Her Majesty the Queen - v. -, 2012 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 042 Date: March 29, 2012 Information: 24296843 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Rogers Appearing: Adam M. Breker For the Crown Lori A. Dunford For the Accused JUDGMENT K. BAZIN , J [ 1 ] The case for the Crown went in under a voir dire , and the parties have requested after my ruling on the issues in the voir dire to then argue remedy under s. 24(2), if there are any findings of a breach of Charter rights. [ 2 ] The following issues have been raised:

(1) Did the officer enter the dwelling-house of the defendant?

(2) Did the officer have reasonable grounds to suspect that the defendant had alcohol or a drug in their body in the preceding three hoursto require an ASD demand?

(3) Did the officer have reasonable grounds under s. 254(3) for a breath demand?

(4) Were the defendant’s rights to counsel breached?

(5) Was the defendant arbitrarily detained?

(1) Did the officer enter the dwelling-house of the defendant? [3] The definition of dwelling-house is under s. 2 of the Criminal Code being: “dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence,and includes (

a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way,and (

b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence. [4] The definition of s. 2 dwelling-house, and particularly curtilage, has been reviewed as to apartments and in R. v. Krychowice,[2004] N.S.J. No. 436; R. v. Nguyen, [2004] O.J. No. 2698 and R. v. Chomik, 2011 CanLII J.

No. 500, 2011 ABPC 152, have held thatthe hallways and secure underground garages to apartments in multiple unit complexes fall under dwelling-house. [5] In the present case, the evidence is that the defendant’s apartment has a secure door, that you buzz the tenant to be let in. Cst. deChief indicated that the security door on the defendant’s apartment was open so he simply went in. He then went down thehallway to the defendant’s apartment. The constable testified he assumed that there was a buzzer system but he could not say for sure.

He also testified that if the security door had not been open, he would not have entered but would have buzzed the apartment to gainpermission to come up to the defendant’s apartment. The defendant testified there is a security door that requires a visitor to buzz theapartment residents for entry. [6] As such the defendant argued that the implied licence to knock ends at the security door. There is no evidence the buzzer orintercom system was not working. As such the officer simply entering the apartment, because the door is open, is similar to walking intoa person’s apartment, simply because the door is open.

As the officer entered the accused’s dwelling without a warrant, for the purposeof obtaining evidence and did obtain evidence, the onus is on the Crown to show on a balance of probabilities the search was reasonable. [7] If I am incorrect in my assessment as to where the licence to knock ends, when viewing these matters as to whether a licenceto knock permission was exceeded, one has to look at the purpose of the officer attending the defendant’s apartment, and knocking onthe door.

The constable testified he was going to the apartment as part of his investigation for a motor vehicle accident to see if thedefendant had been the driver and to see if he was the driver, whether his ability to operate a motor vehicle was impaired. [8] The constable was attending to conduct a search for evidence. As such following the Supreme Court of Canada in R. v.Evans, (SCC), [1996] S.C.J.

No. 1, the constable exceeded the authority conferred by the implied licence to knock. [9] As held in Evans, if approaching the defendant’s door was for the purpose of searching and obtaining evidence against theoccupant, the police are engaged in a search of the occupant’s home. [10] The question then is, was the search reasonable under s. 8 of the Charter.

[ 11 ] As set out in Evans , a warrantless search is presumed unreasonable and the Crown has the onus of showing that it was reasonable. As found in Evans , if there is no valid warrant the search of a dwelling is unreasonable, and following Evans I find that the search in this matter to be a breach of s. 8 of the Charter .

(2) Did the officer have reasonable grounds to suspect that the defendant had alcohol or a drug in their body in the preceding three hours to require an ASD demand? [ 12 ] The grounds for the ASD demand and the breath demand have been challenged by the defendant as insufficient. The grounds for both, as testified by the constable are the same: (

a) responding to a complaint about a possible impaired driver taken over the police dispatch system; (

b) very slurred speech; and (

c) staggering or stumbling, wide gait walk while walking up the stairs, stumbling up the stairs. [ 13 ] The Criminal Code , s. 254(2), requires the constable to suspect that the person has alcohol in their body and in the previous three hours had operated a vehicle, for an approved screening device demand (ASD). [ 14 ] In this case, the constable does not smell alcohol and there is no mention of an odour of alcohol coming from the accused. [ 15 ] The officer testified that it was slurred speech and watching the defendant’s gait or walk that were his grounds.

He also, by the time of the ASD demand, knew that the accused was the driver and that the car had been in an accident, although the defendant alleged that someone had backed into his car. [ 16 ] I find that the constable did have subjectively and objectively reasonable grounds to suspect that the defendant had alcohol in his body, even though there was no smell of alcohol and no admission as to drinking. [ 17 ] The constable was investigating an accident and a possible impaired driver, and did observe very slurred speech and stumbling or walking difficulties, going up the apartment stairs by the accused.

He also had the knowledge that a vehicle was in an accident which he had identified as the accused’s vehicle by the licence plate. In addition the officer had just been advised by dispatch a few minutes before attending the defendant’s residence, as to the impaired driving complaint. As such, with this knowledge, it is objectively reasonable to suspect that the defendant had alcohol in his body and had been driving in the past three hours.

(3) Did the officer have reasonable grounds under s. 254(3) for a breath demand? [ 18 ] On the evidence I find that the constable did not have objectively reasonable grounds to demand a breath sample under s. 254(3). [ 19 ] This test is higher than a mere suspicion, and from the officer’s own testimony, he indicated throughout his testimony he was wanting to use the ASD to confirm his suspicions. While the Crown argued that one should not get too hung up on the terminology the constable is using, from his continued use of the word suspicion, he knows that this is the requirement for the ASD.

As well as observing him testify, I find that when the constable was using the word suspicion, it was exactly that, he was going to use the ASD to confirm his suspicions that the accused had alcohol in his body, and from there would determine if he would make a breath demand. [ 20 ] The accused was unable to provide a sample so the officer then arrested the accused for impaired driving. The defendant is not charged with refusal of the ASD. The defendant was transported to the police station and at the police station Cst. deChief makes

the breath demand. During this time there was no new evidence that would support the officer’s reasonable grounds for the breathdemand at the police station, other than seeing the accused walk a bit further. The officer confirmed it was the very slurred speech andstumbling up the stairs of the apartment that was the basis for the breath demand. [21] I had recently reviewed this area in my oral decision in R. v. Steinke (March 5, 2011), Estevan 24297442 (Sask. Prov.

Ct.),where that accused had slightly bloodshot eyes, glassy eyes, very strong odour of liquor, and told the officer he had a couple of beer twohours ago and seemed steady on his feet. There were no driving irregularities in the Steinke matter although the officer had followed thedefendant and observed his driving patterns. [22] I held there was no objectively reasonable grounds, for the breath demand, after reviewing R. v. Stephens, 2011 SKQB 342CanLII; R. v. Gunn, 2010 SKQB 63 CanLII; and R. v. Churko, 2010 SKPC 5 CanLII and following the test set out in R. v. Shepard, 2009SCC 35 , 2009 S.C.J. No. 35, 331 Sask.

R. 306, 2009 CarswellSask 430, [2009] 8 W.W.R. 193 and R. v. Bernshaw, [1995]S.C.R. 254. The defendant also cited R. v. Leech, 2011 S.J. No. 585 which also found no objectively reasonable grounds for thedemand. I find the constable did not have objectively reasonable grounds for the breath demand. I also note from my observations thatMr. Rogers when in court when he walks, he does not walk as one might think a normal person would walk, as you can tell that he hassome issues walking and I would describe it as an irregular walk.

He later testified that he has had arthritis issues since he was 16 andthis confirmed my suspicions that he appeared to walk somewhat unusual. [23] The Crown cited R. v. Restau, 2008 SKCA 147. This case had more evidence to support a determination of reasonablegrounds. Equally the Crown put forward R. v. Rhyasson, 2007 SCC 39 , 2007 S.C.C. 39. Rhyasson confirms the two-stage testas set out in Bernshaw, (SCC), [1995] 1 S.C.R. 254. In Rhyasson we have as one of the factors as to driving that theaccused hit and killed a pedestrian as it relates to driving irregularities.

Both Restau and Rhyasson are not factually similar to support theCrown’s position that the constable had objectively reasonable grounds. There is no issue that Restau and Rhyasson are correctly settingout the law.

(4) Were the defendant’s rights to counsel breached? [24] As to the right to counsel before the ASD arrives, I do find that in the circumstances the wait was such that it was not unreasonable such that the rights to counsel were required to be given. The accused requested counsel at 15:48 and 20 minutes later, heis given the chance to speak to counsel once at the police station. The defendant arrives at the police station at 16:02 but he is not giventhe opportunity to speak to counsel until 16:18 being approximately 16 minutes.

The issue is that the officer first questions the accusedduring these approximate 16 minutes and then asks him if he still wants to talk to a lawyer at 16:13 and once this is confirmed, hearranges for the defendant to talk to a lawyer which ends up being Legal Aid. [25] The problem is the constable questions the accused after saying he wanted to talk to a lawyer, and this is a direct disregard asto the accused’s rights to counsel. As set out in R. v.

Prosper, (S.C.C.), the statements given by the accused afterrequesting the right to counsel and before being provided the opportunity to speak to counsel are not admissible. In this sense thedefendant’s rights were breached. The Crown did not pursue tendering this evidence.

(5) Was the defendant arbitrarily detained? [26] As stated the Crown did not enter the verbal statement given to Cst. deChief that was obtained after the defendant requested tospeak to counsel and before he was given the opportunity to speak to counsel. The defendant however did give a written statement priorto being released, and I have to determine the voluntariness of the statement. In this matter I do not find the statement was voluntary forthe following reasons: 1.

The accused was arbitrarily detained when asked to give his statement, as he had been arbitrarily detained as I found that the constabledid not have reasonable grounds pursuant to s. 254(3) for the breath demand, and as such the defendant was arbitrarily detained. He wasarbitrarily detained for approximately 17.5 hours. 2. The defendant testified and I accept his testimony that after he was fingerprinted at around 6:03 in the morning he overheard an

officer indicate to the officer who was doing the fingerprinting “not to spring him until Cst. deChief had a chance to speak with him”. He was then detained for approximately 2.5 more hours until Cst. deChief spoke to him and obtained a written statement from him at 8:49 a.m. [ 27 ] The defendant testified that he was of the impression that he was required to speak to Cst. deChief before he would be released.

He also testified that he gave his statement as he had basically told the same thing to the constable previously, which was the verbal statement given to the constable after he had asked to speak to a lawyer. The accused felt he really had no option as he had pretty well told the constable everything prior. The constable testified he did not advise the defendant that there may be some problems with the verbal statement that he had previously given to him.

The reading of the traditional warning as to the statement does little to outline that what the defendant had told the constable earlier could not be relied upon by the police, and the defendant was not told this. In order to properly provide and make a voluntary statement the defendant has to be fully informed as to the circumstances regarding a warned statement.

If he was told that the constable would like to have a written statement from him to be used against him, as the previous verbal statement could not be used, I suspect that the defendant would have declined to provide a written statement. [ 28 ] Having made the foregoing findings, counsel now have leave to argue the remedy under s. 24(2) of the Charter . K. Bazin, J