R. v. Kim Date:, 2016 BCPC 446

Citation: R. v. Kim Date: 20161208 2016 BCPC 446 File No: 39961-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUN HO KIM RULING ON VOIR DIRE OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: April 29, July 27, 2016 Date of Judgment: December 8, 2016

Introduction [1] Arising from events on May 30, 2015, Mr. Kim is charged with having care and control of a motor vehicle while his ability todo so was impaired by alcohol or a drug, contrary to s. 253 (1) (

a) of the Criminal Code and operating a motor vehicle in a mannerdangerous to the public contrary to s. 249 (1) (

a) of the Criminal Code. [2] Mr. Kim seeks to exclude evidence obtained by Cst. Doerr and Cst. Clemens consisting of photographs of Mr. Kim’s vehiclewhile he was behind the wheel and observations of Mr. Kim during their encounter. He argues that the acquisition of this evidenceconstituted a warrantless search contrary to his rights pursuant to s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms. Accordingly, it ought to be excluded under s. 24 (2). [3] The Crown submits that because the evidence in question was obtained while Mr.

Kim and his vehicle were parked in hisdriveway and in plain view of the public, there was no reasonable expectation of privacy, the police officers had an implied licence toenter onto the driveway and the evidence was lawfully obtained. Therefore, it is argued that the actions of the police did not amount to asearch and the evidence is admissible. [4] The key issue in this case is whether Mr.

Kim’s reasonable right to privacy extends to a situation in which he is an unconsciousoccupant of his motor vehicle while parked on the driveway leading to his residence. [5] During the trial I declared a Voir Dire for the purpose of determining the admissibility of the evidence obtained by Cst. Doerrand Clemens in the driveway of the residence. [6] Mr. Kim carries the onus to prove that, on a balance of probabilities, his rights have been breached. [7] The evidence was that at approximately 1:30 a.m., Cst.

Doerr was dispatched following a 911 call that a red Mustangconvertible had been involved in a single vehicle accident and had crashed into community mailboxes near 747 Nelson Road, CampbellRiver. It was reported that the driver of the Mustang had left the scene and was parked at the top end of Nelson Street in the drivewaywith the driver still in the vehicle. [8] Approximately five minutes later, Cst. Doerr arrived in the area and saw a red Mustang parked in the driveway at 2756Penfield Road which is near the top of Nelson Road.

The headlights and rear tail lights were on and the engine was still running. [9] Cst. Doerr testified that based on the information she had been given and upon seeing the vehicle stopped in the driveway, shesuspected she was dealing with an impaired driver who was still in the vehicle and that the driver may have been involved in a hit andrun accident involving property damage. She didn’t consider getting a search warrant and based on her training and experience she felt itwas unnecessary in the circumstances. [10] Cst. Doerr walked up to the vehicle, saw Mr.

Kim in the driver’s seat with his hands in his lap, his head leaning back on thehead rest with his eyes closed. The keys were in the ignition and he appeared to be sleeping or, in her words, “passed out”. She didn’tsuspect a head injury - there were no air bags deployed and no marks on his head or other injuries observed. [11] The vehicle was in park and upon walking around the car she noted extensive damage to the right front and right side of thecar. She retrieved her camera and took photographs of the driver, Mr. Kim, as well as the damage to the front and both sides of the car. [12] During this time, Cst.

Clemens also arrived on scene. Once the photographs were taken, Cst. Clemens opened the driver’s doorand tried to wake Mr. Kim and noted the overpowering smell of liquor. He announced that he was a police officer a few times, each timemore loudly and asked if Mr. Kim knew he had been in an accident. He finally responded and provided his name. When asked for hisdriver’s licence, Mr. Kim replied that he was home. Mr Kim’s speech was described by both officers as slurred. [13] Mr. Kim kept falling asleep and would not step out of the vehicle, stating that he was home. [14] Both officers formed the opinion that Mr.

Kim was impaired by alcohol. He had to be pulled out of the vehicle by both officersand was laid on the ground. The officers made a number of other observations of Mr. Kim’s behaviour which formed additional groundsfor their opinion that he was impaired. [15] Mr. Kim was taken to the police detachment and subsequently released. [16] Mr. Kim testified in the Voir Dire. He confirmed that he was parked in the driveway to his residence and that he was asleepwhile his engine was running and when the police were taking the photographs.

He agreed that his car would be visible to anyonewalking by in the street, that he normally did not sleep in his vehicle and that people walking by would see him in his vehicle. The Law [17] A citizen has the right to be secure against an unreasonable search: s. 8 Charter of Rights. The primary objective of s. 8 is topreserve the privacy interests of individuals from unjustified state intrusions upon that privacy. Consequently, it is only where a policeinvestigatory technique intrudes upon an individual’s reasonable privacy interest that constitutes a “search” within the meaning of s. 8 ofthe Charter: R v.

Evans, (SCC), [1996] 1 S.C.R. 8, para.11. [18] A search without a warrant is presumptively unreasonable and would require the Crown to rebut this presumption. [19] Counsel for Mr. Kim acknowledges that the public, including police officers, have an implied licence to approach the door of aresidence and knock: Evans, (supra), para.13.

[20] Sopinka J. in Evans approved of the following passage from the Ontario Court of Appeal in R. v. Tricker (1995), (ON CA), 21 O.R. (3d) 575, at p. 579: The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, onlegitimate business to come on to the property.

The implied licence ends at the door of the dwelling. [21] If the police are acting within the scope of this implied invitation or licence, the individual essentially waives his or her privacyinterest unless rebutted by a clear expression of intent: Evans, para. 13. [22] In Evans, police officers approached the door of a residence and knocked with the intention to detect the odour of marijuanainside the home. [23] The court determined that the purpose of the police in going up to the door was to obtain evidence against the occupant as theyhad only been provided with an unconfirmed anonymous tip.

Upon the door being opened, the police smelled marijuana which formedthe grounds to obtain a search warrant which then led to an arrest. The search was found to be unreasonable but the evidence wasadmitted on the basis that to exclude it would bring the administration of justice into disrepute. [24] The intention of the police in approaching a residence is relevant in determining whether the activity is a search.

The policyreasons for this were discussed in Evans at para. 20: If…intention is not a relevant factor, the police would then be authorized to rely on the “implied licence to knock” for the purpose ofrandomly checking homes for evidence of criminal activity.

The police could enter a neighbourhood with a high incidence of crime andconduct surprise “spot-checks” of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approachthe door and knock…. …where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accusedthrough “knocking on the door”, the police have exceeded the authority conferred by the implied licence to knock. [25] Since that decision, courts across Canada have considered a number of cases in the context of an implied invitation to enter ontodriveways that lead to a residence. [26] In Tricker, a police officer followed a driver who appeared to be speeding onto his driveway and requested his driver’s licenceand insurance documents.

The officer carrying out an investigation pursuant to the Highway Traffic Act was found to have a lawfulreason to enter on to the property to request information from the driver and was acting within the scope of the implied licence. [27] In R. v. Lotozky, (ON CA), [2006] O.J. No. 2516 (O.C.A.) the police waited at the residence of Mr.Lotozky as a result of a caller indicating that Mr. Lotozky was an impaired driver. Mr. Lotozky turned into his driveway and oncestopped the police approached the vehicle and knocked on his window. A request was made for insurance, registration and licenceinformation.

Based on their observations both before he turned into the driveway and upon questioning, the police believed Mr.Latozky’s ability to drive was impaired by alcohol and he was arrested. In overturning the trial judge and

summary appeal judge, theOntario Court of Appeal concluded that the police actions of tapping on the window and the investigative technique of questioning therespondent on his driveway to check his sobriety were not unlawful.

In the circumstances, they had a legitimate reason for entering onthe driveway. [28] In discussing the parameters of the police to conduct an investigation on private property, the court said this at para. 18: ...merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not in my view, constitute asufficient intrusion to be considered a search. There must be something more as in the perimeter search cases, peering in windows of thehome and trying to detect odours from within.

Put another way, not every trespass on to private property by police can constitute asearch. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure. [Emphasisadded] [29] And at para. 32: In my view, there is a fundamental difference between the police conduct of knocking on the door of a dwelling house to investigate theoccupants discussed in Evans and merely entering on to a driveway. The latter does not involve an investigation of persons in their ownhome. 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 tothe public. The scope of the implied invitation must be analyzed in that context. [30] Mr. Kim argues that in so far as the “driveway cases” stand for the proposition that there is an expectation of privacy, albeit areduced one, while in a driveway, they need to be carefully examined in the context of the following words by Sopinka, J. in Evans, para15: In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant ofthe dwelling.

The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect thispurpose. As a result, only those activities that are reasonable associated with the purpose of communicating with the occupant areauthorized by the “implied licence to knock. [31] Defence counsel argues that the decisions in which police officers were found to have had an implied licence to enter adriveway to request a driver produce a driver’s licence and insurance (Tricker, Lotozky) are distinguishable as in each of those cases,there was actual communication between the accused and the police.

That, he says, is not the situation here because Mr. Kim was notconscious when the police took the photographs and no attempt was made to communicate with Mr. Kim until after they gatheredevidence (the photographs) in their investigation.

[ 32 ] A case involving a similar circumstance was considered in R. v. Soal (2005), 19 M.V.R. (5 th ) (Ont. C.A.) referred to in R. v. Lotozky , para. 39 (supra). There, a police officer received a third party report of a possible impaired driver and was given an address. The officer arrived and found the vehicle running and parked in the driveway. He approached the vehicle and found the driver passed out in the driver’s seat.

A breathalyser demand was made after the man left the vehicle. [ 33 ] In upholding the right of police officers to enter private property to conduct an investigation in these circumstances, the court distinguished between entering on to private property such as a driveway and entering a dwelling house. [ 34 ] Our Court of Appeal in R. v.

Johnson , 45 B.C.A.C.102 at para. 8 found on similar facts that ‘the driveway leading to the residence constituted … an implied invitation to enter upon the property” and make inquiries about the operation of the motor vehicle. [ 35 ] The Supreme Court of Canada in Evans clearly expressed concerns that limits were needed to circumscribe the ability of the state to approach the door of a residence and, once the door was opened , to gather evidence to support criminal charges. It was the context of the importance of privacy rights in an individual’s home, that the implied licence was limited in scope.

Thus, the licence was to permit convenient communication with the occupant and those activities reasonably associated with the purpose of communicating. [ 36 ] An implied licence to enter onto property may also arise by implication from the nature of the use: Lotozky , citing R. v.

Mulligan , supra, para 33: …the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view. [ 37 ] There are valid policy reasons for this approach: It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired.

It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street. [ 38 ] Counsel for Mr. Kim also argues that because Cst. Doerr was not in “hot pursuit” of Mr. Kim’s vehicle, it is distinguishable from the facts in R v. Halloran , 2007 BCSC 1425 . There a police officer attempted to pull over a suspected impaired driver. The driver did not stop until he pulled into his driveway. The trial judge found that the privacy right extended beyond an individual’s dwelling to the property upon which it is situated.

The trial judge applied Evans and held that the police exceeded the implied licence to enter upon the property - the driveway - because they went on the property to investigate a criminal offence. Accordingly, the search was warrantless and therefore presumptively unreasonable. [ 39 ] On appeal, in overturning the trial decision, Cullen J. distinguished Evans and relied on R. v. Lotozky (para 32 ): In my view, the reasoning and holding of the Supreme Court of Canada in Evans is directed at a different set of circumstances from those at bar….

Evans is concerned with police activities directed at penetrating the expectation of privacy that insulates dwellings and occupants of dwelling. As the Court in Lotozky makes clear, what happens on the driveway of a property on which a dwelling house stands is not subject to the same insulation against police investigation as the dwelling itself, because of the implied invitation to enter upon a driveway which is exposed to both public view and ready communication. [ 40 ] Counsel for Mr.

Kim asserts that Halloran is distinguishable in that before he pulled into his driveway Halloran was attempting to evade the officer who was in pursuit.

In addition, in Halloran , the officer was able to communicate with him while in the driveway. [ 41 ] Cullen J. held that the actions of the police officer who entered onto a driveway to check on the possible impairment of a driver and perhaps because the accused did not stop, was for a legitimate purpose. [emphasis added] [ 42 ] With respect, I do not agree that it is necessary that the officer be in “hot pursuit” [ 43 ] Cullen J.’s comments referring to Lotozky at para. 37 : In my view, those findings do not support the proposition that the police can enter on the driveway only if they previously acquired reasonable and probable grounds to arrest, as Rosenberg J.A. clearly contemplated the presence of an ongoing investigation to acquire such grounds. [ 44 ] In this case, Mr.

Kim was unable to communicate until, after a number of attempts, he was awakened by the police officers. I accept that when the police first entered on to the driveway, their purpose was to communicate with the driver to determine if a motor vehicle or criminal offence had occurred. Had Mr. Kim been conscious, I expect that he would have been asked to produce his driver’s licence and insurance documents. Once the officers determined that Mr.

Kim was asleep or passed out, and that he was not in medical distress, were the officers obligated to wake him before taking the photographs? [ 45 ] I am not persuaded that because the officers did not attempt to speak with Mr. Kim before the photographs were taken, they exceeded the scope of the implied invitation and were therefore not legitimately on the property. In my view, the scope of the implied invitation should not be so narrowly interpreted.

The passage in Evans at para. 5 relied upon by the defence must be considered in context of police powers to investigate what is not in plain view and therefore private. When a police officer knocks on the door if the individual inside is asleep or is unable or unwilling to answer the door, the police can do nothing more. However, until the door is opened there can be no communication and the implied invitation for the purpose of communicating is with the occupant inside a residence. [ 46 ] Cst.

Doerr and Clemens were responding to a 911 call from a person who had observed that a red Mustang convertible had crashed into a community mail box on Nelson Street, saw the driver leave the scene of that accident and stop a short distance away in the driveway of a residence. The driver was reportedly still inside the vehicle.

[ 47 ] I find that Mr. Kim’s red Mustang and Mr. Kim himself were visible to any member of the public walking or driving by, and was also in plain view of his neighbours. In fact, it was a neighbour who called 911 for police assistance and reported his observations. The damage located on the passenger and driver sides of the Mustang would also have been plainly visible.

I find that in those circumstances, he did not have a reasonable expectation of privacy. [ 48 ] This is to be distinguished from the privacy interest that individuals have inside their own homes and is not analogous to police peering into windows of a residence or trying to detect odours from within. [ 49 ] I find that Officers Doerr and Clemens had a legitimate reason to enter onto Mr. Kim’s driveway to investigate whether or not the driver of the red Mustang was an impaired driver or in care and control of a vehicle while impaired or had been involved in a hit and run accident.

As part of the investigation, Cst. Doerr took photographs of Mr. Kim and his vehicle while he was asleep or passed out behind the wheel of his car. Cst. Doerr and Clemens did not gather any evidence that was not already easily observable by them and the photographs simply served as a record of their own observations. [ 50 ] I conclude that Cst. Doerr and Clemens were within the scope of the implied licence or invitation to enter on to a property. Mr.

Kim did not revoke that licence at any time and it was not revoked because he was incapable of doing so. [ 51 ] That being said, I do not want to be taken to give police officers carte blanche when investigating an individual who is incapable of revoking consent. The officers still must act within the scope of the implied licence and no further. For example, they could not have opened the trunk of Mr.

Kim’s vehicle or searched the inside of his residence. [ 52 ] As described in Lotozky at para. 27 , there are valid policy reasons for characterizing the officers’ actions as within the scope of the implied licence: It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high speed police chase. Further, until the impaired driving complaint was investigated there was a risk than an impaired driver would re-enter the vehicle and drive while impaired.

It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street. [ 53 ] I adopt that reasoning in this case. Furthermore, it would not be reasonable for a police officer to wait until a driver who is asleep or passed out awakens so that he can then be questioned. [ 54 ] In the event that I had found that the evidence was as a result of warrantless search and the search was unreasonable, the evidence obtained by Cst.

Doerr and Clemens - the photographs and their observations of him before and after the photographs were taken - would have been admitted under s. 24 (2) of the Charter . [ 55 ] I am mindful that I must balance the effect of admitting evidence obtained in contravention of a Charter right as well as society’s interest in having a case tried on its merits: R. v. Grant , 2009 SCC 32 . [ 56 ] In terms of the seriousness of the conduct, the police were acting in good faith following up a call from a neighbour who had observed the events unfolding; the intrusion into Mr.

Kim’s privacy was not so egregious or invasive that to admit it would negatively impact the repute of the justice system; and finally, impaired driving offences are serious and to exclude the evidence would undermine the confidence of the community in the administration of justice. [ 57 ] In conclusion, the photographs and observations of Cst. Doerr and Clemens of Mr. Kim and his vehicle while it was parked on his driveway, and while he was asleep or passed out, did not constitute a search pursuant to s. 8 of the Charter .

Even had I found that there was a breach, I would have admitted the evidence pursuant to s. 24(2) of the Charter . BY THE COURT The Honourable Judge B. Flewelling Provincial Court of British Columbia