Police Did Not Trespass and No Charter Violation For Arrest of Drunk Driver Who Was Peeing on His Front Porch

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a man who was arrested while peeing on his front porch after an officer received reports of a drunk driver in the area had not been arrested or held in violation of his Charter rights, and the officer had not been trespassing when he made the arrest.

What Happened?

The man in question, Mr. Mali, drove home while intoxicated, parked his car on the driveway, and began to pee on his front porch. A police officer who had responded to a call about a possible drunk driver walked onto Mr. Mali’s property and began to ask him questions.

Mr. Mali initially responded by telling the officer that he “had to pee” and that he did not want to speak with the officer. He eventually began to answer the officer’s questions, and was arrested for impaired driving and taken to the station.

Mr. Mali provided three breath samples at the police station, which revealed that his blood alcohol content (BAC) was almost three times the legal limit. After providing the samples, Mr. Mali was placed in a cell for approximately six and a half hours and then released.

At trial, Mr. Mali’s counsel argued that when Mr. Mali informed the officer that he did not want to speak with him, the officer had been obliged to leave, and that his failure to do so, and Mr. Mali’s subsequent arrest and demand for breath samples violated Mr. Mali’s s. 8 Charter rights to be free from unreasonable search and seizure. The fact that he was held for six hours in a cell at the police station was “overholding” and violated his s. 9 Charter right not to be arbitrarily detained. Mr. Mali’s counsel argued that the breath test results, the statements made by Mr. Mali on the night of his arrest, and the observations made by the police on the night of the arrest should be excluded as evidence as a remedy for the supposed Charter violations.

Justice Schrenk dismissed the Charter application, and found Mr. Mali guilty on two counts of driving while impaired.

The Court’s Reasoning

The Arrest and Breath Samples

 Mr. Mali’s defense counsel argued that his arrest on private property and subsequent request for a breath sample violated Mr. Mali’s s. 8 and s.9 Charter rights.

Case law has clearly established that it is permissible for a police officer who has a legitimate basis for entering a driveway- such as seeing a driver driving erratically, and following the driver back to a destination to ensure they have arrived safely before detaining them- to do so. That officer has implied permission to enter onto the property.

In this case, defense counsel for Mr. Mali accepted that the officer was entitled to enter onto Mr. Mali’s property; however, when Mr. Mali informed the officer that he did not want to speak with him, this withdrew the implied invitation, and the officer then became a trespasser.

Justice Schrenk disagreed with this argument for two reasons.

Firstly, there had not been a “clear expression of intent” that Mr. Mali did not wish to communicate further with the officer. Rather, Mr. Mali had stated that he “had to pee” and “didn’t want to talk”. While this could potentially be interpreted as a complete refusal to speak, a more reasonable interpretation is that Mr. Mali did not want to speak until he had finished urinating. Mr. Mali’s subsequent willingness to answer questions made such an interpretation even more reasonable.

Secondly, even though the officer may not have had grounds to arrest Mr. Mali when they initially engaged in conversation, he did once he realized how intoxicated Mr. Mali appeared. Had this interaction taken place on the road, the Highway Traffic Act would have given the officer the authority to detain Mr. Mali. While the Act does not apply on private property, there is a related common law right to detain someone on their private property, as long as the police officer is lawfully entitled to be on the property. It’s clear, based on existing caselaw, that once a police officer has entered onto private property under an implied invitation and arrests a person, that officer can then remain on the property in order to complete the arrest even if the implied invitation is later withdrawn:

In this case, Cst. Leal lawfully entered the property to conduct an investigation.  Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

Justice Schrenk concluded that there was no s. 8 violation in this case.

“Overholding” at the Station

 After being detained at the police station, Mr. Mali provided three breath samples. The last breath test was administered at 3:28 a.m. He was released around six and a half hours later, at 9:49 a.m. Mr. Mali’s defense counsel argued that this was an instance of “overholding” which violated his s. 9 Charter rights.

“Overholding” claims are common. Caselaw has clearly established that police are entitled to hold someone for a period of time after a breath test is administered, but only if the decision to hold that person is made for legitimate reasons and based on proper considerations. Such considerations, known as “Price factors” after the case they appear in, include:

  • The person’s BAC;
  • The person’s level of comprehension;
  • Whether the person was charged with impaired driving;
  • Whether the person had a suspended license;
  • Whether there was a responsible individual to pick the person up;
  • Whether the person has a criminal record;
  • Whether the person has any outstanding charges;

The officer in charge can make an informed decision about when to release the person based on the above and other factors. A number of factors should be considered, and the release decision should not be made based on BAC alone.

In this case, the police officer in charge of the station on the evening Mr. Mali was detained testified that he considered the Price factors in deciding when to release Mr. Mali. The officer who relieved the initial officer in charge around 5:45am, testified that it was his general practice to consider the BAC of a detained person by assuming that the person eliminated alcohol at a rate of 15mg per 100 ml of blood per hour. Additionally, it was his general practice to have a cells officer check on detainees every thirty minutes and report their observations of a prisoner’s sobriety. Here, in applying the general calculation of alcohol elimination, Mr. Mali’s BAC would still have been significantly over the legal limit upon his release at 9:49am.

Justice Schrenk found that in these circumstances, he was not persuaded on a balance of probabilities that Mr. Mali was held in violation of his Charter rights.

The Charter application was dismissed.

If you have been charged with impaired driving or another driving offense, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly  handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.