Her Majesty the Queen - v. -, 2018 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 41 Date: June 21, 2018 Information: 90023188 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bartholomew Franklynn Besplug Appearing: Shannon Williams For the Crown Nicholas P. Robinson For the Accused RULING ON VOIR DIRE B.D. HENNING , J [ 1 ] Mr.

Besplug is charged with offences under sections 255(1) & 253(1)(a) [impaired operation of a motor vehicle] and sections 255(1) & 253(1)(b) [operating vehicle over legal blood alcohol limit] alleged to have occurred on July 8, 2017. A trial commenced on January 3, 2018 with discussion as to procedure. It was agreed by counsel with the concurrence of the Court that the trial would initially proceed as a voir dire as the defence Notice of Charter Application raised many possible breaches of the Charter under sections to 7 to 10 inclusive of that statute.

The Crown indicated that they did not fully comprehend the issues intended to be raised, but the Crown was content to proceed with the evidence on the case, and address issues that became apparent. Defence counsel stated that the primary concerns would be with respect to sections 8 & 9 of the Charter . Before proceeding further, the defence confirmed that not guilty pleas were entered and that all issues would be in contention.

CROWN EVIDENCE [ 2 ] The first Crown witness was Ms. Tracy Cullin who gave evidence with respect to the operation of a motor vehicle. She stated she saw a blue Dodge truck being operated on a two lane highway, swaying back and forth in the lane, five kilometers before the weight station. She said she wondered why the driver was driving that way “and then I saw him take a drink of a beer”. She said she “called it in”, meaning she called 911, and followed the vehicle into Regina where it went up to 140 km/hr at times and passed two other vehicles, onto the Ring Road at Regina. Ms.

Cullin said the driver became aware that she was following his vehicle and the driver pulled into the library in the Glencairn area and observed her and “gave me some disgusting motions and the finger”. [ 3 ] Ms. Cullin was not sure which highway she had originally been on, but it was north of Regina, and after reviewing her statement she stated that the time of driving was 7:20 p.m. or slightly later. She stated that she knew the driver drank beer by the shape of the bottle. She said that when they were stopped at the library the driver looked directly at her. Ms.

Cullin gave some description of the t-shirt the driver was wearing, but that description was not detailed. She observed this driver from across the street looking into the parking lot at the library. She said she described the driver to the 911 operator. [ 4 ] Ms. Cullin indicated she followed this vehicle through the Glencairn area, and the person was doing things such as making a signal to turn, and then doing the opposite at the last moment. She had her three daughters in her vehicle while this was occurring. She stated that this vehicle eventually stopped in the vicinity of a house at 78 Joyce Crescent.

The driver and two other persons exited the vehicle. This was the first mention of others in the vehicle. Ms. Cullin said one of the other persons carried a soft-sided Corona beer bag which she concluded from observation to contain something. The driver made a vulgar gesture toward her and they all went into the house. She left at this point on the instructions of the 911 operator. This was at about 7:45 p.m. [ 5 ] Ms. Cullin gave further details of the driving including asserting the 140 km/hr speed. Neither counsel questioned Ms.

Cullin about how she followed this vehicle at that speed to maintain sight of it over a considerable distance, with her three children in the vehicle and accurately confirm the speed. [ 6 ] The only other witness for the Crown was Constable William Hooker of the Regina City Police. (At T22 and following of the transcript) Cst. Hooker described what occurred when he attended at the house with two other constables, Csts. Maze and Duffy (both phonetic spellings). Cst. Hooker indicated that he felt that he had sufficient grounds provided by Ms. Cullin to make an arrest of the driver in question for impaired driving.

He described entering the property at 82 Joyce Crescent (not the address given by Ms. Cullin) and going to the back of the house where they encountered two intoxicated male persons, neither of whom matched the description of the driver given by Ms. Cullin. These persons indicated that another person was in the house, and the police stated they wanted to see this person, and they would obtain a Feeney warrant if necessary to go into the house.

One of these persons questioned their authority to be on the property conducting an investigation, which was taken to be confrontational and obstructionist, and resulted in that person’s arrest for obstruction and ‘public intoxication’ (on the patio of a private residence), and was removed from the area although he was never charged with any offence. [ 7 ] Cst. Hooker stated the other person, a Mr. Tremblay, was more cooperative and that he discussed things further, and then a person, whom Cst. Hooker, in his direct evidence, stated came to the back of the house.

This person was then observed to have been showing significant signs of intoxification and was almost immediately arrested for impaired operation of a motor vehicle at 19:51 hrs (7:51 p.m.). However, I conclude the arrest occurred so quickly that no signs of intoxication could have been observed prior to arrest. More details of this incident came from other witnesses, and I accept their evidence. [ 8 ] Cst. Hooker then described giving this person who was the accused Mr.

Besplug, the demand for a breath test and he was taken to the Regina Police Service where he eventually called a Legal Aid lawyer and conversed from 8:12 to 8:31 p.m. Observation for breath tests commenced at 8:35 p.m. and eventually two samples were given to a technician of the Intoxilyzer machine. A Certificate of Analysis was prepared and served which was exhibited for the voir dire . All of these steps were retraced further in copious detail in direct examination. Cst. Hooker went into some detail matching the description of the person he encountered with the information given by Ms. Cullin.

DEFENCE EVIDENCE [ 9 ] Mr. Besplug gave evidence on the voir dire as did both of the persons in the backyard that day. Mr. Wulff gave evidence first. He was the first person arrested, and Mr. Tremblay was the other person whom the police considered to be more cooperative, and who also testified. Cst. Hooker believed the person they were seeking was inside the house, and he had already stated that he had sufficient grounds to arrest that person for impaired driving based upon information from Ms. Cullin. Cst. Hooker did not describe the arrest of Mr. Wulff in very much detail, but Mr. Wulff added more details. Mr.

Wulff indicated that they knew they were being followed by a lady talking on a cell phone. He described their return to the house in question, which he referred to as his house, and that the three persons in their group began to drink when they arrived there. He asserted that a large number of police officers arrived. Mr. Wulff described how he was arrested, and that it occurred when he stated they could not enter the house, and they should go for the warrant they had referred to. At that point he was roughly and summarily grabbed, shoved into the rough surface of the stucco on the house, and handcuffed.

He was advised that he was under arrest for obstruction. No such charge was ever laid. [ 10 ] Given that Cst. Hooker had referred in his evidence to knowing they might have to obtain a Feeney warrant, and that he had indeed arrested Mr. Wulff who was considered confrontational, and given the fact that he gave no details of the arrest beyond the bare fact of its occurrence for ‘officer safety’, I have no hesitation in accepting Mr. Wulff’s evidence on the manner of his arrest.

He was never charged with anything, and that is not surprising on the evidence presented, but he was arrested with a significant show of force. [ 11 ] Mr. Tremblay gave evidence next and he indicated that he was “startled” by his friend’s arrest, and he also said that the police stated they would have the house “swatted and surrounded” within twenty minutes if the person they sought did not appear, and so based upon this, he went in and got his friend from inside who became the accused person. He stated that he informed Mr. Besplug the police wanted to see him, and he advised what had happened to Mr. Wulff. Mr.

Tremblay was concerned that Mr. Besplug would also be “slammed into the wall”. He gave further evidence of the conversation between him and Mr. Besplug and what they did that day and when they came to the house (starting at page T-87 of the Transcript). [ 12 ] The final witness on the voir dire for the defence was Mr. Bart Besplug. He described the drive back, and the fact that he was inside the house and when his friend Mr. Matt Tremblay came down and told him the police wanted him, and they had already slammed around Brad (Wulff). Mr.

Besplug said he went to the back door where he was immediately arrested and handcuffed before he fully exited. He also gave evidence of what they had done at Regina Beach during the day, and then of his driving on the way back from Regina Beach to Regina. Mr. Besplug did not recall anything remarkable about that. He stated that he was not drinking on the way back in the vehicle. He questioned the aggressive behavior of police in arresting Brad Wulff in his own house. Mr. Besplug said that Mr.

Tremblay looked terrified when he came down and spoke to him, and I have little doubt that all of the parties felt intimidated by the police presence and by their actions. [ 13 ] On cross-examination, Mr. Besplug admitted he was aware he was being followed and stated that it could have been for cutting the other driver off or for any other reason not known to him. He denied that any beer bottles in the vehicle were his, or that he consumed alcohol on the road, but he did state that he drank significantly when they returned to the house, including when he was alone downstairs. Mr.

Besplug admitted he would have been impaired when he encountered the police, but not while he was driving. [ 14 ] Upon the completion of evidence it was agreed that briefs would be filed and argument presented if necessary. Briefs and cases have been filed. LEGAL ISSUES AND ARGUMENT [ 15 ] The defence raised a number of issues and arguments: a.

The arrest of the accused took place immediately upon reaching the back door of the house with no opportunity for observations of impairment; therefore, both the conclusion of the accused being the driver and of being impaired rests on the information obtained by the 911 operator from Ms. Cullin who passed that information to the investigating officer, Cst. Hooker. The defence asserts that this evidence was by the circumstances and nature of the observation flawed and inadequate, and no further investigation was

undertaken by the arresting officer to confirm any information relied upon. The defence position is essentially of an unlawful arrestcontrary to

section 9 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982. It must, however, beremembered, that this is a voir dire that will only deal with alleged breaches of rights under the Charter, and not evidentiary issuesrelating to all aspects of the charges in question. b. The defence argues further that the arrest was unlawful for other reasons, namely, that the arresting officer reached into thehouse and placed hands on the accused while he was still on private property to which attached a right of privacy and security undersection 8 of the Charter.

The defence asserts this is equivalent to an unlawful entry into the house under circumstances where theinvestigators knew that a warrant was required. While this situation might be argued as being equivocal as to whether the person had aright of privacy in the house, and the person was on the verge of exiting the house in any event, it may also be argued that thecircumstance that the police had created constituted intimidating and coercive behavior to induce the accused to come to the back door ofthe house and/or exit thus waiving any right to privacy under

section 8 by intimidation. [16] The defence argues that no exigent circumstances were present that would permit an entry and arrest within a home as authorized by

section 529 of the Criminal Code.

The defence cites the cases of: Hunter et al. v Southam Inc., (SCC), [1984] 2 SCR 145, 14 CCC (3d) 97 (SCC) R v Evans, (SCC), [1996] 1 SCR 8, 104 CCC (3d) 23 (SCC), reaffirmed by the Supreme Court of Canada in R vMacDonald, 2014 SCC 3, [2014] 1 SCR 37 R v Feeney, (SCC), [1997] 2 SCR 13, 115 CCC (3d) 129 [Feeney] [17] The Crown, starting at paragraph 13 of its brief dealt with the same issues, asserting that the entry into the back yard for an active investigation has been well recognized as permitted under an implied license ofentry and due to the minimal intrusiveness of such an entry.

However, significant restrictions apply once contact has been made with theowner. [18] In this case the owner, Mr. Wulff did not wish to have the police on his property, and told them that if they wished to enter the house for the third person they sought, they should obtain a warrant under the principles set in inFeeney, cited above. Mr. Wulff was the renter of a suite at that property, and I would accept that gives him control and rights over thebuilding and land adjacent to it in the same way that a registered owner would have.

I accept the Crown’s position that the police couldmake an initial lawful entry onto the property and make inquiry with the owner. However, it was not at all clear to the police officerswho the owner/householder was and indeed, it was apparent they did not inquire who the owner was. When Mr. Wulff, as the owner,asserted his rights, they summarily arrested him and removed him from his property.

Having accomplished that through an arrest withsome force and with questionable legality, the police had established, in my opinion, a situation of some oppressiveness and theycontinued in their demand to see the third person who had been admitted to be available in the house. [19] Mr. Tremblay went in, and I accept that he was both intimidated and frightened by what had occurred, and he communicated that to Mr. Besplug. Mr. Besplug then went to the back door, and would have exited, but he wasgrabbed and arrested with some forcefulness at the back door.

His exit would have occurred a moment later, in my opinion, but thepolice, and particularly, Cst. Hooker in their eagerness, perhaps fueled by what they considered to have been an unreasonable lack ofcooperation to that point, grabbed him even before he exited. However, the appearance by Mr. Besplug at the back door was, in myopinion, prompted by the intimidation and aggressive behavior of the police up to that point. It was not a voluntary exit from the house,and the assertion by the Crown that their entry into the house was trivial and insignificant is not valid, in my opinion.

It is true that theydid not intrude very far into the residence, but the exit from the residence was induced by force and intimidation. Mr. Besplug gave upwhatever privacy rights he had to remain in the residence due to that. In that sense the

section 8 Charter rights were infringed. [20] However, that does not end the consideration of the

section 8 rights. The Crown at paragraph 21 of its brief, asserts that this does not matter because: “the accused, as a guest at the property, has no reasonable expectationof privacy at a third party’s residence” and so no violation of

section 8 Charter rights could occur. The Crown asserts that the SupremeCourt has considered the question of when privacy rights arise, and that a right of control of the property is crucial to the existence ofsuch rights. The Crown asserts that a guest has no such rights.

[ 21 ] Mr. Besplug was the lawful guest of the householder who had a right to the privacy and integrity of the property. That person had been summarily arrested under questionable circumstances when he asserted his rights and told the police to obtain the Feeney warrant that they had referred to and told him of their ability to obtain. Undoubtedly, based upon their actions, being told to obtain a warrant annoyed them. I conclude from their actions that they did not wish to take the time and trouble to obtain such a warrant. Hence Mr. Wulff was removed from the scene when they had Mr.

Tremblay, who was intimidated by what had occurred, take their demand to see Mr. Besplug. This he did, in such a way that makes it clear that both he and Mr. Besplug felt that they might well expect that force would be used against themselves as it had been against Mr. Wulff if they did not cooperate. [ 22 ] In the case of R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ], the issue of psychological compulsion was considered extensively and recognized as a factor in unlawful detention.

Though the context in Grant is very different, in this case a significant Charter right was, in my opinion, relinquished for reasons of both physical and psychological coercion. [ 23 ] Hence, Mr. Besplug came to the back door and relinquished whatever rights he had to privacy as a guest in the house. The Crown argues, as I have observed, that there were no such right to privacy, so whatever the police did was of no legal effect with respect to a Charter breach.

I accept that a guest does not have the same rights as an owner, tenant, or hotel guest, all of whom have legal or contractual right to exercise control over the property. However, a guest has some status permitted by the homeowner, whether granted temporarily or on a longer basis. Vis-a-vis a third party, a lawful guest has a higher right to assert control over premises than does a stranger. This is a delegated and derivative right of privacy.

Thus anyone coming to the door of premises, in the absence of the owner who can make the final decision of what is permitted by way of entry, a guest may indeed deny entry to a stranger. Such a person may be a salesperson, a person asking directions, or any other stranger not authorized by the owner or tenant to be on the property, and may be turned away by a guest in the owner’s absence. The guest has de facto control. [ 24 ] The Crown would assert that the police are not in such a position as a pure stranger and that they have statutory authorities, and may exercise them.

That is correct, within what is permitted at law. There is no general right of entry by police except in emergent circumstances, that has not been argued was the case here. The police in this instance wanted access to Mr. Besplug who they believed was an impaired driver, and that they had sufficient evidence for an arrest on such a charge without investigation further. However, they did not have a right of entry, and it is my conclusion that there was a right of privacy accruing to the guest, Mr. Besplug, as a lawful guest of the homeowner.

Under the circumstances of this case where the lawful homeowner was arrested by the police with some force and for questionable grounds, that right of privacy should as a matter of public policy accrue to the lawful guest on the premises. I conclude a

section 8 Charter breach occurred. [ 25 ] The Crown, as its final argument, asserts that there should be no exclusion of evidence, namely, the Certificate of Analysis, due to the breach which permitted the arrest and eventual testing of Mr. Besplug’s blood alcohol. This is a question that was addressed by the case of Grant . The case involved the finding of evidence following an unlawful detention, and the Court gave guidance as the factors to be considered in weighing the competing public interests in the exclusion of evidence.

In that case it was excluded, but there are numerous cases that have dealt with Charter breaches in the context of impaired driving cases. Even in the face of serious Charter breaches evidence has not always been excluded. This aspect of the case has not been argued extensively, though the Grant case is referred to in the briefs. [ 26 ] The Grant case directed that consideration by given to the following factors, and these have been further considered and applied in a great many cases since 2009.

The starting point is section 24(2) of the Charter which provides: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute .” [ 27 ] The Supreme Court in Grant considered prior case law in this area and refined the principles for exclusion of evidence obtained in breach of the Charter , and they stated succinctly as discussion headings the following large considerations: (1) the seriousness of the Charter -infringing state conduct,

(2) the impact of the breach on the Charter -protected interests of the accused, and (3) society’s interests in the adjudication of the case on its merits. [ 28 ] The Court went on to further consider the application of these considerations to various categories of evidence. With respect to bodily substances, the primary consideration of prescriptiveness was refined and at paragraph 107, the conclusion by McLaughlin, CJC, and Charron, J is to the effect that the prior test was not fully in keeping with the original wording of section 24(2) of the Charter .

There was considerable further discussion of considerations and principles. [ 29 ] In my opinion, the factors to be considered in this case are as follows: a. It involves a case of impaired driving, which represents a serious and continuing problem throughout Canada, and there is a high societal value on the adjudication of such cases on their merits, and not on what may be at times broadly and popularly characterized as technical considerations. b.

The police considered they had a very strong case against a suspect who was frustrating their expeditious investigation of a case, but they nonetheless knew their right to enter the house and interview and/or arrest the suspect required the legal process of obtaining a warrant. c. The police considered the householder’s failure to admit them to be unreasonable and they effected a questionable arrest of that person, with some demonstration of force that would convey a threatening message to the others remaining. d.

The accused person had a limited expectation of privacy as a guest in the residence, but he gave that right up due to psychological and actual physical intimidation by the police investigators. [ 30 ] Given these considerations, the breach of

section 8 rights was egregious. The right of integrity of the person and their private space is important for all citizens, and police must recognize that expediency cannot override these rights except in compelling circumstances as set out in

section 529 of the Criminal Code , or other exceptional circumstances. [ 31 ] Accordingly, I would rule that based on the principles enunciated in Grant and other cases, in this instance, the arrest and further detention of the accused which permitted the obtaining of breath samples was not justified and results should be excluded pursuant to section 24(2) of the Charter . The Crown has properly pointed out in its brief that lessor remedies may be available and adequate to address a breach if the court found one to exist.

However, the sentencing options of the Court in this category of case is very limited, under the Criminal Code , and there is no discretion or role for the courts in the consequential penalties that exist under provincial legislation. Accordingly, the only effective remedy in this case, in my opinion, is the exclusion of evidence, namely, the Certificate of Analysis. [ 32 ] The whole of the evidence in this case was led in the voir dire ; however, the focus in argument was primarily on Charter issues.

There are other potential evidentiary issues that are referred to, particularly in the defence brief, and these issues have not been considered or resolved in this ruling. The trial must continue on the remaining charge of impaired driving (count 1). Dated at the City of Regina, this 21 st day of June 2018.

________________ B.D. Henning, J Excerpt from CONSTITUTION ACT, 1982 ,

PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS ……………………………….. LEGAL RIGHTS Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Search or Seizure 8 . Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention 10 . Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.