After Irving, 66, was spotted swerving all over a major highway, police say, he was arrested at his home despite his order to police to ‘get the f— out of my house’

Ernest Doroszuk/Postmedia
Peel Regional police officers responded promptly but botched the arrest of lawyer Joseph W. Irving, according to the judge.

A prominent Ontario lawyer who was driving a pickup truck that a 911 caller reported was swerving all over a major highway has been cleared of drunk driving charges because police violated his Charter rights by arresting him a few minutes later inside the doorway of his house.

Joseph W. Irving, 66, who has represented a Hells Angel and a strip club kingpin in criminal proceedings, was dragged onto his front porch by the arresting officers, despite his order to one of them, whom he called “steroid boy,” to “get the f— out of my house.” He tried and failed to throw a punch during the encounter, after first refusing to come to the door.

All this happened within a few minutes of a 911 call to report that Irving’s black Ford pickup was driving erratically on a nearby highway.

Peel Regional police officers responded promptly, but botched the arrest, according to Justice George S. Gage. With one officer demanding he come to the door, and holding a foot in the threshold to prevent it closing, and as many as five other officers on the front step, Judge Gage found Irving was illegally “coerced by the state from the safety and privacy of his library into the scrutiny of the officers on the front porch.”

“He is very fond of whiskey, scotch”

This was a violation of his Section 8 Charter right to be free from unreasonable search and seizure, and it means the blood alcohol readings that later showed him too drunk to drive were excluded from evidence, and so the charge failed.

Nevertheless, the judge decided that it was in fact Irving who was driving the truck just a few minutes earlier. His lawyer acknowledged this is true, but said Irving had not drunk any alcohol at the time.

“He’s a lawyer himself and he knows better what would be the consequences of driving impaired on the 401 (which leads from Toronto to Brampton via the 410) in the middle of the day, or broad daylight. It’s blatant,” Shahid Malik said in an interview. He called it a “very fair decision,” reflecting that Irving’s constitutional rights were violated in his own home.

He said Irving drank some alcohol after he arrived at home, as he was reading through legal materials in his library. “He is very fond of whiskey, scotch,” Malik said.

The 911 call came in at 3:11 pm on Wednesday, Aug. 10, 2016, while the truck was on Highway 410 in Brampton, northwest of Toronto. Bev Hillier, a health care worker, and her tenant Kim Reed, were driving home to Orangeville when Reed called 911 to report the truck was driving recklessly, going in and out of the ditch. They saw a man’s arm at the driver’s side window, but could not see the driver. They followed the truck off the highway and reported the plate number, but at the first intersection, they turned left while it turned right.

Gage consulted Google Maps for an estimated driving time of six minutes from that intersection to Irving’s house, which would mean Irving arrived home about 3:17.

Irving’s wife, Sarah, had just returned home in her own car and rushed inside to use the washroom when she heard a loud knock on the door, according to the judge’s reasons. This was at 3:23. Two police officers asked whose truck was in the driveway, and whether the owner was inside.

She found her husband in the library, and told him police wanted to speak to him. She returned to ask if it could wait. The officers said it could not. Irving finally presented himself at the door at about 3:30 to 3:32.

Within those 15 minutes, then, from 3:17 to 3:32, Irving had to have drunk enough liquor that when blood alcohol testing was completed at 5:08 pm, the higher of two readings showed 140 mg of alcohol in 100 ml of blood. The legal limit is 80 mg. The judge found that the relevant time frames do not exclude the possibility that all his drinking occurred after driving.

When he greeted the police at his door, Irving had a mouth full of crackers, such that crumbs were falling on the floor. He was clearly under the influence of alcohol, according to police testimony. His eyes were watery and bloodshot, he was swaying on his feet, he smelled like liquor, and he slurred when he said: “I have been home all day.”

“What he was not entitled to do, at that or any other point, is to place his foot on the threshold of the doorway”

He told an officer he was going to get a glass of water, but the officer said he was being detained, and entered the home to secure Irving, who was being “passively resistant.”

“You have crossed the threshold,” he said to one officer.

Police have what is known as “implied licence” to knock on the door of a home, but they cannot enter uninvited. Once they do, their presence becomes illegal. The legal doctrine of “hot pursuit” might have excused this Charter violation if the officers already had reasonable grounds to arrest him before they entered the home, but at that point they did not even know for sure he was the driver.

The officer was legally entitled to ask questions of Sarah Irving at the door, and ask to see her husband, the judge found.

“What he was not entitled to do, at that or any other point, is to place his foot on the threshold of the doorway,” Gage wrote. “The implication of the placement of the foot is clear – it is a direction that the homeowner is not permitted to close the door — and in that sense it was a direction that the officer was not entitled to give as an implied invitee and it was an encroachment upon the sanctity of the home that he was not lawfully entitled to make.”

Source: National Post