R. v. Villeneuve, 2014 ONCJ 778

CITATION: R. v. Villeneuve , 2014 ONCJ 778 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JAMES VILLENEUVE Before Justice C.S. Dorval Reasons for Judgment released on September 11, 2014 Mr. Julian Daller........................................................................................................ for the Crown Mr. Will Murray............................................................................. for the accused Mr. J. Villeneuve DORVAL, J.: REASONS FOR JUDGMENT [ 1 ] Mr.

Villeneuve is charged with impaired driving and with refusing to comply with a demand to provide a sample of his breath into an approved screening device. These charges arose out of circumstances, which unfolded on July 11, 2013. [ 2 ] The defendant has filed an application under the Charter to exclude all evidence which flows from the demand, alleging that the demand was not lawful as the officer entered onto private property in order to make the demand. He further argues that even if the demand was lawful, the defendant’s rights under s. 10(

b) were infringed, as the defendant was in a unique position to exercise his right to counsel prior to the officer’s knowledge that the Approved Screening device was available for his use. EVIDENCE [ 3 ] Mr. Michael Noguera was at the LCBO on July 11, 2013 to purchase alcohol. He chatted with an employee who was providing samples of a product, when he looked outside and saw a man walking towards his car. He noted that the man was unsteady on his feet and seemed to be stumbling, and it appeared at one point that he was going to fall. He estimated that he was at a distance of approximately 40 feet.

He went outside the store and called 911. The 911 call was filed as an exhibit. The witness told the operator that the man was ‘drunker than a skunk’ and should not be driving his car. He provided the license plate of the vehicle and a short description of the driver. The man had entered his vehicle and drove away. He watched the driver for a short distance and did not note anything unusual about his driving. He agreed that the time of 18:44 given on the 911 call was approximately right. He also agreed that he had assumed that the man’s gait was related to alcohol, but had not spoken to him. [ 4 ] Cst.

Beachler was dispatched to the call, at 18:47. He obtained the address of the registered owner of the vehicle and drove to that location. He parked on the street near the apartment building where the defendant resides. He saw a vehicle approach; both the driver and the vehicle matched the description provided by the 911 caller. He waited until the vehicle came closer to be able to read the license plate, and once he confirmed it was the correct vehicle, he activated his roof lights. The vehicle turned into the laneway leading to the underground garage of the building. The garage door opened.

He had both his lights and siren activated, and was behind the defendant’s car. He saw the defendant look into his rear-view mirror. There was approximately three feet between their vehicles. Once the garage door opened fully, the defendant drove in just enough to have the door close behind him, without advancing any further. Cst. Beachler could not enter the garage. [ 5 ] A man was smoking outside the apartment building, on a landing. He asked the officer whether he wanted access to the building,

and let him in. Cst. Beachler did not ask him for his name, nor did he ask him if he was a tenant as he assumed that he was, given he had a key to the door. Cst. Beachler went up to the second floor and heard someone coming up another stairway. He recognized the man as the driver of the truck. He asked him if he had anything to drink, and the man admitted he had consumed three beers. He cautioned him. He asked him when he last consumed, and then made a demand to provide a sample in the approved screening device.

The defendant interrupted him while he was reading the demand and said: « Nope, not going to do that. » Cst. Beachler advised him to listen to the entire demand prior to responding, and read the entire demand from the police issued card in his notebook. He confirmed he understood, then stated that he would not give him a sample. He was warned about the consequences of refusing and asked again, and he replied: « No, I’m not a criminal. » He was arrested.

The officer noted that the defendant’s eyes were bloodshot, that he slurred some of his words and that he swayed from side to side when walking, which led the officer to support him. [ 6 ] He was brought to the cruiser and his rights and cautions were read to him. He repeated that he was not a criminal, that having a few beers and driving is not criminal, and that he had made it home and the police should give him a break and that they cannot arrest him at his home. [ 7 ] At 18:56 Cst. Beachler had requested over the air, that an approved screening device be brought to him. He was aware that Cst.

Blonde was in the area as they had just finished responding to a call together. Cst. Blonde arrived at 18:59. Cst. Beachler stated that he did not consider reading the s.10 (

b) rights when he read the demand to the defendant. He did not know with precision when Cst. Blonde would arrive. He stated that he would not have permitted the defendant to enter his apartment to call a lawyer as he had not yet been searched, there were officer safety issues, and he expected that there would be another officer outside to assist. His recollection was that Cst. Blonde was at his cruiser when he exited the building with the defendant. [ 8 ] Once outside and searched, Cst. Blonde located a set of keys in the defendant’s pockets. Cst.

Beachler later went to the underground garage and put the keys in the ignition. [ 9 ] Cst. Beachler admitted in cross-examination that he was in pursuit of a fresh criminal offence, and potential crime, but did not have reasonable and probable grounds for an arrest when he entered the building. [ 10 ] Cst. Blonde was dispatched to 123 Doane Street at 18:56 and arrived at 18:59. He located Cst. Beachler inside the building walking down the hallway of the second floor with the defendant. He walked in front of them and could smell a strong odor of alcohol.

The defendant was put in the cruiser and was lying down in the back seat. He went to the garage; saw an LCBO bag on the front passenger seat of the defendant’s truck. He had the vehicle towed then returned to assist Cst. Beachler. He assisted the defendant to get out of the cruiser, and once the handcuffs were removed, he noted that he placed his hand on the trunk of the cruiser. It appeared to him that the defendant needed to steady himself. He was not listening to the explanations of Cst. Beachler as to the release documents, but kept saying that he was not a criminal. [ 11 ] Mr.

Villeneuve testified that he was diagnosed with diabetes 3-4 years ago and injured his toe in 2012 on broken glass. The injury would not heal and continued to be painful. He also suffered from numbness in his feet. He stated that the pain in his toe sometimes shoots up and throws him off balance. He can still operate the machinery at work as he is in a seated position when he does so. He filed medical records as exhibit 6. He testified that on July 11, 2013 he worked until 3 :30 then went to a restaurant on Clyde Ave where he played Euchre and had a couple of pints of beer and one shot of tequila.

He had a receipt for 26.20 for one beer plus the round of beer he bought. On his way home, he stopped at the LCBO to buy wine for dinner the next day with his girlfriend. He drove home and did not notice the cruiser when he turned on his street, nor did he see anything in his rear-view mirror as he waited for the garage door to open. He entered the garage and went to park in his spot, the 5th bay as you enter.

He always backs the truck into his parking spot until it touches the wall, otherwise it sticks out of the parking spot. [ 12 ] He stated he walked up the stairs and saw the officer for the first time when he entered the second floor hallway. The officer asked him questions and he answered, as he had nothing to hide. He testified that he would have provided a sample of his breath if a lawyer had told him to do so. He felt that the demand was not a proper roadside demand as he was on private property. He testified that the note filed as exhibit 7 has been posted on the door to the building for a long time.

There is no intercom system in the building. The medical records confirm that Mr. Villeneuve is diabetic and as of May 2012, suffered from what is described as either a cellulitis right toe, or diabetic ulcer toe. As of February 2013 it had not healed and it addition, Mr. Villeneuve was complaining of numbness in his feet. There are no documented complaints of loss of balance caused by his condition.

[13] In cross examination he denied waiting just inside the garage door for the door to close. He denied that cruiser lights and sirenwere activated, and that he had looked in the rear-view mirror or made eye contact with the officer by way of rear-view mirror. Hetestified that he believes that two pints of beer and one shot over three and one half hours had no effect on him. He said he had nothingto be concerned about with the police and that he would not do anything to jeopardize his job. When asked why he refused to provide asample, he responded: « Why should I? He is not even allowed in the building. »

It was his belief that if the officer was not on the road,the demand was improper. He did not remember interrupting the officer, faintly remembered the officer explaining the consequences ofrefusing to provide a sample. He stated that the officer pushed him down the stairs while handcuffed, and did not respond to hisnumerous complaints that the handcuffs were too tight. He clearly was unable to set out his position when taking certain photos filed incourt. [14] Ms. Marie Desmarais is a district manager for the LCBO. Her area includes the store at the corner of Clyde and Fairlawn wherethe defendant attended.

She confirmed that there is a 5 inch step down from the sidewalk which leads to the door of the store andexplained the policies and training offered by the LCBO to detect intoxication and prevent the sale of alcohol to any intoxicated patron. FINDINGS WITH RESPECT TO CHARTER APPLICATION [15] I do not accept the evidence of Mr. Villeneuve as to his arrival at 123 Doan. Cst. Beachler knew this to be the address of theregistered owner of the vehicle involved in the complaint and was waiting for this vehicle to arrive.

Once he confirmed the license plate,I accept that he would have activated his lights and siren, especially to prevent the driver from entering the underground garage. Thelights of a police cruiser are designed to be quite visible and are in fact visible. Mr. Villeneuve would have seen the roof lights of thecruiser right behind him. I find that he did prevent the officer from entering the garage by waiting for the garage door to close prior tomoving his vehicle forward into the garage. [16] The issue is as to the lawfulness of the officer’s entry into the apartment building in order to pursue his investigation.

The line ofcases argued before me all involved searches. In the case before me, no sample of breath was ever provided. The search consists of thequestioning of the defendant which led to the demand for a sample of breath to be provided in the approved screening device. [17] In R.v. Evans (1996) (SCC), S.C.J.No.1 Justice Sopinka, writing for the majority, stated at paragraph 11: “Clearly, it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8of the Charter comes into play.

As a result, not every form of examination conducted by the government will constitute a ‘search’ forconstitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacyinterest of individuals does the government action in question constitute a ‘search’ within the meaning of s.8.” [18] With respect to private property leading up to one’s residence, the Supreme Court of Canada agreed that there exists an ‘impliedlicence to knock’ which effectively constitutes a waiver of the occupier’s expectation of privacy.

The court held, however, that thewaiver does not extend to police who approach the home for the purpose of gathering evidence. [19] In R. v. Latozky (2006) (ON CA), O.J. No.2516 the Ontario Court of Appeal considered Evans in a caseinvolving the police entering the laneway of the defendant and arresting him for impaired driving.

The Court stated at paragraph 35: The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle,does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on thedriveway. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. thatlicences may arise by implication from the nature of the use to which the owner puts the property.

As I have said, the use to which thisproperty is put is to park motor vehicles and it is an area of the property that is open to public view.’ [20] The court then gives policy reasons its

interpretation, at paragraph 37. ‘It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations byheading for home and thus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated, therewas a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devoteresources to waiting outside the motorist’s house until he or she returns to the street.’

[21] The case before me does not involve the appropriateness of entering upon a laneway, but the lawfulness of entering the hallway ofthe apartment building. The principle of the ‘implied invitation’ or ‘licence to knock’ is not entirely applicable, as the hallway is not theproperty of the occupier. This case is much more simple. In my view, the officer had an express consent to enter into the building whena key holder offered his assistance to give him access. This offer was not as a result of Cst. Beachler’ s request, but a spontaneous offerby someone who may have witnessed what had just occurred.

Given the proximity of the defendant’s dwelling, the officer did not stopto question the key holder but went directly to the second floor of the residence, where he knew the defendant resided. [22] In any event, I find that the defendant did not have a reasonable expectation of privacy in the hallway. [23] In R. v. Piasentini(2000) O.J.NO.3319 Justice Wein applied the factors listed in R. v.

Edwards (1996) (SCC),104 CCC(3d) 136 and concluded that the defendant in that case did not have a reasonable expectation of privacy in the hallway of theapartment building, notwithstanding the key and buzzer system controlling access to the building. [24] As in that case, the defendant here had no right of possession or control of the hallway, and although the posted sign requestedthat tenants not give free access to strangers, the defendant had no right to regulate access since other tenants could give access towhomever they wished, including, precisely what happened in this case, the police. [25] I therefore find that Cst.

Beachler was lawfully in the building pursuing his investigation. [26] I find that the defendant’s s.10(

b) rights were not denied. Mr. Villeneuve was detained by Cst. Beachler from the moment that heformed his suspicion that he had been driving with alcohol in his body and made the s. 254(2) demand. Mr. Villeneuve’s refusal toprovide a sample of breath was immediate and clear prior to any attempt to present the approved screening device to him. Should Cst.Beachler have provided him with rights to counsel given he was not in possession of the approved screening device at that moment, andgiven that the defendant was just outside the door of his apartment? The Applicant urges the court to conclude that the justification forwithholding the s.10(

b) rights is not applicable in a case where the defendant is not on the roadside and has access to the means toexercise counsel. [27] In my view, the constitutional limit to the s.10(

b) rights is not dependent on the physical position of the defendant. The generaluse of cellular telephones has generated much case law as to the necessity to with hold the s.10(

b) rights on the roadside, yet the test to beapplied remains the same. Was the officer in a position to require a sample of breath prior to any realistic opportunity to exercise theright to counsel? ( R. v. Latour (1997) (ON CA), 116 CCC(3d) 279) [28] In this case, at the time he made his demand, Cst. Beachler was not aware that Cst. Blonde had arrived with the ASD, but wouldhave become aware of that momentarily. The defendant could not have realistically exercised his right to counsel within the one or twominutes required for Cst. Beachler to exit the building, see Cst. Blonde and require a sample of breath.

There are considerable safetyissues for an officer to give a detainee access to his apartment where weapons could easily be accessible. As Mr. Villeneuve stated in hisevidence, he found counsel using yellow pages. This search would have had to be completed either by reference to the actual yellowpages or by electronic means. Once a lawyer was found, consultation would follow. This could not have been done within the fewminutes it took for Cst. Beachler to be in a position to demand a sample. [29] I deny the Charter Application. FINDINGS AT TRIAL [30] Mr. Villeneuve’s refusal to provide a sample was unequivocal.

I find him guilty of that charge. [31] I dismiss the impaired driving charge. The symptoms of impairment were the following: the odor of alcohol on his breath,

bloodshot eyes, some words slurred and issues with his balance. The following evidence leads me to have a doubt as to whether the defendant was impaired. Mr. Villeneuve showed considerable difficulties with his balance, however, there is a possible medical explanation for that physical symptom. Exhibit 6 shows that he was not compliant with his diabetic regime, but clearly establishes he had been complaining of numbness in his feet for a considerable period of time. There is no evidence that he drove in any manner, which suggests impairment.

The evidence that he reversed his truck into a tight parking spot suggests a lack of impairment. Thirdly, given the LCBO policies and training, it seems highly unlikely that Mr. Villeneuve would have been able to purchase alcohol in the advanced state of intoxication as was suspected by Mr. Noguera. Released: September 11, 2014 ________________________________ The Honourable Justice C.S. Dorval