Her Majesty the Queen - v. -, 2016 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 156 Date: December 6, 2016 Information: 24519421 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terry Allan Smith Appearing: Wade Rogers For the Crown Ronald Piché For the Accused DECISION ON CHARTER APPLICATION J. F. RYBCHUK , J INTRODUCTION

[1] The accused pulls up onto his driveway and gets out of his vehicle. A police officer pulls up behind him, gets out of hisvehicle and starts yelling commands at the accused. Does he have to comply? This case centres around the limitations on police powersto enter onto a person’s private property and start ordering them around. [2] The accused is charged with operation of a motor vehicle while impaired and over .08. A blended voir dire/trial was held todetermine if any of his rights under the Canadian Charter of Rights and Freedoms [Charter] were violated.

The violations alleged in theaccused’s Notice of Charter Application were abandoned following the voir dire/trial. However, a new potential violation arose duringthe course of the proceedings which the parties now require a ruling on. Although never clearly identified in the legal submissions made,the Charter right alleged to have been infringed is the accused’s s. 9 right to be from arbitrary detention ISSUES 1. Was the accused arbitrarily detained? [3]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. In order for a detention not to bearbitrary, it must be authorized pursuant to some statutory or common law power. [4] A preliminary matter is when was the accused actually detained? Constable Stewart had his police lights on when he drovehis police truck up three-quarters of the way onto the accused’s single lane driveway and directly behind the accused’s vehicle so that hecould not get out. The accused began walking towards the police vehicle.

Constable Stewart was investigating the accused for speedingand impaired driving and intended to assume control over the accused’s movements. He got out of his police truck and ordered theaccused to get back into his vehicle. That is when the detention occurred. The accused complied and got back into his vehicle.

i) Hot Pursuit Doctrine [5] Police have authority to enter onto someone’s private property and detain them in situations of hot pursuit. In R v Macooh, (SCC), [1993] 2 SCR 802 at para 24 the Supreme Court of Canada defined hot pursuit as “continuous pursuitconducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as formingpart of a single transaction”. [6] Lower courts have interpreted this definition robustly.

Most of the cases involve situations where the police officer did noteven actually witness the events giving rise to the offence to be in hot pursuit.

Nevertheless, both the Quebec and British ColumbiaCourts of Appeal have held in R v Tatard, 2010 QCCA 2235 and R v Haglof, (2000) 2000 BCCA 604 , 149 CCC (3d) 248(BCCA) respectively, that as long as the pursuit is continuous and conducted with reasonable diligence in a factual chronology that canbe regarded as constituting a single transaction, hot pursuit will exist even if the relevant events are observed by another witness and thenreported to the police. [7] Hot pursuit has also been found to exist in situations taking place over a much longer period of time than in this case. [8] In R v Hayer, 2006 ONCJ 38 the accused was observed driving erratically by witnesses who followed him while relayingdetails to the police via cellular telephone.

The accused arrived home at his residence and went in. The police arrived at the accused’sresidence 20–30 seconds after the accused entered his house. But, it had already taken them approximately eight minutes after beingdispatched to get to the house, and they waited another three to five minutes before actually deciding to enter the house themselves. TheCourt determined that the events were sufficient in proximity to form a single transaction and that the doctrine of hot pursuit applied.

Further, the Court concluded that the subject of the pursuit need not be aware that he is being followed as a requirement of hot pursuit. This is due to public policy considerations in relation to impaired driving offences.

[9] In R v Simpart,

(2012) SKPC 184 the police received a complaint of a dangerous driver from a caller who had lost sight ofthe driver. The police were dispatched to patrol the area where the vehicle was last seen. They came across a vehicle matching thedescription parked in a parking stall behind an apartment complex. Approximately five minutes had elapsed between the initial call andthe police locating the accused’s vehicle. The police officer stopped his vehicle behind the accused’s vehicle in such a way that itprevented the accused’s vehicle from being driven away and engaged his emergency lights.

Kalmakoff J. determined that the accusedwas detained the moment the officer approached the driver’s side door of the vehicle and prior to any discussion taking place with theaccused. He held that this was a situation of hot pursuit and the police officer was therefore lawfully authorized to enter onto privateproperty to detain the accused. [10] In R v Vandal, 2009 SKQB 32 [Vandal] the police observed the accused driving his vehicle at night with only one headlighton. They activated their emergency lights and followed the accused for several blocks before he pulled into his driveway.

When askedwhy he did not stop, the accused made no answer. It was unclear whether the accused even saw the emergency lights. In Vandal, FoleyJ. declined to follow the reasoning of the Ontario Court of Justice in R v Curic,

(1999) OJ No 5786 and instead adopted the reasoning ofthe Ontario Court of Appeal in R v Lotozky, (2006) (ON CA), 81 OR (3d) 335 which held that police officers whohave reasonable grounds to suspect that a driver is impaired are entitled to enter a person’s driveway to continue an investigation. Thereis an implied licence to any member of the public (including police officers) to come onto the property, but that licence ends at thedoorway of the dwelling house (see also: R v Tricker, (1995) (ON CA), 21 OR (3d) 575 (ONCA); R v Evans (SCC), [1996] 1 SCR 8).

Foley J. agreed with the trial judge that the police were in hot pursuit in this case. [11] Before applying the law to the facts of this case, I should start by stating that I have considered the accused’s evidence as towhat happened that night and do not believe him wherever his evidence conflicts with that of Constable Stewart. This is because theaccused admitted in cross-examination that he had been drinking all night. He was drinking before he went to the bar and he wasdrinking while at the bar for a couple of hours before deciding to drive home just before midnight.

There was still beer in his vehiclewhen he picked it up from the impound the following day. He also admitted in cross-examination that he might have troubleremembering things that night because of his drinking. For example, he could not remember how much he had to drink and beingallowed to use the washroom at the detachment. [12] The accused also admitted in cross-examination that he might not have seen the emergency lights on the police vehicle whenConstable Stewart activated them.

This makes his testimony as to what Constable Stewart might or might not have seen when followingthe accused’s vehicle unreliable and untrustworthy. [13] Furthermore, I found the accused’s general behaviour on the stand to be suspicious. His repeated statements to police thatnight that he had already “gotten home” or was “home” and that he would have just gone into his house if he had known the police werechasing him is revealing of his true state of mind and his intention to escape liability.

I do not put a tremendous amount of weight onthese statements as they are capable of being interpreted other than to implicitly mean that the police could no longer arrest him, but theyare still admissible evidence of spontaneous outbursts that stretch his credibility and cast aspersions on his repeated claims that he hadnever even seen the emergency lights and was unaware Constable Stewart was following him until after he had already driven onto hisdriveway.

In R v Baldeo, 2004 OJ 348 (SCJ) a spontaneous utterance by the accused to the effect that he could not be arrested becausehe was on his driveway was found to be inconsistent with his later evidence that he had not been driving. [14] I also found the accused’s claim that after driving home from the bar that night he was then planning to walk an additionalthree blocks down and over to his friend Jack’s house at midnight in December in Saskatchewan to be unusual, to say the least. That justdoes not make sense and further strains credulity.

His evidence was also inconsistent at times with other more credible evidence ofConstable Stewart. [15] I found Constable Stewart to be fair and balanced when testifying on the stand. He was concise and to the point. He did notexaggerate and made fair concessions one would expect of an honest witness when challenged on cross-examination. For example, whenthe accused stumbled walking back to the police vehicle he readily acknowledged this may have been attributable to loose snow on theground and not impairment, and that he otherwise walked fine.

I therefore, accept Constable Stewart’s testimony as credible and reliableand reject the accused’s evidence wherever it conflicts with that of Constable Stewart. [16] I therefore find the facts of this case to be that on December 4, 2015 Constable Stewart was patrolling Tisdale, SK in hismarked police truck when he saw a vehicle leaving the Beehive Bar. He observed it turn left onto Main Street and accelerate rapidly, sohe pulled in behind the vehicle and began following it. He engaged his radar system and closed the distance to catch up to the accused’svehicle.

The radar returned a reading in the 50's in a marked 40 kph speed limit zone. He locked the speed of the accused’s vehicle at 49

kph and engaged his emergency lights. He could see the lights reflecting off the accused’s vehicle in front of him which continued going straight down Main Street and then turned right onto 97th Avenue. Constable Stewart followed the accused’s vehicle around the corner onto 97th Avenue with his emergency lights still going. The brake lights on the accused’s vehicle illuminated and it slowed, butcontinued travelling.

The accused then signaled and turned left, pulling into his driveway. [17] Approximately 10-20 seconds elapsed between the time when Constable Stewart activated his emergency lights and theaccused stopped his vehicle on the driveway at 11:59 p.m. The accused was the sole occupant of the vehicle and Constable Stewart sawhim exit from the driver’s seat of the vehicle. Constable Stewart exited his police truck and directed the accused back into his vehiclefor safety reasons as the officer had had prior bad experiences with motorists who exited their vehicles before being asked to when pulledover.

The accused got back into his vehicle and Constable Stewart returned to his police truck. He searched the licence plate of theaccused’s vehicle on his computer terminal and determined that the vehicle was registered to the accused. He then got out of his policevehicle and went to speak to the accused who produced his driver’s licence and registration for him. [18] Constable Stewart recognized the accused from working at the local post office. He noticed his eyes were pink rimmed,somewhat glassy and he had a strong odour of liquor on his breath, which culminated in an ASD demand.

The accused registered a failreading and provided breath samples at the Tisdale RCMP detachment of .180 and .190 at 12:54 a.m. and 1:04 a.m, respectively. [19] I have no hesitation concluding that Constable Stewart was in hot pursuit of the accused in these circumstances. He providedclear evidence of his own direct observations as opposed to relying upon information from anonymous tipsters or witnesses as to theaccused’s driving pattern. He proceeded to follow the accused directly himself.

He clocked the accused speeding and engaged hisemergency lights. [20] The accused failed to notice the police vehicle behind him or pull over. His claim that he might not have been aware he wasbeing pursued by Constable Stewart may or may not be true. But regardless, the law is clear that it is not a pre-requisite for hot pursuit. [21] The purpose of his pursuit was a speeding infraction and to investigate a possible offence of impaired driving. It took lessthan 20 seconds from the time Constable Stewart engaged his emergency lights to when the accused got out of his vehicle and wasordered to return to it.

Constable Stewart’s pursuit was clearly continuous and conducted with reasonable diligence in what can only beregarded as constituting a single transaction. As such, Constable Stewart was in hot pursuit of Mr. Smith. [22] The case of R v Caissie, (1999) (NB CA), 138 CCC (3d) 205 (NBCA) relied on by defence counsel isdistinguishable on the facts as the police officer in that case decided to pull the accused over even though there was nothing unusual withhis driving and the trial judge clearly found the driver was not fleeing arrest.

I am unable to make such findings of fact in this case. ii) Home Free Defence [23] Police have the authority to pull a vehicle over and detain its driver if they are acting in the lawful performance and executionof their duties and responsibilities assigned to them for the prevention of crime and enforcement of law. Statutory authority is containedin s. 209.1(1)(

b) of The Traffic Safety Act and s. 36(2)(a)(ii) of The Police Act, which includes the power to enforce traffic safety laws inplace in the Province of Saskatchewan. [24] In R v Anderson, 2014 SKCA 32 [Anderson] a police officer followed a vehicle driving on a highway and public road. Heformed the intention to stop the vehicle to check for licence, registration and driver sobriety. The vehicle then turned into a private yardwhere the accused had a residence. The officer drove into the private yard and activated his emergency lights to stop the accused’svehicle.

The officer had not observed any driving infractions or offences being committed by the driver of the vehicle. The policeofficer conducted a vehicle licence search using his onboard computer and determined that the vehicle belonged to the accused. Thepolice officer got out of his car, approached the accused’s vehicle and checked the driver for licence, registration and sobriety. Thedriver was detained for an impaired investigation and subsequently charged. Whitmore J., writing for the Saskatchewan Court ofAppeal, stated at para 24:

. . . In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete that lawful activity. Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, was reasonablynecessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference. [25] To decide otherwise would encourage drivers to seek the sanctuary of private roadways if they suspected they were about to bestopped by police.

In the circumstances of this case, where a police officer has formed the intention to stop a driver on a public highwaypursuant to s. 209.1 of The Traffic Safety Act, the police officer is acting within the statutory authority by following the driver ontoprivate property in order to complete his investigation. [25] Just because Mr. Smith lived in town and had a concrete driveway on the private property leading to his residence does notmeaningfully distinguish this case from Anderson where the accused lived on a farm and had a dirt road on the private property leadingto his residence.

Both detentions occurred on private property outside of their residences where they lived and both gentlemen had alower reasonable expectation of privacy as opposed to the expectation they would enjoy inside their dwellings. The intrusion anddetention is minimal compared to the accused’s privacy interests. There is no defence of “home free” available to the accused in eithersituation. [26] In R v Sveinbjornson, 2015 SKQB 2010 [Sveinbjornson] the police received an anonymous tip of an intoxicated personattempting to push a motorcycle off the street and repeatedly tipping it over.

The police were called to a public intersection where theymatched the description to the accused seated on a running motorcycle in a private parking lot. Relying on Anderson, Megaw J. ruledthat the police had authority to enter onto the private property and detain the accused under s. 209.1 of the Traffic Safety Act.

He alsowent on to state that private property does not create a “no law zone”. [27] However prior to these two decisions in Anderson and Sveinbjornson, the Saskatchewan Court of Appeal in R v Lux, 2012SKCA 129 [Lux] had ruled that police did not have the authority under s. 209.1 of the Traffic Safety Act to randomly stop a vehicledriving in an uneventful manner in a private parking lot where there was no evidence the vehicle was about to drive on a public highwayor that the driving constituted a public safety concern. [28] Anderson, Sveinbjornson and this case are all distinguishable from Lux though, because two pre-requisites in Lux have notbeen met: namely, that the accused’s vehicle must always have been on private property and the driver was not committing any infractionor posing a threat to public safety.

In the instant case, the accused was specifically observed by Constable Stewart leaving the local barand driving on public roads through the town of Tisdale before entering the driveway to his home.

As well, the accused had committedthe infraction of speeding and was suspected of committing the offence of impaired driving, both of which pose a threat to public safety. [29] I therefore have no difficulty concluding that Constable Stewart also had the necessary statutory authority under The TrafficSafety Act to pursue the accused onto his driveway and detain him for the speeding violation. [30] Even if the police were not in hot pursuit and did not have the statutory authority to pull the accused over, I still would havefound they had the common law authority to do so for the purpose of investigating the offence of impaired driving. [31] In the recent decision of R v Scott, 2016 ABPC 226 [Scott] Williams J. reviewed numerous cases that establish a suspect has alesser expectation of privacy on his driveway as opposed to in his dwelling.

As such, what happens on a driveway is not subject to thesame insulation against police investigation as a dwelling house and police entry onto a driveway to conduct an investigation ispermissible.

Any interference with the accused’s property rights is minimal compared to the common law duty of police to preventcrime. (See: Lotozky; Tricker; R v Hyde, 2010 ABPC 30; R v Arnett, 2005 ABPC 246; R v Halloran, 2007 BCSC 1425; R v Soal, (ONSC)) [32] Although it is not entirely clear from some of the earlier decisions referred to in Scott, it is clear in Scott and the other more recent decisions that police have authority to enter onto private property to perform an investigative Mann[1] detention of someone whomthey reasonably suspect has committed or will commit a crime.

In Scott a witness observed a truck swerving to both sides of the road andgoing into the ditch on both sides of the highway before finally coming to a stop in a field outside the accused’s residence. The witnessnotified the RCMP who arrived shortly after the truck stopped. The police officer told the accused he was being investigated for animpaired violation and would have to go with the officer to the police vehicle.

[ 33 ] In Scott and Sveinbjornson , both courts ruled that the police officers harboured a reasonable suspicion sufficient to overcome the low level of privacy expectation a motorist would have to lawfully enter onto private property to effect an investigative detention. There were objectively discernible facts that supported the officers’ suspicions which were based on more than a mere suspicion or a hunch. It was based on the totality of the constellation of factors they encountered.

The investigative detentions were lawful and there was no violation of the accused’s s. 9 Charter rights. [ 34 ] The Supreme Court of Canada came to a different conclusion in R v Gagnon, 2016 SCC 6 where Cromwell, J., writing for a unanimous court adopted the reasoning of Doyon J., writing for a majority of the Quebec Court of Appeal in R v Gagnon , 2015 QCCA 1138 [ Gagnon ]. In that case, two SQ officers received a radio message reporting a concerning vehicle in a specific rural area. The complaint had almost no details so the officers drove towards the location.

They did not discuss what to do when they got there. Over half an hour later they passed a single vehicle and decided to do a U-turn to check on the vehicle plate. Within 10 seconds and before they even had a chance to see the plate, the vehicle pulled into a private lane, stopped and two men got out in a hurry. [ 35 ] One officer felt the abrupt parking of the vehicle was a “ premiere signal d’alarme ” and the second act of sudden exit from the vehicle a “ deuxième signal d’alarme ”. He felt that was abnormal. The officer did not turn on the police lights or siren.

He pulled up behind the other vehicle as they got out. The passenger was drunk. The officers quickly got out of their vehicle and asked the fleeing occupants “ Salut, qu’est-ce que vous faites ici, habitez-vous ici? ” The driver admitted he did not live there and when asked for his driver’s licence admitted he did not have one as he was prohibited from driving.

The driver was then arrested. [ 36 ] The Quebec Court of Appeal agreed that there was virtually no basis for a reasonable suspicion to stop the vehicle (e.g. no offence observed, no link to a known offence), yet the statements of the driver produced by the arbitrary detention were still admitted into evidence by Doyon J. [ 37 ] On the facts of the case before me, the accused’s vehicle was on a driveway in an area that was open to public view and to which the public had easy access and an implied license to enter which was not revoked by the accused.

The officer observed the accused driving home from the local bar late at night. The accused accelerated rapidly and was speeding along the way.

He did not even notice when the officer activated his emergency lights behind him and was following him for 20 seconds down Main Street, and then onto his residential street and then up onto his driveway. [ 38 ] The fact that the accused either did not stop, or could not be stopped, before entering his driveway should not be taken as vitiating the legitimacy of the ensuing investigation or detention so as to constitute an infringement of the accused’s s. 9 right not to be arbitrarily detained ( Halloran ). [ 39 ] After considering the totality of these circumstances, I am satisfied there were sufficient grounds for Constable Stewart to harbour a reasonable suspicion that the accused was possibly or might be connected to an impaired driving offence.

He may not have had an abundance of grounds as in Scott and Sveinbjornson , but he certainly had more than in Gagnon and sufficient to get over the low threshold of reasonable suspicion in the constellation of objectively discernible facts to indicate that he was detained because Constable Stewart recognized the genuine possibility that he was speeding home impaired from the bar late at night oblivious to other users of the road. The facts of this case do not amount to a generalized suspicion that would capture too many innocent people simply making their way home. 2.

If there had been a breach would the evidence have been excluded? [ 40 ] In determining whether the admission of evidence obtained by breaching a Charter right brings the administration of justice into disrepute under s. 24(2) of the Charter , the Supreme Court of Canada in R v Grant, 2009 SCC 32 requires an assessment and balancing of the evidence in light of the following three factors:

i) the seriousness of the Charter-infringing conduct by the state ;

[ 41 ] In Gagnon the accused’s statements following breach of his s. 9 Charter right were still admitted into evidence. One important reason Doyon J. gave for this was that the police officers acted in good faith. [ 42 ] I am satisfied in this case that Constable Stewart was acting in good faith trying to perform his duties. His pursuit of the accused was lawful and his purpose for entering onto the driveway was two-fold:

i) to enforce traffic safety laws for a speeding infraction under The Traffic Safety Act ; and ii) to investigate whether an offence of impaired driving under the Criminal Code had just occurred. The detention occurred on the driveway as opposed to inside the residence. There was a lower expectation of privacy on a driveway as opposed to inside a dwelling which lessens the seriousness of the breach. If a Charter breach had occurred in this case, it was not serious. The Court is not required to disassociate itself from this conduct. No adverse message would be sent by admitting the evidence.

I therefore, find this stage of the analysis favours inclusion of the evidence. ii) the impact of the breach on the Charter-protected interests of the accused; [ 43 ] Another important reason for not excluding the evidence cited by Doyon J. in Gagnon was that the police had no physical involvement with the accused upon detention. Also, it was obvious the accused would have made the statements notwithstanding the Charter breach as he was obliged to provide his driver’s licence upon demand.

Therefore, the impact of the breach on the accused’s protected interest was less significant. [ 44 ] Likewise here, the initial detention and request for information was minimally intrusive and involved no physicality or violation of the bodily integrity or dignity of the accused who would have responded in the same fashion. [ 45 ] The eventual collection of breath samples from the accused is relatively non-intrusive according to the Supreme Court of Canada in Grant .

This approach has been adopted in numerous cases in Saskatchewan (see: R v Sapara, 2011 SKQB 9 at para 26 ; R v Gunningham, 2011 SKPC 110 at para 34 ; R v Breland, 2011 SKPC 54 at para 47 ; and R v Lavoie, 2010 SKPC 173 at para 27 ). Breath samples are reliable evidence that have minimal impact on the accused.

In this case, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, this stage of the analysis favours admission of the evidence following the breach. iii) society’s interest in the adjudication of the case on its merits. [ 46 ] In Gagnon Doyon J. found that the police officers only had time to react and no time to analyze the situation as the accused got out of the car and attempted to leave on foot.

Hence, admitting the evidence would not greatly undermine public confidence in the rule of law and the evidence need not be excluded to preserve the integrity of the justice system. [ 47 ] While drunk driving offences are not amongst the most serious of offences in the Criminal Code , the societal problems they are intended to denounce and deter are amongst the most serious faced by innocent users of the highway ( R v Francis, 2011 SKPC 30 at para 57 ).

The mandatory minimum sentences associated with these offences reveal how serious Parliament takes them and its desire to deal with this societal problem as mandatory minimum sentences are relatively rare in the Criminal Code . [ 48 ] The societal condemnation of drinking and driving is not restricted to federal legislation. The Province of Saskatchewan recently introduced legislation which imposes further penalties for these types of offences and further emphasizes the seriousness of the problem and the importance of adjudicating impaired driving cases.

The conscripted evidence that was obtained is essential to the Crown’s case. Society’s interest would best be served by having the evidence admitted. This factor favours admission as well. [ 49 ] In balancing these factors, all three favour inclusion of the evidence. If any breach of Charter rights had occurred in this case, it was not serious with Constable Stewart acting in good faith. Requesting information and bodily samples is minimally intrusive and reliable.

The accused has less of an expectation of privacy on his driveway, which is outweighed by society’s interest in the adjudication of this case on its merits. [ 50 ] Accordingly, even if there had been a Charter breach in this case, I still would have found that the evidence obtained by Constable Stewart during the detention of the accused should be admitted into evidence. To do otherwise would bring the

administration of justice into disrepute. CONCLUSION [ 51 ] I therefore, conclude that the accused’s detention was lawful, and not a violation of his rights under s. 9 of the Charter . Accordingly, all admissible evidence from the voir dire , including the Certificate of Qualified Technician, is entered into evidence in the trial of this matter. ______________________ J.F. Rybchuk, J