Impaired Driving Investigations – Right in Your Own Driveway

Impaired Driving Investigations – Right in Your Own Driveway

On behalf of Neuberger & Partners LLP posted in Uncategorized on Wednesday January 30, 2013.

In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for impaired driving, and arrested. At trial Lotozky was acquitted of the charge due to a Charter infringement, i.e., the police had breached his s.8 charter rights by investigating the driver in his driveway. This was upheld in Superior Court.

The Ontario Court of Appeal differed in their analysis of this fact scenario and overturned the acquittal. Merely asking questions of a driver and examining the interior of the vehicle is not a search. More importantly, such police activity on a driveway is within the doctrine of implied license. Such common law rights exist, writes Rosenberg J.A., because “A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context .”

Although policy reasons weigh heavily in this decision (to rule otherwise would create an incentive for impaired drivers to view their driveway as a safe haven), the key here is the ruling that police investigation which merely amounts to tapping on the window, and peering inside with a flashlight, does not amount to a search. This takes yet more from the limited privacy rights which protect occupants of motor vehicles. This part of the ruling is generally consistent with dicta from R. v. Mellenthin , where the Supreme Court of Canada found that the visual inspection of the interior of a motor vehicle at a motor vehicle check stop was permissible. In Mellinthin, however, the rationale in Mellenthin was officer safety. So Lotozky extends the bounds of permissible vehicle inspection from Mellinthin. Of course, if such conduct did amount to a search, then the police would be conducting a perimeter search of a residence, and require prior judicial authorization. This decision will be welcomed by prosecutors who wish to restrict the application of search and seizure doctrine in the traffic stop context.

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On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
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We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger