R. v. Broeckel, 2014 ONCJ 622

COURT FILE No.: Citation: R. v. Broeckel , 2014 ONCJ 622 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BETH BROECKEL Before Justice Robert S. Gee Heard on October 31, 2013, February 13, 2014 and March 14, 2014 Reasons for Judgment Released May 28, 2014 N. Cake and E. Quayle ....................................................................... . for the Crown D .

Henderson ....................................................................................... . for the Accused INTRODUCTION [ 1 ] The Accused, Beth Broeckel, is charged with impaired driving and operating a motor vehicle while having more than 80 milligrams of alcohol in 100 millilitres of her blood, from an incident that occurred on February 5, 2012. [ 2 ] At approximately 11:20 p.m. that day the accused attended a Tim Horton’s on Rest Acres Road in Paris, Ontario where she was served by Sandra Norris. While in the store, the accused displayed behaviour and other signs that led Ms.

Norris to believe she was impaired, and which prompted Ms. Norris to phone the police. [ 3 ] For instance, the accused ordered a type of donut that was sold by Tim Horton’s as a specialty item once, approximately twenty years before. When advised that this donut was no longer available, the accused, according to Ms. Norris, was not satisfied and became insistent on being served this particular item. Eventually she relented and ordered a sandwich, but during the conversation they had, Ms.

Norris was also able to detect a strong odour of alcohol coming from the accused. [ 4 ] As a result of her interaction with the accused Ms. Norris phoned the police and advised them of a description of the accused, the licence plate number of the vehicle she was driving, as well as her direction of travel. [ 5 ] Constable Paul Drake was working a RIDE check in the area and received the call of a possible impaired driver. He immediately left the RIDE check and headed toward the accused’s address. He assumed she may be headed there and he hoped to intercept her before she arrived.

He arrived at the accused’s address approximately eight minutes after receiving the call, and found the accused’s vehicle already there. [ 6 ] He pulled into the driveway and when he reached the house he could see the accused inside. He exited his cruiser and as he approached the door he stated the accused came out and spoke with him. During his interaction with her, Constable Drake made observations that resulted in him forming the opinion that her ability to operate her vehicle was impaired by alcohol.

As a result he arrested her and made a demand for samples of her breath. [ 7 ] The accused was arrested and transported to the police station where samples of her breath were ultimately obtained. Theses samples, though, were obtained after more than two hours elapsed since the offence had been committed, so the Crown was not able to rely on the presumption of identity set out in s. 258(1) (

c) of the Criminal Code . As a result, the Crown called expert evidence to relate the readings obtained back to the time of the driving. [ 8 ] The defence has brought an application to exclude the results of the analysis of the accused’s breath samples based on alleged violations of her s. 8 Charter right. [ 9 ] The defence is alleging the police in this case failed to meet the requirement for a so-called Feeney warrant. The defence contends the officer should have had a warrant to be on the accused’s property, or to observe and arrest her; she contends she was inside her residence during her interactions with Constable Drake.

[10] The other aspect of the defence’s Charter application is that notwithstanding the lack of a warrant, the signs of impairmentobserved by Constable Drake were not sufficient to provide reasonable and probable grounds to arrest the accused, or demand samples ofher breath. [11] The defence seeks an order excluding the observations of the accused by Constable Drake, and the results of the analysis of thebreath samples on either or both these basis. [12] The Crown contends there were no violations of the accused’s Charter right in this matter.

In relation to the s. 8 search inside theresidence argument, the Crown contends the officer’s actions were justified in either of two ways. First the Crown contends the lawmakes an exception to the general rule requiring a warrant to enter a residence when the officer is in hot pursuit, and that in thecircumstances here the officer could be so described. Second it is contended that there is an implied invitation to enter property andknock at the door of a residence in order to engage the occupants.

ISSUES [13] The issues raised in this matter are first, whether there has been a breach of the accused Charter Right in either of the mannersalleged by the defence. Second, if there has been a Charter breach, whether the evidence gathered, being the observations of ConstableDrake and/or the results of the analysis of the samples of the accused’s breath ought to be excluded from the trial pursuant to s. 24(2) ofthe Charter.

Third, if the evidence of Constable Drake’s observations or the analysis of the samples of the accused’s breath are notexcluded, has the Crown proven the over .08 charge beyond a reasonable doubt. Last, has the Crown proven beyond a reasonable doubtthat the accused’s ability to operate her motor vehicle was impaired by alcohol. ANALYSIS [14] Dealing first with the defence allegations of Charter breaches, I would start by noting that it is for the accused to prove on abalance of probabilities that her Charter Rights have been breached.

In this case I find that I am not satisfied that the accused’s right asguaranteed by s. 8 of the Charter were violated in any way by Constable Drake. [15] The first violation alleged by the accused is that Constable Drake conducted a warrantless search while she was in her residence.

The fruits of this search that the accused seeks to exclude are the observations made by Constable Drake that led him to form the opinionthe accused’s ability to operate her motor vehicle was impaired by alcohol. [16] The law is clear that warrantless searches are presumptively unlawful and, there is no doubt Constable Drake did not have awarrant to enter onto the accused’s property, as he did in this case. Not all warrantless searches, though, constitute Charter violations.

Awarrantless search if it is permitted by law does not constitute a Charter breach. “Permitted by law” means that a particular statutepermits the search in the manner the police carried it out, or if not statutorily permitted, then permitted by common law. [17] In this case the Crown submits the actions of Constable Drake were permitted by common law in the two ways noted above, hotpursuit or an implied invitation to enter the property to knock. [18] I find that the Crown is incorrect in one of those ways, but correct in the other.

This was not a case of hot pursuit, but ConstableDrake was permitted by common law to enter the accused’s property by the implied invitation to knock. [19] Hot pursuit was defined by the Supreme Court in R. v.

Macooh (SCC), [1993] SCJ No 28 as “…continuouspursuit conducted with reasonable diligence so that pursuit and capture along with the commission of the offence may be considered asforming part of a single transaction.” This case does not come close to that definition. [20] First, Constable Drake candidly admitted that as he was proceeding toward the accused’s residence he was not even sure if anoffence had been committed. Second, he was not pursuing a suspect. He was guessing, accurately as it turned out, but a guessnonetheless, that the accused would be returning directly to her residence.

To say he was pursuing a suspect with the intention ofcapturing her after the commission of an offence is a stretch to say the least. [21] Also, the doctrine of hot pursuit would permit the police to forcibly enter a private residence to capture the suspect. In this caseone only need ask whether Constable Drake, given the information available to him, would have been permitted to forcibly enter theaccused’s residence had she not come to her door when she saw the police.

The answer to that scenario is he clearly would not have beenjustified in so doing. [22] On the other hand, Constable Drake’s actions in this matter were justified based on the implied invitation to knock. The commonlaw has long recognized an implied licence for all members of the public, including police, to approach the door of a residence andknock. This doctrine was recognized by the Supreme Court in the case of R. v. Evans (SCC), [1996] SCJ No. 1. Thepurpose of the implied invitation is to facilitate communication between the public and the occupant.

Any intention by the policebeyond communication, is impermissible. [23] Justice Tulloch, as he then was, in a Superior Court

summary conviction appeal matter, in the case of R. v. Rodrigues [2012] OJNo. 6349, recognized the implied invitation to knock extended to police attending property to check on the health and safety of theoccupants, and to investigate possible offences such as Highway Traffic Act violations following reports of motor vehicle collisions. [24] In this case Constable Drake was not investigating a motor vehicle collision but conducting an investigation into a report of asuspected impaired driver.

Upon receipt of such report in the circumstances here, the next step in the process would be to locate andspeak to the driver. Attending the residence associated with the vehicle identified is just common sense and the next logical step in that

process. [25] Constable Drake testified while responding to the call and attending the accused’s residence, he was not necessarily expecting tofind an impaired driver. He stated police often receive reports from citizens about suspected impaired drivers that turn out to beunfounded. As such his intention was to investigate.

The means of investigating this matter would start with communicating with thedriver. [26] There are a number of cases that have held that where the purpose of the police is to investigate by communicating with theoccupant, then they are acting within the scope of the implied licence to knock, and observations made during the communication do notamount to a search. See R. v. Graham, [2007] O.J.

No. 2785 at paragraph 13 and the cases cited therein. [27] In fact, I agree wholeheartedly with the conclusion of Justice Kenkel in Graham supra at paragraph 16 where he states “anofficer is not required to hold their nose or avert their eyes when otherwise lawfully speaking with a citizen in order to avoid engaging s.8 of the Charter.” [28] The accused has alleged that her arrest occurred without a warrant, inside her home. The accused’s home apparently has a doorleading from the outside to an enclosed porch. Inside the porch is another door that leads to the house proper.

The accused testified atsome point Constable Drake stepped inside the enclosed porch. When he did so she told him to get out ostensibly for fear her dog wouldescape. He did so and according to her, she stood in the doorway from the porch to the outside with the door partially closed behind herand engaged Constable Drake in conversation.

Garth Potruff, the accused’s brother, also testified when he observed Constable Drakeand the accused engaged in conversation, the accused was in the doorway to the porch and the officer was outside. [29] Given these positions, I find that Constable Drake was not inside the residence when he made his observations that led him toformulate his grounds for arrest.

I find that given their respective positions, the implied licence to knock and communicate with theoccupant, meant Constable Drake was lawfully in a position to make the observations he did. [30] Constable Drake testified that when he advised the accused she was under arrest he reached and grabbed her by the arm. Shebriefly resisted but ultimately complied. In these circumstances I find that Constable Drake was outside the residence when he arrestedthe accused, who at the time was at the threshold of her residence, but cannot be said to have been inside it.

As such there was nowarrantless arrest inside her residence. [31] Although it is not necessary to decide this issue given this finding, since Constable Drake’s grounds for arrest were formulated ina Charter-compliant manner, had the accused been technically just inside her residence with the door open, or had she attempted toretreat inside in order to escape arrest, then the doctrine of hot pursuit would likely have been engaged at that point in any event. [32] The next allegation of a Charter violation was, that the observations made and the evidence of impairment available to ConstableDrake at the time he arrested the accused and demanded samples of her breath, were insufficient. [33] A police officer may make a demand for breath samples if he or she has reasonable grounds to believe that a person iscommitting, or at any time within the preceding three hours has committed, an offence under

section 253 of the Criminal Code as a resultof the consumption of alcohol. [34] Reasonable grounds to believe have both subjective and objective elements. This requires the officer to subjectively have anhonest belief that the person has committed the offence, and this belief must be supported by objective facts. This reasonable andprobable grounds standard is not onerous. It is not necessary that the accused be in an extreme state of intoxication before a demand canbe properly made. There is no scorecard, checklist or minimum number of signs of impairment that must be present before a demand canbe made.

The test is, whether objectively, there were reasonable and probable grounds to believe the person's ability to drive, was evenslightly impaired by the consumption of alcohol. See the decision of the Ontario Court of Appeal in R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 at par. 37-38, and the Supreme Court of Canada decision in R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 at par. 16-17. [35] In this case, Constable Drake, in addition to the signs he observed, was entitled to rely on the report that the accused wassuspected of being impaired while at the Tim Horton’s.

He then observed several other classic signs of impairment, including the strongodour of alcohol coming from the accused’s breath, her slurred speech and her glassy or bloodshot eyes. The defence made a point ofchallenging Constable Drake’s credibility based on reference in his notes to “bloodshot eyes” and his testimony in court where he statedthe accused’s eyes were “glassy”. He also testified he uses these terms interchangeably. In the circumstances I do not find this of muchsignificance.

The bottom line is he made an observation of the state of the accused’s eyes that to him was consistent with impairment byalcohol. [36] Based on the information available to him and the observations he made, I find that his subjective belief that the accused’s abilityto operate her motor vehicle was impaired by alcohol, was honestly held and that this opinion had more than a sufficient objective factualbasis to support it.

As such the arrest of the accused and the demand he made in the circumstance were proper and did not amount to abreach of the accused’s Charter rights. [37] The defence has contended that since Constable Drake had an approved screening device with him, he ought to have utilized it inthe circumstances to confirm his opinion. I find this argument without merit. The use of an approved screening device is aninvestigative tool that is only available to police in limited circumstances.

Those circumstances are situations where the officer suspectsthe person to have alcohol in their body, but that this suspicion falls short of an opinion that the person’s ability to operate their motorvehicle is impaired by alcohol. [38] Once an opinion that the person is impaired by alcohol has been arrived at, the officer is no longer permitted to make a demandfor samples into an approved screening device.

Had Constable Drake done so in this case, I am certain the defence would be raising acomplaint about that impermissible step, and arguing the resultant breath samples taken pursuant to the breath demand, were not taken assoon as practicable.

[ 39 ] As such, for these reasons, I find that the accused has failed to demonstrate on a balance of probabilities that her Charter rights were violated in either manner she so claimed. Given this finding, the evidence of Constable Drake’s observations of the accused, and the analysis of the accused’s breath samples, are admissible at trial. [ 40 ] Given that the analysis of the accused’s breath sample is admissible at trial, the next matter to be decided is whether the Crown has proven beyond a reasonable doubt that the accused operated her motor vehicle that night with excessive blood alcohol content.

At the conclusion of trial the defence conceded if I found the evidence in this regard admissible then the offence has been made out. I agree with this concession and as such a conviction on the over .08 charge will be entered. [ 41 ] Having said that though, since there was evidence led at trial that the accused consumed alcohol after arriving home and before her arrest, and since it impacts my later findings, I will comment on it. Based on the evidence, I have concluded that I do not accept the accused’s evidence about her consumption of alcohol, nor has it left me with a reasonable doubt on this issue.

Her claim to her post- driving alcohol consumption varied greatly from the night of the incident to trial. At first there was no mention of it, then it was one shot of homemade ice wine, then one glass, and then at trial it was she “chugged” the entire bottle. In these circumstances, given this constantly changing story, I do not believe her about consuming alcohol after driving. [ 42 ] The accused provided the first sample of her breath at 1:45 a.m. on February 6, 2012, approximately two hours and ten minutes after the driving, which resulted in a reading of 202 milligrams of alcohol in 100 millilitres of blood.

The second sample of her breath was obtained at 2:09 a.m. February 6, 2012, which resulted in a finding of 189 milligrams of alcohol in 100 millilitres of blood. [ 43 ] Since these samples were received more than two hours after driving, the presumption of identity was not available to the Crown, and expert evidence was called as to the accused’s blood alcohol content based on the samples that were obtained.

A variety of scenarios were provided to the expert and he was asked to calculate the accused’s blood alcohol content based on them. [ 44 ] The ranges for the accused’s blood alcohol content at the time of driving were at the high end, between 185 and 230 milligrams of alcohol in 100 millilitres of blood, to a low of between 85 to 100 milligrams of alcohol in 100 millilitres of blood. The readings that were on the high end of this range assumed no post-driving alcohol consumption.

The readings on the low end assumed the consumption of 8 ounces of homemade ice wine, with 13% alcohol content, after the accused arrived home. Given that I do not believe there was any post- driving alcohol consumption, I find the accused’s readings at the time of driving are consistent with the higher range testified to by the expert. [ 45 ] The final issue to be decided is whether the Crown has proven beyond a reasonable doubt that the accused’s ability to operate her motor vehicle was impaired by alcohol. Ms. Norris, who observed the accused in Tim Horton’s, testified that to her the accused seemed impaired.

The manner in which she behaved in the store that night in asking for a donut that had not been served in 20 years, and insisting on being served one even after being so advised, as well as her impatience and the strong odour of alcohol coming from the accused, all led her to this opinion. Constable Drake also testified, as noted earlier, about his observations of the accused including the state of her eyes, her slurring of her words, and he also detected a strong odour of alcohol coming from her breath.

In addition to the observations of these two witnesses, there was expert testimony that the ability of someone to operate a motor vehicle would be impaired with 185 milligrams of alcohol in 100 millilitres of their blood. [ 46 ] Given all of this evidence, and given that the Crown only need prove the accused’s ability to operate her motor vehicle was even slightly impaired by alcohol, I am satisfied the Crown has proven that the accused’s ability to operate her motor vehicle at the time was impaired by alcohol, and as a result a finding of guilt will be made on this charge as well.

CONCLUSION [ 47 ] Given these findings, I find that the Crown has proven the guilt of the accused on both charges, and findings of guilt will be made in relation to both counts in the Information. Dated at Brantford, Ontario This 28 th day of May , 2014 The Honourable Mr. Justice R.S. Gee