2011 MBPC 4, 2011 MBPC 4

CITATION# 2011 MBPC 4 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Kathrine Basarab, for the Crown ) - and - ) ) Richard Patenaude ) Timothy Killeen, for the Accused ) ) Judgment delivered: ) January 17, 2011 Corrected Judgment : An Erratum was filed on January 18, 2011. The text of the Erratum is appended at the end of the reasons of the initial judgment, which is reproduced here with corrections. ROBERT HEINRICHS, P.J.

RULING ON VOIR DIRE INTRODUCTION [ 1 ] On July 30, 2009, the Winnipeg Police Service charged Richard Patenaude with impaired driving, refusing to provide a breath sample, assaulting a police officer, escaping lawful custody, and failing to stop at the scene of an accident. [ 2 ] Pursuant to section 24 (2) of the Charter , Richard Patenaude seeks to exclude certain evidence from his trial on the basis that his

section 8 and

section 10 (

b) rights were infringed. This evidence, if excluded, would in particular affect the charges of impaired driving and refusing to provide a breath sample. EVIDENCE ON THE VOIR DIRE [ 3 ] The Crown called two civilians and three police officers to testify; no evidence was called on behalf of the defence. [ 4 ] Around 7:30 p.m. on July 30, 2009, Calvin Pompana was driving his vehicle on Garry Street when he was struck from behind by another vehicle at the intersection of St. Mary Ave.; “bumped from behind pretty hard” is how he described it.

After pulling over to the left to park on the side of the street, he got out of the vehicle to survey the damage and speak to the other driver. Within moments, a female came running up, telling him that she was a police officer, showing him her badge and that she had seen the collision. She was wearing jeans and a blouse. She spoke to him and to his passenger to see if they were okay. She then took over talking with the driver of the other vehicle and soon a loud verbal confrontation took place.

She asked for his driver’s license and vehicle registration when all of a sudden he got back in his vehicle and sped off. Mr. Pompana was a few feet away when they were talking to each other and could smell alcohol on the other driver. [ 5 ] Detective Prefontaine was the plain clothes officer who came running that evening. She and her partner were involved in another investigation further down Garry Street when she heard the crash of the vehicles. She left her partner with the individual they had in custody in the back of their cruiser car and went to the scene of the accident.

What she observed was that a Chev Metro had been rear ended by a Chrysler Sebring convertible. She approached the driver of the Chev Metro, as he had just gotten out of his vehicle, and showed him her badge and checked on his and his passenger’s well being. Neither was requesting medical attention, although his passenger had a possible neck injury. [ 6 ] Detective Prefontaine then approached the driver and only occupant of the convertible. He had been in the process of getting out of the vehicle when she was approaching the two vehicles. He was now walking around his vehicle and assessing the damage.

She identified herself as a Winnipeg police officer, showing him her badge. She asked for his driver’s license and vehicle registration. He questioned the need for this, but did get into the passenger’s side of his vehicle to get some papers from the glove compartment. He gave

her his driver’s license and then some wrong papers; during this process she could note that he was dishevelled and starting to get agitated and angry. When he stood up and shoved some papers at her and walked away she could tell he was unsteady on his feet, slurring his speech, his eyes were extremely bloodshot - one more so than the other - and there was a very strong odour of alcohol on his breath. She formed the opinion that his ability to operate a motor vehicle was impaired by alcohol. She stepped back and radioed for a police unit to assist.

As well, she requested an ambulance for the passenger other vehicle. She told the passenger of the other vehicle that she had called for an ambulance and then approached the driver of the convertible. He now had the correct vehicle registration, which he gave to her. Detective Prefontaine pulled out her warrant card and badge and advised him that he was under arrest for impaired driving and that a uniformed member was on the way. He shoved her in the shoulder and said “you are not a cop, fuck you babe”.

He walked directly to his vehicle and she yelled at him to not leave and that he would be charged with leave the scene of an accident; however, he got into his vehicle, reversed into oncoming traffic and drove off, swerving and speeding, almost hitting another vehicle. While driving south he went through a red light on York Avenue. [ 7 ] Detective Prefontaine immediately got on the phone to let dispatch know that the impaired driver had left the scene and gave them the name of the driver, the vehicle description and his home address.

She still had his driver’s license and vehicle registration in her hands and that is where the information came from. She also picked up from the ground the piece of paper which he dropped when she was shoved. It had Richard Patenaude’s name, driver’s license number and vehicle license plate number on it. The registration and piece of paper were filed as exhibits in these proceedings.

She then attended to the passengers of the first vehicle and eventually returned to assist her partner with the individual they had in custody. [ 8 ] Trevor Dandurand was leaving Mitzi’s restaurant on Garry Street around 7:30 that night. He noted two smashed vehicles at the intersection right where he had parked his own vehicle. A female plain clothes officer, whom he had seen earlier in the restaurant, was speaking with some of the individuals involved in the collision. He noted the male from the convertible approach the police officer.

She said, “Hold on a second, give me a minute” to him, but he got upset and testy and said I’m bringing you my particulars; he was loud and belligerent and was right in her face. She tried to calm him down, she grabbed the papers from him and then he pushed her on the shoulder, jarring her back and forcing her to take a step back, saying “You’re no cop” and she replied that she had already told him she was. She pointed to the badge and gun on her waist. He looked inebriated – he was loud and angry and stumbling. He went back to his vehicle and the officer told him to stop and not leave.

He said, “you know where I live, drop it off”. He got into his vehicle and backed right onto St. Mary Ave., then drove off down York St. almost hitting the Chev Metro a second time. At no time did he hear the officer say to Richard Patenaude that he was under arrest. [ 9 ] Constables William Degroot and Randall Lofto of the Winnipeg City Police were dispatched to the accident scene at 7:35 p.m. Constable Lofto was driving their cruiser car at the time and Constable Degroot was the passenger.

The information they received was that a plain clothes unit had come across a motor vehicle accident involving an impaired driver. They needed assistance. Constable Degroot then contacted Detective Prefontaine enroute. She advised that the impaired driver, Richard Patenaude, had been placed under arrest and she had received license particulars from him when he assaulted her and fled in his vehicle. She now asked that the officers attend directly to the registered owner’s residence at 100 Niakwa Road.

Constable Lofto engaged their cruiser’s lights and siren and went through red lights, travelling up to 80 or 90 kilometres an hour when it was safe to do so. They arrived at the apartment block at 100 Niakwa at 7:58 pm and noted the suspect’s blue Chrysler Sebring in the rear parking lot. They blocked it in with their vehicle and noted the following: there was no one in the vehicle, the hood of the car was warm and the engine was still ticking (they believed this was from the vehicle recently running) and there was damage to the front of the vehicle (matching what they were told about the collision).

They buzzed the caretaker’s suite and were met by him at the elevator. He said that he knew the tenant of apartment 606 but hadn’t seen him as he was in his own apartment until the officers buzzed him. The officers noted the elevator to be on the 6 th floor: their information was that the suspect, Richard Patenaude, lived in apartment # 606. [ 10 ] The officers attended to apartment # 606 and knocked on the door quite loudly. Constable Degroot stated “Richard, come to the door, it’s the Winnipeg Police”. He did this said several times and there was no response.

So he sent Constable Lofto down to the caretaker’s suite to get a key. When the officer returned with the key, Constable Degroot banged on the door again: “Richard, this is the Winnipeg Police and I am going to be opening the door”. Again there was no response and so he opened the door with the key. As there was a chain lock on the door he was only able open it around 5 or 6 inches. The officer could see an individual holding a beer, sitting on a couch with his back to the officer. He said, “Richard, please come to the door”.

The individual then came to the door, removed the chain lock and opened the door. [ 11 ] The suspect, Richard Patenaude was now standing in the doorway. Constable Degroot asked him to step out into the hallway. His response was to not move but to puff his chest and clench his fists. At this point it was obvious to both officers that he was intoxicated. They immediately noted that he had slurred speech, that he was unsteady on his feet, that a strong odour of alcohol was coming from his body and breath, and that he had bloodshot eyes - including one eye that was completely red.

He was visibly upset and the officers believed he wanted to fight. Constable Degroot, standing in the hallway and on the left side of the doorway told him, “Do not fight with us; if you fight with us, you’ll lose”. It was approximately 8:00 p.m. and Constable Degroot advised Richard Patenaude that he was under arrest for impaired driving, assaulting a peace officer, and escaping lawful custody. He was still maintaining his stance and so Constable Degroot firmly grabbed Richard Patenaude’s right arm while Constable Lofto, who was standing on the opposite side of the doorway grabbed Richard Patenaude’s other arm.

They brought him to the hallway floor, prone on his chest and then placed handcuffs on him behind his back. Neither officer physically entered the apartment when all of this took place. [ 12 ] Richard Patenaude only had a T shirt and shorts on and so once the officers got him to his feet, Constable Degroot entered the apartment and retrieved some pants and shoes for him; however he remained belligerent and wouldn’t cooperate, so the officers escorted him to the police car while carrying his pants and shoes.

Once Richard Patenaude was placed inside the rear of the police car, Constable Degroot read him his formal notice of arrest, advising him that he was being charged with impaired driving, assaulting a peace officer, escaping lawful custody and leave scene of an accident. The responses were, “What assault? Who?”, “I am five seven” and “come on”. The breath demand was next read to him by the officer.

Richard Patenaude’s response was “What for?” Constable Degroot next read him his Charter rights and right to counsel to which he responded “Ya”, and when asked if he wanted to call Duty counsel or any other lawyer, he replied, “What for, I exchanged particulars. I used to work for Autopac”. The police caution was then read to him. He indicated that he understood. The breath refusal was then read to him, to which he replied, “What for? I was drinking beer at home; I don’t have to do that for no reason.” The officer then said that he would also be charged with refusing a breathalyser, to which Richard

Patenaude responded, “This is ridiculous.” [ 13 ] At 8:20 p.m. the officers left with Richard Patenaude in the back of their car. Other than some verbal insults he directed at the officers, there was no discussion, questions or talking during the trip to the District #2 Police Station. They arrived at 8:40 p.m. and after meeting the sergeant on duty, Richard Patenaude was placed in an interview room.

Constable Lofto completed the Prisoner Log sheet and then he was left alone from 8:44 p.m. until 9:05 p.m. when Constable Degroot re-entered the interview room and completed the Impaired Driver Check sheet with Richard Patenaude. He cooperated and when the questions on the form had ended, Richard Patenaude asked the officer, “So am I doing this breathalyser now?” Constable Degroot replied, “You refused”, to which Richard Patenaude stated, “Why would I refuse? I didn’t refuse.” That question was never answered by the officer. At 11:00 p.m. Richard Patenaude was released from custody to his sister.

During the entire trip to the police station, which started at 8:20 p.m., until the time he was released to his sister at 11:00 p.m., Richard Patenaude was never again asked or given the opportunity to call counsel or provide a breath sample. ANALYSIS [ 14 ]

Section 8 of the Charter guarantees everyone the right to be secure against an unreasonable search. That includes the police entering an individual’s home on a warrantless search in order to find and arrest the individual. As a result of the S.C.C.’s decision in Feeney , Parliament had

section 529 of the Criminal Code enacted in order to expand and clarify the law for these kinds of situations. In both the Feeney case and in

section 529 , the language and phrase which is always used is to “enter a dwelling house”. What Constable Degroot did when arriving at Richard Patenaude’s apartment that evening was to knock and call for him to come to the door, and when that resulted in no response, the officer had Constable Lofto get a key for the suite from the caretaker. Constable Degroot’s intentions now were to open the door, if necessary, enter the apartment and arrest Richard Patenaude, if he could be found.

With the key in hand and again not getting a response to his knocking and loud calling, he tried the key in the lock, in order to open the door. What happened, however, is that he never entered the suite because of a chain lock on the door, which he could only open a few inches. In peeking through the opening, he noticed someone sitting on a couch drinking beer. He believed this was Richard Patenaude, someone he had never before met, and so he called out to him, “Richard, please come to the door.” He responded by coming to the door, removing the chain lock and opening the door and standing in the doorway.

What followed in the moments after this was a confrontation of sorts. He took an aggressive stance and would not budge when being told he was under arrest. The officers quickly took him down to the floor in the hallway and placed handcuffs on him. The arrest had been effected and at no time had either officer physically entered the suite that Richard Patenaude resided in. [ 15 ] The location of this arrest is quite similar to what my sister Judge Giesbrecht dealt with in R. v. Bate .

There the two officers stood on the cement pad or stoop just outside a door to the residence of an individual they were interested in talking to. As a result of a civilian complaint, they had reason to believe an individual had possibly just driven while impaired and had entered the residence. The information that the police had was that the registered owner of the vehicle that was the subject of the complaint lived in this house. They knocked on the door and the individual matching the description of the possibly impaired driver attended to the door.

After some discussion, it became obvious to the officers that the individual was impaired and, after a brief struggle, they placed him under arrest. The officers’ evidence was that the person they arrested was standing on the stoop; the evidence of the individual was that he was standing on the doorsill. In her decision, Judge Giesbrecht concludes that it matters not – in either case the arrest did not occur “in a dwelling house” and the police were not required to get a Feeney warrant. [ 16 ] Judge Giesbrecht also points out in the R. v.

Bate case that the police ended up on this individual’s doorstep as a result of an impaired driver complaint. She quotes from R. v. Evans , the S.C.C. case which confirms the common law recognition that all members of the public, including police, are able to approach a residence and knock on the door, provided it is not for ill motive. In the present case, the police were in pursuit of Richard Patenaude, who they reasonably believed had just committed a number of criminal offences, and who they were quite certain had just entered the apartment building at 100 Niakwa and was likely in apartment #606.

The officers were justified in entering the apartment block and knocking on the door of apartment # 606. Therefore the officers were entitled to be at the door and as they did not actually enter the apartment, the warrantless arrest of Richard Patenaude did not violate his

section 8 Charter rights. [ 17 ] The attempt to enter the apartment with the key needs to be addressed, however. In the Ontario C.A. case of R. v. Golub the court dealt with a situation where an individual was compelled to come out of his residence so that the police could arrest him. In that case the accused was believed to be in possession of a firearm and under the influence of alcohol or drugs and so when the Emergency Response Task Force arrived on scene the police called the accused and told him to come out of his apartment as he was surrounded and that he could not escape.

He complied and came out of the residence. In spite of those circumstances, Mr. Justice Doherty points out that because the arrest did not happen in a dwelling house, Feeney (and now

section 529 ) does not apply. In other words, how or why the accused came out of his residence doesn’t alter the fact that the accused was not in a dwelling house when arrested. And so, the question of what the police would have done had the chain lock not been on when the police tried to enter Richard Patenaude’s apartment or the question of what the police would have done if he had not removed the chain lock and opened the door when asked by Constable Degroot do not need to be answered. [ 18 ] If the Court is not correct in its assessment that

section 8 of the Charter does not apply because the police did not “enter” Richard Patenaude’s dwelling house, the Court will examine the issue of whether the police had a right to enter in “hot pursuit”. The S.C.C., in R. v. Macooh quotes from Salhany’s Canadian Criminal Procedure text to define “hot pursuit”: “Generally, the essence of fresh pursuit is that it 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.” [ 19 ] What the police did in pursuing Richard Patenaude on the evening of July 30, 2009 clearly falls within that definition. The

officer who had personal knowledge of the reasons for arresting Richard Patenaude, Detective Prefontaine, passed on very specificdetails to the officers who effected the arrest a very short time later. Detective Prefontaine could give the chasing officers exact detailsabout who the accused was; what make, model and colour of car he was driving, what his home address was from his car registration(which she had in her hand as she was passing the information on) and which direction he was travelling in.

The arresting officers foundthat exact car less than 30 minutes later at the accused’s home address; the car engine was warm and still ticking; and the front of the carhad damage to it matching the accident Detective Prefontaine was investigating. The officers then arrived at the door of RichardPatenaude’s apartment and called for him to come out. He must have reasonably expected that the police would come calling; to ignorethem and not expect to have them attempt to enter because of his right to privacy is not reasonable in these circumstances.

Accordinglythe police would have been authorized to use a key to enter Richard Patenaude’s residence that evening to arrest him without a warrant. [20] Richard Patenaude also alleges that there was a breach of his

section 10 (

b) Charter right to retain and instruct counsel and to beinformed of that right without delay. Within minutes of being arrested in the hallway of his apartment building, Richard Patenaude foundhimself in the back of the officers’ cruiser car. Once there, Constable Degroot did the following, in this order: 1. He read Richard Patenaude his formal notice of arrest, including that he was being charged with impaired driving, assaultinga peace officer, escaping lawful custody and leave scene of an accident; 2. He read Richard Patenaude the breath demand; 3.

He read Richard Patenaude his Charter rights and right to counsel; 4. He asked Richard Patenaude if he wanted to call Duty Counsel or any other lawyer; 5. He read Richard Patenaude the police caution; 6. He read Richard Patenaude the breath refusal warning; 7. He told Richard Patenaude that he would also be charged with refusing a breathalyser. [21] Richard Patenaude had comments or responses for everything he was told or read; in spite of the level of agitation and state ofintoxication, it was clear that he understood what the officer was saying or reading to him.

Those responses included questions andcomments of a challenging nature, and answers which suggested that Richard Patenaude didn’t care to hear the questions. His responseto whether he wanted to call duty counsel or a lawyer was to say, “What for, I exchanged particulars. I used to work for Autopac.” As aresult, the officer believed there was no point in pursing the question of counsel any further. The officer may have done the cautions,rights and warnings in an unusual order, however he clearly gave Richard Patenaude the information about his Charter right to counseland asked if he wanted to call a lawyer.

The opportunity was given. Perhaps it would have been wise for the officer to ask again at thepolice station, however, given the responses he’d received in the cruiser car, he chose not to. In considering all of the circumstances,however, the court finds no

section 10 (

b) Charter breach here. [22] As the Court has found no

section 8 or

section 10 (

b) Charter breaches as a result of the officers’ conduct, the evidence of onthe voir dire will be admitted as evidence in the trial of this matter. Original signed by:__________ ROBERT HEINRICHS, P.J. CASES REFERRED TO: 1. R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 2. R. v. Bate, (MB P.C.) 3. R. v. Golub, (1997) (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) 4. R. v. Macooh, (SCC), [1993] 2 S.C.R. 802 Robert Heinrichs, P.J.

E R R A T U M There is one correction in the above judgement, as follows: In paragraph 5, page 2, ending at line 2, the sentence should read: [5] Detective Prefontaine was the plain clothes officer who came running that evening. Dated this 18 th day of January 2011. __ _Original signed by: _______________ Robert Heinrichs, P.J.