Once wife implicitly revoked implied invitation to speak to police, officer was required to leave

Criminal Law - Charter of Rights and Freedoms - Unreasonable search and seizure [s. 8]

Accused was observed swerving all over roads, witnesses called 911, radio dispatched indicated accused arrived at residence and officer knocked on front door. Wife answered door, going back and forth between officer and accused three times. While wife was speaking with officer for third time, officer had his foot on threshold of door, which prevented her from closing door when she went to look for husband. Accused attended doorway, officer detected odour of alcohol and observed that accused was sweating, slurring and his eyes were water. Officer informed accused that he was being investigated for impaired driving and when accused attempted to close door, officer entered residence to prevent door from being closed, there was brief struggle and officer arrested accused . Accused was charged with impaired driving and driving with excessive blood alcohol. Trial judge found that officer was initially permitted to speak with wife, but once wife implicitly yet clearly revoked implied invitation to officer by returning to door indicating that accused did not wish to speak to police, officer was required to leave and by remaining at door, officer breached accused’s s. 8 Charter rights. Accused was acquitted. Crown appealed from acquittal. Appeal dismissed. Determining whether police violated implied license to knock required consideration of all of circumstances in proper context. Office was entitled to go to door, to speak to wife, and on basis of what she told him, to ask to speak with accused but officer was not permitted to put his foot on threshold and send message to her that she was not permitted to close door. Officer chose to effectively demand that accused present himself at door, which trial judge found to be coercive and it was open to trial judge to make such finding about interaction. Finding that officer should have recognized that placement of his foot was inconsistent with restrictions on his applied invitation to knock, and thus that he had not acted in good faith was available to trial judge when deciding to exclude evidence under s. 24 of Charter.

R. v. Irving (2019), 2019 CarswellOnt 3079, 2019 ONSC 1459, J.M. Woollcombe J. (Ont. S.C.J.).

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