R. v. Zielinski Date:, 2014 BCPC 243

Citation: R. v. Zielinski Date: 20140826 2014 BCPC 0243 File No: 90362-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDRZEJ ZIELINSKI REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE CRAIG Counsel for the Crown: Emma Lehrer Counsel for the Defendant: Dimitri Kontou Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 5, 6, & 17, 2014

Date of Judgment: August 26, 2014 Introduction [ 1 ] Mr. Zielinski is charged with impaired driving and driving with a blood alcohol level over the legal limit. The accused applies for the exclusion of evidence based upon a number of alleged violations of the Charter . The following issues have been raised in the voir dire :

a) Did Cst. Dheri conduct an unlawful search contrary to

section 8 of the Charter when he attended at Mr. Zielinski’s residence, knocked on his door, asked him questions and made observations regarding an allegation of impaired driving?

b) Was Mr. Zielinski detained by Cst. Dheri when he was asked to step outside his residence while the officer pursued his investigation?

c) If Mr. Zelinski was detained, did Cst. Dheri violate his right to be informed of the right to counsel under

section 10(

b) of the Charter without delay?

d) If there was any breach of Mr. Zielinski’s Charter rights, should there be an exclusion of evidence under section 24(2) of the Charter ?

e) On the basis of the evidence which is admissible, did the officer have reasonable and probable grounds to arrest Mr. Zielinski and demand that he provide a breath sample? Evidence in the Voir Dire [ 2 ] Cst. Dheri was the only witness in the voir dire . He testified that he received information from police dispatch that a highly intoxicated white male, approximately 50 years old, had just left a local casino. The male was reported to have driven away in a grey Honda Accord with licence plate 291WRB at a high rate of speed, going through a red light on his way. Cst.

Dheri conducted patrols of the area but was unable to locate the vehicle. As a result, after receiving the address of the registered owner of the vehicle from dispatch, he attended at the address to speak to the registered owner to ask who was driving the vehicle. [ 3 ] When he attended at the registered owner’s address, Cst. Dheri saw the vehicle parked in the driveway with the interior light on. As Cst. Dheri walked up the driveway he heard a ticking noise from the engine, which indicated to him that the vehicle was cooling down. He felt the hood of the vehicle to see if it was warm. [ 4 ] As Cst.

Dheri was walking toward the residence, he heard someone trying to lock the side door of the residence, so he knocked on that door. It was answered by what Cst. Dheri described as a highly intoxicated Caucasian male in his fifties with grey hair, wearing blue jeans, a green jacket, black t-shirt and shoes. [ 5 ] Cst. Dheri asked the male for his name and asked him to step outside so he could talk to him. There was no issue on the voir dire that this male was the accused Mr. Zielinski. Cst. Dheri told Mr. Zielinski he was investigating an impaired driving complaint and explained that he was being detained.

He then asked dispatch to obtain a clothing description of the subject of their complaint from casino staff. Four minutes later dispatch forwarded information provided by casino staff, including a description of the male that matched Mr. Zielinski. [ 6 ] During the four minutes that he was waiting to hear back from dispatch, Cst. Dheri asked Mr. Zielinski if there was anyone else in the house. Mr. Zielinski said only his girlfriend was in the house. Also during this time period, Cst. Dheri observed the following symptoms of impairment: Mr.

Zielinski had bloodshot eyes, odour of liquor on his breath, was unsteady on his feet and was slurring his words. [ 7 ] Once Cst. Dheri received the information back from dispatch, he formed the opinion that Mr. Zielinski’s ability to operate a motor vehicle within the preceding three hours was impaired by alcohol. This opinion was based upon the initial information from dispatch regarding the complaint from the casino, the additional information provided of that male’s description, and the symptoms of impairment Cst. Dheri had observed on Mr.

Zielinski when he answered the door and was detained outside. [ 8 ] Cst. Dheri arrested Mr. Zielinski, read him his Charter rights and made a demand for a breath sample. Mr. Zielinski was taken back to the detachment where he provided two breath samples, one of 190 milligrams and the second of 200 milligrams of alcohol per 100 millilitres of blood. [ 9 ] I will deal with Cst. Dheri’s evidence in more detail in the course of my analysis of the issues raised in the voir dire . A. Was There An Unlawful Search? [ 10 ] Mr. Zielinski argues that Cst.

Dheri’s attendance to the carport of his residence and knock on the door constituted and unlawful search, contrary to

section 8 of the Charter . He submits that the officer’s purpose in attending at the door was not simply to communicate with the occupants of the house, but was to gather evidence of the commission of the offence of impaired driving. The fact that the officer touched the hood of the vehicle, he says, shows that the officer was engaged in a search for evidence, as opposed to

simply communicating with the occupants. [11] The defence contends that when Cst. Dheri knocked on Mr. Zielinski’s door, he was going beyond the implied invitation toknock and attempting to secure evidence to substantiate a criminal charge. This type of conduct was found to be an unreasonable searchin R. v. Evans, [1996] 1 S.C.R, a case which is said to be similar to the circumstances before the Court. In addition, Mr.

Zielinski arguesthat the officer’s attendance at the side door in the carport, as opposed to the front door, is tantamount to entering the residence, an areaafforded a higher expectation of privacy, and is further evidence of an unreasonable search. [12] In addition to the case of Evans, supra, the defence relied upon R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3, R. v.Kaltsidis, 2006 ONCJ 388, R. v. Williams, 2014 ABPC 19, R. v. Hyde, 2010 ABPC 30, and R. v.

Noerenberg, (ONSC). [13] The Crown argues in reply that the officer’s conduct in attending at the accused’s residence falls squarely within the impliedinvitation to knock rule, and was not an illegal search. The Crown relied upon cases from across Canada that demonstrate that a policeofficer attending at a residence following up on an impaired driving investigation is acting within the implied invitation to knock: R. v.Fowler, 2006 NBCA 90 , [2006] N.B.J. No. 370 (NBCA), R. v. Graham, [2007] O.J. No. 2785 (ONCJ), R. v. LeClaire, 2005NSCA 165 , [2005] N.S.J. No. 547 (NSCA), R. v.

Paradis, [2009] J.Q. no 19429 (QCCQ), R. v. Petri, 2003 MBCA 1 ,[2003] M.J. No. 1 (MBCA), R. v. Van Wyk, [2002] O.J. No 3144 (ONCA), R. v. Williams, [2009] A.J. No. 120 (ABPC). [14] It is clear from the authorities that a determination of the purpose behind the officer’s attendance at the door is necessary to thedetermination of whether the officer was engaged in an unlawful search. Cst. Dheri testified that the purpose of knocking on the doorwas to talk to the registered owner to see who had been driving the vehicle.

In cross-examination, he agreed that he wanted to “gatherevidence” of who was driving the vehicle at the time of the impaired driving complaint. He agreed he touched the hood of the vehicle toconfirm it had just arrived. And, he agreed that, although he intended on knocking on the front door, he knocked on the side door insteadafter hearing someone locking the door. He agreed that he was suspicious that the person at the door was the driver of the vehicle, andtestified that he wanted to talk to him to see if he had been driving. [15] In my view, it is clear from Cst.

Dheri’s evidence that he attended at the residence for the purpose of communicating with itsoccupants in furtherance of his impaired driving investigation. Although he admitted to intending to gather evidence of who was drivingthe vehicle, this is not the type of conduct proscribed in the decision of Evans, supra, and the cases thereafter. Cases since R. v. Evanshave clarified that police are not permitted as part of an implied invitation to knock to attend at a property for the purpose of gatheringevidence against the occupant by making use of their senses, such as smell, or peering inside a residence.

They are, however, permittedto attend at a property to gather evidence by asking questions of the occupant in furtherance of an investigation, even if that occupanthappens to be the suspect. [16] The extent of the police authority under the implied invitation to knock, in light of the decision Evans, was addressedthoroughly by the Nova Scotia Court of Appeal in R. v. LeClaire, supra. On behalf of the Court, Roscoe, J.A. noted as follows: 15 The Evans principle has been helpfully summed up by commentators.

For example, Alan Gold, in Search and Seizure Evidence,ADGN/RP-028 (1997) said that Evans holds that police "knock-ons" are searches where a residence is approached to see if evidencebecomes apparent when the door is opened. Renee Pomerance, in "Parliaments' Response to R. v. Feeney: A New Regime for Entry andArrest in Dwelling Houses" (1998), 13 C.R. (5th) 84 at para. 9 suggests that it is permissible for the police to approach a residence with abona fide investigative inquiry and that the communicative nature of the activity takes it out of the realm of a search according to theprinciples in Evans.

I agree with these statements. 16 On the facts in Evans, Justice Sopinka concluded that not only did the police want to talk to the occupants; they also wanted to get awhiff of marijuana, that is, to secure evidence against them by obtaining the scent of marijuana from inside the house once the door wasopened.

Since occupiers cannot be presumed to invite police to enter upon their property with the specific purpose of substantiating acriminal charge, the police in Evans were found to have exceeded the authority implied by the invitation to knock and in so doing wereengaged in a search. [paras. 16-21] [17] The Court went on to refer to a number of cases that have applied the principles set out in Evans in fact situations similar to thecase at bar. The cases of R. v. Van Wyk, supra and R. v. Petri, supra, relied on the Crown herein, were cited with approval. [18] In R. v.

Van Wyk, police officers attended at the residence of the registered owner of a vehicle that was said to have beenresponsible for a traffic accident, but had been driven away from the scene of the accident. The police observed the vehicle parked in thedriveway and examined it with a flashlight. They then knocked on the door of the residence and were invited in by Mrs. Van Wyk. Thepolice spoke to Mr. Van Wyk once inside the residence, determined he had been driving, and arrested him. [19] Justice Casey Hill found that the officers attendance at and invited entry into the residence was lawful.

The officers wereentitled to pursue investigative questions and seek further information by attending at the suspect’s residence without a warrant. TheCourt in LeClaire noted further: 20 After referring to Evans, Justice Hill drew an important distinction between cases where the police knock on a door, with theintention of gathering evidence against the occupant by mere use of their senses, by taking a look or a whiff, and those cases where theintention is to ask questions to further the investigation. The difference is premised upon the ability of the occupant to refuse to answerthe questions.

He continued: para. 33 Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government,in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication,

even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, nottrespassory or in breach of s. 8 of the Charter. [20] The cases of R. v. Kaltsidis, supra and R. v. Noerenberg, supra, relied upon by the defence in the case at bar, were distinguishedby the Court in LeClaire. The Court noted that those cases involved police officers following an accused into his garage, withoutstopping to knock and without asking any permission.

As a result, the drivers “had no opportunity to choose not to answer the knock onthe door or to refuse to be observed or engaged in conversation” (para. 32). Finally, the accused in those cases had specifically objectedto the presence of the officers. As such any implied invitation to enter had been clearly and expressly retracted. Those facts wereentirely distinguishable from the facts in the LeClaire, Van Wyk, and Petrie cases. [21] Similarly, the facts in the case at bar are equally distinguishable from those in Kaltsidis and Noerenberg. As such, those casesdo not apply.

The facts in the LeClaire, Van Wyk, and Petrie cases, however, are analogous to the facts before me. Those decisions aredeterminative of the allegation of an unlawful search. I find that Cst. Dheri was not engaged in an unlawful search when he knocked onMr. Zielinski’s door and proceeded to ask him questions in furtherance of his investigation. [22] In making this finding, I have taken into account the fact that Cst. Dheri attended at the side door of Mr. Zielinski’s residence,as opposed to the front, or what has been described as “primary” door.

The defence argued that there was a higher expectation of privacyattached to the side door, and entering such an area is tantamount to entering the residence. Although I accept there may be a slightlygreater expectation of privacy attached to the side door of Mr. Zielinski’s residence, I do not think it is a distinction with any significancein this case. Nor do I believe that entry in the carport to knock on the door equates with entry into the residence. The side door of theresidence is in plain view to any one observing the house from the street.

It is in an open carport area, with no door attached to thecarport. There is nothing to its location that would take it outside the implied licence to knock. (See R. v. Le, [2014] O.J. Ont. Sup. Ct. where the police were entitled to enter the backyard of a residence.) Feeling the Hood of the Vehicle [23] I take a different view of Cst. Dheri’s conduct when he felt the hood of the vehicle as he passed it in the driveway.

In my view,this went beyond communicating with the occupant further to an implied licence to knock and constituted an unlawful search. [24] A similar situation was seen in the facts in Van Wyk, supra. Justice Hill noted in that case that the officers were entitled tomake observations of the vehicles parked in the driveway at the side of the home, and exposed in plain view. However, when the officerwent on to examine the accused’s vehicle more closely with a flashlight before knocking on the door, they exceeded the scope of theimplied licence and conducted a search contrary to

section 8 of the Charter. [25] Justice Hill declined to grant Mr. Van Wyk a remedy under s. 24(2) of the Charter since he found that no additional evidencewas obtained from this search and there was no causal or temporal link between the search and the officers’ reasonable groundsdetermination. [26] The same can be said in the case at bar. At trial, Cst. Dheri did not recall whether or not he had felt the hood of the car. It wasnot until he was referred to his notes in cross-examination that he could confirm he had done so.

There does not appear to be anyindication in his notes what his observation was when he felt the hood. Nor did Cst. Dheri rely on this observation in his evidence attrial or as part of his grounds for his breath demand. As a result, Cst. Dheri did not obtain any evidence as a result of this search thatought to be excluded. [27] A similar finding was made by the Manitoba Court of Appeal in R. v. Petrie, supra. In that case, the officers had placed theirhands on the hood of the vehicle parked in the driveway and noted it was warm, suggesting it had been driven recently.

The Court found this observation had no significance and contributed nothing to the information the police already had. B. Was there a Detention? [28] Although the Crown initially argued that Mr. Zielinski was not detained by the officer when he was asked to step out of hisresidence to speak to Cst. Dheri, this was not pressed in argument. In my view, Mr. Zielinski was clearly detained. Cst. Dheri testifiedthat after asking Mr. Zielinski to step outside he told him he was investigating an impaired driving complaint and told him he was beingdetained. Cst.

Dheri then called dispatch and asked them to obtain a clothing description of the suspected impaired driver from casinostaff. He then waited with Mr. Zielinski outside the residence for approximately 4 minutes for a response. Mr. Zielinski was detainedthroughout this time period. C. Right to Counsel [29] It is common ground that police are obliged to advise a detainee of his right to counsel without delay. In R. v. Suberu 2009 SCC33 , [2009] 2 S.C.R. 460, this obligation was described as follows: In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).

Subject to concerns for officer or public safety,and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or herright to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (para. 42) [30] As noted, officers are entitled to hold off on their duty to inform in situations where the issue of officer or public safety arises. There was no issue of officer safety in the time Mr. Zielinski was detained outside his residence prior to being advised of his right tocounsel. Cst.

Dheri was clear in his evidence that he considered Mr. Zielinski detained from the moment he asked him to step outside. He ought to have advised Mr. Zielinski of his right to counsel immediately upon detention, rather than waiting for four minutes to hear

back from dispatch. His failure to do so amounts to a breach of Mr. Zielinski’s right to counsel under

section 10(

b) of the Charter. D. Section 24(2) Having found a breach of Mr. Zielinski’s right to counsel, I must go on to consider whether the evidence as a result of the breachobtained ought to be excluded under s. 24(2) of the Charter. There are two types of evidence at issue. The first is a statement made byMr. Zielinski. The second is the observations of his symptoms of impairment made by Cst. Dheri. (

a) Statement [31] While Mr. Zielinski was detained outside his residence, Cst. Dheri asked him if there was anyone else in the house. Mr.Zielinski responded by saying that only his girlfriend was present. [32] As noted previously, Cst. Dheri was obliged to advise Mr. Zielinski of his right to counsel immediately upon his detention. Hewas also obligated to give Mr. Zielinski a reasonable opportunity to obtain legal advice, if he so chose, before proceeding to elicitincriminating information from him; R. v. Suberu, supra, R. v. Grant, 2009 SCC 32 , [2009] S.C.J.

No. 32 at para 58. [33] Although it was not clear on the evidence, it appears that Cst. Dheri was not aware of his duty to advise Mr. Zielinski of hissection 10(

b) rights upon detention. He seemed to believe this was only required after he had placed Mr. Zielinski under arrest. Inassessing the seriousness of the Charter-infringing conduct, I note that there was nothing wilful or deliberate in Cst. Dheri’s failure tocomply with the Charter. However, I must bear in mind that “ignorance of Charter standards must not be rewarded or encouraged”; R.v. Grant, supra. at para. 75. [34] When assessing the impact of the breach on the rights of the accused, I note that when Cst. Dheri questioned Mr.

Zielinski priorto giving him an opportunity to obtain legal advice, he violated his right to silence under s. 7 and right against self-incrimination under s.13 of the Charter. This makes the breach more serious and argues toward exclusion of the evidence under this factor in the analysis. [35] In addition, although not an automatic rule, the Supreme Court of Canada in R. v.

Grant, supra, noted that “courts have tendedto exclude statements obtained in breach of the Charter on the ground that admission on balance would bring the administration ofjustice into disrepute” (para. 91). [36] As a result, after weighing the factors set out in Grant, supra, I find that, on balance, admitting Mr. Zielinski’s statement to Cst.Dheri into evidence at trial would bring the administration of justice into disrepute. The statement is not admissible in evidence at trial. (

b) Observations of Impairment [37] The second type of evidence sought to be excluded are the observations made by Cst. Dheri regarding Mr. Zielinski’ssymptoms of impairment. Cst. Dheri’s initial observations of Mr. Zielinski when he first answered the door were prior to any breach ofs. 10(

b) and are admissible. What are at issue are the observations he made of Mr. Zielinski during the four minutes he was detainedwithout his right to counsel. In my view, the evidence of these observations ought to be admitted at trial. There are a number of factorsthat militate in favour of the admission of this evidence. [38] With respect to the first set of factors under the s. 24(2) analysis set out in Grant, supra, the seriousness of the breach, in myview Cst. Dheri’s conduct fell on the less serious end of the spectrum.

There was a brief delay of four minutes during which Mr.Zielinski was not advised of the right to counsel or given access to counsel. Other than the question about whether anyone else was inthe house, Cst. Dheri did not attempt to gather evidence against Mr. Zielinski of a self-incriminatory nature. In fact, his purpose fordetaining Mr. Zielinski was so that he could obtain information from a source other than the accused. He sought more accurateinformation from the casino staff about the description of the impaired driver to ensure he had the proper suspect. [39] Cst.

Dheri did not act in a mentally or physically coercive manner with Mr. Zielinski. He did not infringe upon his humandignity in any way. Rather, he waited passively with Mr. Zielinski for the information to come back from dispatch. During that time, hemade observations, some of which confirmed the information he had already received from the casino staff, and some of whichconfirmed his initial impression that Mr. Zielinski was highly intoxicated and fit the general description given by casino staff. [40] Regarding the impact on the accused, it is unlikely that the breach affected Mr.

Zielinski in any meaningful way. Had Cst.Dheri advised Mr. Zielinski of his right to counsel immediately upon detention and given him the opportunity to call a lawyer, he stillwould have made the observations regarding the accused’s symptoms of impairment. See R. v. Perjalian. [2011] BCJ. No. 1346(BCCA). [41] Finally, I must consider society’s interest in an adjudication of the case on its merits to determine whether the truth-seekingfunction of the criminal trial process would be better served by the admission or exclusion of the evidence.

Although the evidence inissue may not necessarily make or break the case for the Crown, it is of some significance to the Crown’s case. [42] In my view, after consideration of all of the relevant factors, the administration of justice would be more properly served by theadmission of the evidence. [43] When making this determination, I am mindful of the fact that I previously found that Cst. Dheri violated Mr. Zielinski’s s. 8rights when he touched the hood of his vehicle.

I have taken the cumulative nature of the two breaches into account in my assessment ofthe admissibility of the evidence and find nevertheless that the evidence of the observations made by Cst. Dheri are admissible at trial. E. Reasonable Grounds for Arrest and Breath Demand [44] After assessing the evidence that I have found is admissible at trial, it is my view that Cst. Dheri had reasonable grounds tobelieve that Mr. Zielinski had committed the offence of impaired driving when he arrested him and made a demand for samples of his

breath. He had the initial information from the casino regarding the general description of the individual, his high level of intoxication, the description of the vehicle driven and its licence plate, and its manner of driving. [ 45 ] That vehicle was parked in the driveway of the address of the registered owner when Cst. Dheri arrived shortly after. Mr. Zielinski was in the area of the side door when Cst. Dheri approached the residence, apparently attempting to lock the deadbolt. When he answered the door he matched the general description provided by casino staff of the male and he appeared highly intoxicated.

While Cst. Dheri was waiting for further information from dispatch, he made further observations which supported a determination that Mr. Zielinski was impaired by alcohol, including that he had bloodshot eyes, odour of liquor on his breath, and was unsteady on his feet. [ 46 ] Finally, the more detailed information provided by dispatch from casino staff of the suspect`s description and clothing matched that of Mr. Zielinski, confirming there were reasonable grounds to believe that Mr.

Zielinski was the individual who had driven away from the casino in a highly intoxicated state. [ 47 ] As a result, the arrest of Mr. Zielinski and subsequent demand for samples of his breath were lawful. The results of the breath samples are admissible at trial. _____________________________ The Honourable Judge Bonnie Craig Provincial Court of British Columbia