Her Majesty the Queen ) Lisa Cupples, for the Crown ) - v. -, 2010 MBPC 50

2010 MBPC 50 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) Lisa Cupples, for the Crown ) - and - ) ) WILLI KNELSEN ) Mark Wasyliw, for the Accused ) ) Judgment delivered: ) November 25, 2010 L. MARTIN, P.J. INTRODUCTION [ 1 ] Mr. Knelsen (“Knelsen”) stands charged with impaired operation of a motor vehicle with a blood-alcohol concentration over 80 mg % contrary to sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . The offences are alleged to have occurred on May 9, 2009 in Lorette, Manitoba. [ 2 ] At his trial on June 2 and 3, 2010 there was both a voir dire as to the admissibility of Knelsen’s breath results and argument as to the trial proper. [ 3 ] I will deal first with the evidence and then the issues on the voir dire and the trial. THE EVIDENCE [ 4 ] The evidence of the Crown comes from two civilian witnesses, three RCMP officers and a 911 operator. No evidence was called by the accused. [ 5 ] On May 9th, 2009, the local daycare in Lorette, Manitoba, was having a social at the bar. Mr.

Frank Hrynchuk (“Hrynchuk”) was the bartender that evening along with his father. [ 6 ] Hrynchuk testified that he noticed Knelsen at the social as he stuck out as someone that he had not seen around the community before, and as he was dressed as a cowboy. Although he did not recall having personally served Knelsen any alcohol, he did recall seeing him with a beer that evening. He commented that he appeared intoxicated as he was laid back, limp-bodied and very slow in his reactions.

He commented that you could just tell because “you can tell when someone has been drinking heavily.” [ 7 ] The social ended at around 12:30 a.m. and Hrynchuk left the bar. As he neared the door, Knelsen opened it for him and said “bye”. Hrynchuk did not notice anything untoward though the interaction was brief. [ 8 ] Shortly before 1:00 a.m., Hrynchuk returned to the bar with his wife; the bar was open until 2:00 a.m. There were still about 50 people milling around the parking lot. At around 1:00 a.m., a semi-trailer (“semi”) pulled into the parking lot.

The parking lot was too small for the semi and the driver tried to back up. The semi jack-knifed often, hit the building and two cars. Several people who were standing around the parking lot started yelling to get the driver out of the semi and get his keys. In Hrynchuk’s mind it was imperative to shut it down. [ 9 ] When the driver finally stopped, Hrynchuk ran to the front of the semi where two other individuals were standing. One of those individuals was Fred Yorke (“Yorke”). It was at that point that Hrynchuk noticed the driver was the same unusual individual he had noticed at the social.

The driver opened the door and said something that sounded like gibberish to Hrynchuk. The driver then took the keys out of the ignition and threw them into the semi and went into the back of the cab and drew the curtains. Though Yorke could no longer see Knelsen, he could hear him through a small open window in the sleeper berth. [ 10 ] Hrynchuk called 911, stating there was a drunk person driving a semi and hitting cars in the parking lot. The civilians had detained him and he had since passed out in the semi.

Hrynchuk thought the police arrived ten minutes later though Yorke testified it was within minutes; he testified “they weren’t very long”. When the RCMP arrived, Hrynchuk told one of the officers that he recognized the driver from the social. He added that he was unable to understand him and that he was impaired. [ 11 ] Constable Almey (“Almey”) was the RCMP officer Hrynchuk spoke to.

Almey testified that at 1:14 a.m. he received a call from the RCMP Telecoms dispatch advising that they had received a complaint from a “Frank” that the driver of a semi had just hit the Lorette bar and was now passed out in the vehicle. Police attendance was required immediately.

[ 12 ] Almey and his partner Auxiliary Constable Dyck (“Dyck”) arrived within one minute. The scene was one of chaos. The semi was parked on the grassed parking lot. It was slightly jack-knifed. There were civilians milling about the parking lot shouting words to the effect that the driver was drunk and needed to be taken out of his semi. Almey talked to “Frank”, while Dyck compiled names of witnesses. “Frank” told Almey that the driver had come to the door of the semi.

He and others had tried to get him out and get his keys away from him, but the driver had thrown his keys back into the semi then locked the door. “Frank” also advised Almey that the driver was drunk and should not be driving. Another gentleman by the name of “Fred” also came up to Almey and told him “this guy shouldn’t be driving, he’s drunk.” [ 13 ] A couple of minutes later, Constable Buissé (“Buissé”) arrived on scene. Buissé and Almey went to the driver’s side of the semi and knocked on the window announcing that it was the police and to open the door and exit the vehicle.

Almey testified that he could hear muffled sounds coming from inside the sleeper portion of the semi. As he continued talking, Knelsen yelled back at him and was completely uncooperative. He just kept talking over him while he was speaking. According to Almey, Knelsen was slurring his words though he could not provide any examples. As this went on, Almey increased the force at which he was banging on the door. Then at about 1:30 a.m., Almey received a dispatch of a break and enter only to realize that it was Knelsen. He had called 911 to complain that the police were breaking into his semi.

He was afraid he was going to die. [ 14 ] The 911 tape was entered as an exhibit in the voir dire . In listening to the tape, it is apparent that Knelsen sounds both emotional and irrational. He does not respond to most questions and simply wants to convey his ‘last wishes’. This Court also noted some slurred speech, particularly with the pronunciation of his “s”. That was also the opinion of Margaret Friesen, the 911 operator, who found Knelsen to be rambling. Knelsen does state to Ms Friesen that he is drunk and going to bed.

He later states however that he is sober and is going to bed. [ 15 ] Despite the efforts of Almey and Buissé and of Ms Friesen who implored Knelsen to open the door and exit the semi, he didn’t. [ 16 ] Given the circumstances, namely the 911 call of an impaired driver in the process of causing damage, the civilian witnesses advising of the driver’s state of intoxication and the potential risk of harm to the civilians in the parking lot and to the driver himself, Almey and Buissé decided to break into the semi to stop the continuation of the offence. [ 17 ] When Almey broke a window of the semi, Buissé who was standing on the running board outside the door reached in and pulled down the curtains.

He noticed Knelsen standing in between the two big seats of the semi, talking on the phone and stumbling. Just then, Almey opened the door that Buissé was hanging onto. Thrown to the ground, Buissé got up again and advised Knelsen that he was under arrest for impaired driving. He was grabbed by his shoulder and brought down to the ground where he was handcuffed and again advised that he was under arrest for impaired driving by Almey. When asked if he understood, Knelsen replied three times: “No. I do not.

I was sleeping when you knocked.” The time was 1:50 a.m. [ 18 ] Almey testified that during this time, Knelsen still did not listen to him; he just kept talking over him. [ 19 ] Knelsen was then taken to Almey’s cruiser where he was re-arrested and read the standard rights and caution from Almey’s notebook. Knelsen’s reply was that Almey and his partner should have died like the members in Mayerthorpe. [ 20 ] When asked if he understood, Knelsen responded in sentences that were not making any sense. He said things like: “If I had that right before you started lighting that shit, I haven’t even drinkin’ enough.

I was sleeping when you woke me up. I was not care and control of any vehicle.” When provided his police warning, he responded: “Do you understand I have the right to speak to a lawyer? As I slept, you woke me up. I made the 911 call. You guys don’t know your ass from a tea kettle.” [ 21 ] At 2:12 a.m. Almey read Knelsen the breath demand. Knelsen did not respond. [ 22 ] Almey testified that the grounds for reading this demand was that he believed that Knelsen had been driving impaired and over 80.

He also noted the slurring of his speech, his sentences, the strong odour of liquor on his breath, together with the totality of everything else that had happened prior to that as well as the witness accounts including the smashing into the car and the uncooperativeness. As for Buissé, he thought Knelsen was impaired by the way he was standing, talking and not responding to their demands. [ 23 ] While Almey was reading Knelsen his rights, caution and demand, Buissé returned to the semi to look for keys or open liquor. He found neither.

Dyck testified that he later found the keys at the Steinbach Detachment where Knelsen was taken at 2:35 a.m. While at the Steinbach Detachment, Knelsen continued to make derogatory comments about them such as: “You’re just a fucking pig. You broke my window while I was on the phone. Are you fucking kidding me? This is funny. You guys are pathetic.” [ 24 ] At 2:45 a.m. Knelsen was placed in cells. At 3:05 a.m. he was placed into a Legal Aid room to speak to a lawyer.

At 3:10 a.m. he spoke to a lawyer until 3:24 a.m. [ 25 ] Constable Dukic (“Dukic”), a qualified breath technician who was called at approximately 2:15 a.m. on May 9, 2009 to perform a breath test on Knelsen saw him shortly before 3 a.m. Almey told him about the nature and time of the arrest and how they extracted Knelsen from his semi. Dukic noticed an odour of liquor on Knelsen and saw him arguing with an RCMP officer. He also noted that Knelsen’s eyes were red and watery. When Knelsen went to speak to Legal Aid, Dukic noted he was wobbling or stumbling.

He noted this as “unsure on his feet” in his notes. [ 26 ] After Knelsen spoke to legal counsel Dukic asked him if he knew why he was there and if his rights and the breath demand had been read to him. Though Almey told Dukic that he had read the demand at 2:12 a.m., Knelsen stated that no demand had been read to him. On the basis of that answer, Dukic asked Almey to read the demand to Knelsen again.

This was done at 3:32 a.m. [ 27 ] In regards to questions on cross-examination about his reasonable and probable grounds to administer the breath test, Dukic testified that his role was simply to do the test that was requested of him based on the fact that other officers had arrested Knelsen for impaired driving.

[ 28 ] The first sample of breath was received at 3:36 a.m. with a result of 180 milligrams of alcohol in 100 millilitres of blood. The second reading was taken at 3:57 a.m. with a result of 190 milligrams of alcohol in 100 millilitres of blood. [ 29 ] At 4:27 a.m., Knelsen was transported to St. Pierre Detachment where he was lodged in cells until the next day. [ 30 ] Given the time of the breath results, the Crown called Dr. Cherlet, a forensic toxicology services specialist, specializing in alcohol

interpretation and analysis, designated as an analyst pursuant to

section 254 of the Criminal Code . [ 31 ] Dr. Cherlet testified that she was asked to prepare an extrapolation based on a male of 185 cm in height and a weight of 82 kg though she was clear that the height and weight information had no bearing on her extrapolation calculations. No drinking history or time of the last drink was provided to her. 1:14 a.m. was the time provided for the offence.

Based on the lowest of the breath results (180 mg %) and on the assumption that Knelsen consumed alcohol at a normal rate, did not do any bolus drinking, did not consume alcohol after the offence and eliminated alcohol at a rate of 10-20 mg %, Dr.

Cherlet provided two estimates of the level of alcohol in the blood at 1:14 a.m. as follows: ▪ First estimate: Assuming that drinking concluded ½ hour prior to 1:14 a.m., the blood alcohol concentration would have been between 204 mg % and 227 mg %. ▪ Second estimate: Assuming that the consumption of alcohol continued right up to the time of the offence, the blood alcohol concentration would have been between 184 mg % and 307 mg %. [ 32 ] Dr. Cherlet also testified that any reading over 100 mg % would necessarily result in impairment regardless of the driver’s history and experience with drinking.

ISSUES ON THE VOIR DIRE [ 33 ] Defence counsel has raised multiple issues on the voir dire . Essentially, these issues are in relation to alleged

section 8 and 9 Charter breaches. [ 34 ] Defence counsel says that the

section 8 Charter breaches occurred as follows:

i) Two breath demands were made of Knelsen. The operating demand is the latter one, and that demand occurred more that 3 hours after the alleged offence, the exact time of which is not in evidence; ii) Almey did not have reasonable and probable grounds to make the breath demand. The only information he had in hand was a dispatch call and some cursory conversations with witnesses which were not verified with any investigation; ii) The breath technician, Dukic, did not have reasonable and probable grounds to administer the breath test. [ 35 ] He also submits that there was a

section 9 Charter breach when the RCMP officers broke into Knelsen’s semi and arrested him. He says that such an entry required a warrant. [ 36 ] Given the nature and circumstances of the breaches, he submits that the breath results should be excluded under the section 24(2) Charter analysis. [ 37 ] Crown counsel disagrees. She says:

i) The operating demand is the first demand. That demand was a continuous one that was initially made within 3 hours of the alleged offence; ii) Almey had ample reasonable and probable grounds based on permissible hearsay and the circumstances of the incident; iii) Dukic, the breath technician, does not need to have his own reasonable and probable grounds to administer the breath test. As for the

section 9 Charter breach, Crown counsel says that no warrant was required, as a semi is not a dwelling-house, or alternatively, that there were exigent circumstances allowing for police entry. [ 38 ] If there is a breach, Crown counsel says that it is saved under the section 24(2) Charter analysis. Was there a

section 8 Charter breach? [ 39 ]

Section 8 of the Charter guarantees everyone’s right to be secure against unreasonable search or seizure. If defence demonstrates a breach of an accused’s

section 8 Charter rights, the onus shifts to the Crown to show on a balance of probabilities that the search was authorized by law, that the law is reasonable, and that the search was carried out in a reasonable manner [See R. v. Shepherd , 2009 SCC 35 (CanLII) , [2009] S.C.J.

No. 35]. [ 40 ] Section 254(3) of the Criminal Code allows for breath samples to be taken from an accused if the peace officer making the demand has reasonable grounds to believe that the accused was operating a motor vehicle while his ability to do so was impaired by drug or alcohol or that he had a blood alcohol concentration in excess of 80 mg %, either at the time of the arrest or within the three preceding hours. [ 41 ] The officer’s grounds must therefore be reasonable in the sense that the officer must subjectively believe that he had grounds to make that arrest and when viewed objectively, those grounds must be reasonable [ R. v.

Bernshaw (1994), 1995 CanLII 150 (SCC) , 95 C.C.C. (3d) 193 (S.C.C.)].

[ 42 ] The evidence before this Court is that the breath demand was made at 2:12 a.m. at the time of the arrest, and then again at 3:32 a.m. at the Steinbach Detachment after Knelsen spoke to legal counsel. Both demands were made by Almey though the second was made at the request of Dukic. The operating demand [ 43 ] Defence counsel raised the issue of the timing of the demands as well as the demanding officer. In reviewing the case law referred to by defence counsel – R. v. Pavel (1990), 1989 CanLII 7170 (ON CA) , 53 C.C.C. (3d) 296 (ON.C.A.) – as well as R. v. Dhaliwal, [2005] O.J.

No. 1129 (S.C.J.) , it is clear that the operating demand is the one made by the demanding officer and relied on for the administration of the breath test. Once the demanding officer forms reasonable and probable grounds to make a breath demand, and makes the demand, the clock starts running. That demand is the operating demand for the purposes of the Criminal Code provisions. It is on the basis of this demand that all subsequent officers may rely.

The demand is also a continuous demand that need not be repeated. [ 44 ] For this initial demand to remain the operating demand, the breath samples must be provided on the basis of that demand. If another officer intervenes and forms his or her own reasonable and probable grounds and makes a subsequent breath demand, it will be this subsequent demand that becomes the operating demand. [ 45 ] For example, in R. v. Warford (2001), 9 M.V.R. (4 th ) 105 (Ont. C.J) , a police officer formed reasonable and probable grounds that a

section 253 offence had been committed and made a breath demand. A second officer then arrived at the scene. This second officer was not told of the reason for the arrest; he transported the accused to the detachment and then made his own demand. It was clear from the evidence that this second officer did not make any independent observations of impairment before the breath samples were provided. Kenkel, J. found that as the breath samples were provided on the basis of the second officer’s demand, it was this second demand that was the operating demand.

Kenkel, J. commented that if the second officer “had chosen to rely upon the demand made by [the first officer]… there would be no breach of s.254 .” [ R. v. Warford, para. 11] [ 46 ] In the case at bar, this Court finds that the operating demand is the demand that was made at 2:12 a.m. Though a second demand was made at 3:32 a.m., that demand was really just a formality to respond to Knelsen’s claim that no one had read him an earlier demand, and to ensure that Knelsen was clearly made aware of his legal obligations.

That 3:32 a.m. demand was made by Almey on the basis of the same grounds he had when he made the 2:12 a.m. demand. [ 47 ] Further, Dukic was entitled to rely on Almey’s grounds when advised that there had been an incident at 1:14 a.m. and that Almey had arrested Knelsen for impaired driving. Dukic’s evidence is clear that he did not formulate his own reasonable and probable grounds to administer the breath test. In fact, he did not even make the demand.

Not only did he ask Almey to reiterate the demand, but he also assumed that Almey had reasonable and probable grounds to arrest Knelsen and make the breath demand. As referred to in the case law above, a breath technician does not need their own reasonable and probable grounds to administer a breath test. They are entitled to rely on the demanding officer’s grounds. When that is done, it is the demanding officer’s reasonable and probable grounds that need to be scrutinized.

Constable Almey’s grounds at 2:12 a.m. [ 48 ] There has been great commentary in the case law as to what constitutes reasonable and probable grounds by a peace officer. The guiding principles are as follows: The reasonable and probable grounds must be assessed subjectively and objectively - the officer must subjectively have an honest belief that the accused was driving a vehicle while impaired and objectively there must be reasonable grounds for that belief. [ R. v. Bernshaw, supra ]; The grounds must be examined from the viewpoint of the knowledge of the officer at the time the demand was made.

Subsequent actions, observations of others and even a misperception of the actual evidence are of no consequence. [ R. v. Cuthbertson, [2003] A.J. No. 800 (AB.P.C.) ]; Likewise, incomplete or inaccurate evidence or hearsay is of no consequence. The test is whether the officer had reasonable and probable grounds at the time of making the demand, not whether the officer could have obtained additional information before making the demand.[ R. v. Rodriguez, [2001] O.J. No. 2592 ; R. v.

Musurichan (1990), 1990 ABCA 170 (CanLII) , 56 C.C.C. (3d) 570 ( AB.C.A.) , at p.574 ] ; The totality of the evidence relied on by the officer to make the demand must be considered when making that assessment, not the individual pieces of evidence considered distinctly. [ R. v. Cuthbertson, supra ]; Reasonable grounds in the context of a section 254(3) breath demand is not an onerous threshold. [ R. Censoni, [2001] O.J. No. 5189 ];

The Crown need only show that on a balance of probabilities the search or seizure was reasonable. [ R. v. Haas, 2005 CanLII 26440 (ON CA) , [2005] O.J. No. 3160 (ON.C.A.)]. [ 49 ] In light of this case law, it is apparent that in assessing the officer’s subjective belief and whether that belief viewed objectively is reasonable, the court needs to be mindful not to hold the officer to too high of a standard. The test is not correctness; it is reasonable and probable grounds.

In impaired investigations, officers are often confronted with a variety of information and quick decisions are required. [ 50 ] Importantly, the court must make the subjective/objective assessment from the circumstances of the case as it was presented to the officer at the time of the demand. As referred to by Lerner, P.J. in R. v. Seaman, December 10, 2009 (unreported): “…There have been cases where there’s been a conviction even though it’s been established that he was under a misapprehension of the facts.

The test is whether or not what he understood to be the grounds at the time were reasonable and probable grounds. It is, therefore, in a sense subjective because what the court looks into is the state of mind of the officer, what did he understand the circumstances to be. It’s, in a sense, also objective because the court objectively examines the circumstances as understood by the officer. It is not an objective test in the sense that the court looks over the shoulder of the officer to see whether or not the circumstances as understood by him were factual.

But, manifestly, the statute intended that the court weigh the grounds that the officer understood to be present; weigh them on the test of reasonableness and probability.” [ R. v. Kissen , 1978 unreported, as referred to in R. v. McClelland, 1995 ABCA 199 (CanLII) , 98 C.C.C. (3d) 509, AB.C.A.] [ 51 ] In the case at bar, it was clear in Almey’s testimony that he subjectively believed he had reasonable and probable grounds to make a breath demand of Knelsen.

In fact, he was quite candid that he would have done so earlier than 2:12 a.m. if he had been able to extract Knelsen from his vehicle earlier. [ 52 ] The real issue for this Court is therefore whether objectively, Almey’s subjective belief was reasonable. [ 53 ] The scene presented to Almey upon arrival was one of chaos and potential danger.

It was one in which the officers needed to act quickly to minimize the potential damage the semi could do if the driver of the semi were to start it up again and attempt to drive off. [ 54 ] This scene was consistent with the information provided on dispatch and by the civilians at the scene. Though Almey’s notes were scant, he did have an independent recollection which was consistent with the evidence before this Court.

Although some preliminary or cursory investigation of a 911 call by civilian witnesses is preferable, in this case where the scene and the information were consistent and quick action was necessary, nothing more than what the officers did was required. [ 55 ] All of this, combined with the slurred and unintelligible speech and the strong odour of liquor objectively gave Almey reasonable and probable grounds to make the breath demand.

This Court notes that although defence counsel questioned how Almey could make out any slurring through the windows of the semi, Yorke testified that he noted an open window in the sleeper berth of the semi. In those circumstances it would have been quite possible for Almey to hear Knelsen clearly. Further, although Almey appeared to have some difficulty expressing his grounds for making the breath demand, there is no magic formula that is required. This Court would also note that Buissé had the same concerns, observations and beliefs as Almey as to Knelsen’s state of impairment.

As indicated above, and recently reiterated by the Supreme Court of Canada in R. v. Shepherd , supra, an officer does not need a prima facie case for conviction before proceeding with his investigation. Was there a

section 9 Charter Breach? [ 56 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. An illegal arrest as a result of a

section 8 Charter breach will generally result in an arbitrary detention. [ 57 ] In the case at bar, the issue is whether a warrant was required for entry into Knelsen’s semi given that he was in the sleeper berth. [ 58 ] The Supreme Court of Canada in R. v. Nolet , 2010 SCC 24 indicates that there is a presumption that truck drivers expect a measure of privacy in the cabs of their semis.

That expectation is however necessarily low due to their line of work and the various laws and regulations that allow for inspections and searches of their semis. [See Nolet , para. 30-31] [ 59 ] As the officers in the case at bar entered Knelsen’s semi without a warrant, there is a presumption that the entry was unreasonable unless the Crown shows on a balance of probabilities that the entry was permitted by law, that law is reasonable, and the manner in which the entry was conducted is reasonable. [ 60 ]

Section 529.3 of the Criminal Code allows warrantless entries into dwelling houses (which the sleeper berth of a semi can be equated to by analogy given the reasonable expectation of privacy) to arrest or apprehend a person where the officer has reasonable grounds to believe that person is in the house and there are exigent circumstances making the application for a warrant impracticable. Subsection 2 of

section 529.3 provides two illustrations of exigent circumstances. Those are where the peace officer: “(

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.” [ 61 ]

Section 529.3 essentially codifies the common law right of entry in exigent circumstances. To date, the Supreme Court of Canada has found exigent circumstances justifying a warrantless entry in cases of hot pursuit [(See R. v. Feeney , 1997 CanLII 342 (SCC) , [1997] 2 S.C.R. 13 (S.C.C.), in regards to R. v. Macooh , 1993 CanLII 107 (SCC) , [1993] 2 S.C.R. 802 (S.C.C) ], 911 calls [ ( R. v. Godoy (1998), 1999 CanLII 709 (SCC) , 131 C.C.C. (3d) 129 )], and more generally, cases requiring peace officers to keep the public

peace and preserve life . [ 62 ] For hot pursuit to exist, there “ must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction”. ( Macooh ) [ 63 ] Though the expression “hot pursuit” conjures up the image of a police chase, several cases have held that this is not required. As stated by Justice Simonsen in R. v. Farrah, [2009] M.J.

No. 91 : “[38] In order for police to be acting in hot pursuit, there is no requirement that they actually see the event that gave rise to the offence; they are entitled to rely on information from eyewitnesses as to the facts of the offence and the identity of the perpetrator ( R. v. Haglof (2000), 2000 BCCA 604 (CanLII) , 149 C.C.C. (3d) 248, [2000] B.C.J. No. 2236 (B.C.C.A.)…” [See also R. v. Hayer, [2006] O.J. No. 585 (ON.C.J.) ; R. v. Higgs, [2006] M.J.

No. 119 .] [ 64 ] The justification for a warrantless entry in the case of hot pursuit is the following: “22 To begin with, it would be unacceptable for police officers who were about to make a completely lawful arrest to be prevented from doing so merely because the offender had taken refuge in his home or that of a third party. In Eccles v. Bourque , supra, Dickson J. said that "[t]he criminal is not immune from arrest in his own home nor in the home of one of his friends" (p. 743). He added: "I know of no place that gives a criminal fugitive sanctuary from arrest" (p. 744).

These concerns are nowhere as relevant as in the case of hot pursuit. The offender is then not being bothered by the police unexpectedly while in domestic tranquillity. He has gone to his home while fleeing solely to escape arrest. In such circumstances, the police could not be obliged to end the pursuit on the offender's doorstep, without making his residence a real sanctuary, contrary to the principles stated by this court in Eccles . The flight of the offender,

an act contrary to public order, also should not be thus rewarded.” ( Macooh) [ 65 ] As for preservation of public peace and life, Justice Simonsen noted in Farrah that this common law power still existed: “63 The common law recognizes that the police have certain powers ancillary to their duties which include "preservation of the peace, the prevention of crime, and the protection of life and property" ( R. v. Dedman , 1985 CanLII 41 (SCC) , [1985] 2 S.C.R. 2 (S.C.C.) ). The English decision of R. v. Waterfield (1963), [1964] 1 Q.B. 164 (Eng.

C.A.) , adopted in Dedman , sets out the test for determining the scope of powers ancillary to these duties where the police conduct, prima facie , interferes with a person's liberty or property.

The court concluded that the police conduct would be authorized by the common law if two criteria were satisfied: • The police were acting in the course of their duty when they effected that interference; and • The conduct of the police did not involve an unjustifiable use of powers in the circumstances.” [ 66 ] Justice Simonsen determined however that the “911” case law is only applicable in cases of imminent danger : “69 In my view, Godoy , Buors and Tereck are not applicable because the safety concerns here arose not in response to a call from the public about imminent danger in suite 16 but rather from the recent commission of a crime and the officers' pursuit of one or more of the suspects.

In Hutchison and Bury, Search and Seizure Law in Canada , Vol. 1 (Toronto: Thomson Carswell, 2008 — Release 9) at page 3- 38, the authors state that, in Godoy , the court authorized the police powers as ancillary to the common law duties of a constable to preserve the peace, prevent crime, and protect life and property and that "[t]hese are general duties which are not related to the apprehension of suspects or the investigation of crime" (underlining added).

Similarly, in Bours , MacInnes J. (as he then was) noted, in concluding that the search did not violate s. 8, that "[b]ut the point is, there is no basis for concluding that the entry and search of the accused's residence was motivated by any purpose other than the justified completion of an investigation of a home invasion or robbery in response to a 911 call" (para. 90). That is not the situation here.

Rather, the police entry and search of suite 16 stemmed from their pursuit of a suspect from the scene of a crime and their belief that there might be additional suspects; in these circumstances, the police must, by necessity, have entered suite 16 not only due to public safety concerns but also for a purpose connected to their pursuit and discovery of the accused and their intention to apprehend any other suspects.” ( Farrah) [ 67 ] In the case at bar, the police attendance at the scene was precipitated by a 911 call of an impaired driving in progress.

Upon arriving on the scene, the semi was in park and turned off and the driver was in the sleeper berth of the semi with the curtains closed. The keys were in the semi and the driver was awake though making his intention clear that he wanted to go to bed. [ 68 ] Buissé and Almey testified that they broke into the semi to extract Knelsen to both arrest him for impaired driving but also to prevent the continuation of the offence and the potential harm to the civilians and the driver himself.

Waiting for a warrant was out of the question as the driver, an unknown entity, could easily have started the semi and drove away, pushing cars out of the way and causing serious damage and injury. They also did not know if he was armed or what he might do given his level of intoxication. [ 69 ] In this Court’s view, this case is not a 911 case.

Although the situation was potentially dangerous, it is not quite the same as a 911 hang-up call where there is a fear of imminent, not potential, danger. [ 70 ] This case is however a hot pursuit case giving the officers the right to make a warrantless entry into Knelsen’s semi. Hrynchuk witnessed Knelsen drive his semi and lock himself in with the keys. This information was relayed to the officers who arrived at the scene and found Knelsen still inside. [ 71 ] The pursuit of Knelsen comes from the eye witness observation of the commission of an offence.

Though Knelsen did not end up going very far there is no requirement for a long and protracted pursuit. The pursuit, short as it was, was nonetheless continuous. Essentially, by refusing to come out of his semi, Knelsen was evading arrest by seeking refuge behind the curtains of his sleeper berth, an attempt that was recognized in Feeney as constituting exigent circumstances. [ 72 ] Given this finding and the reasonable manner in which the officers gained entry into the semi, this Court finds that there was no

Section 9 Charter breach.

Section 24(2) Charter Analysis [ 73 ] If this Court is mistaken as to its findings of reasonable and probable grounds to make a breath demand and/or the exigent circumstances, the evidence would nonetheless not be excluded under section 24(2) of the Charter. [ 74 ] On the basis of a section 24(2) analysis in accordance with the Supreme Court of Canada decision in R. v.

Grant, 2009 SCC 32 (CanLII) , [2009] 2 S.C.R. 353, the admission of the breath results would not bring the administration of justice into disrepute. [ 75 ] The seriousness of a Charter breach (if one were found to exist) is not on the high end of the scale; the officers acted in good faith with the aim of ensuring public safety. T he impact of the breach on the Charter -protected interests of the accused is minimal; the breath samples are not overly invasive, and the expectation of privacy in the sleeper portion of the semi is low.

On the other hand, society's interest in the adjudication of the case on its merits is high. This is an impaired driving case. At the risk of sounding redundant, impaired driving is a scourge on our society. It causes innumerable cases of damage and injury. In the present case, damage was already caused to a building and at least one vehicle. There were approximately 50 people milling about the parking lot. Knelsen had already displayed extremely poor judgment in pulling into a parking lot that was obviously too small for his semi.

Despite his stated intentions to the 911 operator that he just wanted to go to sleep, he was not yet asleep and it is uncertain whether he would have ever gone to sleep. The harm already done and the potential for much more are frankly too great. ISSUES ON THE TRIAL [ 76 ] Given the Court’s findings on the voir dire , the breath samples are admitted into evidence and the evidence on the voir dire is applied to the trial mutatis mutandis . [ 77 ] The only issue for trial is whether the Crown has proven the impaired and over 80 charges beyond a reasonable doubt.

Defence counsel has raised two issues in this regard: ▪ For Dr. Cherlet’s extrapolation results to be persuasive, the evidence she relied on needs to be proven by the Crown. Here, the Crown has not proven the height and weight of Mr. Knelsen nor the exact time of the offence. ▪ There is insufficient evidence of impairment. [ 78 ] Defence counsel does not take issue with respect to the accuracy of the breath samples themselves. Over 80 charges [ 79 ] Given that the breath samples were provided more than 2 hours after the offence, the Crown is unable to rely on the presumption of identity that is set out in

section 258 of the Criminal Code . [ 80 ] The evidence as to Knelsen’s blood alcohol level comes from both Dukic and Dr. Cherlet. Dukic testified that Knelsen’s blood alcohol readings were 180 mg% at 3:36 a.m. and 190 mg% at 3:57 a.m. Dr. Cherlet’s extrapolations gave results between 184 mg% and 227 mg% at 1:14 a.m. In cross examination, Dr.

Cherlet was clear that Knelsen’s height and weight had no bearing on her extrapolations. [ 81 ] This Court would note that the other evidence before this Court is that no alcohol was found in Knelsen’s semi when the semi was searched and Knelsen did not eat or drink anything after being apprehended by the officers. [ 82 ] Though the exact time of the offence is not in evidence, this Court heard evidence that after Hrynchuk and Yorke tried to extract Knelsen from the semi Hrynchuk placed a call to 911. The 911 operator told Hrynchuk that she would send officers immediately.

She then continued to ask more details of Hrynchuk. Though Hrynchuk testified that the officers arrived within 10 minutes, Yorke testified that they arrived within minutes. Given the other evidence as to the timing of the events, this Court finds that Yorke’s evidence on this point is to be preferred. What that means is that the dispatch call in this particular time was done almost simultaneously to the 911 call. An immediate dispatch is also consistent with the evidence before this Court as to the timing and nature of the events.

This Court therefore finds that the offence did occur at 1:14 a.m. [ 83 ] Based on the totality of the evidence before this Court, I find that the Crown has proven beyond a reasonable doubt that Knelsen’s blood alcohol concentration at the time of the offence was over 80 mg%. Impaired Operation [ 84 ] The evidence before this Court as to Knelsen’s impairment comes from several witnesses. [ 85 ] Dr.

Cherlet testified that all individuals with a blood alcohol concentration of 100 mg% would be impaired regardless of their tolerance to and experience with alcohol. [ 86 ] Hrynchuk, Almey, Buissé, Friesen and Dukic all testified to Knelsen’s signs of impairment.

There is also the evidence of driving and the damage to the Lorette bar and a civilian vehicle. [ 87 ] Based on the evidence before this Court, the Crown has proven the impaired charge beyond a reasonable doubt. [ 88 ] In conclusion, this Court finds Knelsen guilty of both the drive over 80 and the impaired charges. [ 89 ] Given the principle in Kineapple , there will be a stay of proceedings entered with respect to the impaired charge. “Original signed by:”

L. MARTIN, P.J.