R. v. Mulligan, [2000] O.J. No.

59
Ontario Judgments

Ontario Court of Appeal

Toronto, Ontario
Laskin, Feldman and Sharpe JJ.A.
Heard: November 19, 1999.
Judgment: January 17, 2000.
Docket No. C32948
[2000] O.J. No. 59 | 128 O.A.C. 224 | 142 C.C.C. (3d) 14 | 31 C.R. (5th) 281 | 70
C.R.R. (2d) 189 | 4 M.V.R. (4th) 271 | 45 W.C.B. (2d) 158 | 2000 CanLII 5625
Between Her Majesty the Queen, (respondent), and Donald Mulligan, (appellant)

(43 paras.)

Case Summary

Criminal law — Power of search — Warrantless searches — Civil rights — Security of the
person — Law enforcement — Investigation — Canadian Charter of Rights and
Freedoms.

Appeal by Mulligan from dismissal of his appeal from convictions for impaired driving and resisting arrest. A
police officer had seen a pick-up truck parked outside a commercial establishment late at night. He suspected a
break in, and drove onto the property to investigate. He found Mulligan, the owner of the property, in an
intoxicated condition behind the wheel of the truck. The officer arrested Mulligan for impaired driving and a
scuffle ensued when Mulligan resisted. The officer sprayed Mulligan with pepper spray, hit him eight to ten times
with his baton, and struck him on the ear in order to secure his compliance. The trial judge rejected Mulligan's
argument that the police officer's actions violated his rights under the Canadian Charter of Rights and Freedoms.
On appeal, Mulligan argued that the police officer's conduct violated his Charter rights to be secure against
unreasonable search and seizure, not to be arbitrarily detained or imprisoned, and to life, liberty and security of
the person.

HELD: Appeal dismissed.

It was plainly in the interests of a property owner or occupant that the police investigate suspected crimes being
committed against the owner or occupant of the property. Absent notice to the contrary, a police officer was
entitled to assume that entry for that purpose was by the implied invitation of the owner. The officer's purpose in
entering onto Mulligan's property was to protect the owner or occupant from possible criminal activity perpetrated
by a third party. Thus, the officer's purpose brought him squarely within the ambit of an implied invitation or
licence. Given the officer's purpose and the resulting implied licence, he did not invade Mulligan's reasonable
expectation of privacy, and his conduct did not amount to a search within the meaning of section 8 of the
Charter. It was not clear that Mulligan had revoked the officer's licence to enter. In any event, before the licence
was revoked, the officer had lawfully arrested Mulligan for impaired driving, and nothing that transpired thereafter
affected the legality of the arrest. The force used was not excessive and the officer acted reasonably in the
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R. v. Mulligan, [2000] O.J. No. 59

circumstances.

Statutes, Regulations and Rules Cited

Canadian Charter of Rights and Freedoms, 1982, ss. 7, 8, 9, 10(b), 24(2).

On appeal from the judgment of Templeton J. dated September 14, 1999, dismissing a summary conviction
appeal from conviction imposed by Morneau J. dated November 10, 1998.

Counsel

Clayton C. Ruby, for the appellant. Christine McGoey, for the respondent.

The judgment of the Court was delivered by

SHARPE J.A.

1 This case involves the power of a police officer, who suspects that a crime is in progress, to
enter private property for the purpose of investigating the suspicious activity.

OVERVIEW

2 Late at night in an isolated location, a police officer saw a pick-up truck parked outside a
commercial establishment. He suspected a break in or theft and drove onto the property to
investigate. He found the appellant, the owner of the property, in an intoxicated condition behind
the wheel of the truck. The appellant was arrested and a scuffle ensued. The trial judge rejected
the argument that the officer's actions violated the appellant's ss. 7,8, 9, and 10(b) Charter rights
and entered convictions for having care and control of a motor vehicle while impaired and for
resisting arrest. The appellant was sentenced to fines of $650 and $200 respectively and to a
one-year driving prohibition. The appellant's summary conviction appeal to Templeton J. was
dismissed.

3 The appellant appeals to this court, with leave, on the grounds that the conduct of the police
officer violated his s. 8 Charter right to be secure against unreasonable search and seizure, his
s. 9 right not to be arbitrarily detained or imprisoned, as well as his rights pursuant to s. 7. The
claim that the appellant's s. 10(b) rights were violated was not pursued before this court. The
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R. v. Mulligan, [2000] O.J. No. 59

appellant further submits that, as a consequence of these breaches, evidence crucial to his
convictions should be excluded pursuant to s. 24(2) of the Charter.

FACTS

4 On April 16, 1998 at approximately 12:26 a.m., an OPP officer was driving alone in an
unmarked police car on Highway 10 in a rural area south of Flesherton. The officer observed a
pickup truck with its lights on outside a commercial establishment situated 50 or 60 feet off the
highway. The officer knew that the truck was on private property but he did not know who owned
the property or that the owner's residence was on the same property, approximately 1,200 feet
to the east of the commercial establishment. Given the late hour and the unlikelihood that a
commercial establishment would be open, the officer suspected a break-in. He drove onto the
parking area adjacent to the commercial establishment to investigate. The parking area is open
to the public. There is no gate, nor is there any sign forbidding or limiting access.

5 As he pulled in, the officer saw the sign "Mulligan Construction" on the building. He observed
that the same business name was painted on the back of the pick-up truck. The truck's engine
was running and someone was seated inside the truck. At this point, the officer thought that the
driver was either someone stealing the truck or, perhaps, the owner. The person in the truck
was the appellant who, together with his wife, owned the property. The appellant got out and
met the officer at the side of the truck.

6 The officer asked the appellant if this was his place. The appellant did not answer but, using
profanity, asked the officer what he wanted. They had a brief conversation. The officer detected
a strong odour of alcohol emanating from the appellant who was also swaying and slurring his
speech. At that point, the officer arrested the appellant for having care and control of a motor
vehicle while impaired.

7 The appellant insisted that the officer had no right to arrest him on private property. The
officer again told the appellant that he was under arrest and the appellant repeated that he could
not be arrested on private property. The appellant is a large and strong man, 5 feet, 11 1/2
inches tall, weighing 335 pounds. The officer used his portable radio to request backup. As the
appellant turned to walk away, the officer spun him around and sprayed him with pepper spray.
The appellant gripped the side of his truck. The officer attempted, without success, to pry the
appellant's hands from the truck. The officer used his baton to strike the appellant several times
on the arm and leg.

8 As this struggle ensued, the officer kept telling the appellant that he was under arrest and the
appellant continued to scream that he could not be arrested on private property. The officer
used his pepper spray again and struck the appellant with his baton half a dozen more times.
The appellant was finally pried from the truck. He headed for the building. The officer got the
appellant by the head and the appellant tripped. The officer ended up on top of the appellant,
pulled the appellant's coat over his head and hit the appellant on the ear as the appellant
attempted to rise with the officer on his back. The officer described his blows as "good whacks",
intended to inflict pain, disorient the appellant, and secure his compliance.

9 Four backup officers arrived at approximately 12:40 a.m. After a further struggle, the appellant
was subdued and handcuffed. His wife arrived at about 12:49 a.m. After she spoke to him, the
appellant became co-operative with the police. The appellant was cautioned and advised of his
right to counsel. A demand for a breath sample was made. The appellant indicated that he
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R. v. Mulligan, [2000] O.J. No. 59

wished to speak to his lawyer. He was taken to the police station. After speaking to duty
counsel, he gave two breathalyzer samples. The samples indicated 205 and 200 mg. of alcohol
in 100 ml. of blood.

JUDICIAL HISTORY

(1) Ontario Court Provincial Division

10 The appellant was charged with having care and control of a motor vehicle while impaired
and with unlawfully resisting arrest. After a one-day trial in the Ontario Court, Provincial Division,
Morneau J. found the appellant guilty on both counts. The trial judge found that the OPP officer
entered the appellant's driveway thinking he was coming upon a break and enter or a theft. The
trial judge found that the officer did not enter onto the appellant's property to obtain evidence
against the appellant to secure a conviction for a drinking and driving offence. The trial judge
specifically found that the officer's "intention was to protect the property from a possible thief.
There is no evidence that [the officer] specifically adverted his mind to the possibility of securing
evidence against Donald Mulligan on a drink and drive matter." The trial judge found that the
officer entered the property on the suspicion that he would intercept a thief or, if not a thief, the
owner who would be thankful for his vigilance.

11 Both the appellant and his wife testified that they did not wish the police to come onto their
property for any purpose. The trial judge found, however, that the officer had no knowledge of
their wishes when he entered the property. The appellant and his wife had not given the police
any indication of their wishes, and no signs were posted to that effect.

12 The trial judge rejected the contention that the officer's entry on the property was an unlawful
trespass. She found that the officer's entry fell within the "common law invitation to approach", a
licence that had not been withdrawn by the appellant. The trial judge found that there was no
invasion of the appellant's reasonable expectation of privacy and that the officer was not obliged
to leave the appellant's property upon being asked to do so by the appellant.

13 The trial judge rejected the contention that the force used by the officer constituted a Charter
breach. The trial judge found that although the officer had used pepper spray, hit the appellant
eight to ten times with his baton and struck the appellant on the ear, this force was used with the
intention to cause enough pain to secure compliance and was justifiable.

(2) Ontario Superior Court

14 The summary convictions were affirmed on appeal to the Ontario Superior Court. After a
review of the relevant authorities, Templeton J. found that the trial judge had correctly
determined that the officer's entry onto the Mulligan property was authorized by implied invitation
within the principles elaborated in R. v. Evans (1996), 104 C.C.C. (3d) 23 (S.C.C.). The
summary conviction appeals judge found that the activity of the police officer fell within the
"implied license to knock" principle enunciated by this court in R. v Tricker (1995), 96 C.C.C.
(3d) 198, leave to appeal to the Supreme Court of Canada refused February 8, 1996, [1995]
S.C.C.A. No. 87, and that the appellant had no reasonable expectation of privacy in the
circumstances. The summary conviction appeals judge concluded, accordingly, that there was
no search within the meaning of s.8 of the Charter and that no s.8 rights were violated.
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15 The summary conviction appeals judge went on to find that if there was a search it was an
unreasonable one as there was no prior authorization. She further held, however, that if there
was a s. 8 breach, the evidence should not have been excluded pursuant to s. 24(2). The
summary conviction appeals judge also found that the arrest of the appellant was lawful and that
it had not been shown on a balance of probabilities that the officer used excessive force in the
circumstances.

ISSUES

16 The appellant raises the following issues:

(1) Was there an unreasonable search contrary to s. 8 of the Charter?

(2) Was there an arbitrary detention contrary to s. 9 or a violation of the appellant's s. 7
Charter rights?
(3) Did the arresting officer use excessive force?
(4) If Charter rights were breached, should evidence be excluded pursuant to s. 24(2)?

ANALYSIS

(1) Was there an unreasonable search contrary to s. 8 of the Charter?

(a) Position of the appellant

17 It is the appellant's position that it is clear on the record that the officer entered the
appellant's property without a search warrant and without reasonable and probable grounds with
respect to a drinking and driving offence. Moreover, the officer's suspicion of the possibility of a
break and enter did not amount to reasonable and probable grounds sufficient to obtain a
search warrant. It is also clear that the officer's conduct cannot be justified as a warrantless
search in exigent circumstances given the absence of reasonable and probable grounds. The
summary conviction appeals judge specifically found that, had the officer's conduct constituted a
search, such a search would have been unreasonable in these circumstances.

18 The appellant submits that there was a search and that both the trial judge and the summary
conviction appeals judge erred in accepting the respondent's submission that the doctrine of
implied invitation applied to the circumstances. The appellant submits that the doctrine of
implied invitation has no application where the police purpose is to gather evidence in a criminal
investigation. The officer did not enter the property with the intention of communicating with the
occupant or owner. He went to investigate what he thought might be a criminal offence. The
appellant submits that the officer was a trespasser and that his conduct constituted a search
conducted without lawful authority. The legitimate police purpose of investigating crime cannot
be used to permit what would otherwise be unlawful activity by the police. To justify the police
conduct in this case would undermine the rights protected by s. 8 of the Charter.

(b) Did the activity of the officer constitute a "search" within the meaning of s. 8?

19 It has been consistently held that a court must inquire into the purposes of s. 8 to determine
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R. v. Mulligan, [2000] O.J. No. 59

whether particular police conduct at issue constitutes a "search" that attracts the scrutiny of s. 8
of the Charter: R. v. Evans, supra at 29. In Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at
108, Dickson J. stated:

The guarantee of security from unreasonable search and seizure only protects a
reasonable expectation [of privacy]. This limitation on the right guaranteed by s. 8,
whether it is expressed negatively as freedom from 'unreasonable' search and seizure, or
positively as an entitlement to a 'reasonable' expectation of privacy, indicates that 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.

20 The purpose of s. 8 is to preserve the privacy interests of individuals. The right protected by
s. 8 is invoked where a person's reasonable expectation of privacy is diminished by an
investigative technique.

21 As Sopinka J. stated in R. v. Evans, supra at 29: "not every form of examination conducted
by the government will constitute a 'search' for constitutional purposes". The reason is clear. If
every police inquiry or question constituted a search, the public's interest in law enforcement
would be unrealistically curtailed in favour of an absolute right of privacy of all individuals against
state intrusion, without regard to the level of intrusion.

22 In the circumstances of this case, to determine whether the conduct of the officer amounted
to a search within the meaning of s. 8 of the Charter, the matter is to be considered from two
perspectives. First is the question of the purpose of the officer when he went onto the property
of the appellant. Second is the question of whether, in light of his purpose, the officer's activity
invaded the appellant's reasonable expectation of privacy. Related to both inquiries is the issue
of implied licence or implied invitation.

(i) Implied Licence

23 In R. v. Tricker, supra at 203, this court considered the common law implied invitation or
licence to members of the public granted by occupants of private property:

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.

As explained in R. v. Evans, supra at 30:

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.

24 The implied licence to knock discussed in Tricker, supra, and Evans, supra, appears to be
specifically related to activities reasonably associated with the purpose of communicating
directly with the owner or occupant. However, it seems to me that the underlying principle is a
broader one. Licences may arise at common law by implication from the nature of the use to
which the owner puts the property. As Prof. Ziff notes in Principles of Property Law (Carswell, 2d
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R. v. Mulligan, [2000] O.J. No. 59

ed., 1996) at 274, licences may be implied "such as where a shop is open for business to the
public at large." In my opinion, the implied invitation principle extends to situations where the
very purpose of entry is to protect the interests of the property owner or occupant, particularly
where the entry occurs on an area of the property to which all members of the public ordinarily
have access to do business with the property owner. It is plainly in the interests of a property
owner or occupant that the police investigate suspected crimes being committed against the
owner or occupant upon the property. For that reason, absent notice to the contrary, a police
officer may assume that entry for that purpose is by the implied invitation of the owner,
particularly where entry is limited to areas of the property to which the owner has extended a
general invitation to all members of the public.

25 In resisting the contention that there is an implied licence of this nature, the appellant is
driven to the submission that it is a trespass for a police officer to enter private property on a
suspicion that a crime is being committed against the owner. If that is the result, the officer
would be exposed to a civil action or prosecution for trespass. The appellant attempts to
respond to this unacceptable result with the argument that the owner would not sue or the
Crown would stay the charges. In my view, that answer is unsatisfactory. In an area of the law
touching police investigative powers, it is in the interests of the public at large, property owners
and the police, to have a more certain and coherent legal framework. In my view, that framework
is offered by the implied invitation. It tells the police what they can do, and affords the property
owner the power to limit those powers by express direction.

26 While we were referred to no authority specifically on point, a common law implied invitation
to this effect seems to have been assumed by the English authorities relied on in R. v. Tricker,
supra. Galligan J.A cited Robson v. Hallet [1967] 2 All E.R. 403 (C.A.), which in turn referred to
the judgment of Atkin L.J. in Great Central Railway v. Bates [1921] 3 K.B. 578 (C.A.). In Bates,
the English Court of Appeal dismissed the claim of a police officer against a property owner
arising from injuries he sustained upon entering a building owned by the defendant. The officer
had seen a door open and a bicycle on the other side of the building. He went in to remove the
bicycle to a place of safety, was injured in the process and sued the owner for damages. In
holding that the police officer had no right to enter the building for this purpose, Atkin L.J
specifically noted at 581: "It is not suggested that [the officer] suspected a felony or suspected
that there was a felon within the premises ...". The underlying assumption was that an officer
enjoys a licence to enter for the purpose of dealing with a suspected crime in relation to the
property.

27 As with all police investigative powers, this licence must be strictly curtailed to avoid the risk
of abuse. The officer must have a bona fide belief that gives rise to a reasonable suspicion of
criminal activity being perpetrated against the owner or occupant or the property. The police
officer must be able to demonstrate an objective basis in fact that gives rise to his suspicion. To
borrow the language of Doherty J.A. in R. v. Simpson (1993), 79 C.C.C. (3d) 482 at 500-501,
discussing the common law power to detain a suspect for questioning, there must be some
"articulable cause" above the level of a mere "hunch", "a constellation of objectively discernible
facts which give the detaining officer reasonable cause to suspect that the detainee is criminally
implicated in the activity under investigation."

28 In the present case, the trial judge accepted the bona fides of the officer and specifically
found that his purpose was to investigate suspected criminal activity directed against the
property. There was also an articulable cause for the officer's suspicion based upon objectively
discernable facts. The presence of a pick-up truck with its lights on outside a commercial
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R. v. Mulligan, [2000] O.J. No. 59

establishment late at night in a rural area satisfies this requirement.

(ii) Purpose of the Officer

29 In R. v. Evans, supra, the police received an anonymous tip that the accused were growing
marijuana in their home. The police checked criminal records, electricity consumption and
conducted a perimeter search of the private property from public property. The police officers
approached the front door of the accuseds' home with the distinct purpose of securing evidence
against the occupants of the dwelling. One of the accused answered the door. The police
officers smelled marijuana and immediately arrested the accused. The accused contended that
the olfactory observations of the police constituted a search and, since they had no search
warrant, it was presumptively unreasonable.

30 As in the present case, the Crown relied on the implied licence principle to justify the actions
of the police. The Supreme Court of Canada held that to determine whether the activity of the
police fell within the implied licence, the matter had to be considered from the perspective of the
purpose of the police when entering the property of the accused. On this point Sopinka J.,
writing for the majority, held that the matter has to be assessed in the light of the "underlying
purpose or intent of the police" in approaching the door of the person claiming the protection of
s. 8. In Evans, supra, the majority found that the police failed to bring themselves within the
implied invitation as their purpose and intention went well beyond simply knocking on the door. It
was their purpose to secure evidence against the owner or occupant of the dwelling, and in light
of that purpose, the investigative activity of the police constituted a search and was therefore
subject to Charter scrutiny.

31 In the present case, no issue is taken with the factual findings of the trial judge that the bona
fide purpose of the officer entering on to the appellant's property was to investigate a possible
break in or theft. There was no intention to investigate any possible criminal activity of the owner
or occupant of the property and no intention to secure incriminating evidence against the owner
or occupant. Indeed the officer's purpose was to protect the owner or occupant from possible
criminal activity perpetrated by a third party. To the extent that the officer adverted to the
possibility that the owner or occupant might be present, it was with a view to communicating with
the owner or occupant to determine that the suspicion of break-in or theft was ill-founded and
that nothing was amiss. In my view, the officer's purpose brought him squarely within the ambit
of the implied invitation or licence that I have described.

(iii) Expectation of Privacy

32 The Supreme Court of Canada articulated the framework for determining whether there is an
'expectation of privacy' in R. v. M. (M.R.) (1998), 129 C.C.C. (3d) 361 at 376-7 as follows:

Did the appellant have, in the circumstances presented, a reasonable expectation of

privacy, and if he did, what was the extent of that expectation? The appellant must first
establish that in the circumstances he did have a reasonable expectation of privacy. This
is apparent because if there is no reasonable expectation of privacy held by an accused
with respect to the relevant place, there can be no violation of s. 8 (see, e.g. R. v.
Edwards, [1996] 1 S.C.R. 128, 104 C.C.C. (3d) 136, 132 D.L.R. (4th) 31; Schreiber v.
Canada (Attorney General), [1998] 1 S.C.R. 841, 124 C.C.C. (3d) 129, 158 D.L.R. (4th)
577). The need for privacy 'can vary with the nature of the matter sought to be protected,
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the circumstances in which and the place where state intrusion occurs, and the purposes
of the intrusion' (R. v. Colarusso, [1994] 1 S.C.R. 20 at 53, 87 C.C.C. (3d) 193, 110
D.L.R. (4th) 297). A reasonable expectation of privacy is to be determined in light of the
totality of circumstances (Colarusso; Edwards, at para. 31; R. v. Wong, [1990] 3 S.C.R.
36 at 62, (1990), C.C.C. (3d) 460).
The factors to be considered in assessing the circumstances may include the accused's
presence at the time of the search, possession or control of the property or place
searched, ownership of the property or place, historical use of the property or item, ability
to regulate access, existence of a subjective expectation of privacy and the objective
reasonableness of the expectation (Edwards, at para. 45).

33 It follows from what I have already said about the implied licence that, given his purpose, the
police officer did not invade the appellant's reasonable expectation of privacy and that s. 8 is
therefore not engaged. The purpose of the officer was the very antithesis of invading the rights
of the appellant. The officer's purpose was to protect those rights from what the officer
suspected might be criminal activity. From the perspective of the owner or occupant of private
property, it is entirely reasonable to expect a police officer to investigate activity giving rise to a
suspicion of criminal activity being perpetrated against the owner or occupant on his or her
property.

34 It seems to me that the flaw in the argument advanced by the appellant is that it focuses on
the end result and reasons backwards, rather than taking the objective legal standards
governing the conduct of the police as the starting point. It is trite law that the legality of police
investigative conduct is not determined by what they do or do not find. If the police officer was
entitled to enter the property for the stated purpose, the legality of his conduct is not defeated
solely because it produced the unexpected result of apprehending the owner for an offence not
suspected by the officer when he entered.

35 I note as well that the activities of the officer were restricted to an area of the property to
which the public had access by general invitation of the owner. The officer did not enter a
residence or even a commercial building. The level of intrusion was minimal.

(iv) Conclusion

36 I conclude, accordingly, that the officer was entitled to enter on the property of the appellant
and that the officer's conduct did not amount to a search within the meaning of s. 8 of the
Charter. I wish to emphasize that the circumstances of the present case are plainly
distinguishable from those involving investigative techniques to obtain evidence to incriminate
the occupant of a dwelling. Even perimeter searches on private property will infringe the rights
protected by s. 8 where the purpose of the search is to obtain incriminating evidence against the
occupant: See R. v. Kokesch (1990), 61 C.C.C. (3d) 207 (S.C.C.), and R. v. Laurin (1997), 113
C.C.C. (3d) 519 (Ont. C.A.).

(2) Was there an arbitrary detention contrary to s. 9 or a violation of the appellant's s. 7

Charter rights?
(3) Did the arresting officer use excessive force?

37 The second and third grounds of appeal are closely related and can be dealt with together.
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R. v. Mulligan, [2000] O.J. No. 59

The appellant submits that as the officer was unlawfully on the property, he had no right to arrest
or detain the appellant and that he used excessive force. The appellant argues that the alleged
use of excessive force constitutes both a Charter violation and a defence to the charge of
resisting arrest.

38 I have already decided that the police officer had a right to be on the appellant's property
given his intended purpose. The next question is whether the permission to be on the property
ended once the police officer learned that there was no third party criminal activity in progress.
Was the police officer unlawfully on the property once the appellant told him that he could not be
arrested on his private property?

39 In my view, the answer is no. I accept that the appellant was entitled to revoke the officer's
licence to enter or be on his property. This is clear from R. v. Tricker, supra, and Robson v.
Hallet, supra. However, it is not at all clear that the appellant revoked the licence as distinct from
disputing the officer's right to arrest him. Even if he did purport to revoke the licence, as the
officer entered on the property for a legitimate purpose and within the implied licence, the officer
had to be given a reasonable opportunity to leave before his presence became unlawful: see
Robson v. Hallet, supra, at 413. Within seconds of observing the appellant, the officer formed
the view that the appellant was impaired and arrested him.

40 In my view, before his licence was revoked, assuming for these purposes that it was
revoked, the officer had lawfully arrested the appellant for having care and control of a motor
vehicle while impaired, and nothing that transpired afterwards affected the legality of the arrest.
If an occupant is found to be committing an offence by a police officer who is lawfully on the
property, there is no doubt that the officer has the power to arrest. The point is covered in R. v.
Tricker, supra, at 205:

The [property owner] was entitled to withdraw the implied licence. If he did so before
grounds for lawful arrest came into existence then the [police officer] would have been
required to leave the property at the risk of becoming a trespasser. If grounds for arrest
without warrant came into existence before the implied licence was withdrawn, however,
the appellant would have been lawfully entitled to arrest the [owner] and to use physical
force in doing so.

41 Both the trial judge and the Summary Conviction Appeal Court judge made findings of fact
that the force was not excessive and that the police officer acted reasonably under the
circumstances. The evidence clearly shows that the appellant resisted arrest. He failed to
comply with the officer's arrest procedure. He attempted to run away. He grabbed onto the truck
and would not let go. The appellant is a large and strong man and in the end, it took five officers
to subdue him. While considerable force was used causing considerable pain, it has been said
that in such a situation, the officer "could not be expected to measure the force used with
exactitude": R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.) at 218. In my view, it was open
on these facts for the trial judge and the summary conviction appeals judge to find as they did. I
see no basis to interfere with their findings.

(4) If Charter rights were breached, should evidence be excluded pursuant to s. 24(2)?

42 As I have found that no Charter rights were breached, it is not necessary for me to consider
this ground of appeal.
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CONCLUSION

43 For these reasons, I would dismiss the appeal.

SHARPE J.A.
LASKIN J.A. -- I agree.
FELDMAN J.A. -- I agree.

End of Document