a subjective expectation of privacy. He noted that the police had walked onto the entrance of a driveway, which was open to public view, that their intrusion was brief, and that they did not know it was Mr. Singer’s residence when they entered. He held that “[m]erely walking onto [a private driveway] with intent to conduct an investigation regarding the vehicle and its driver, as opposed to the occupant of the residence … does not constitute a sufficient intrusion to be considered a search”.
[15] The trial judge also relied on the common law “implied licence” doctrine to enter private property on legitimate business, which he found extended to both the investigation and the “corollary” obligation “to protect the general public and their safety from potential impaired drivers”. The trial judge grounded this conclusion on R v Kleven, 2019 SKQB 238, 445 CRR (2d) 141 [Kleven], R v Lotozky (2006), 210 CCC (3d) 509 (WL) (Ont CA) [Lotozky], and R v Soal (2005), 14 MVR (5th) 256 (Ont Sup Ct), aff’d (2005), 19 MVR (5th) 176 (Ont CA). On that basis, he found as follows: …
I find the officers entered onto the property on legitimate police business, and any interference with Mr. Singer’s property rights was fleeting at best. Having found there was no objectively reasonable expectation of privacy in this case, that ends the inquiry, and there is no need to consider a remedy. …
[16] The trial judge also concluded that if he had found there had been a breach of s. 8 of the Charter, he would not have excluded the evidence under s. 24(2) because the Grant factors favoured its admission (see R v Grant, 2009 SCC 32, [2009] 2 SCR 353).
V. ANALYSIS
A. The legal framework: Section 8 of the Charter, the implied licence to enter private property and ancillary police powers
[23] This appeal is concerned with whether the trial judge erred in determining that Mr. Singer’s s. 8 Charter right to be free from unreasonable search and seizure had not been violated. We will accordingly begin with a brief overview of the analytical framework that applies when deciding whether such a breach has occurred. As Bastarache J. explained in R v Law, 2002 SCC 10, [2002] 1 SCR 227, s. 8 protects privacy interests:
[15] It has long been held that the principal purpose of s. 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State. Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, R. v. Edwards, [1996] 1 S.C.R. 128. …
[24] Given this purpose, state conduct that does not interfere with a reasonable expectation of privacy is not subject to constitutional scrutiny under s. 8. Accordingly, a court tasked with determining if a breach of s. 8 of the Charter has occurred must first decide whether the accused had a reasonable expectation of privacy. As Dickson J. (as he then was) wrote in Hunter v Southam Inc., [1984] 2 SCR 145 at 159–160, “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”. This assessment turns on the totality of the circumstances: R v Edwards, [1996] 1 SCR 128 at para 31. As James A. Fontana and David Keeshan explain in The Law of Search and Seizure in Canada, 12th ed (Toronto: LexisNexis, 2021) at 1(2)(a) – citing Edwards; R v Tessling, 2004 SCC 67 at para 32, [2004] 3 SCR 432 [Tessling]; R v Patrick, 2009 SCC 17 at para 27, [2009] 1 SCR 579; R v Cole, 2012 SCC 53 at para 40, [2012] 3 SCR 34; R v Spencer, 2014 SCC 43 at para 18, [2014] 2 SCR 212; and R v Marakah, 2017 SCC 59 at para 11, [2017] 2 SCR 608 – this involves four lines of inquiry, as follows:
As set out in Edwards, therefore, a reasonable expectation of privacy has both a subjective and objective element. An individual must first subjectively hold an expectation of privacy in a place or thing in order for s. 8 to be engaged. At the same time, however, that expectation must be objectively reasonable. More recently, in this regard, the court has grouped the factors enunciated above in R. v. Edwards under the following four headings:
(1) the subject-matter of the alleged search;
(2) the claimant’s interest in the subject-matter;
(3) the claimant’s subjective expectation of privacy in the subject-matter; and
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. In determining this, the court must consider factors such as:
a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis?
b. whether the informational content of the subject-matter was in public view;
c. whether the informational content of the subject-matter had been abandoned;
d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of this evidence-gathering technique was itself objectively unreasonable;
g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
(Footnotes omitted)
[25] In this case, the application of the implied licence to enter private property is also at issue. Justice Sopinka explained the nature and scope of that licence in his majority reasons in Evans, as follows:
[13] I agree with Major J. [in his concurring reasons in this case] 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), 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, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the 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. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.
(Emphasis added)
[26] Here, the key issue that arises is as to the terms of the implied licence, and in particular, the scope of the police activities that are authorized by the invitation. In Evans, Sopinka J. answered this question in the context of the implied licence to knock:
[14] If one views the invitation to knock as a waiver of the occupier’s expectation of privacy in the approach to his or her home, it becomes necessary to determine the terms of that waiver. Clearly, under the “implied licence to knock”, the occupier of a home may be taken to authorize certain persons to approach his or her home for certain purposes. However, this does not imply that all persons are welcome to approach the home regardless of the purpose of their visit. For example, it would be ludicrous to argue that the invitation to knock invites a burglar to approach the door in order to “case” the house. The waiver of privacy interests that is entailed by the invitation to knock cannot be taken to go that far.
[15] In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind the purpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court 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 has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently 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 permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied “conditions” of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.
(Italicized emphasis in original; underlined emphasis added)
[27] This passage makes several points that bear emphasis in the context of this case. The implied licence to knock is a subset of the implied licence to enter private property on legitimate business. It authorizes the person who has entered the property only to approach the door and knock. A person approaching the door to “case” the residence, whether by looking for useful information or by asking the occupant questions, is not there on legitimate business. They are a trespasser. The same is true of a police officer who approaches the door for the purpose of gathering evidence against the occupant. As Sopinka J. explained:
[16] … Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any “waiver” of privacy rights that can be implied through the “invitation to knock” simply fails to extend that far. As a result, where the 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.
[28] In Evans, the police had approached the door for two reasons – to communicate with the occupants, but also with the subsidiary and improper purpose of attempting to collect evidence against the occupant by attempting to smell marijuana. For that reason, they were found to have exceeded the implied licence.
[29] This principle – that the purpose of the entry onto property in the context of a criminal investigation determines whether it is within the scope of the implied invitation – was affirmed in Rogers. In that case, the police had received a complaint regarding a potentially intoxicated driver who had hit a vehicle and fled the scene. A licence plate number was provided, and the police attended to the address shown on the registration for the vehicle, which was Mr. Rogers’ apartment. The investigating officer knocked on the apartment door and when Mr. Rogers opened the door, the officer formed the opinion – through observing Mr. Rogers – that he was impaired, thereby obtaining grounds for the impaired driving arrest.
[30] This Court rejected the Crown’s argument that the officer was permitted to rely on the implied invitation to knock to justify accessing Mr. Rogers’ private residence. This was because the trial judge had made a factual finding that the officer had knocked on Mr. Rogers’ door with the intention of gathering evidence against him. Justice Jackson agreed with the Crown “that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence” and that “a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a ‘search’ for s. 8 purposes for that reason alone” (at para 27). However, she did not agree that this meant they could knock for the purpose of gathering evidence about the occupant’s sobriety, finding as follows:
[29] The investigation of the crime of drinking and driving, or a similar offence, necessarily entails the potential to obtain evidence from conversing with or observing the person answering the door. Nonetheless, based on my review of the authorities, I have concluded that if a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose of securing evidence against the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter. This principle applies equally to drinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory and olfactory clues about the person’s participation in the crime under investigation. Evansremains the leading authority on point, and nothing in the jurisprudence extends the principles articulated by the majority in that decision as far as Crown counsel suggests.
(Emphasis in original)
[31] This reasoning was applied in R v Moyles, 2019 SKCA 72, [2019] 12 WWR 416 [Moyles]. There, a police officer posing as a delivery driver had delivered a box containing a monitoring device and a controlled substance to a house, in the hopes that it would be opened by Mr. Moyles, who they believed was living there, or by another occupant of the residence. The purpose was to gather evidence as to the identity of the person that ordered the substance. Justice Barrington-Foote noted that, in Rogers at paragraph 29, Jackson J.A. had confirmed that “if a police officer knocks on the door of a residence for the purpose of securing evidence against the occupant, they are conducting a search within the meaning of s. 8 of the Charter” and that this principle “was affirmed by Moldaver J. in his dissenting opinion (but not on this point) in R v Le, 2019 SCC 34 at para 212” (at para 50)....
[36] These cases confirm the significance of the purpose of the police entry onto private property where the issue is the implied licence doctrine. As Sopinka J. explained in Evans, a police officer who is approaching the door of a residence for the purpose of gathering evidence against the occupant is an intruder. That is so because an unlawful search is not lawful police business. The fact that they have entered to investigate a crime does not save the day if they intend to investigate in that prohibited manner.
[37] Further, if the implied licence did not authorize the police entry – absent any justification based on statutory authority or police ancillary powers – the police are trespassers as soon as they enter the private property: Le at paras 124–126 and 211. As Brown and Martin JJ. commented in Le, which dealt with a warrantless police entry into a backyard, “[t]he conclusion that the police officers were trespassing is clearly relevant under s. 8, as it nullifies any ‘consent’ to the police entry” (at para 128). Put differently, while a police officer who is a trespasser is not necessarily conducting a search within the meaning of s. 8, the fact they are a trespasser is relevant when determining whether there is a reasonable expectation of privacy.
[38] In Mr. Singer’s case, there was no evidence that the police entered for the purpose of approaching the residence to knock. However, the implied licence is not limited to the licence to knock. In Evans, Sopinka J. adopted the following statement of the law from R v Tricker (1995), 96 CCC (3d) 198 at 203 (Ont CA) [Tricker]: “The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling” (Evans at 6; see also para 30). There is, in particular, an implied licence to enter an uncontrolled driveway on private property in certain circumstances. It is clear, for example, that a person who parks in a driveway for the purpose of conducting legitimate business on the property – such as a meter reader or a courier – would have an implied licence to do so. A police officer would also have an implied licence in some situations.
[39] Lotozky demonstrates this principle in the context of a criminal investigation....
[40] ....The Ontario Court of Appeal allowed the Crown’s appeal, finding that the entry was lawful as there was a legitimate basis to enter. Justice Rosenberg explained that conclusion as follows:
[35] 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. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. [in R v Mulligan (2000), 142 CCC (3d) 14 (Ont CA)] that licences may arise by implication from the nature of the use to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view.
[36] 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 [RSO 1990, c H.8]. 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.
(Emphasis added; footnotes omitted)
[41] Justice Rosenberg noted that there were other reasons to find that the entry was within the scope of the implied licence. He observed that motorists should not be encouraged to head for home to avoid a legitimate investigation and that until an impaired driving complaint is investigated, there is a risk that the driver may re-enter the vehicle and drive again. In his view, it would not be reasonable to expect police to wait for the motorist to return to the street.
[57] McColman CA is also of interest in that Tulloch J.A. observed that in Lotozky, Rosenberg J.A. “held that police officers who have reasonable grounds to suspect that a motorist is impaired are entitled to walk up a driveway to further their investigation” (at para 41, emphasis in original). This statement was made in response to the Crown’s argument in that case that Lotozky supported its assertion that the court should interpret the HTA to permit a random stop on private land. We note, by analogy, the Crown’s suggestion in this case that Lotozky confirms the common law authority of police to do exactly what the police did here – that is, to enter to investigate in the manner the officer did, despite there being no suggestion that the police had reasonable grounds. Put another way, the police did not have reasonable grounds to suspect that Mr. Singer was impaired until they opened the door of his truck.
[58] The Supreme Court of Canada agreed with the majority in McColman CA that the stop was not authorized under s. 48(1) of the HTA: R v McColman, 2023 SCC 8, 478 DLR (4th) 577 [McColman SC]. It did not grant leave to appeal on the issue of whether the police had the common law authority to conduct the stop: 2022 CanLII 5851.
B. The trial judge erred in finding that Mr. Singer had no reasonable expectation of privacy and that his s. 8 Charter rights were not breached
[61] Here, however, Mr. Singer was not simply in a vehicle. He was in his vehicle, parked in the driveway of his residence. The decreased expectation of privacy associated with automobile travel referred to in Wise was not in play. The doors of the truck were closed and while his vehicle was in public view, he was not. Although it is possible that he might have been observed by a person walking past the truck who had accessed the driveway for a legitimate purpose, that does not mean he could not have a reasonable expectation of privacy. As Major J. commented in Evans:
[42] … A reasonable expectation of privacy does not encompass complete and total insulation from acquaintances, salespeople, strangers who need assistance, or police officers conducting an investigation. All of these people are entitled to seek permission to enter or to speak to the residents of a dwelling house by knocking at the door, as is anyone with a legal and legitimate purpose. Obviously, the residents of the home may refuse permission. They retain a full measure of choice and control over who may enter and who may not, whom they will speak to and whom they will ignore. They may also choose to revoke this implied licence explicitly, for example by installing a locked gate at the entrance to the property, or posting signs to that effect.
[62] The Crown argues that the invitation to knock is engaged. We do not agree. There was no evidence that the police entered the property for the purpose of knocking on the door of the residence or, for that matter, on the window of the vehicle. If there was an implied licence to enter the driveway, it had to be for some other legitimate purpose.
[63] Further, the police could not see that Mr. Singer was in the truck, and there was, accordingly, no evidence that they entered the driveway to conduct an investigation by communicating with him in the truck or in the driveway. Constable Lapointe said only that they entered to investigate the impaired driving that had been reported more than an hour before. She did not explain what that investigation might entail. Her testimony was unhelpful. She was not asked to do so by the Crown, which had the onus to demonstrate that this warrantless search was authorized by law.
[64] For the reasons explained above, we do not agree with the Crown that there is an invitation to enter a driveway to investigate writ large, regardless of how that investigation is to be carried out. Just as the implied licence to knock does not extend an invitation to the police to approach the door for the purpose of gathering evidence against the occupant, by conversing with and using their senses to determine if the occupant exhibits signs of intoxication, there is no implied invitation to enter the driveway to investigate the owner by gathering such evidence. The question, accordingly, is whether Cst. Lapointe and her partner entered for that improper purpose in this case.
[65] The police entered Mr. Singer’s property to investigate a report that Mr. Singer had, while impaired, been driving a truck matching the description of the truck in the driveway. He was an occupant of that property. In order to investigate in the circumstances of this case, the police officers had to engage directly with Mr. Singer in an attempt to observe indicia of impairment. There was no evidence to suggest that they entered for a more limited purpose, such as to communicate with the occupant of the premises, to get a closer look at the truck or, for that matter, out of concern for public safety because the truck was running or might return to the street. This distinguishes this case from Kleven, where the police testified that they were motivated by a concern for Mr. Kleven’s safety and to ensure that he was “not endangering other members of the public by driving on a highway in an intoxicated condition” (at para 82).
[66] Based on this evidence, it is clear that the police intended to investigate by gathering evidence against Mr. Singer from the moment they set foot in the driveway. That being so, they did not have an implied licence to enter at all. To paraphrase Evans, Mr. Singer cannot be presumed to have invited the police to enter the driveway for the purpose of collecting evidence to enable them to substantiate a criminal charge against him. Constable Lapointe was a trespasser from the moment she set foot in the driveway. In our view, the fact that she did not know this was Mr. Singer’s residence is irrelevant in the circumstances of this case.
[67] As the Crown correctly notes, the issue is not whether the police were trespassing, but whether there was a search within the meaning of s. 8 of the Charter. If the police had simply walked up the driveway, we would not have concluded that there had been a sufficient intrusion on Mr. Singer’s privacy to constitute such a search. However, things changed when they knocked on the window of the truck and, having failed to get a response, opened the door of the truck and roused him. They did so to observe and speak to Mr. Singer for the purpose of gathering evidence against him. That police conduct intruded on Mr. Singer’s reasonable expectation of privacy. Walking up the driveway for the purpose of investigating the occupant and doing so by opening the truck’s door and gathering evidence was a s. 8 search.
[69] ..... As we have noted, there was no evidence that the police were concerned with public safety or that they thought these were exigent circumstances when they entered the driveway, or, for that matter, when they opened the door of the truck.
[70] For these reasons, it is our opinion that the trial judge erred in finding that Mr. Singer’s s. 8 Charter rights were not infringed. He had a reasonable expectation of privacy while sleeping in his vehicle on his driveway, as his subjective expectation of privacy was objectively reasonable. The trial judge erred in law in finding it was not. That reasonable expectation of privacy was not waived by an implied licence or invitation to enter the driveway. The police infringed upon Mr. Singer’s right to be free from unreasonable search by entering the driveway, opening the door of his truck and rousing him.
C. The evidence should be excluded pursuant to s. 24(2) of the Charter
[90] We find that the police conduct in this case was a serious violation of Mr. Singer’s privacy interests in the driveway of his residence on the Big Island Cree Nation. This was not a technical, inadvertent or minor breach that reflected an understandable mistake. In our view, it is important that the court should dissociate itself from it. The first Grant factor pulls strongly in favour of exclusion.
[91] It is also our opinion that there was a serious impact on Mr. Singer’s privacy interests. The police opened the doors to his vehicle, shook him awake, questioned him, and observed signs of impairment by alcohol. As a result, Cst. Lapointe formulated her grounds to make an ASD demand. The police actions led to the following chain of events. Mr. Singer was taken to the police vehicle and failed the ASD. Constable Lapointe then demanded that he provide a sample of his breath. However, she waited 50 minutes before departing to take Mr. Singer to the RCMP detachment – while he sat in the police vehicle – as she waited for a tow truck, leaving at 1:14 a.m., and arriving at 1:26 a.m. Mr. Singer spoke to counsel and, at 1:59 a.m., first refused to provide a sample. He continued to refuse, was placed in cells, and was not released until later the next morning.
[92] Further, that the breach occurred, and Mr. Singer was detained, on his residential property is important. As the Court noted in McColman SC at paragraph 68, referring to Le, the fact that the arbitrary detention at issue there occurred on private property is relevant because “[r]etreat to a private residence (even if not one’s own residence) will sometimes be the only practical way for individuals to exercise their right to be left alone” (at para 155). In Moyles, the Court observed that “[c]ircumstances which denote a high expectation of privacy favour the exclusion of evidence … and ‘[a]n illegal search of a house will therefore be seen as more serious at this stage of the analysis’” (at para 90, citing R v Paterson, 2017 SCC 15 at para 49, [2017] 1 SCR 202, and quoting Grant at para 113).
[93] In the result, the second Grant factor also pulls strongly in favour of exclusion.
[97] Here, the first two lines of inquiry weigh strongly in favour of exclusion, while the third weighs in favour of inclusion. Beaver addressed the correct approach in these circumstances:
[134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R. v. McGuffie, 2016 ONCA 365....
[98] As this Court emphasized in Lichtenwald, the question in the final balancing in every case “remains the impact of inclusion or exclusion on the repute of justice, and the answer to that question turns on all of the circumstances” (at para 74, quoting Moyles at para 104). This is not a case where the third line of inquiry tips the balance against the first two, which make a strong case for exclusion. Inclusion of the evidence would do further damage to the long-term repute of the administration of justice. Accordingly, it must be excluded.
VI. CONCLUSION
[100] For the foregoing reasons, we would allow Mr. Singer’s appeal, exclude the evidence obtained as a result of the breach of his Charter rights, quash his conviction, and enter an acquittal on the charge of refusing to provide a breath sample.
R v Lowry, 2023 BCCA 423
[November 21, 2023] Fresh Evidence on Appeal: Third Party Records Application [Reasons by Mr. Justice Fitch with Grauer and Skolrood JJ.A. concurring]
AUTHOR’S NOTE: This decision is the second stage O'Connor review on appeal. The first stage was covered on this blog on November 18, 2023. Herein, the BCCA orders the production of redacted videos showing the assault upon the appellant within the custodial setting by other inmates. The redaction referred to the identities of his assailants. A sealing order is issued to ensure public access to the videos is strictly controlled. The evidence is sought here to reduce sentence per R v Suter after the offender was already sentenced.
Supplementary Reasons for Judgment of the Honourable Mr. Justice Fitch:
[1] The appellant applies for an order producing to him certain portions of CCTV video footage held by a third-party record holder, Correctional Service of Canada (“CSC”). The video footage depicts a post-sentence assault perpetrated upon the appellant by a group of other inmates. If the appellant is successful on this application, it is his intention to apply to have the video footage admitted as fresh evidence on his upcoming appeal from sentence.
[3] At the first stage, the applicant must demonstrate that the records sought are “likely relevant” in the context of the use that is proposed to be made of them in the underlying proceeding: R. v. O’Connor, [1995] 4 S.C.R. 411, 1995 CanLII 51 at para. 19; R. v. Johnston, 2019 BCCA 107 at paras. 60–61. If the applicant meets the likely relevance threshold, the documents will be produced to the Court.
[4] At the second stage, the Court must weigh the salutary and deleterious effects of a production order to determine whether, and to what extent, the records should be produced to the applicant. This will involve consideration of the extent to which production of the record is necessary, the probative value of the record, and countervailing interests, including third-party privacy interests that could be implicated by an order disclosing the record to the applicant: O’Connor at paras. 30– 31. At the second stage, it will often be helpful for courts to assess first the true or actual relevance of the targeted record, which will frequently be determinative of the application: R. v. McNeil, 2009 SCC 3 at para. 39; R. v. Gubbins, 2018 SCC 44 at para. 27.
[5] In reasons indexed as 2023 BCCA 399, this Court addressed the first stage of the test for production and concluded, with the agreement of the Crown, that the appellant had established the records sought are “likely relevant” to the appeal.
[6] As noted in McNeil at para. 41, the existence of a privacy interest in a third-party record may well warrant redactions or the imposition of conditions to ensure that no unnecessary invasion of privacy flows from production of the record to the applicant.
[7] Consistent with McNeil, the Court directed CSC to produce to the Court redacted and unredacted copies of the four videos in question that depict commission of the assault. Counsel for the record holder was directed to follow this process:
[24] Before producing these records to the Court, counsel for the record holder shall review and vet the records to identify any deletions, redactions or video pixelations that may be required based on safety or security concerns, third-party privacy interests, privilege and/or any statutory provision prohibiting disclosure.
[25] Counsel for the record holder shall produce to the Court a vetted copy (containing any proposed deletions, redactions or video pixelations) and an un-vetted copy of the CSC records in question. At the same time, counsel for the record holder shall provide a brief written submission, not to exceed three pages, setting out the basis for the deletions, redactions or video pixelations in the form of a sealed memorandum to the Court, amplified by such further in camera and ex parte submissions and evidence as the record holder considers necessary and the Court permits.
…
[27] If the Court concludes at the second stage that the vetted video records in question should be disclosed to counsel for the appellant and the Crown, the Court will confirm this in brief supplementary reasons for judgment.
[9] Since the delivery of judgment on the first stage of the application, CSC has filed with the Court redacted and unredacted versions of the video clips depicting the assault, memoranda explaining the redactions, and an application for a sealing order over both versions of the video clips and the memoranda prepared by CSC’s counsel.
[11] I have reviewed the redacted and unredacted versions of the video clips filed with the Court. The redacted versions pixelate the facial images of inmates (other than that of the appellant) who are depicted in the videos to protect their privacy interests. To be clear, the appellant has, from the outset, accepted that the video clips would have to be redacted to protect the privacy interests of third parties before being produced to him.
[12] Counsel acting for CSC submits that, having attended to the task of pixelating the facial images of inmates to protect their privacy interests, there are no countervailing considerations to be balanced at this stage of the application. In particular, we are advised that there are no other common law privileges or statutory provisions prohibiting disclosure of the redacted video clips, and that the production of these clips to the appellant would not give rise to individual or institutional safety or security concerns.
[13] For its part, the Crown submits that, “[t]he salutary effects of permitting the appellant to present the fullest probative picture possible to the Division hearing his [sentence] appeal serve to tip the balance in favour of disclosure.” In particular, the Crown concedes that the video clips are a “necessary element” of the appellant’s fresh evidence application, and that third-party privacy concerns can be addressed by pixelating or editing the videos to anonymize the clips. This, of course, has now been done.
[14] Against this background, I would order that the four video clips in question be provided to the appellant in redacted form. As noted in our reasons for judgment delivered on the first stage of the application, the appellant already has in his possession detailed written reports prepared by CSC staff describing what the videos depict. In these circumstances, an argument could conceivably have been advanced at this stage of the application that production of the video clips to the appellant is not necessary. Given the position advanced by counsel for the Crown on this application—which I consider to be a fair-minded one—I do not think it advisable to raise a concern not raised by counsel that touches on an issue that appears to have received scant attention in the jurisprudence.
[16] Of particular relevance to this issue are the following considerations. While the facial images of inmates have been pixelated, other identifying information such as their clothing, body shape and size, and gait can be discerned from the redacted versions of the videos. The identity of the actual perpetrators of this assault, and any aiders, abettors or supporters of it, is irrelevant to the disposition of this appeal. It would, in my view, be contrary to the interests of justice, including the promotion of safety and security in federal correctional instituions, to have these video clips in general circulation, even in redacted form….
[19] Applications for the production of third-party records engaging privacy or confidentiality concerns are generally heard in camera. Public access to records from a closed proceeding is not granted as of right. An application is required for an order permitting access: Court of Appeal for British Columbia, Record and Courtroom Access Policy, s. 1.4 (March 2023). In this case, the application was unopposed and proceeded on a less formal footing than would often be the case.
[20] While it might be said that the imposition of a sealing order would simply reflect the existing practice of the Court in these circumstances, I am nonetheless satisfied, having considered the test in Sherman Estate v. Donovan, 2021 SCC 25, that a sealing order should be imposed at this stage subject to further order of the Court. The effect of the order is to limit public access only to the vetted and un- vetted versions of the videos and related memoranda prepared on behalf of CSC and filed on this application. I would approve the form of the Consent Sealing Order submitted by counsel.
[21] For the foregoing reasons, I would order that the redacted video clips be provided to counsel for the appellant on the terms and conditions set out herein.
R v Edwards, 2023 ONSC 6573
[November 22, 2023] Charter s.7: Disclosure of Third Party Suspect Police Records [Ellies R.S.J.]
AUTHOR’S NOTE: In this case the issue of a third party suspect to possession of an illegal item arose from the disclosure provided by the Crown: personal property left behind suggesting ownership by that potential third party suspect. The defence sought s.7 disclosure of occurrence reports related to that third party suspect. The Court held here that such records are obviously relevant and do not need a third party records application because the defence can cross-examine investigators about failing to follow up on other avenues of investigation (at the very least) even where Crown has no intention to call the subject of the reports as a witness in the proceeding.
[2] His trial was to begin on November 20, 2023.
[3] However, very recently, the accused asked the Crown to produce occurrence reports relating to the Arthur Street residence, another residence on Railway Street in Sturgeon Falls, and to three individuals. The premises on Arthur Street and Railway Street are occupied by Cassandra Puskas and Sean Collins, respectively. Collins and Puskas share a child together and it is alleged that Collins was a frequent visitor to the Arthur Street residence. I understand that Puskas may be called by the Crown to testify at trial to deny that the items found were hers and to give direct evidence that they were those of the accused. Collins is not likely to be called because there is an outstanding bench warrant for his arrest and he has not yet been located.
[4] The accused seeks occurrence reports related to any search, whether or not authorized by a warrant, at either the Arthur Street or Railway Street premises after the March 30, 2021, warrant was executed. He also seeks occurrence reports about any charges laid against Puskas or Collins after that date.
[5] The third individual with respect to whom the accused seeks occurrence reports is one Tyrone Lothian. A wallet containing Lothian’s identification was found during the March 2021 search of the Arthur Street residence. The defence seeks occurrence reports relating to an incident which occurred in April 2021 in which Lothian was alleged to have brandished a gun at police officers before being arrested in the Parry Sound district and charged with a raft of offences, including firearms and drug offences.
[6] The accused’s application for disclosure is supported by copies of news articles obtained from very recent Internet searches that include articles reporting on Lothian’s arrest and on searches taking place in July 2021 and January 2022 of the Arthur Street and Railway Street properties that led to charges including drug offences against Puskas and Collins, respectively.
[7] On behalf of Mr. Edwards, Mr. Clark relies on the decision of the Ontario Court of Appeal in R. v. Pascal, 2020 ONCA 287, in which the Court held that the police have an obligation to disclose to the Crown, and the Crown has an obligation to disclose to the defence, information about the criminal record and outstanding charges relating to potential witnesses for the Crown or the accused.
[14] As the request relates to Collins and Puskas, the occurrence reports should have been disclosed by the Crown in the first instance. This was the ruling in Pascal. As Watt J.A. explained on behalf of the Court of Appeal in Pascal, the Crown is obliged to disclose not only the fruits of the investigation into the charges faced by an accused before the court, but also any additional information that is “obviously relevant”: Pascal, at para. 106; citing R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35. As Watt J.A. also explained at para. 110:
As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness’ character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross- examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown.
[Citations omitted.]
[15] The Crown submits that, although the decision in Pascal may apply to Puskas, it does not apply to Collins, as Collins is missing and the Crown, therefore, has no intention of calling him as a witness. However, I agree with the accused that the situation could change quite quickly, especially if the accused is able during the course of the Crown’s case to make it appear as though some or all of the items allegedly in the possession of the accused might actually belong to Collins.
[16] In any event, it is clear that the Crown once did intend to call Collins as a witness. In June 2023, Collins swore a statutory declaration for the Crown in relation to an application brought by the accused seeking to challenge the search warrant that was the basis for the March 2021 search. The Crown was obliged, therefore, to provide the defence with the information now sought and the Crown ought not to be able to resile from that obligation just because it failed to do so earlier and cannot presently locate Collins.
[17] The situation is different with Lothian, however. There is no indication that the Crown was ever going to call Lothian as a witness. The accused has not indicated that he wishes to do so, and I can see no reason why he would. Therefore, I cannot see how Pascal requires the Crown to produce the information now requested by the defence about Lothian. For that reason, I agree with the Crown that the information is only relevant as alternate suspect evidence given that Logan will not be a witness. However, I disagree with the Crown that the accused has failed to establish an air of reality to the alternate suspect defence or that what is sought is really third party disclosure.
[18] The accused has demonstrated that, contrary to the submissions of the Crown, there is evidence that Lothian occupied the back bedroom. In particular, in order to obtain a warrant to search what the Crown alleges is the accused’s cell phone, a police officer swore that a wallet containing identification belonging to Lothian was found in the bedroom the Crown alleges was occupied by the accused. While I accept the Crown’s submission that other evidence may point more strongly to the accused as the one who possessed the drugs and/or the gun in question, the test at this stage is likely relevance, not likely success: Pascal at para. 130.
[19] In my view, the occurrence reports sought by the accused relating to Lothian are likely relevant given that the news accounts alleged that he was in possession of a gun and drugs, the same items that form the subject matter of the present proceedings, and that a wallet containing Lothian’s identification was at least found in the Arthur Street residence, if not in the very room in which the Crown alleges the drugs in question were found and from which the gun in question was being removed.
[20] Finally, I do not agree that the accused’s request for occurrence reports relating to Lothian’s arrest in April 2021 ought to have been brought under O’Connor, although I would agree that it is a close call. In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court articulated the distinction between first party and third party disclosure in the context of a request by the accused for disciplinary and criminal investigation records relating to an officer who was involved in the investigation of the charges against him. The court held that, where the Crown is made aware of information that is “obviously relevant” to an accused’s case that the Crown can obtain upon request, the Crown should produce it as first party disclosure notwithstanding the fact that the information does not form part of the fruits of the investigation: McNeil, at para. 59. Such information will be relevant, for example, in cross-examining investigators about “pursuing other avenues of investigation: McNeil, at para. 44.
[21] In a case such as this one, where the question of possession of an item or items arises in the context of the search of premises which the evidence indicates was occupied by more than one person, I believe that information about similar illegal activities on the part of occupants other than the accused is obviously relevant. Therefore, it should have been disclosed by the Crown upon request by the accused.
[22] For these reasons, I have ordered that the Crown disclose as quickly as is reasonably practicable the following:
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