Her Majesty the Queen - v. -, 2017 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 004 Date: January 10, 2017 Information: 90119032 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Clement Klevin Appearing: Mr. Dana Brûlé For the Crown Mr. Scott Moffat For the Accused DECISION ON CHARTER VOIR DIRE D.

KOVATCH , J BACKGROUND [ 1 ] The accused, Kenneth Clement Klevin is charged with having the care and control of a motor vehicle while impaired by alcohol and with having the care and control of a motor vehicle while his blood alcohol content exceeds .08 per cent. It was alleged these offences occurred on April 3, 2016. Defence counsel served and filed a Charter notice, asking for the exclusion of the Crown’s evidence on the basis of an unlawful search and seizure from the defendant, contrary to

section 8 of the Canadian Charter of Rights and Freedoms .

[ 2 ] The trial commenced on September 20, 2016, at which time the Crown immediately entered a Charter voir dire . I reserved my decision on the Charter voir dire . This is that decision. THE EVIDENCE [ 3 ] The first Crown witness was Ms. Bonnie Stomp. She testified that she is 24 years of age, and on April 2 and 3, 2016, she was employed as a waitress and a bartender at the Royal Hotel. On the evening of April 2, the accused, Ken Klevin, was there drinking. She knew him from prior dealings with him, and regarded him as a friend. He was quite intoxicated. She decided he was too drunk to drive.

She tried, unsuccessfully first, to take his keys from him. At approximately 9:30 to 10:00 p.m., he decided he would leave. Not having obtained the keys from him, she called police. She spoke to a couple of her friends, and asked them to give Mr. Klevin a ride home. She was then successful in having Mr. Klevin turn the keys over to her. She in turn turned the keys over to one Amanda Moore, so that Ms. Moore could drive Mr. Klevin home. She had no further dealings with Mr. Klevin. [ 4 ] She testified that she could tell from the way Mr.

Klevin walked and talked, and the way he was slurring his words, that he was quite intoxicated and not fit to drive a car. [ 5 ] Constable Kalin Wiebe testified that he is has been with the Weyburn Police Service for approximately two years. On the evening of April 2, he was dispatched to the Royal Hotel. In the parking lot, he met Ms. Stomp and the accused. The accused was very drunk and had to lean on another individual to retain his balance. The accused said he would drive. Ms. Stomp was successful in getting the keys from him, and advised that she would have friends drive the accused home.

The officer left the Royal. [ 6 ] At some point in time the officer was either advised or became aware that Mr. Klevin resided in Midale, a town about 30 to 40 minutes from Weyburn. He was also advised that the accused had a sister who resided in Weyburn. [ 7 ] Later during the same shift, at approximately 12:45 in the early morning hours of April 3, Constable Wiebe did a walk through of the Royal Hotel bar. The accused was not there. Constable Wiebe radioed and spoke to Constable Lyndon Lanoie of the Weyburn Detachment of the RCMP. I gather that Constable Lanoie asked Constable Wiebe to check at the home of Mr.

Klevin’s sister, to see if the accused was present there. Constable Wiebe did check there, but was unable to locate the accused. He conveyed this information to Constable Lanoie. [ 8 ] Constable Lyndon Lanoie testified that he has been a member of the Royal Canadian Mounted Police for seven years, and in April, 2016 was stationed at Weyburn, Saskatchewan. On the night of April 2 and 3, he was on duty and in full uniform. During the evening of April 2, he met Constable Wiebe of the Weyburn Police Service. Constable Wiebe advised Constable Lanoie of the incident with Mr. Klevin at the Royal Hotel bar.

The concern was expressed that Mr. Klevin might attempt to drive home. [ 9 ] Some time, a little past midnight in the early morning hours of April 3, Constable Lanoie was driving and in the company of Corporal Brian Wlasichuk. The two of them were clearly well familiar with Mr. Klevin. They knew where he resided in Midale, and knew what kind of truck he drove. Shortly past midnight, they drove by the Royal Hotel parking lot, and did not see the accused’s truck. They immediately drove to the accused’s home at 517 Churchill Street in Midale.

They found the accused’s truck parked in his driveway and next to his house. The engine was running and the lights were on bright. They drove around the house a couple of times. They ascertained the plate number from the truck, and checked with dispatch, to confirm that this truck was registered to the accused. [ 10 ] After a few minutes, they decided to check on the accused and his vehicle. They parked the police vehicle, and Constable Lanoie and Corporal Wlasichuk then approached the accused’s vehicle. Constable Lanoie found the accused in the driver seat, slumped over the steering wheel.

As mentioned above, the engine was running and the lights were on bright. The accused was apparently asleep. They had to knock several times to attempt to wake him. There were a number of indicators that the accused was very impaired by alcohol. He was immediately placed under arrest, and later provided two samples of his breath in the intoxilyzer, both of which registered 200 mg per 100 ml of blood.

I won’t go into detail regarding the evidence obtained after this, as defence counsel takes no issue with how the investigation was conducted thereafter or the evidence obtained, except for his argument that all of the evidence was obtained after the Charter breach. I do note however, that Constable Lanoie testified that when he advised Mr. Klevin of his Charter rights and asked Mr. Klevin if he wished to call a lawyer, Mr. Klevin said no. He then asked why he was being charged, and said he didn’t drive.

[11] Constable Lanoie testified that Mr. Klevin’s lot was approximately 100 feet deep. There is a front street in front of the houseand a back alley behind the house. The driveway ran the full length of the lot from the front street to the back alley. The truck wasparked in the driveway, near the house, and clearly on the accused’s property. [12] Corporal Brian Wlasichuk testified that he had been with the RCMP for 11 years. He was with Constable Lanoie at whichtime they received information that the accused may have driven to Midale. They went to the Midale. They saw the vehicle running inthe driveway.

He didn’t know how the vehicle got there, but presumed the accused had driven there. They approached the vehicle andsaw the accused sleeping behind the steering wheel. They awoke him and placed him under arrest. Corporal Wlasichuk turned off thevehicle and removed the keys from the ignition. The accused was very intoxicated. [13] Corporal Wlasichuk also testified that the accused’s vehicle was in the driveway, and clearly on the accused’s property. THE ARGUMENT [14] Counsel were agreed that there is no evidence as to how the accused and his vehicle got from the Royal Hotel in Weyburn tohis home in Midale.

Both the charges relate to him having care and control of the vehicle while it is parked in his driveway. All of theevidence that the Crown seeks to admit and defence objects to in the Charter voir dire was obtained after the police located the vehiclein Mr. Klevin’s driveway. [15] The accused’s argument is primarily based upon the Saskatchewan Court of Appeal decision in R. v. Rogers, 2016 SKCA105. The defence argues that the only reason the police went to Midale and went to Mr. Klevin’s residence was to investigate Mr.Klevin for the possible commission of a criminal driving offence.

That was their sole purpose for entering upon the property. Byentering upon the property to conduct that investigation, they exceeded the terms of “the implied invitation to knock” and approached thevehicle as trespassers and intruders. Their search and seizure of information from the accused breached his rights to be secure fromunreasonable search and seizure under

section 8 of the Charter. The defence asked for exclusion of all of the evidence after the policearrived in Midale. [16] The Crown’s argument is primarily based upon the Ontario Court of Appeal decision of R v Lotozky (2006), (ON CA), 81 OR (3rd) 335. The Crown says that the defence must first establish a privacy interest, and then a breach orinfringement of that privacy interest. He says there was no privacy interest here. The police entered upon the property to look into theplaintiff’s vehicle which was in full public view, with the engine running and the lights on.

He says there was no search or seizure ofanything until breath samples were taken from the accused. The seizure of these samples was authorized by the provisions of theCriminal Code and the police making the appropriate demands. [17] The Crown also argues that if there was any Charter breach, it is minor and technical in nature. Further, that there is a largepublic interest in prosecution of drinking and driving offences. Accordingly, the Crown says that if there is a Charter breach, that thecourt should do the Grant analysis and admit the evidence in any event.

ANALYSIS [18] The short answer to the Charter application is that in my view, the Saskatchewan Court of Appeal decision in Rogers hasdecided the issue, and that decision is clearly binding upon me. I conclude that the accused rights under

section 8 of the Charter havebeen breached and there has been an unlawful search and seizure of him. [19] In Rogers, the court reviewed a substantial number of cases, beginning with R v Evans (1996) (SCC), 1 SCR8. At paragraph 32 of Rogers, the court stated and then quoted from the Evans decision as follows: In Evans, Sopinka J. discussed the importance of determining what the police intend when they knock on someone’s door. The officer’sintention in knocking on someone’s door determines whether the police are engaged in a search;

Despite difficulties involved in proving police “intention” when they approach a person’s home, I disagree with Major J. that the intention of the police is irrelevant in assessing the legality of their actions. As stated above, the implied licence to knock extends only to activities for the purpose of facilitating communication with the occupant.

Anything beyond this “licenced purpose” is not authorized by the implied invitation . . . where the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant ’s home .

Since the implied invitation is for a specific purpose, the invitee’s purpose is all important in determining whether his or her activity is authorized by the invitation. [ 20 ] In the following paragraph the Court of Appeal again quotes from Sopinka, this time to establish the policy reasons for the implied licence to knock doctrine. They quote from Evans as follows: There are sound policy reasons for holding that the intention of the police in approaching an individual’s dwelling is relevant in determining whether or not the activity in question is a “search” within the meaning of

section 8 . If . . . intention is not a relevant factor, the police would then be authorized to rely on the “implied licence to knock” for the purpose of randomly checking homes for evidence of criminal activity. Then the police could enter a neighbourhood with a high incidence of crime and conduct surprise “spot checks ” of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock.

Clearly, this Orwellian vision of police authority is beyond the pale of any “implied invitation”. [ 21 ] The Court of Appeal looked at a number of other authorities, and concluded that if the police approach a home for some other purpose, not related to investigation of the accused, they are properly acting within the scope of the implied licence to knock, and there will not necessarily be a breach of the home owners

section 8 rights. For example in the case of R v Parr , 2016 BCCA 99 , the accused Parr owned the residence. He was a suspect in an ongoing investigation of a marihuana grow operation. The accused had been arrested under the provisions of The Mental Health Act . Apparently, he spoke to police about his fiancé who resided at his residence. The police dispatched an officer to the home, to communicate with the fiancé and advise her that the accused had been arrested and of his medical condition.

While communicating with the fiancé, the officer smelled growing marihuana and reported that to police, who later obtained a search warrant and discovered the illegal grow operation. The BC Court of Appeal relied upon the clear finding of fact from the trial court that the police officer approached the house for the purpose of communication with the fiancé, and for no other purpose. The very purpose of the implied invitation to knock is to allow an individual to approach the home owner for the purpose of communication with the home owner or resident.

As a result, in the Parr case, the police were acting within the scope of the implied invitation to knock. The officer did not act illegally or breach any rights when he smelled growing marihuana and was entitled to utilize that information to obtain the search warrant. [ 22 ] As mentioned above, the Crown relies primarily on R v Lotozky . In that case, police received a call about a possible impaired driver and were given the licence plate of the vehicle. The dispatcher quickly ascertained the name and address of the registered owner.

Two police officers were dispatched to that address, and arrived just slightly ahead of the accused. While they were there, they saw the accused’s vehicle, being driven very oddly, drive into the accused’s driveway and park. They immediately walked up the driveway, spoke with the accused and then placed him under arrest. [ 23 ] At paragraph 32, the court stated as follows: In my view, there is a fundamental difference between the police conduct of knocking on the door of a dwelling house to investigate the occupants discussed in Evans and merely entering on to a driveway.

The latter does not involve an investigation of persons in their own home. A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the applied invitation must be analyzed in that context. [ 24 ] It seems to me that the Lotozky decision is distinguishable on the facts from Rogers and the case at bar and as a result is not necessarily contrary to the Rogers decision.

In Lotozky the officers witnessed the accused driving his vehicle on the public street, and witnessed him driving it into his driveway, at which time they immediately approached him. It would seem to me that when the police see a vehicle on a public highway and form an intention to stop that vehicle, they are entitled to enter upon a private property, including a driveway, to approach the driver and conduct an investigation.

See R v Anderson , 2014 SKCA 32 . [ 25 ] However, even if I interpret the Lotozky decision as allowing the police to approach and investigate an individual on private property, I would still determine that the Rogers decision is binding upon me and follow that decision. It is most interesting to note the recent decision of R v DeMedeiros Arruda , 2016 ONCJ 654 . In that case police received a report of a possible impaired driver, driving a

Toyota vehicle and were given a licence plate number. The dispatcher ascertained the name of the registered owner and his address. Police were dispatched to that address. On arrival, they found the Toyota vehicle with that licence number parked in the driveway. Theyknocked on the front door, spoke to the accused’s spouse, and asked to speak to the accused. He was subsequently placed on underarrest. As in this case, counsel cited and argued upon the Rogers and Lotozky decisions. The Honourable Justice Rose concludes thatthe Rogers and Lotozky decisions are clearly in conflict.

Further, that the implied invitation to knock includes the right of police to enterupon private property to investigate an impaired driver. As a result, there is no breach of the implied invitation to knock. He also clearlyconcluded that as a member of the Ontario High Court, the Ontario Court of Appeal decision in Lotozky was binding upon him. In thatrespect, I am entirely in agreement with his decision.

However, the same rules of stare decisis require that I follow the SaskatchewanCourt of Appeal decision. [26] Returning to and applying the facts of this case to the law, there was no evidence that the accused had committed any criminaloffence. The police were suspicious that he had committed an offence of drinking and driving. The only purpose for them driving fromWeyburn to Midale and going to the accused’s home was to investigate whether the accused had committed that criminal offence andgather evidence against him.

I don’t see how I could possibly conclude that they changed or altered their purpose when they stoppedtheir vehicle and entered upon the accused’s property. Having concluded that this was their sole purpose, the entire issue in this case isdecided by the Court of Appeal in the Rogers decision. I conclude there was a breach of the accused

section 8 Charter rights. THE GRANT ANALYSIS [27] R v Grant (2009) 2009 SCC 32 , 2 SCR 353 set out a three step analysis to determine whether evidence should beadmitted or excluded when there is Charter breach. The three factors are: i. The seriousness of the Charter infringing state conduct which led to the discovery of the evidence; ii. The impact of the breach on the Charter rights of the accused; iii. Society’s interest in the adjudication of the case on its merits. With respect to the first factor, the Charter breach was serious.

I do point out that there was no ill will or bad faith on the part of theofficers. They were clearly mindful of the serious problem in Saskatchewan of drinking and driving. They were suspicious that theaccused had committed an offence, and diligently investigated that matter. However, the breach was still serious. There is a highexpectation of privacy in a dwelling house and on private property. The limitations placed upon the implied invitation to knock aredesigned to respect that high expectation of privacy, and to prevent abuse of the implied invitation to knock.

It seems to me that this canonly be described as a “surprise spot check” of a private home, which Sopinka J. specifically disapproved of. (See the quote from theEvans decision in paragraph 20 above.) As a result, in my view, the breach is serious. [28] The second factor is the impact of the breach on the Charter rights of the accused. The impact of the breach on the accusedand his Charter rights was are very large. The entirety of the Crown’s case and the entirety of the evidence are obtained as a result ofthe breach. [29] The third factor is society’s interest in the adjudication of the case on its merits.

Overall, there is no question that society hasa large interest in adjudication of drinking and driving cases on their merits. However, in my view, this case is on a very narrow point,and society’s interest in adjudication of this case on its merits is not nearly so significant. As suggested above, on the basis of theAnderson decision, I would regard this case entirely differently if there was any evidence of the accused driving his vehicle onto theproperty. There is no such evidence.

The narrow point that would be decided, if the trial proceeded, would be whether the accusedcould be prosecuted for care and control when his vehicle is parked on his own private property. In my view, that issue can bedetermined at a later date and time. [30] Looking at all of the factors to be utilized in a Grant analysis, I am of the view that all of the evidence obtained by the policeafter their entrance upon the accused property should be excluded under section 24(2) of the Charter, and I so order.

[ 31 ] I express my thanks to both counsel for their presentation and helpful submissions in a very interesting case. Dated at City of Weyburn, the Province of Saskatchewan this 10 th day of January 2017. _____________________________ Kovatch, J