R. v. Kroot, 2021 BCPC 139

Citation: R. v. Kroot 2021 BCPC 139 Date: 20210217 File No: 42229-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEBRA LORRAINE KROOT REASONS ON VOIR DIRE RE:

SECTION 8 and 9 CHARTER APPLICATION OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Accused: D. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: November 3, 2020 Date of Judgment: February 17, 2021

Introduction: [ 1 ] The defendant is charged with the operation of a motor vehicle while her ability to do so was impaired by alcohol and while her blood alcohol equalled or exceeded 80 mg. The charges arise out of events which occurred on January 29, 2019. [ 2 ] On that day, Cst. Kletka decided to stop the vehicle being driven by Ms. Kroot on the basis that she believed Ms. Kroot was driving well below the speed limit on the residential street where Ms. Kroot lives. Ms. Kroot did not stop immediately and Cst. Kletka followed Ms. Kroot, who drove into the attached garage of her residence. Cst.

Kletka stopped her police vehicle in the driveway, went into the garage and spoke to Ms. Kroot. Cst. Kletka detected an odour of alcohol coming from Ms. Kroot and performed an assistive roadside breath test, which ultimately lead to a demand to provide a breath sample at the detachment. That led to the current charges. Ms. Kroot asserts the following: • The police officer had no grounds to make a traffic stop; • Ms.

Kroot was unlawfully detained while in her garage and this constituted a breach of her right under s. 9 of the Canadian Charter of Rights and Freedoms not to be arbitrarily detained; • The entry by the officer into Ms. Kroot’s private property (the attached garage) and the evidence obtained from the time the officer spoke with Ms. Kroot was without a warrant and a breach of Ms.

Kroot’s right under s. 8 of the Charter to be free from an unreasonable search and seizure; • As a result of these two breaches, the evidence obtained by the officer should be excluded in accordance with s. 24 (2) of the Charter . [ 3 ] Both the Crown and the defendant have made some interesting arguments on the facts of this case. Crown counsel argues that the defendant's failure to stop was a fresh or new offence which gave the officer reasonable and probable grounds to arrest Ms. Kroot for flight from a peace officer. The Crown says that the officer was entitled to enter onto Ms.

Kroot’s private property and into the attached garage on the basis that Ms. Kroot’s failure to stop constituted an offence under s. 320.17 of the Criminal Code (flight from a peace officer) and the officer was engaged in a “fresh pursuit” or “hot pursuit” for that offence. [ 4 ] The defendant argues that s. 320.17 of the Criminal Code afforded the defendant with a reasonable excuse not to stop: the fact that the officer did not have reasonable grounds to effect a lawful traffic stop in the first place. Furthermore, Ms. Kroot argues that I should have a strong suspicion that the traffic stop by Cst.

Kletka was a ruse to allow her to conduct what would amount to an impaired driving investigation. The Evidence : [ 5 ] The facts in this case are a bit unusual. Cst. Kletka has been a member of the RCMP for 15 years and a member of the highway patrol since June, 2016. In a voir dire , the police officer testified that she was parked on the side of a residential street, S. Murphy Road, Campbell River, conducting traffic enforcement. She testified that she parked in this location because, in the week previous, she handed out numerous seatbelt and speeding tickets in that same area.

She was in a marked police vehicle and in uniform. [ 6 ] Coincidentally, the defendant lives on S. Murphy Street in a residence a short distance ahead of where Cst. Kletka was parked. [ 7 ] The officer testified that at approximately 10:55 hours that morning, she saw the defendant's vehicle approaching from behind and, in her opinion, was driving well below the speed limit of 50 km an hour. [ 8 ] Although she was not able to lock in her radar, she estimated that Ms. Kroot’s speed was approximately 30 km an hour.

The officer was not questioned as to whether or not her radar equipment was actually turned on or was working properly. [ 9 ] Cst. Kletka believed that she could lawfully stop this vehicle on the basis that s. 145 of the Motor Vehicle Act makes it an offence to travel below the posted speed limit. She had no other concerns about the manner in which the vehicle was being driven. She activated her emergency lights and siren, pulled out from her parking spot and pulled in behind Ms. Kroot’s vehicle as it drove by. [ 10 ] Ms. Kroot did not immediately stop but continued to drive a short distance along S.

Murphy Street until she turned left into her driveway, opened the garage door (likely remotely) and drove into her attached garage. The police vehicle dash cam video shows that during the time that Cst. Kletka followed her, Ms. Kroot had activated her left turn signal indicating her intention to make a left turn. The dashcam video has a clock which shows that Ms. Kroot drove past Cst. Kletka at 29 seconds and started to turn into her driveway at 46 seconds – a total of approximately 17 seconds. The officer pulled into Ms. Kroot’s driveway, behind Ms.

Kroot’s vehicle and walked into the garage directly to the driver’s door. When the defendant opened the door, the officer detected a strong odour of alcohol. She then began an investigation into an impaired driving offence which ultimately resulted in the aforementioned charges. Cst. Kletka never issued a violation ticket for the motor vehicle offence under s. 145 of the Motor Vehicle Act . [ 11 ] Cst. Kletka advised Ms. Kroot that she could smell alcohol, requested the key fob and told Ms. Kroot to step out of the vehicle and accompany her. Cst. Kletka took Ms. Kroot, with one hand on Ms.

Kroot’s arm, to the police vehicle parked at the end of the driveway. Ms. Kroot was given a demand and provided a breath sample into the approved screening device (ASD). She failed. [ 12 ] As a result, the defendant was given a further demand for a breath sample and taken to the RCMP detachment. As a result of the breath samples, Ms. Kroot was charged with the current offences. [ 13 ] The officer initially testified that she did not recognize the defendant as Ms. Kroot, someone she had dealt with before, until she was at the driver’s door.

[14] Cst. Kletka was asked when she recognized the vehicle and testified, after thinking about the question, that she recognized it "asit was driving up the driveway”, and that it was at that time that she "clued into it". [15] When she was asked if she had been to that residential address previously, after taking some time to think about the question, shetestified that "years ago I knocked on the door for a possible impaired complaint." That complaint originated from someone calling thepolice reporting that they believed a driver operating a vehicle was intoxicated and that the driver, Ms.

Kroot, was already at herresidence. Cst. Kletka testified that during this investigation, she attended at the residence on S. Murphy Street and spoke with Ms. Krootat the front door. [16] She could not recall what year this incident occurred, although testified that it must have been after June, 2016, when she beganworking in the highway patrol. She agreed that she was aware of the address, associated the address with the defendant's vehicle and helda discussion with Ms. Kroot relating to the impaired driving allegation. She could not recall if she told Ms.

Kroot she was going to "keepa watch on her", saying “it was a long time ago.” She couldn’t remember if she associated the S. Murphy address with Ms. Kroot’sresidence. [17] There was a second previous interaction between Cst. Kletka and Ms. Kroot. Cst. Kletka testified that on July 9, 2018, sheconducted an impaired investigation and issued an immediate roadside suspension to Ms. Kroot for operating the same vehicle. Duringcross-examination, she denied that she stopped Ms. Kroot just outside her residence, but couldn’t recall where this stop occurred, butagreed that it occurred on S. Murphy Street.

She agreed that it was possible that the stop occurred next to the driveway of the defendant'sresidence. She was able to recall that she issued an immediate roadside suspension and impounded Ms. Kroot’s vehicle for 30 days. The Legal Framework: [18] An officer may have grounds to conduct a traffic stop for slow driving under s. 145 of the Motor Vehicle Act. That

section states: Slow driving 145

(1) A person must not drive a motor vehicle at so slow a speed as to impede or block the normal and reasonable movement of traffic,except when reduced speed is necessary for safe operation or in compliance with law.

(2) If the driver of a motor vehicle is driving at so slow a speed as to impede or block the normal and reasonable movement of traffic, apeace officer may require the driver to increase his or her speed, or to remove the motor vehicle from the roadway to the nearest suitableplace and to refrain from causing or allowing the motor vehicle to move from that place until directed to do so by a peace officer. [19] There was no evidence from the officer that the movement of the defendant's vehicle was impeding or blocking traffic.

A dashcam video from the officer’s police vehicle depicting the events does not provide any additional evidence that would provide a basisupon which the officer had reasonable grounds to conduct a traffic stop of the defendant's vehicle for an offence under s. 145. Crownconceded that, while the officer may have subjectively believed that she could pull over any vehicle that was driving too slowly or belowthe posted speed limit, objectively, that belief could not be supported. I concur and his concession was appropriate. [20] That police officers may randomly stop motorists for a lawful basis is not in dispute.

The limits upon that power weresummarized in R. v. Young, 2020 BCSC 1201 @ para. 34 - 36: [34] There is no debate that police officers can randomly stop drivers of vehicles for reasons related to such things as checking licences,insurance, sobriety, and mechanical fitness. This is because traffic stops related to the enforcement of traffic, driving, sobriety, or othervehicle safety laws that are authorized under the Motor Vehicle Act, R.S.B.C. 1996, c. 318, and the Criminal Code, and do not infringes. 9 Charter rights: R. v. Kaddoura, 2009 BCCA 113, at paras. 12-13; R. v.

Woody, 2018 BCSC 2275, at para. 34. [35] However, random traffic stops are limited to their intended purposes. A traffic stop initiated for no valid purpose is flawed and abreach of the Charter: R. v. Harrison, 2009 SCC 34; R. v. Ladouceur, 2002 SKCA 73; and R. v. Nolet, 2010 SCC 24. [36] Subject to the foregoing, the police are not entitled to arbitrarily stop vehicles without reasonable and probable grounds to believethe occupants are engaged in criminal activity. They cannot stop a vehicle on a hunch that the occupants might be up to something andthey want to search the occupants or the vehicle: R. v.

Mellenthin, (SCC), [1992] 3 S.C.R. 615 at 629. [21] Ms. Kroot says that Cst. Kletka’s stated intention to stop her for driving too slowly contrary to s. 145, was nothing less than aruse to check on the defendant's sobriety. It was conceded that there was not sufficient evidence to elevate that to a factual finding, butthat I should be left with a strong suspicion. I agree with that assessment. There was no evidence from the officer that the defendant’srate of driving was so slow that it blocked or impeded traffic.

Furthermore, the officer's evidence about her reason for being parked inthat location suggests that her concern was with vehicles speeding on a residential street, not motorists driving below the speed limit. [22] I also observed, when viewing the dash cam video, that this is a quiet residential street. There was no evidence as to whetherchildren frequently are in that area, but I accept that drivers are generally encouraged to drive more slowly on quiet residential streets.Travelling at 30 km an hour, the speed that Cst.

Kletka estimated, is over half the speed limit, and does not come even close to providinga lawful reason for Cst. Kletka to conduct a traffic stop of Ms. Kroot for an offence under s. 145. I [23] My suspicion is premised on a number of other factors. Cst. Kletka had dealings with Ms. Kroot on two prior occasions - both inrelation to impaired driving. The second time was only about six months previously when she stopped Ms. Kroot on the same street andgave her a 90-day prohibition. On both prior occasions, Cst. Kletka was at or near Ms. Kroot’s residence on S. Murphy Street. My strongsuspicion is that Cst.

Kletka was parked a short distance from Ms. Kroot’s home waiting for an opportunity to stop her vehicle under theguise of a motor vehicle infraction but, in reality, for the purpose of conducting an impaired driving investigation. I watched the dashcamvideo a number of times and the place where Ms. Kroot turned into her driveway is clearly visible from Cst. Kletka’s parked position. Ialso observed from the video that Cst. Kletka’s brakes and emergency equipment were activated immediately as Ms. Kroot was drivingby the police vehicle. It is somewhat surprising that Cst.

Kletka, if she was intending to stop this vehicle for slow driving, didn’t observe

the vehicle for even a short distance before pulling out and activating her lights and siren. [ 24 ] The officer's evidence that "she couldn't get a lock on her radar” to confirm the speed of the defendant's vehicle is also surprising. There was no explanation or evidence relating to this, although I would expect that if she was looking for drivers who were speeding she would normally engage her radar. [ 25 ] Cst.

Kletka couldn't recall when she had previously conducted an investigation at the defendant's home for impaired driving although she had checked the address for the registered owner of the reported vehicle, went to the residence, and recalled having a conversation with Ms. Kroot. Cst. Kletka could recall that six months previously, on July 9, 2018, she issued an immediate roadside prohibition to Ms. Kroot on the same street and impounded Ms. Kroot’s vehicle for 30 days but couldn’t recall whether the incident occurred at or close to Ms. Kroot’s driveway. [ 26 ] There is also evidence that suggests that Cst.

Kletka knew who was driving the vehicle that morning before she went to the driver’s door. In direct examination, she gave evidence that the driver of the vehicle that was driving too slowly appeared to be a female but that she wasn't sure. However, in cross-examination, after being confronted with her statement to dispatch that "she's pulling into her house", she changed her evidence and testified that she could see that the driver was a woman as she drove by. [ 27 ] In the video, the officer told Ms.

Kroot that she could smell liquor on her breath "again" and, while giving her the roadside breath test, told the defendant that she was being honest with her as she has "in the past". She also told the defendant that she couldn't "just give her an IRP this time". [ 28 ] Finally, not once did Cst. Kletka advise Ms. Kroot that she was being stopped because she was driving too slowly, contrary to s. 145 of the Motor Vehicle Act . [ 29 ] Cst. Kletka appeared very reluctant to admit or recall evidence that suggested she knew that Ms. Kroot was the driver before she went into the garage.

To do so, would lend support to the Ms. Kroot’s theory – that Cst. Kletka’s traffic stop was a ruse. [ 30 ] While I accept that memories can fade over time, the totality of this evidence strongly suggests that Cst. Kletka did know that Ms. Kroot was driving that vehicle on that morning – before she approached the driver’s door in the garage. [ 31 ] As already conceded by Crown, Cst. Kletka did not have reasonable grounds to effect a traffic stop of Ms.

Kroot. [ 32 ] Under s. 73 of the Motor Vehicle Act , a motorist is required to immediately come to a safe stop when signalled or requested to do so by a peace officer: Failing to stop and state name 73

(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop.

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [ 33 ] There are limited rights for a police officer to effect a warrantless arrest for an offence under the Motor Vehicle Act : Arrest without warrant 79 An officer or constable of the Royal Canadian Mounted Police or of the police department of a municipality may arrest without warrant (

a) a person who the officer or constable finds driving a motor vehicle, and who the officer or constable has reasonable and probable grounds to believe was driving in contravention of

section 95 or 102, (

b) a person driving a motor vehicle who the officer or constable has reasonable and probable grounds to believe is not insured as required by this Act or does not hold a valid and subsisting motor vehicle liability insurance card or financial responsibility card, and (

c) a person who the officer or the constable has reasonable and probable grounds to believe has contravened

section 68, and may detain the person arrested until he or she can be brought before a justice to be dealt with according to law. [ 34 ] Clearly, none of these grounds for arrest applied in this case, and Cst. Kletka had no lawful grounds, or authority, to arrest Ms. Kroot for driving too slowly or to require her to stop. [ 35 ] However, Crown submits that the evidence is sufficient to establish that Ms. Kroot not only failed to stop, she increased her speed once the officer began to follow her, and relies on this to support the contention that Ms. Kroot was attempting to flee from Cst. Kletka.

Crown counsel says that flight from a police officer is a Criminal Code offence under s. 320.17 of the Criminal Code : Flight from peace officer 320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.

[36] On that basis, Crown counsel asserts that Cst. Kletka had reasonable and probable grounds to arrest Ms. Kroot for flight from apeace officer when she entered Ms. Kroot’s garage. In other words, the flight from Cst. Kletka was an intervening event that entitled theofficer to enter the garage and make an arrest. Furthermore, Crown counsel asserts that when the officer entered the garage, it was in thecourse of a "hot pursuit". [37] Cst. Kletka went immediately to the driver’s door and asked Ms. Kroot to open it, and told her that she was required to stop for apolice officer. Ms.

Kroot told the officer that she was going to turn into her driveway and garage (to stop), Cst. Kletka responded thatMs. Kroot was required to stop “immediately” and she would be serving her with “paperwork” for that. Cst. Kletka testified under cross-examination that by “paperwork”, she was referring to a violation ticket. I accept that this means a reference to the Motor Vehicle Act,not the Criminal Code. [38] Ms.

Kroot says that the officer's entrance into the garage was a warrantless search on private property, presumptivelyunreasonable and a breach of the s. 8 Charter right not to be subject to unreasonable search. Furthermore, on the basis that Cst. Kletka didnot have reasonable grounds to believe that Ms. Kroot was committing or had committed an offence, it amounted to an arbitrarydetention contrary to s. 9 of the Charter. [39] Garages, particularly attached garages, are considered to form an integral part of a person’s home and attract a high expectationof privacy: R. v. Belnavis, (SCC), [1997] SCJ No. 81 (QL); R. v.

Noerenberg, (ON SC), cited in R.v. Kaltsidis, 2005 ONCJ 388 , [2005] OJ No. 3733 (QL) @ para. 80, 97, & 98. [40] Crown did not disagree that the attached garage attracted a privacy interest. In these circumstances, the onus is on the Crown tojustify the officer’s actions and establish the reasonableness of the warrantless search on a balance of probabilities. Discussion and Analysis: [41] After reviewing the legal authorities provided to me, as well as hearing submissions and reviewing the supplemental argumentsprovided by counsel, it is my view that the primary issues in this case are whether Cst.

Kletka was pursuing Ms. Kroot who wasattempting to flee and evade capture or investigation, and, if answered in the affirmative, whether Cst. Kletka entered Ms. Kroot’sattached garage as part of a “hot or fresh pursuit”. [42] Over hundreds of years, common law has developed the fundamental principle that police officers have the power to enterprivate premises to make an arrest in hot pursuit: R. v. Macooh, (SCC), [1993] 2 SCR 802 @ para. 13. There arecompelling policy reasons for this exception.

It is not only unacceptable, but contrary to the public interest, for an offender to avoid alawful arrest simply by virtue of taking refuge in his home or that of another person. To allow such a practice would encourage offendersto flee so as to avoid their lawful arrest and also result in increased danger to police officers and the public.

Furthermore, in suchcircumstances, the offender is not entitled to avail himself of the refuge of his home in order to circumvent a lawful investigation or toprevent the gathering of evidence in the course of a lawful investigation. [43] This exception is premised on the principle that if an arrest without a warrant is permissible at the outset, the offender's flightinto a dwelling house cannot make it unlawful. Furthermore, a fresh pursuit or hot pursuit, must be a continuous pursuit in the sense thatthe pursuit and capture, along with the commission of an offence, form part of a single transaction.

Put another way, there must be "realcontinuity between the commission of the offence and the pursuit undertaken by the police: Macooh, paras. 22, 24 & 30. [44] In other words, the police must have reasonable grounds to arrest someone for an offence at the beginning of the pursuit andthere must be a nexus and proximity between that offence and the pursuit. [45] Therein lies the nub of this case. It is properly conceded by Crown that the officer did not have reasonable grounds to make atraffic stop of the defendant for the offence of driving too slowly contrary to s. 145 of the Motor Vehicle Act.

In fact, there was noevidence that there was anything of concern in the manner of Ms. Kroot’s driving that would give Cst. Kletka reasonable grounds to stopher or effect an arrest for any reason. [46] The Crown's submission that there was an intervening event justifying the "hot pursuit" is based upon the following evidencegiven in Cst. Kletka’s direct examination : Question: Why did you stop this vehicle? Answer: For slow driving. Question: When the car did not stop as a result of your emergency equipment and siren being activated, what did you determine?

Answer: Failing to stop for police which is also an offence. Question: Why did you go into the garage? Answer: It was in fresh pursuit of a vehicle not stopping for me. [47] A police officer is entitled to enter residential premises in hot pursuit, but that power is not unlimited. In my view, the reasoningof Lamer, C.J. in Macooh is relevant to the circumstances in this case: This does not mean, however, that the police can enter residential premises in hot pursuit in order to make an arrest for any kind ofoffence.

Clearly, the police have this power when a warrant has been issued against the offender; but if there is no warrant, there mustalways be an offence or circumstances which will allow the police to make an arrest without a warrant. This requirement, which was notdiscussed in connection with the present appeal because the power to make an arrest without a warrant was not challenged, is essential. Itensures that the right to enter applies only to offences or in circumstances which the legislature has considered sufficiently serious to

justify a power of arrest without a warrant. [Emphasis added] [48] The crux of the Crown argument is that the entry into Ms. Kletka’s residence was justifiable on the basis that the defendant hadcommitted an offence contrary to s. 320.17 and Cst. Kletka has reasonable grounds to arrest Ms. Kroot. That

section refers specifically to"being pursued by a peace officer". The meaning of the word "pursuit" in this

section of the Criminal Code has been interpreted to meana following with the intent to overtake: R. v. Kagayalingam, 2006 ONCJ 402 , [2006] OJ No. 4334 (QL) @ para. 38. In thecircumstances of that case, the defendant was travelling well below the speed limit and was followed by a police officer for a distance of.9 of a kilometre and for fourty-five seconds to one minute. The officer could have overtaken the defendant but did not need to do so. Inthose circumstances, Lipson J. found that this did not reach the level of a pursuit but was more of an “active following”. [49] Ms. Kroot was never charged with a criminal offence under s. 320.17. Furthermore, that

section requires a person, being pursuedby a peace officer, to stop "as soon as is reasonable in the circumstances". [50] In contrast, s. 73 of the Motor Vehicle Act requires the driver of the vehicle to immediately come to a stop when directed to do soby a police officer. [51] As soon as Cst. Kletka approached the defendant's driver's side door, she told the defendant that she is required to stop for apolice officer.

When the defendant responded that she was turning into and stopping in her garage, the officer's response was to tell Ms.Kroot that she had to stop immediately – the language used in the Motor Vehicle Act. Furthermore, the officer told the defendant that shewas going to be serving her with "paperwork for that" - a violation ticket. [52] During her cross-examination, she was asked if she agreed that there was no need to arrest the defendant for failing to stop. Theofficer had difficulty answering this question.

When she was asked a second time, her response was that she "didn't know for sure until[she] got up and started dealing with the person". [53] All these factors and the officer's evidence leads me to conclude that, while she was following Ms. Kroot, Cst. Kletka had notconsidered, let alone formed, reasonable grounds to arrest Ms. Kroot for an offence under s. 320.17. Instead, the officer was focused onutilizing the provisions of the Motor Vehicle Act to stop Ms. Kroot for the offence of driving too slowly contrary to s. 145. [54] I am also not satisfied that what occurred here was a "hot pursuit".

The defendant travelled a short distance after the officerpulled out behind her. Ms. Kroot signalled her intention to turn left, the left signal remained on and it took about 17 seconds from thetime Cst. Kletka pulled out, for Ms. Kroot to turn into her driveway. [55] I did consider the Crown submission that Ms. Kroot “sped up” after Cst. Kletka pulled out behind her. The dashcam video showsthe apparent speed of the police cruiser from the time she first pulled out to the time she stopped in the driveway.

The speed of thecruiser gradually increases and is briefly up to 58 km per hour during the time she is trying to catch up with Ms. Kroot’s vehicle. Therewas no evidence about the speed of Ms. Kroot’s vehicle once Cst. Kletka pulled out to stop her. Cst. Kletka was not cross-examinedabout this but there was also no evidence in direct examination that Cst. Kletka had her radar engaged that would have confirmed Ms.Kroot’s speed. I am not able to conclude, beyond a reasonable doubt, that Ms. Kroot “sped up”. [56] Given the short distance that Ms.

Kroot travelled, and the relatively low speeds, the officer could have overtaken the defendantbut did not do so. Rather, she simply followed the defendant into her driveway. This is much more akin to the "active following" referredto in Kagayalingam, than an active pursuit of someone who is intent on fleeing from the police to evade capture. [57] If Cst. Kletka had no grounds to effect a traffic stop of Ms. Kroot‘s vehicle, she also had no grounds which would allow her tofollow Ms.

Kroot into her driveway and attached garage for the purpose of making that traffic stop. [58] Based on the evidence and my conclusions, this cannot be converted into an intervening event (flight from a peace officer) toprovide a lawful basis for Cst. Kletka to arrest Ms. Kroot for an offence under the Criminal Code. [59] However, the circumstances became more complicated once Cst. Kletka stopped Ms. Kroot and spoke to her. This led to animpaired driving investigation when Cst. Kletka detected the strong odour of alcohol emanating from Ms. Kroot.

At this point, Cst.Kletka’s grounds to conduct an impaired driving offence were justifiable both subjectively and objectively. Ms. Kroot admitted that shehad consumed alcohol about one hour previously, she failed the approved screening device, and provided breath samples at thedetachment which ultimately resulted in Ms. Kroot being charged with the current offences. [60] To summarize, based on the evidence that I accept, I conclude the following: • Cst. Kletka’s stated intention was to make a traffic stop of Ms. Kroot’s vehicle for driving too slowly, contrary to s. 145 ofthe Motor Vehicle Act; • Ms.

Kroot did not immediately stop when Cst. Kletka pulled out behind her with her siren and emergency lights activated; • Ms. Kroot continued a short distance along S. Murphy Street, signalled a left turn throughout the majority of the time Cst.Kletka followed to her residence and made a left turn into her driveway and attached garage; • The time between Cst. Kletka pulling out until Ms. Kroot entered her driveway was approximately 17 seconds; • Cst. Kletka was not in “hot pursuit” of Ms. Kroot, but followed Ms.

Kroot to her residence and garage for the previouslystated purpose of making a traffic stop; • The traffic stop ultimately occurred or crystallized when Ms. Kroot parked in her garage with Cst. Kletka’s police cruiser

parked behind her in the driveway of the residence; • Cst. Kletka did not have reasonable grounds to make a traffic stop of Ms. Kroot; • Cst. Kletka did not have reasonable grounds to arrest Ms. Kroot for the offence of flight from a peace officer, contrary to s.320.17 of the Cr. Code; • Prior to entry into the garage and speaking with Ms. Kroot, there was no evidence, or any other circumstances, that wouldgive Cst. Kletka reasonable grounds to believe or even suspect that Ms. Kroot was operating a vehicle while impaired by alcohol; • There were no exigent circumstances that would allow Cst.

Kletka to enter into Ms. Kroot’s garage and conduct aninvestigation by speaking with her. Conclusion: [61] Ms. Kroot had a reasonable expectation of privacy in her attached garage and is entitled to protection under s. 8 of the Charter –the right to be secure against unreasonable search or seizure. The odour of alcohol detected by Cst. Kletka and the subsequent breathsamples were searches. I have concluded that Cst. Kletka did not have a lawful reason to speak with Ms. Kroot and was not entitled toenter Ms.

Kroot’s attached garage unless she had a warrant, was in hot pursuit or there were exigent circumstances: R. v. Norerenberg, (ON SC), [1997] OJ No. 4628 (QL); R. v. Feeney, (SCC), [1997] 2 SCR 13. [62] None of these exemptions apply so as to entitle Cst. Kletka to lawfully enter the attached garage. Flowing from that, the evidencethat Cst. Kletka obtained when Ms Kroot opened her car door and thereafter, was an unlawful search and seizure and contrary to s. 8 ofthe Charter. [63] I also conclude that Ms. Kroot has established, on a balance of probabilities, that she was detained by Cst.

Kletka when Cst.Kletka stopped her police vehicle in the driveway behind Ms. Kroot’s vehicle and approached the driver’s door. This detention waswithout lawful grounds and therefore was an arbitrary detention contrary to s. 9 of the Charter. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia