Her Majesty the Queen - v. -, 2018 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 016 Date: March 29, 2018 Information: 90022987 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wesley Albert Peequaquat Appearing: Derek Davidson For the Crown Adam Fritzler For the Accused CHARTER APPLICATION DECISION J. RYBCHUK , J INTRODUCTION [ 1 ] The police responded to a report of an impaired driver by going to the home of the owner of the vehicle where they saw it parked on his driveway.

They got out of their vehicle and entered onto his property where they found the accused, Wesley Albert Peequaquat, sitting in the vehicle. The police then subsequently arrested and charged him with having care or control of a motor vehicle while impaired and his blood alcohol level was over .08.

ISSUE [ 2 ] The issue in this voir dire is whether the police violated the accused’s right under

section 8 of the Canadian Charter of Rights and Freedoms [ Charter ] to be secure against unreasonable search and seizure when they entered onto his property and approached him sitting in his vehicle? FACTS [ 3 ] On June 24, 2017, at approximately 6:55 a.m. Constable Martin of the Regina Police Service was dispatched to a report of a possible impaired driver in the area of Elphinstone Street and Saskatchewan Drive in Regina, Saskatchewan. [ 4 ] The vehicle was described as a black 1999 Pontiac Grand Prix with licence plate number 200 KEE.

The caller observed a vehicle swerving in between traffic and over the yellow line. [ 5 ] Constable Martin drove to the location but could not find the vehicle. [ 6 ] The dispatcher ran the licence plate of the vehicle and provided Constable Martin with the residential address for the registered owner of the vehicle at 1052 Elphinstone Street in Regina, Saskatchewan. [ 7 ] Constable Martin then drove to that residence but could not see the vehicle in front of the home.

She drove around the house and down the back alley where she located the vehicle inside the backyard near the house. [ 8 ] The driveway leading to where the vehicle was parked had trees or some kind of fence on the right side, while the back and left side of the property appeared a little more open to the yard. [ 9 ] Constable Martin could not see anyone inside the vehicle or outside on the property. The vehicle was not running. [ 10 ] The accused did not testify in the voir dire so the Crown argued there was no evidence he owned the vehicle or lived at the house.

However, there was evidence Constable Martin knew this was the residential address of the registered owner of the vehicle whom she believed was the accused [1] . In all the circumstances, I am able to infer and do find as a fact that the accused owned the vehicle and lived at the residential house located at 1052 Elphinstone Street Regina, Saskatchewan, even without relying on the face of the Information charging him with these offences which indicates this is his residential address. [ 11 ] Constable Martin waited in the back alley for a second police officer to arrive.

When he did, they both got out of their vehicles and entered through the back entrance of the property onto the driveway at 7:06 a.m. Counsel agreed this was not a situation of hot pursuit. [ 12 ] As the officers approached from behind, Constable Martin was able to discern two silhouettes sitting in the vehicle. She approached the individual sitting on the driver’s side who was the accused. He took a sip of beer as she approached. The other officer dealt with the other individual sitting in the passenger’s side of the vehicle.

[13] Constable Martin knocked on and opened the door to the vehicle. She asked the accused to get out and detained him for animpaired investigation. She searched him and took him to her vehicle where he was handcuffed and arrested. LAW AND ANALYSIS [14]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. This rightbecomes engaged whenever society’s interest in police investigations intersect with a suspect’s privacy rights. [15] The first stage of the analysis is to determine whether there was a “search”? Not every form of examination or inspectionconducted by the government will constitute a “search” for constitutional purposes. [16] The Courts have defined “search” for

section 8 purposes as any state activity that interferes with a reasonable expectation ofprivacy. A reasonable expectation of privacy is determined based on a “totality of the circumstances”. If there is no reasonableexpectation of privacy, then the protections of

section 8 are not engaged and the analysis ends there. If there is a reasonable expectationof privacy of any degree,

section 8 will be engaged to prevent state interference except under the authority of a warrant or otherreasonable law (R v Cole, 2012 SCC 53 [Cole] at para 9). [17] There is no definitive list of factors that must be considered in assessing the “totality of circumstances”. The relevant caselaw, however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant (Cole at para 45). [18] No single factor is determinative of the issue whether a reasonable expectation of privacy exists or not. The presence orabsence of any one factor should not be used to quickly undermine the protections afforded by

section 8 to the values of a free anddemocratic society. All the factors must be weighed and balanced together to determine whether a reasonable expectation of privacyexists in the circumstances of each case. [19] In R v Edwards, (SCC), [1996] 1 SCR 128 [Edwards] the Supreme Court of Canada provided a list offactors to be considered in assessing the “totality of circumstances” at para 45: 45 … 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F. 3d 254 (8th Cir. 1994), at p. 256. [20] The first five factors in Edwards concern the place where the state intrusion occurred.

Additional factors to be consideredwhen dealing with a spatial or territorial privacy right of this nature include: 1. whether the subject matter was in public view (R v Tessling, 2006 SCC 67 at para 40; R v Stillman, (SCC),[1997] 1 SCR 607 [Stillman] at paras 62, 226; R v Evans, (SCC), [1996] 1 SCR 8 [Evans] at para 50);

2. obstacles or barriers to entry; 3. invasiveness of the technique (Stillman at paras 45-46, R v Higgins, (SCC), [1988] 2 SCR 387; R v Saeed,2016 SCC 24 , [2016] 1 SCR 518 at para 49); and 4. purpose of the intrusion (R v Patrick, 2009 SCC 17 , [2009] 1 SCR 579 at para 38; R v Colarusso, (SCC), [1994] 1 SCR 20 at 53; Evans at para 11) [21] The factors overlap so I will deal with each of them when answering the following two questions: 1. Whether the accused had a subjective expectation of privacy? 2. Whether the subjective expectation of privacy was objectively reasonable? 1.

Whether the accused had a subjective expectation of privacy? [22] A subjective expectation of privacy can be inferred or presumed to exist depending on the subject matter of the search. It isnot a high hurdle to overcome.

For example, in the case of information about activities in a dwelling house, an expectation of privacycan be presumed in favour of the claimant (R v Plant, (SCC), [1993] 3 SCR 281 [Plant] at para 37; R v Gomboc, 2010SCC 55 [Gomboc] at para 25). [23] The case before me concerns the accused’s dwelling house and the approach to his dwelling house, as well as the vehicle thathe owned and had parked outside on his driveway close to his dwelling house. The vehicle was parked at the back of the house and notrunning.

It was facing towards the house such that no one was visible inside the vehicle from anywhere on public property around thehouse. He was therefore, in possession and control of the house and the approach to the house. He was also in possession and control ofthe vehicle and the driveway on which it was parked. [24] The accused was present at the time of the search. He had the ability to regulate access to all his private property at all timesincluding the right to admit or exclude police officers if he wanted.

The police officers were not invited to enter onto his property. [25] The accused did not testify on the voir dire, nor was it necessary for him to do so in the circumstances of this case. Considering these factors, it is presumed or inferred in his favour that he had a subjective expectation of privacy. 2.

Whether the subjective expectation of privacy was objectively reasonable? [26] The analysis of whether a subjective expectation of privacy is objectively reasonable is highly contextual and can vary withthe nature of the matters sought to be protected, the circumstances in which and the place where the state intrusion occurs. [27] In this case, the state intrusion occurred on private property in a parked vehicle near to a private dwelling. [28] Private dwellings carry a high expectation of privacy (R v Paterson, 2017 SCC 15 at paras 46 and 49; R v Kokesch, (SCC), [1990] 3 SCR 3 at pages 16-18; R v Feeney, (SCC), [1997] 2 SCR 13 at pages 43-45) as do theapproaches to private dwellings (Evans at para 21) and the perimeters around private dwellings (Plant at page 291; Gomboc at para 79)which carry similarly high constitutional protections. [29] Motor vehicles do not carry as high an expectation of privacy as a home given that its use on public highways is a highlyregulated activity (R v Wise, (SCC), [1992] 1 SCR 527 at 535; R v Belnavis, (SCC), [1997] 3 SCR

341 at paras 23-24 ; R v Nolet, 2010 SCC 24 [ Nolet ] at para 31 ). However in the circumstances of this case, the accused’s motor vehicle was not being used on a public highway. It was parked on private property close to his house. It was in a backyard with a fence or trees on one side of it. The accused was not visible in the vehicle or anywhere on the property when the police decided to enter.

In these circumstances, I find the accused had a somewhat diminished, but still relatively high expectation of privacy when sitting inside his motor vehicle parked outside his home. [ 30 ] The driveway and backyard of the property was somewhat open to public view from people who may be in the back alley. It was open from the back and on the left side of the property. There was no fence, gate or lock at the back of the property. It had fencing or trees on the right side of the property. This case does not concern a front driveway or front entrance to a house exposed to members of the public from a public street.

It deals with a restricted back entrance to a driveway and backyard of a property from the rear. [ 31 ] There were no barriers to the police entering onto the back of the property. They did not have to unlock any gates or open any doors. The vehicle was outside and not in a garage. There were no obstacles to stop a member of the public from entering into the backyard of the property. The police did not seek or receive permission to enter the backyard first. The vehicle the accused was sitting in had doors on it which were closed. The doors presumably also had locks on them.

The accused was not observable or detectable from public property at the front or back of the house. The police could not see the accused sitting in the vehicle so there was no risk apparent to them that he might start driving it. [ 32 ] The initial inspection by police consisted of the officers walking onto the property, down the driveway and into the backyard where only then were they first able to notice the accused sitting in his vehicle. This was a relatively brief and non-invasive form of inspection or examination.

The intrusion on the accused’s privacy was relatively limited as he became in plain sight after the police entered the property and they were able to detect him sitting in the vehicle. [ 33 ] The police did not approach the front entrance of the house, but went to the back of the premises and approached from that direction instead. They did not knock on any door to the house or express an intention to do so. [ 34 ] The purpose for the state intrusion is an important factor to consider in assessing the totality of the circumstances.

It is the only factor with an entire body of law unto itself that can determine whether a search occurred or not. [ 35 ] At common law police have an implied invitation or licence to enter onto private property in order to approach and knock on the door of a dwelling house. However, there are limits to this authority.

The Saskatchewan Court of Appeal recently discussed this authority and its limits in R v Rogers, 2016 SKCA 105 [ Rogers ] where it followed the leading decision of the Supreme Court of Canada in Evans , starting at para 32 : [32] In Evans , Sopinka J. discussed the importance of determining what the police intend when they knock on someone’s door.

The officer’s intention in knocking on someone’s door determines whether the police are engaged in a search: Despite the 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 “licensed 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. (Italic emphasis in original, underline emphasis added, at 19-20) [33] Sopinka J. supported his analysis by referring to what he found to be sound policy reasons to focus on the police officer’s purpose or intention in deciding to approach the door to someone’s home: [T]here 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 s. 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. 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”. (Italic emphasis in original, underline emphasis added, at 21)

[34] He went on to hold that “where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through “knocking on the door”, the police have exceeded the authority conferred by the implied licence to knock”.

Significantly for Evans , Sopinka J. found that exceeding the authority conferred by the implied licence constitutes a “search”: For these reasons, I conclude that individuals in the position of the Evans have a reasonable expectation of privacy in the approach to their home, an expectation that is waived for the purpose of facilitating communication with the public. Where members of the public (including police) exceed the terms of this waiver, and approach the door for some unauthorized purpose, they exceed the implied invitation and approach the door as intruders.

As a result, where the police, as here, approach a residential dwelling for the purpose of securing evidence against the occupant, the police are engaged in a “search” of the occupant’s home. (Emphasis added, at 21-22) … [35] Supreme Court jurisprudence continues to follow and apply Evans . [ 36 ] Indeed, the Supreme Court of Canada recently considered and affirmed Evans as the “leading case on what constitutes a search for the purposes of

section 8 ” in R v MacDonald, 2014 SCC 3 at paras 25 and 26 . According to this longstanding jurisprudence, the police have a common law implied licence or invitation to approach and knock on the door of a residence for the purposes of communicating with persons on the property. This includes investigating and looking for information or evidence about a suspected offence. In that situation, the police are not necessarily conducting a search for the purposes of

section 8 . However, where the police approach and knock for the purposes of “obtaining”, “gathering”, “collecting”, “recovering” or “securing” evidence against a person on the property, the police are necessarily conducting a search within the meaning of

section 8 of the Charter . The line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive. [ 37 ] The latter will be the situation where the police interaction with persons will give visual, auditory or olfactory information about a person’s participation in the offence being investigated. This includes the state of a person’s sobriety.

This conclusion is not restricted to the investigation of drinking and driving offences and can apply to other offences as well. [ 38 ] In the voir dire , Constable Martin was not asked and did not clearly state what her purpose or intention was when the police officers entered onto the accused’s property and approached his vehicle and house from behind. They did not knock on any door to the house nor did they express any intention to do so. There was no evidence they intended to knock.

I therefore, conclude they lacked the most basic condition of the implied licence to approach and knock and are unable to rely upon it to justify their actions. They were trespassers and intruders conducting a search in the backyard of the accused’s private dwelling. [ 39 ] It is safe to infer Constable Martin was looking for someone she suspected had committed the offence of impaired operation based on the complaint to dispatch. It is important to note that she could not see the accused or anyone inside the vehicle or outside on the property at the time they decided to enter the property.

In that situation, the only reasonable inference I can make, and do make, is that the police officers approached in order to locate the person they suspected had committed a criminal offence and secure evidence against him in relation to it. [ 40 ] Their purpose was not simply to communicate with persons at the property and get information or evidence about a suspected offence.

Their intention was nothing other than to interact with the person suspected of driving and make observations that would provide them with immediate visual, auditory or olfactory information about their state of sobriety and participation in the impaired driving offence being investigated. [ 41 ] The police did in fact make such observations upon noticing the accused in the vehicle sipping a beer and when they asked him to get out of the vehicle and walk to the police cruiser.

I therefore, find the evidence clearly establishes that the police specifically adverted to the possibility of securing evidence against the accused when they approached his vehicle and house. This exceeded the authority conferred on them by the limits of the implied licence and constitutes a search. [ 42 ] In Rogers the factual background that informed the investigating officer’s intention when he approached and knocked on the door of the residence is identical to this case. They both involved the police acting on a tip of an impaired driver by going to the vehicle owner’s house.

In Rogers the police encountered the accused when they knocked on the door to his residence. Whereas in this case the police encountered him on the driveway during their approach to his residence.

[43] According to Evans, there is no legal or practical reason to distinguish between these two fact situations. It is an impliedinvitation to “approach and knock.” Individuals have a high expectation of privacy in their home and in the approach to their home, anexpectation that is waived only for the purpose of facilitating communication with the public.

Where members of the public, includingthe police, exceed the terms of this waiver and approach the door for some other unauthorized purpose, such as securing evidence ofimpairment against an individual, they exceed the implied invitation during both the approach and the knock, and are therefore, engagedin a search. [44] The accused’s privacy interest while sitting in his vehicle on his driveway in this case may not be as high as was the accused’sprivacy interest while sitting in his house in Rogers, but it is still high and significant enough to constitute an objectively reasonableexpectation of privacy “of any degree” that was intruded upon by police constituting a search. [45] I find support for this conclusion in the decision of my brother Judge Kovatch in R v Klevin, 2017 SKPC 4 , 2017SKPC 004 [Klevin] which is under appeal to the Saskatchewan Court of Queen’s Bench.

In that case, Mr. Klevin was drinking at a barin Weyburn, Saskatchewan and was observed by police to be quite intoxicated. When the police noticed his truck was no longer outsidethe bar they drove to Mr. Klevin’s home in Midale, Saskatchewan about 30 to 40 minutes away. There they found his truck parked inthe driveway next to his house. The engine was running and the lights were on bright. [46] The police drove around the house through the back alley a couple of times. They ascertained the plate number from thetruck and checked with dispatch to confirm that it was registered to Mr. Klevin.

After a few minutes they decided to enter Mr. Klevin’sdriveway and approach the vehicle. They found him asleep in the driver’s seat slumped over the steering wheel. [47] Mr. Klevin’s driveway ran the full length of the property from the front street to the back alley, approximately 100 feet deep. His truck was parked in the driveway near the house and clearly on his property. Mr.

Klevin did not testify on the voir dire. [48] Judge Kovatch followed the decision of the Saskatchewan Court of Appeal in Rogers and concluded at para 26 of the Klevindecision: [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. [49] There is caselaw that has determined there is a reduced expectation of privacy on a driveway (R v Lotozky, (2006) (ON CA), 210 CCC (3d) 509 (ONCA) [Lotozky]; R v Tricker, (1995) 96 CCC (3d) (ONCA); R v Soal, (ONSC); R v Halloran, 2007 BCSC 1425; R v Arnett, 2005 ABPC 2460). Lotozky is the leading decision which held that police whoenter onto a driveway with the intent to conduct an investigation do not exceed the implied licence to approach and knock or constitute asearch.

The Ontario Court of Appeal stated at para 18: [18] At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to the driveway,even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to beconsidered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying todetect odours from within. Put another way, not every trespass on to private property by police can constitute a search.

I would notplace a possible trespass on to a driveway open to public view in the category of a search or seizure. [50] And further at para 32: [32] 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 implied invitation must be analyzed in that context. [ 51 ] In the recent decision of R v de Medeiros Arruda, 2016 ONCJ 654 the police received a report of a possible impaired driver and the licence plate number of the vehicle.

The dispatcher ran the plate number and determined the registered owner and his residential address. The police went to that address and found the vehicle with the licence plate number parked on the driveway. They entered the front porch and knocked on the door of the residence. Mr. de Medeiros answered and showed signs of impairment. He was placed under arrest.

The judge in that case cautioned against the use of Rogers, and instead followed Lotozky to conclude that the lawful scope of the implied licence to approach included knocking on the door of a residence to collect evidence of impairment against the occupant being investigated for an impaired driving offence . [ 52 ] With the greatest of respect, these decisions are not legally binding on me, nor are they necessarily persuasive. [ 53 ] Lotozky is distinguishable from the facts in this case and the facts in Rogers . In Lotozky , police officers responded to a call of a possible impaired driver.

They actually located and observed Mr. Lotozky driving his vehicle very oddly on a public street, and then onto his driveway and park. The police officers then immediately approached the driver. If not a situation of hot pursuit, this clearly would be a situation where the police formed an intention to pull the driver over when the vehicle was being driven on a public street and before it pulled onto the driveway. In that situation, there is no question police have full authority to enter onto private property to approach the driver and continue their investigation under

section 209.1 of The Traffic Safety Act c T-18.1 in Saskatchewan ( R v Anderson , 2014 SKCA 32 ; and R v Sveinbjornson , 2015 SKQB 210 ). [ 54 ] I also view Lotozky as having determined in the totality of the circumstances of that case, which were generally more serious than this case, that the accused person did not have a reasonable expectation of privacy on his driveway. There was therefore, no search or violation of his s. 8 right.

Privacy rights protect people, not property. [ 55 ] To the extent Lotozky may go further to suggest that police can freely walk onto a driveway, even with intent to conduct an investigation securing evidence against the owner, in my respectful view, exceeds Evans and the bounds of the implied licence to knock. There are sound public policy reasons for placing appropriate limits on this police power.

Police should not be permitted, under the guise of the implied licence, to go onto any particular place on private property looking to obtain evidence of a crime against someone not reasonably suspected of having committed any criminal offence. This is in the nature of a “surprise” or “random” police check eschewed in Evans .

The mere presence of a police officer can violate a person’s reasonable expectation of privacy anywhere on private property, including a driveway. [ 56 ] Just as there is no ‘home free’ or ‘no go zone’ that an accused person can escape to on private property; likewise, there is no ‘free port’ or ‘shared zone’ on private property that police can freely march onto at will at any time. [ 57 ] A person’s interest in privacy does not begin merely at the entrance to their home. It begins at the entrance to their property.

This privacy interest grows in nature and scope as it makes its way from the property limits to the house door. Depending on the circumstances, an interest in privacy can evolve to become an expectation of privacy anywhere along the way. It can even mature into a reasonable expectation of privacy before it reaches the door. Any state interference with a person’s reasonable expectation of privacy arising during the course of the approach constitutes a search for the purposes of

section 8 of the Charter . [ 58 ] In the totality of the circumstances of this case, I find the accused had reasonable expectation of privacy while sitting in his vehicle on the driveway outside his house. The police interfered with his privacy when they entered onto his private property and approached him to obtain evidence for an impaired driving investigation, thereby constituting a search. [ 59 ] The second step of the analysis is to determine whether the search was reasonable? The search here was without a warrant and is therefore, presumptively unreasonable. The Crown did

not seek to rebut this presumption under any of the traditional grounds, being: (1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search or seizure takes place is reasonable (R v Caslake, (SCC), [1998] 1 SCR 51 at paras 10-11; R v Collins, (SCC), [1987] 1 SCR265 at para 23). [60] As such, I find the police search was unreasonable and a violation of

section 8 of the Charter. REMEDY ANALYSIS [61] The accused seeks the exclusion from evidence of all fruits of the police search, including the certificate of analysis arisingfrom the denial of his

section 8 Charter right. [62] In R v Grant, 2009 SCC 32 the Supreme Court of Canada outlined three factors for assessment in balancing the effect ofexcluding or admitting evidence on society’s confidence in the administration of justice when a Court is determining the appropriateremedy for infringement of a right or freedom under section 24(2) of the Charter as follows: 1. The seriousness of the Charter-infringing conduct [63] The actions of the police officers were not necessarily in bad faith or mala fides.

There were no barriers or obstacles toentering the property which was somewhat open to public view from the back alley. All they did was walk onto the driveway in thebackyard of the property and approach the vehicle and house from behind. They only spent a brief amount of time on the propertybefore they were able to notice the accused sitting in his vehicle. They were not asked to leave at any point. [64] However, these police actions were also not merely inadvertent or technical in nature only. They did not seek or receivepermission to enter the property.

Police must not simply barge onto a person’s private property without thinking. They must pause andreflect before entering a person’s property to determine whether the circumstances and purpose for entering will interfere with a person’sreasonable expectation of privacy in the process. There exist sound public policy reasons for not allowing police to simply enter ontoand go through people’s backyards looking to find and secure evidence of a crime against unidentified persons not reasonably suspectedof having committed any crime. [65] In this case there was no crime in progress.

There was no urgency or exigency requiring the police to enter the property rightaway. The vehicle looked parked and empty. They did not have a driver or observe anyone at the property. This was not a situation ofhot pursuit. They did not have a witness statement. There were no reasonable grounds to think that a crime had been committed or thatthe vehicle was being or would be operated. There was no permission, warning or prior authorization for the police to enter theproperty. There was no effort by the police to obtain a warrant.

All the police had was an anonymous, unsubstantiated complaint of apossible traffic safety violation or at most, a mere hunch or suspicion that a criminal offence of impaired driving may have beencommitted. [66] A person has a high expectation of privacy in their home and in the approach to their home. That person also has a highexpectation of privacy in their vehicle located on private property right outside and next to their home. The conditions placed on theimplied licence to approach and knock are designed based on these high privacy expectations in order to prevent abuse by the police.

The police entry through the rear of the property unannounced was surreptitious. In so doing, the police were acting as “trespassers”and “intruders” in the words of Sopinka J. in Evans. [67] All of the above makes the police conduct more blatant and serious in this regard. The Court should disassociate itself fromsuch conduct, otherwise it sends the message that the justice system condones serious state misconduct. This first factor supportsexcluding the evidence obtained by the police in this situation. 2. The impact on the Charter-protected interests of the accused

[ 68 ] The search appears relatively non-intrusive at first instance. The police initially had no interaction with the accused when they first walked onto the property and approached, unaware that he was even present in the vehicle at the time. There was also no indication the accused was aware of the police presence or that it changed his behavior in any way, having little to no impact on him at first.

The breath sample evidence police obtained is also relatively non-intrusive in nature. [ 69 ] However, when I consider the entire process the accused went through and the significance of the Charter -protected interest at stake, I find the impact on him was large. He was required to get out of his vehicle and comply with all the demands of the police in order for police to obtain conscripted evidence against him. He was arrested and taken to the police station where he was detained for approximately two hours.

His privacy and liberty interests were materially impacted. [ 70 ] The underlying right that was violated contains a significant privacy interest. The search undermined a high degree of privacy expectation in one’s own home, the approach to their home and their vehicle on private property. The police behavior had a large impact on these interests. [ 71 ] All of the Crown’s evidence in this case, including the police observations, grounds and breath sample analysis flowed from the breach.

Were the Court to condone the serious impact this search had, it may send a message that an individual’s privacy interests on private property count for little. The deprivation of the accused’s freedom and privacy by means of an unconstitutional search or seizure weighs in favour of the evidence being excluded. 3. Society’s interest in the adjudication of the case on its merits [ 72 ] Drinking and driving is a problem in Saskatchewan. Society has an interest in trying these cases and reducing the overall incidence of drunk driving.

However, society also wants a justice system that conducts fair trials and is beyond reproach. [ 73 ] This is not a case where the accused is charged with operating a motor vehicle on a public road or highway. He is charged with the lesser offence of having care or control of a stationary, parked vehicle while sitting in it with a friend on private property in the backyard next to his home.

This is not dissimilar to the situation in R v Lux , 2012 SKCA 129 [ Lux ] where the accused was observed driving a motor vehicle in an unremarkable manner in a private hotel parking lot and the evidence was excluded following a breach of the accused’s

section 9 Charter right. [ 74 ] This is a narrow case on a narrow point of law. Society’s interest in the adjudication of this specific case on its merits is not nearly so significant. The truth seeking function of the trial process and the long term interest of society would be better served by the exclusion of the evidence. [ 75 ] Balancing all three lines of inquiry, I find the admission of the evidence in these proceedings would bring the administration of justice into disrepute. I therefore, order that all of the evidence obtained by the police officers in violation of the accused’s

section 8 Charter right, including their observations, grounds and the certificate of analysis, be excluded from evidence pursuant to section 24(2) of the Charter . [ 76 ] This ruling is consistent with the excluded evidence rulings in Rogers , Lux and Klevin . CONCLUSION [ 77 ] The accused’s

section 8 Charter right to be free from unreasonable search was infringed. All evidence flowing from the infringement in the voir dire shall be excluded from evidence in the trial.

_________________ J. Rybchuk, J