Her Majesty the Queen - v. -, 2016 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 059 Date: April 26, 2016 Information: 90014677 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trevor Grant Mitchell Appearing: Drew Gillespie For the Crown Barry Nychuk For the Accused RULING ON VOIRE DIRE B.D. HENNING , J [ 1 ] The Accused person in this case, Trevor Grant Mitchell, is charged with alcohol related driving offences alleged to have occurred on November 21, 2015.

The Defence has raised Charter issues with respect to the actions of the police investigator who opened the car door, made observations and in due course arrested the Accused for impaired driving. The Defence alleges an unlawful detention, search and arrest.

[ 2 ] The Accused, Mr. Mitchell, was seated in a vehicle parked in a public parking lot that served several business premises at the south end of the Golden Mile Plaza in Regina, Saskatchewan, including the Broken Rack Bar. The parking lot was accessed from Parliament Avenue. A 2014 Volkswagen Jetta vehicle that proved to be the Accused’s was parked on the southeast corner of the parking lot. The lights were on and Constable Jared Spears, who was one of two constables who attended in a patrol vehicle gave the evidence describing the scene, and stated that he suspected it could be a stolen vehicle.

He may also have suspected other things, but that was the reason he put forward initially for approaching the vehicle. Indeed, he stated that they were looking for stolen autos and he elaborated saying that sometimes vehicles are stolen and abandoned still running. This discussion of a vehicle abandoned while running suggests that in the initial approach to the vehicle it did not appear occupied.

The person who was found in the vehicle did have the seat reclined and would have been less visible than an upright vehicle operator. [ 3 ] Constable Spears approached the suspect vehicle, indicating that police had parked their vehicle behind it so it could not be driven away, although it might be that he thought the vehicle was not occupied initially. A male person was found in the vehicle, with the seat reclined and asleep. The vehicle was running, lights and the heat were on. All of those details could not have been verified without opening the door of the vehicle.

Ambient temperature was not stated in evidence, but it is normal for temperatures in the middle of the night at that time of year to be low, so having heat on would not be unusual. I would also take notice of the fact that any late model vehicle has exterior lights that cannot be turned off when the vehicle is running. [ 4 ] Constable Spears approached and received no response when he knocked on the window. He opened the vehicle door and roused the person with a ‘sternum rub’ which suggests that the person was not responding to lesser stimuli.

Constable Spears said he was concerned for the person’s safety but on cross-examination it was apparent that he did not ask questions relating to possible distress or illness, but only with respect to alcohol, which consumption was confirmed in conversation. He stated that he detected the smell of alcohol when he was taking steps to rouse the Accused.

He did not state in examination that an odour of alcohol was apparent immediately when he opened the vehicle door. [ 5 ] It may well be that in any case of a person found sleeping or unconscious by police in a motor vehicle, it gives rise to a legitimate concern for safety of the person and possible illness which police are duty bound to consider. The Defence made much of the fact that this reason had been put forward only at the trial, and suggested therefore that it was not an operative reason for the investigation.

The Court cannot develop a firm hierarchy of interests and concerns of police investigators in any situation, and it is not possible to dismiss this as a possible area of concern for the police. I do, however, make conclusions below regarding the investigation and detention of the Accused. [ 6 ] The constable related symptoms of impairment which included glassy (glossy) eyes, a smell of alcohol, admission of drinking and poor reaction and disorientation.

These symptoms could not have been determined without opening the door of the vehicle and interacting with the Accused, in effect an investigation from which the Accused would not have been free to withdraw. He went on to state that shortly after he gave the usual rights and warnings for such a situation where an arrest for impaired driving occurs, and read a breath analysis demand from a card. All of this occurred at about 1:55 a.m. The Defence brief refers to the demand being made at 1:47 a.m. The Accused was transported to the Regina police building.

More observations of the Accused were made during the trip to that location where in due course breath samples were obtained. [ 7 ] The Defence seeks to have all evidence excluded alleging that the investigation proceeded from an illegal entry and search at the vehicle which gave rise to the observations on which the police acted. This is argued to have occurred upon opening the door of the vehicle and beginning interaction with the Accused.

In cross-examination the Defence brought out the fact that before the vehicle was approached, the vehicle was checked on police information systems and found not to have been reported stolen. This is the basis for much of the Defence argument that there was no proper basis on which to commence an investigation. The fact that the vehicle was not in the police information system as being stolen does not preclude it being stolen, but not yet reported stolen. Therefore, the Defence argument that there was nothing further that could lawfully be investigated is not conclusive.

There is also still the issue of assistance to a person in distress which the Defence argues should be discounted as a motive for the investigation, which has been dealt with above. [ 8 ] The Defence is correct, in my opinion, in characterizing this situation as being within a similar one to R v Papilion, 2014 SKCA 45 , 438 Sask R 37. Police came up to a vehicle that they thought initially may not have been occupied, but they still parked in a way to prevent departure of the vehicle if it was occupied.

They approached and saw a person reclined in the driver’s seat of the vehicle, who was asleep or unconscious due to other reasons. The occupied vehicle was running late

on a November night. The police wished to investigate further and did so. Concern for the driver’s safety was stated, but the actions andconversation of Constable Spears confirm that a potential case of impaired care and control was foremost in his mind.

The Crown hasagreed that the Accused person was detained at the moment the constable opened the vehicle door. [9] However, in addition, I have no hesitation in concluding that the police were involved in an investigation from the moment that they perceived this parked vehicle running, in close proximity to a bar, and further, that when theysaw a person in it, they were intent on an investigation to determine whether the possible offence of impaired driving or impaired careand control might have been committed.

This was in their minds when they opened the door of the vehicle, as well as a stated generalconcern for the safety of the occupant. I would also conclude that no detention of an individual can occur before that person isapproached by police and becomes conscious of police action—the person must be conscious of being detained. This follows from theanalysis of detention in R v Grant, 2009 SCC 32, [2009] 2 SCR 353. [10] Police proceeded to rouse that person as part of an investigation.

I would conclude that this person would not have been free to leave without participating in a police investigation from the instant that the person wasperceived present in the vehicle, although detention in the sense that is contemplated by the Charter of Rights and Freedoms requiresthat a person be aware of it in order for it to have legal significance and fall within the analysis of Grant. An investigation and detentiondid in fact occur, and this is not in dispute. I have no doubt that Mr.

Mitchell appreciated that he was not free to depart in the course ofhis interactions with police, once he was consciously speaking with police. [11] The Crown has argued that the circumstances of the vehicle, that is, it was running and occupied by a sleeping person in the early morning hours, in a public parking lot adjacent to a bar, it was entirely proper and reasonableto conduct such an investigation and to speak with the person in the vehicle as part of an investigative detention. The Defence disagreeswith this position.

The Defence asserts that the circumstances do not give any reason to open the door of the vehicle and conduct anyinvestigation that included detention of the Accused. The question in this voire dire is whether the detention of the Accused toinvestigate these concerns constituted a breach of the Accused’s personal rights, and further, if that were found to be the case, whetherany evidence obtained should be excluded under the rules of R v Grant, and authorities following upon that case. [12] It was only with the physical approach to Mr.

Mitchell and in arousing him, and subsequent interaction that evidence of potential impairment by alcohol and grounds for making a demand for a breath sample wasobtained. No other unlawful activity was observed or described that would permit investigation, other than the situation as described bythe Constable Spears. This was an investigative detention.

The leading case with respect to investigative detention is R v Mann, [2004]3 SCR 59, 2004 SCC 52 . [13] The observations of Constable Spears during this investigation may be short of what is required to prove impaired driving, and yet may well be sufficient to justify a demand for a sample of breath for analysis. The legalquestion of care and control of the vehicle is a sufficiently complex issue that the circumstances and presumption regarding care andcontrol contained in the Criminal Code would not defeat the demand, if it was lawful in other respects, in my opinion.

However, theseare not issues for this voire dire. [14] The Crown argues that this case falls within a similar factual situation as R v Papilion, 2014, SKCA 45 where a vehicle was observed in motion, and then found parked a short time later, and two persons were foundin the vehicle. They were awake and the driver had reclined his seat. It was not stated whether the passenger had also reclined thatperson’s seat.

The driver had drawn attention by ‘popping his head up’, presumably to look around (‘peek’) in the trial judge’s opinion.This was considered sufficient by the Court of Appeal to justify an investigation, but there are some distinguishing aspects of that case tothe present one. [15] A more similar case is that of R v Dillion, (ONSC), where the trial judge concluded the following with respect to police investigation of a running, parked vehicle observed in a public parking, also inproximity to a bar, at paragraph 3: “They were motivated solely by a suspicion that this could be an impaired driver, a suspicion that was supported in their minds by: thehistory of police involvement with the bar; the late hour; the fact that the parking lot was nearly deserted indicating that the bar hadprobably recently closed; the proximity of the car to the bar; and the fact that it was just sitting there with the engine running.

I acceptthe evidence of both officers that in these circumstances they sincerely believed their suspicion was sufficiently reasonable to give them,

not only the right, but the duty, to investigate for the protection of the public.” At paragraph 41, the Court further concluded: “I therefore find that the police officers in this case entered the property lawfully and were acting within the owner’s implied license toenter. There was nothing about their purpose in entering that would negate the implied license to enter, vis a vis the owner of theproperty. Indeed, it would be in the interest of the property owner to have police enter for the purpose of protecting the property fromdrivers who are unlicensed or impaired. Mr.

Dillon’s privacy interests were not violated by the entry.” [16] The Court in Dillon at paragraph 51 and 52, concluded that the approach to the parked vehicle was a lawful investigation, and the detention of the Accused in that case was justified and not in breach of the Charter of Rightsand Freedoms. The Court also stated in obiter dicta that had there been a breach of

section 9 of the Charter, that no exclusion ofevidence under section 24(2) would be justified. This conclusion in obiter was reached without extensive (or any) Grant analysis. [17] The Defence strongly contends that the running car in a parking lot late at night in November, adjacent to a bar is not sufficient to permit an investigation or investigative detention. The police have, of course, as muchinvitation and authority to enter a public parking lot as any other person.

In addition to the indicia to commence an investigation inDillon, this case has a significant additional fact: the lack of response by the Accused when police approached the vehicle and knockedon the driver’s window. I conclude that they were not on an arbitrary or illegal investigation when they approached the vehicle in thepublic parking lot. They then knocked on the driver’s window when they saw a person in a sleeping or unconscious state. The driver didnot respond to this, and in my opinion a person who is functioning within normal capacities would respond in such a circumstance.

Whenthe Accused did not respond it raised further issues which, in my opinion, justified the action they took in opening the car door toinvestigate further. Mr. Mitchell did not respond when they tried to arouse him with verbal stimulus or light touching. [18] Those issues included the possibility of a medical issue that might include any number of causes of comatose state, which the court may take notice of the existence of without any specific finding. This could include carbonmonoxide absorption, diabetic reactions, stroke or heart attack, and many others.

Lack of response would certainly also raise thequestion of whether it might be caused due to ingestion of drugs or alcohol. Either medical or substance effects are issues that policemay legitimately pursue and would be part of their general duties relating to investigation and protection. [19] The Defence does not argue that police had no right to approach the vehicle or knock on the window. In my opinion those actions are within the general duties of police, and knocking on doors of houses or windows of cars isa minimal approach to a private space.

Case law has recognized an implied licence and invitation to approach a house door, and a motorvehicle involves a lower expectation of privacy than a dwelling. This approach to the car provided the additional factor of the non-responsiveness of the driver which led to the opening of the vehicle door which was permissible, in my opinion. [20] The Defence argues that in opening the door of the vehicle, police commenced a warrantless search that was not justified. The focus of their investigation was not, in my opinion, with respect to the vehicle or contents,but with respect to the driver.

There is considerable law with respect to expectation of privacy in motor vehicles as compared to housesand other areas. See: R v Belnavis, [1997] 3 SCR 341, (SCC) and R v Diamond, 2015 NLCA 60 . Theevidence obtained by the police had nothing to do with the vehicle, and came from the Accused’s investigative detention where theymade direct observations of him based upon physical observations and verbal exchanges. It was not the result of a search. The policedid not have to open the car door to find Mr.

Mitchell as he was in plain view, but unresponsive, but they did have to open the door tomake further investigation based upon indicia from outside the car. This initiated an investigative detention. [21] I conclude that the investigation which had commenced when the police first saw the vehicle, continued with a lawful approach. Upon knocking on the window, and when there was no response, it continued within thelawful duty of the investigator to attempt to find the reason for the person’s lack of response. The Accused was detained as soon as hewas aware he was interacting with the police, as I have stated above.

When the police opened the vehicle door and attempted to rouse Mr.Mitchell they came upon a further factor that I accept—there was an odour of alcohol apparent when they attempted to do that, and theyacted further upon it. They continued to arouse Mr. Mitchell, and I do not find that the interaction with the sleeping or comatose driverwas an illegal action that went beyond what is permitted within the Charter and recognized in case law above. In finding this, I do notfind that the odour of alcohol was apparent the moment the vehicle door was opened. It became apparent when they tried to rouse Mr.

Mitchell with physical stimulus. I conclude the investigation, and following investigative detention of Mr. Mitchell was lawful. [ 22 ] In the event that I am incorrect in concluding that no breach of the Charter occurred, a consideration of the principles of Grant would be required. I am of the opinion that given the reduced expectation of privacy in a motor vehicle, the rousing of Mr.

Mitchell for reasons of investigation and of safety, and the obtaining of evidence from him that would have existed in any event regardless of police action, but discovered as a result of their actions, should not be excluded as bringing the administration of justice into disrepute under section 24(2) of the Charter . There is no evidence in this case of police misconduct or mala fides . There is a public interest in the investigation of impaired driving that is high when weighed against other factors in this case.

If this were this a case where a Grant analysis was mandated, I would not exclude any evidence obtained in these circumstances. However, I have concluded that police did not exceed their investigative authority and make an illegal detention of the Accused. Dated at the City of Regina, Saskatchewan this 26 th day of April, 2016. _____________________________ B. D. Henning, J.