Her Majesty the Queen - v. -, 2015 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 177 Date: December 16, 2015 Information: 40681319 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Arthur Honcia Appearing: Lori O'Connor For the Crown Brian J. Smith For the Accused RULING B.D. HENNING , J [ 1 ] The accused person, Arthur Honcia is charged with the following: (

a) While his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . (

b) Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . (

c) Being bound by a probation order made by a Judge of the Province of Saskatchewan on the 27 th day of October, 2014, without

reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall keep the peace and be of good behavior, contrary to

section 733.1(1) of the Criminal Code of Canada . (

d) Operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . [ 2 ] This trial was commenced and evidence heard on September 20, 2015 and continued on October 5, 2015. A copy of the probation order and certificate of disqualification were exhibited. Defence counsel had filed a ‘Notice of Charter Application’ prior to trial advising that a Stay of Proceeding would be sought under

section 24 of the Canadian Charter of Rights and Freedom s, and in the alternative, “an order excluding all evidence obtained by police in a manner that breached the rights of the applicant, including evidence derived from evidence obtained in such a manner”.

This includes but is not limited to: a. “observations made of the applicant’s vehicle on his property; b. observations made of the applicant at the door and inside his residence; c. receipts seized from inside a bag inside the applicant’s residence; d. keys seized from inside the applicant’s jacket inside his residence; e. video surveillance seized from the Quance Street liquor store; f. the statement received from Doug Flamon in connection with this incident; g. the certificate of a Qualified Technician; h. evidence about samples provided into any approved device, including evidence regarding the analysis of those samples; i. such other and further evidence as counsel may advise and the Honourable Court may deem proper to exclude.” [ 3 ] The trial commenced with a voire dire , effectively turning the Crown evidence substantially into a voire dire where all evidence was under scrutiny for potential breaches of the Charter .

The Defence did not call evidence on the voire dire , and there were only minor conflicts of details between witnesses. All items specifically referred to as part of the evidence were exhibited in the trial. The evidence is summarized as follows: [ 4 ] The first witness was Lisa Nanson-Kately. She testified that when she left her school, where she is the principal, at 11:45 while coming back from lunch she had observed a vehicle that was driven in a very hazardous manner. She called the police to report the vehicle, which she described, also giving the licence number. Police acted on the information.

They searched the licence plate number that had been reported and determined that Mr. Honcia was the registered owner of the vehicle. They attended to the address of the applicant at approximately 1225 hours. [ 5 ] The next witness was Barbara Waugh, a friend of the Accused, Arthur Honcia. She stated she was not in a relationship with Mr. Honcia and was not his ‘girlfriend’, but knew him well as a friend. In the course of her evidence she stated that he drank every day. She had received an incoherent phone call from the Accused. The police came on the line immediately after him and asked her some questions.

She advised the police of Mr. Honcia’s diabetic condition, and she described other medical conditions that he had. She stated she had not driven Mr. Honcia’s vehicle. She went over to his address even though she had work commitments. When she arrived an ambulance was present. Mr. Honcia appeared to be leaving, and he appeared drunk to her. She also described the layout of the house and its dirty condition in some detail. [ 6 ] Ms. Waugh described two 40-ounce vodka bottles in the kitchen, which was untidy. One bottle was empty, and the other was full which she poured down the sink.

She locked up the house and then went to a liquor store where she had arranged to meet police to give a statement. Ms. Waugh stated in evidence that at no time that day, or any day, had she driven Mr. Honcia’s truck. It has a manual transmission and she cannot drive such a vehicle. [ 7 ] Constable Nathan Shaw gave evidence next. She stated she received a police dispatch call at 12:17 p.m. regarding a particular vehicle with licence number given that had been reported swerving. She found the registered owner’s address and proceeded to it shortly after the police call.

The truck that had been described was on the front driveway. She approached the house and vehicle, noting that the vehicle was locked and that the hood was warm, from which she inferred that it had been driven at some time recently. The ambient

temperature was cool, about six degrees centigrade that day. She had arrived at approximately 12:25, and approached the door at about 12:27. Other times that she stated were the arrival of the ambulance and personnel at about 12:55, that they left about 1:15, and that the arrest of Mr. Honcia by Cst. Tunison occurred at approximately 1:35. [ 8 ] At the door of the house, she knocked and waited a long time, hearing bangs and thuds from inside the house. A male person answered the door wearing only underwear. Her immediate impression was that he appeared drunk.

She entered the house and suggested that he get dressed, and he did so. Cst. Shaw was in uniform of the Regina Police Service and the marked police vehicle she had arrived in was in the front street. [ 9 ] Another two constables arrived and entered the house, and immediately conducted a ‘sweep’ or superficial search of the house to see if anyone else was in it. Cst. Chris Tunison gave evidence as one of these investigators, indicating their arrival time. Mr. Honcia said that his girlfriend had been driving his vehicle. Cst. Shaw was with the Accused in the kitchen talking. Cst.

Tunison contacted the person that Mr. Honcia named as his girlfriend, who was the prior witness. They had learned from her that Mr. Honcia had diabetes. Emergency Medical Services were called, arrived, checked Mr. Honcia, and then left. [ 10 ] Cst. Shaw described her conversation with Mr. Honcia. She asked for his driver’s licence, and he directed her to a pocket of his jacket to find it in a wallet among other items. Cst. Tunison arrested Mr. Honcia for impaired driving, and escorted him out of the house. Cst.

Shaw remained in the house, gathering up a liquor store bag and cash register receipt, the jacket she had just handled, and the keys to the vehicle in question which had also been in the jacket pocket. They were exhibited, as was the liquor store bag and receipt. She stated that the jacket appeared to her to be similar to the one she later saw worn in a video at the liquor store. The receipt was for a liquor store location on Quance Street in Regina. [ 11 ] Before leaving, Cst. Shaw used the keys to start the truck and verified that it could be started.

She then went to the liquor store in question, spoke to employees there and viewed a video from the store. She obtained a copy of this video which was played in court and exhibited. The video showed Mr. Honcia (there is no doubt of identity in the video) entering the store. The person is shown to go to an aisle, select items and then go directly to a checkout. After some moments there he leaves the store. It does not unequivocally show Mr. Honcia having difficulty in negotiating through the store. [ 12 ] In cross examination, timings at the house were confirmed, and the fact that Cst. Shaw never informed Mr.

Honcia that he was detained and under suspicion or investigation with respect to a driving offence at any time in her extensive dealings with him. She added details to confirm a high state of intoxication. She confirmed that Mr. Honcia would not have been allowed to leave if he had tried to do so, but he did not attempt to do so. The conversation with Mr. Honcia, including his attempt to have the police believe that his ‘girlfriend’ had driven his vehicle that day would suggest, however, that he did have some idea of the purpose of the police visit to his house.

It was also confirmed that no specific request to enter the house was made, nor was any specific invitation to enter given. [ 13 ] The other police constables walked into the house a short time later, perhaps on the assumption that whatever authority or permission that Cst. Shaw had to be in the house also applied to them. Permission to look for the wallet in the jacket may have been granted when directions were given by Mr. Honcia to look in the jacket that contained the driver’s licence that had been requested. Cst.

Shaw stated that she held discussions at some point with the other constables regarding the matter under investigation. [ 14 ] Cst. Chris Tunison next testified that he had responded to a call from Cst. Shaw and had gone to the address in question. He stated that he found Cst. Shaw talking to the Accused, and they had simply entered without any formality conferring access. He described Mr. Honcia’s disheveled appearance. He had called EMS who attended, checked Mr. Honcia and left without finding any issue to follow up.

He described how after EMS left, at about 1:30 or 1:35 pm he made an arrest for impaired driving, advising of the charge, giving right to legal counsel and giving the standard warning regarding statements. [ 15 ] This arrest occurred more than one hour after the entry of Cst. Shaw into the Accused person’s residence.

He had not been advised of his status of being under investigation before that time although the circumstances, including his assertion that his girlfriend had driven the car that day, and another statement that he had ridden a bicycle to a liquor store might arguably show some knowledge on his part that he was under suspicion or investigation of a Criminal Code driving offence. [ 16 ] Cst. Tunison had conversation with Mr. Honcia in the kitchen where Mr. Honcia had been speaking earlier with Cst. Shaw. Mr.

Honcia had said he had ridden a bicycle to the liquor store and purchased a bottle that was in the cupboard, which the constable verified. An empty bottle was on the counter. Cst. Tunison stated that he ‘found’ the liquor store receipt on the counter, in plain view, but inside a liquor store bag, which proved to be (in cross-examination) crumpled up and inside a pizza box.

[17] Cst. Tunison escorted Mr. Honcia to the Regina Police Service where breath tests were performed and recorded in a Certificate ofAnalysis which was exhibited. The certificate showed very high alcohol readings, which was consistent with what the constables hadstated they observed about Mr. Honcia, as well as Ms. Waugh’s evidence. [18] The final witness was a liquor store employee, Mr. Doug Flamon, who had interacted with Mr. Honcia on the day in question. Avideo recording that had been obtained at the liquor store showed time and date markings, but Mr.

Flamon could not, nor did any otherwitness, confirm that the recording was correct with respect to the date and time recordings shown. This was not raised as an issue in thetrial, however, and the times were approximately consistent with other times mentioned by witnesses. Mr. Flamon recalled speaking tothe police on a particular day about a transaction. He recalled the transaction and described a man in the video, who appears to be Mr.Honcia, with very slow movements, buy a bottle of vodka. He could not detect alcohol presence. He identified and interpreted the detailsof the sales slip in question.

The slip gave a time for the transaction which was roughly consistent with the video. Mr. Honcia haddifficulty paying with a card and eventually paid cash for the purchase. In cross examination, Mr. Flamon stated that he watched throughthe window as Mr. Honcia went to a truck. He stated he made a point of observing, and that Mr. Honcia made a significant pause beforeentering the vehicle. He stated that he was ‘staggering”. He only observed one person in the vehicle. [19] In argument the Crown has conceded breaches of

section 10 (

a) and (

b) of the Charter. The defence alleges breaches of sectionsseven to ten of the Charter, which are as follows: 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. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 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. [20] Based upon R v MacDonald, 2014 SCC 3, [2014] 1 SCR 37, the Defence argues that the examination of the vehicle in the driveway was an intrusive and prohibited search of the accused’s home. The vehicle was in plain view on the driveway, and was noticed as the constable approached the front door. She tried the doors, and found them to be locked, and also felt the hood for warmth that might indicate recent operation.

The case cited, at para. 26 states: “[26] There is no question that individuals have a reasonable, indeed a strong, expectation of privacy in their homes (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at para. 19; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297), as well as in the approaches to their homes (Evans, at para. 21). However, Evans alsoestablished that the police have an implied licence to approach the door of a residence and knock. Doing so will not be considered aninvasion of privacy constituting a search if the purpose of the police is to communicate with the occupant.

But “[w]here the conduct ofthe police . . . goes beyond that which is permitted by the implied licence to knock, the implied ‘conditions’ of that licence haveeffectively been breached, and the person carrying out the unauthorized activity approaches as an intruder” (Evans at para. 15). In suchcircumstances, the police action constitutes a “search.”

[21] These legal propositions are not challenged in their broad principles. In that case, the circumstances that gave rise to an allegedbreach were the police entering at the doorway and disarming the person answering the door, who held a loaded handgun. The case isfactually far different from the present. [22] The case of R v Van Wyk, [1999] OJ NO 3515, 104 OTC 161 is closer factually, in that the police attended to a residence toinvestigate a motor vehicle accident, and before approaching the house did a detailed examination of various vehicles parked at the housein question. The Ontario Court of Appeal determined that this was a breach of

section 8 Charter rights, but did not exclude evidence,remarking that they might well have done so if the evidence had been in furtherance of the police investigation and had resulted in otherevidence being obtained. The situation is quite similar in this case—no further evidence appears to have been obtained by the checkingof the car doors or feeling the hood of the vehicle for warmth. However, the car being recently driven might have ability to affect theweight of other evidence not yet presented by the Defence. [23] I conclude that a breach of

section 8 rights in the case at bar occurred within the principles discussed in R. v. Wyk. However, thetouching of the hood of the vehicle to determine if it had recently been driven, and trying of the door locks was a very minimal invasionof the integrity of the home and ancillary property when compared to actual entry into homes. Although I conclude that this evidencewas obtained by a breach of

section 8, rights, I reserve the issue of whether or not it should not be excluded. The vehicle was in plainsight from the street, and further, the evidence regarding the temperature of the hood of the vehicle would have been lost within arelatively short period of time, if it was not checked at the time of the initial investigation. The value of this evidence is undetermined atthis stage of the trial. [24] There are, of course, more significant breaches of the Charter argued in this case, and the Crown concedes

section 10(

a) and10(

b) breaches as noted. The Defence raises other

section 8 breaches than the one dealt with above, and cites the case of R v Feeney,[1997] 2 SCR 13, (SCC), at para. 42 and following. Cst. Shaw, after checking the vehicle in the driveway, moresignificantly continued to the front door of the house and knocked. When Mr. Honcia answered, she entered directly. At no time, then orafter, did she say anything to the effect that she was there to conduct an investigation into a possible impaired driving incident, or ask tobe admitted. She proceeded to give direction to Mr.

Honcia to dress appropriately, held discussions and made observations in furtheranceof an investigation for impaired driving with Mr. Honcia as the suspect. [25] Cst. Shaw admitted that Mr. Honcia would not have been free to leave and in effect detained the applicant in his home, failing atany point during the detention to inform the applicant of his rights under s. 10(

b) of the Charter. Cst. Tunison entered the house shortlyafter, conducted a search and obtained evidence, apparently on the authority of Cst. Shaw’s presence in the house. In particular, it isalleged that he conducted an unlawful search and seizure by seizing a receipt located inside a paper bag which was inside a pizza box inthe applicant’s house. I accept that in the circumstances of this case, given that Cst. Shaw had no permission to enter, the presence of theother constables was also an unlawful entry. I conclude the manner of entry into the house by all of the constables, and subsequentevents constitute a much more egregious breach of

section 8 Charter rights than the observations with respect to the vehicle. [26] Cst. Shaw, the Defence argues, also engaged in an illegal search and seizure by looking through the pockets of the applicant’sjacket and seizing keys and a wallet and noting other items present without explicit consent or lawful reason to search through the jacketpocket. However, she also stated that she was directed by Mr. Honcia to look in the jacket for the wallet and found the wallet, driver’slicence, other identification, and keys to the vehicle in question when she requested his driver’s licence.

I have, however, concluded thather entry into the house was without authority, as was her detention of Mr. Honcia, which must be taken to have commenced when sheentered and gave him directions. The fact that Mr. Honcia gave her directions to find his driver’s licence does not, in my opinion, giveany of the police constables post facto or retroactive right of entry and search. The questioning continued in this unlawful situation andincluded searches by Cst.

Tunison. [27] The Defence refers to the leading case on entry and search of private dwelling houses, R v Feeney, [1997] 2 SCR 13, (SCC), at paragraphs 42 and 49, as well as further legal developments that include the passing of

section 529.3 of theCriminal Code which permits police entry into a private residence under exigent circumstances. There were no exigent circumstancesthat would have permitted entry under the authority of that Code

section raised. [28] Other cases have considered under what circumstances and when the right to enter a private dwelling house has been granted topolice by a homeowner. R. v. Luc, 2004 SKCA 117 , paragraphs 31 and following. [29] I conclude that though Mr. Honcia cooperated with the police constables, that did not constitute consent to their entry into thehouse, search of the house, interrogation without rights or warnings and giving of oral statements regarding his prior conduct. Further,any specific direction to items in the house seized as evidence was given in a context of unlawful actions by police.

The constablesdetained the homeowner under suspicion and subject of an investigation from the time of their arrival until the formal arrest, a period ofover one hour. It is argued by the Defence that Cst. Tunison formed the grounds for arrest on the basis of the unlawful actions described

above.

Section 8 and 9 Charter rights were infringed by the searches and detention for over one hour without complying with

section 10rights. [30] The Defence asserts that the receipts found as a result of an unlawful search and seizure, the police were able to identify theliquor store where the receipts originated, and obtain both video evidence and a statement from an employee. That evidence establishedMr. Honcia’s operation of a motor vehicle. Mr. Honcia had admitted only to going to the liquor store by bicycle prior. The Defencealleges this is derivative evidence from an illegal search.

I agree. [31] All of these propositions come under the same general considerations: first, an illegal entry and detention during which evidencewas obtained initially by Cst. Shaw, and then through searches by Cst. Tunison, and second, breaches of

section 10(

a) and 10(

b) of theCharter rights which the Crown concedes had occurred. [32] Upon any finding of a breach, the appropriate remedy under

section 24 of the Charter must be considered within the principlesenunciated in R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.). Paragraphs 72 and following discuss principles tobe applied relating to the exclusion of evidence and remedies under

section 24 generally. These principles and remedies to be grantedhave been considered in cases which followed upon R. v. Grant in many contexts. The application of the Grant principles has beenconsidered again by the Supreme Court in situations of egregious breaches of great impact to the persons whose rights have beenbreached. See: R. v. Sinclair, [2010] 2 SCR 310, 2010 SCC 35 , R. v. Taylor, [2014] 2 SCR 495, 2014 SCC 50 . Thereare also numerous fact-specific decisions of trial courts illustrating the application of the principles. [33] A Saskatchewan example of a case where

section 7, 8 and

section 10(

b) rights were infringed is the case of R. v. Mertins, 2013SKQB 252. Sherman, J. observed the following in considering the application of the principles in R. v. Grant, supra. 53 The Supreme Court of Canada said in Grant (2009) that the phrase “bring the administration of justice into disrepute” must beunderstood in the long term sense of maintaining the integrity of, and public confidence in the justice system.

It said that while exclusionof evidence resulting in acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case but rather it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by the admission of evidence and whether a reasonable person informed of allrelevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring theadministration of justice into disrepute. [34] In the present case the Accused person had police officers enter his house without any reason stated or permission sought, was notfree to leave and was then questioned during a period of over one hour.

He had his house searched in several aspects, and only then wasgiven the formal reason for the detention at the time of arrest, receiving that information with the usual statement warning and right tocounsel for the first time. This represents an extended and egregious breach of

section 7, Flamon8, 9 and 10 Charter rights. Under thecircumstances of this case, I conclude that the test set out in R. v. Grant, supra, and other authorities is met. Consequently the evidenceobtained by the investigating constables should be excluded from the time of Cst. Shaw’s entry into the house. This also extends toderivative evidence, being the evidence obtained from the liquor store employees and video recordings. I conclude to do otherwise in thecircumstances of this case would bring the administration of justice into disrepute. _________________________________ B.D. Henning, J