Court of Appeal for Saskatchewan Docket: CACR3030 Citation: R v Babich , 2020 SKCA 139 Date: 2020-12-21 Between: Her Majesty the Queen Appellant (Appellant) And Erinn Maria Babich Respondent (Respondent) Before: Richards C.J.S., Whitmore and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Kalmakoff On application from: 2017 SKQB 304 , Moose Jaw Application heard: November 2, 2020 Counsel: W.

Dean Sinclair, Q.C., for the Appellant Mervin Nidesh, Q.C., and Thomas Hynes for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] A store clerk observed a woman who appeared to be intoxicated get into a car and drive away. She gave the police the licence plate number of the car and, on the strength of the plate number, the police were able to identify the registered owner. Police dispatch suggested to an officer on patrol that the vehicle might belong to Erinn Babich, the respondent, who lived at a particular address. The officer went to the house. Ms.

Babich answered the door and identified herself as the person who had been driving the car in issue. The police officer detected a strong odour of alcohol coming from Ms. Babich and noted that she spoke slowly and had glossy eyes. This led the officer to advise that she was going to make an approved screening device [ASD] demand. Ms. Babich needed to deal with the young child she was carrying and the officer followed her into the house while she gave the child to a nanny. Later, at the police car on the street, Ms. Babich would not comply with the demand.

She was charged with refusing the demand and with impaired driving. [ 2 ] In the Provincial Court, and relying on R v Rogers , 2016 SKCA 105 , 341 CCC (3d) 502 [ Rogers ], Ms. Babich argued that the police had violated her rights under s. 8 of the Charter by coming to her door and engaging her in conversation for the purpose of collecting evidence. The trial judge agreed. She found that the sole purpose of the police officer’s attendance at Ms. Babich’s home was to obtain the identity of the driver of the vehicle and grounds to make an ASD demand.

She therefore excluded evidence under s. 24(2) of the Charter and acquitted Ms. Babich on both of the counts she was facing. [ 3 ] The Crown then appealed to the Court of Queen’s Bench, acting as the

summary conviction appeal court. The appeal judge accepted that Rogers was the controlling authority and that, as a result, the trial judge had made no error in finding Ms. Babich’s s. 8 rights to have been violated. He also found that the trial judge had properly considered and applied the principles relating to s. 24(2). The Crown’s appeal was dismissed. [ 4 ] The Crown now seeks leave to appeal to this Court. It wishes to argue, first, that Rogers should be reconsidered and overturned. The result, according to the Crown, would be that there was no violation of Ms. Babich’s s. 8 rights.

Second, the Crown wishes to argue that the appeal judge erred in law by endorsing the trial judge’s s. 24(2) analysis, an analysis said by the Crown to have been founded on errors of principle. [ 5 ] As explained below, I would not grant leave on the s. 8 question but would grant it on the s. 24(2) question. I conclude that the appeal judge erred in law by endorsing the trial judge’s s. 24(2) analysis. In the end, I would set aside the acquittal on the refusal charge, enter a conviction and remit this matter to the Provincial Court for sentencing. II.

THE FACTS [ 6 ] A 7-Eleven clerk was at work on a May evening when Ms. Babich entered the store, approached the till and asked for cigarettes. The clerk had to ask Ms. Babich several times for the brand name of the cigarettes that she wanted. Ms. Babich had a young child with her. The clerk smelled a strong odour of alcohol and noted that Ms. Babich was abrupt with the child. [ 7 ] The clerk believed Ms. Babich to be intoxicated. When Ms. Babich put the child in her car and drove away, the clerk telephoned Moose Jaw City Police and gave them the licence number of the car. She did not know Ms.

Babich so could not provide her name to the police. [ 8 ] Constable Brittainy Clement was on patrol that night. Dispatch advised her of the clerk’s complaint and provided the licence

plate number of the suspect vehicle. Dispatch also advised that the vehicle was registered to E. Babich Farms and that it could belong to Erinn Babich. She was given Ms. Babich’s home address. [ 9 ] Constable Clement drove by the address that had been provided to her. She could not see the suspect vehicle but did note a garage. Its doors were closed. Constable Clement did not know if the suspect vehicle was in the garage and she was concerned about the safety of the child if the vehicle was out and being driven around.

She decided, therefore, to knock on the door of the house. [ 10 ] Constable Clement saw lights on in the house. She approached the front door and knocked. Ms. Babich came to the door and opened it. She had a young child in her arms. Constable Clement, standing just outside the door, asked Ms. Babich who she was and Ms. Babich replied, “Erinn Babich”. Constable Clement smelled a strong odour of beverage alcohol and observed that Ms. Babich’s eyes were glossy and that her speech was slow. In response to a question from Constable Clement, Ms. Babich advised that she had just come from the 7-Eleven. Ms.

Babich also indicated that she had consumed “a couple of drinks”. Constable Clement radioed for a Corporal Lewis to attend at the scene and then told Ms. Babich that she, Constable Clement, had reasonable grounds to suspect that Ms. Babich had been driving while her ability to do so was impaired and that she would be making an ASD demand. [ 11 ] Ms. Babich said that she wanted her lawyer present and accused Constable Clement of being in a conspiracy with her ex- husband. Ms. Babich then became concerned about what to do with the young child.

She indicated that there was a nanny in the house so Constable Clement asked if the child could be given to the nanny. Ms. Babich replied in the affirmative and indicated that she would follow Constable Clement to the police vehicle to do the ASD test. [ 12 ] Ms. Babich then left the front door area of the house and so Constable Clement stepped inside and followed her to the kitchen, believing that she needed to stay with Ms. Babich lest she consume something that would affect the ASD test. Ms.

Babich said that she wanted some ginger ale but Constable Clement said no, indicating that she needed to do the ASD test first. Constable Clement asked if they could find the nanny and at that point Ms. Babich attempted to do so. She thought the nanny was on the second floor so she went up the stairs, with Constable Clement following. The nanny was not there and they came back down. At the foot of the stairs, they encountered the nanny. [ 13 ] Ms. Babich gave the child to the nanny and, still inside the house, Constable Clement immediately read the ASD demand from a police-issued card. Ms.

Babich then accompanied Constable Clement outside to her police vehicle. Constable Clement took out the equipment needed to perform the ASD test but Ms. Babich refused to provide a sample, saying she needed her lawyer present. After about five minutes of conversation, Constable Clement placed Ms. Babich under arrest for refusal to provide an ASD sample. Constable Clement handcuffed Ms. Babich and had her sit in the back of the police vehicle. She then provided Ms. Babich with her rights and related warnings. Ms.

Babich continued to indicate that she wanted to talk to a lawyer, but only to one particular lawyer who was unreachable because he was out of the country. She did not want Legal Aid or another lawyer. Constable Clement gave Ms. Babich an appearance notice and allowed her to return to the house. III. THE TRIAL DECISION [ 14 ] At the trial in Provincial Court, it was agreed that all of the evidence would be heard on a voir dire and be applied to the trial proper. The Crown called the 7-Eleven clerk and Constable Clement. Ms.

Babich did not call any witnesses. [ 15 ] In her decision, the trial judge reviewed the evidence and then turned to Rogers . There, speaking for the Court, Jackson J.A., on facts very similar to those in this case, had written as follows: [29] The investigation of the crime of drinking and driving, or a similar offence, necessarily entails the potential to obtain evidence from conversing with or observing the person answering the door.

Nonetheless, based on my review of the authorities, I have concluded that if a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose of securing evidence against the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter . This principle applies equally to drinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory and olfactory clues about the person’s participation in the crime under investigation.

Evans remains the leading authority on point, and nothing in the jurisprudence extends the principles articulated by the majority in that decision as far as Crown counsel suggests. (Emphasis in original) [ 16 ] The trial judge next emphasized key aspects of the evidence which she set out as follows at paragraph 27 of her decision: - The police officer received certain information from dispatch about a possible impaired driver. - The officer attended at the address of the registered owner obtained via licence plate information. - The officer saw no person or vehicle in the area. - The officer knocked on the door, woman answered. - The police officer testified that she was investigating a possible Criminal Code offence and went to this residence searching for a person and a vehicle. - The officer’s sole purpose was to obtain the identity of the driver and to obtain grounds to make an approved screening device demand. [ 17 ] She then went on, at paragraph 28, to say that “Officer Clement testified in cross-examination that she told [Ms.

Babich] she was investigating an impaired driver complaint and that she was watching the person to get evidence, such as her speech and actions. These were critical pieces of information”.

[18] In the end, the trial judge concluded that Ms. Babich’s s. 8 rights had been violated. [19] Next, the trial judge turned to s. 24(2) of the Charter and the question of an appropriate remedy for the s. 8 breach. Referring toR v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant], she considered what she saw as the seriousness of the Charter-infringing conduct,the impact of the breach on Ms. Babich’s protected rights, and society’s interest in the adjudication of the case.

Balancing these lines ofinquiry, the trial judge found that “the evidence” should be excluded because admitting it would undermine “the long term repute of theadministration of justice” (at para 34). [20] The trial judge found Ms. Babich not guilty on both the charge of refusing the ASD demand and the charge of driving whileimpaired. IV. THE APPEAL COURT DECISION [21] As noted, the Crown appealed the trial judge’s decision on the refusal of the ASD demand to the appeal court.

As it wasrequired to do, the Crown conceded that Rogers was a binding authority. [22] The appeal judge reviewed the evidence and summarily concluded that, in light of Rogers, the trial judge had not erred infinding a violation of Ms. Babich’s s. 8 rights. [23] The appeal judge also found that the trial judge had made no reviewable error in her assessment of the s. 24(2) issue. TheCrown’s appeal was dismissed. V. LEAVE TO APPEAL [24] This appeal is governed by s. 839 of the Criminal Code.

It provides that, with leave of the Court or a judge thereof, an appealmay be taken from the decision of the appeal judge on “a question of law alone”. [25] Leave to appeal is granted sparingly. As explained in R v Bray, 2017 SKCA 17 at para 2, “[i]n broad terms, an applicant mustestablish the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally—i.e., beyondthe four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question”. [26] The Crown seeks leave on two questions. As noted above, the first is whether the appeal judge erred in law by confirming thetrial judge’s finding that Ms. Babich’s right to be free from unreasonable search and seizure under s. 8 of the Charter had been infringed.In this regard, it seeks a reconsideration of Rogers. The second question is whether the appeal judge erred in law by confirming the trialjudge’s decision to exclude evidence. [27] As explained below, this appeal can be resolved on the basis of the s. 24(2) question.

Moreover, that is an appropriate issue onwhich to grant leave because it implicates some basic considerations about the operation of s. 24(2) and because the Crown’s argumentson this front have clear merit. It is therefore not necessary to take up the request to reconsider Rogers in order to decide this case. Thatsaid, our refusal in this regard does not foreclose the Crown from raising this issue again in the future. [28] I turn, therefore, to the question of whether the appeal judge erred in endorsing the trial judge’s analysis and application of s.24(2). VI.

ANALYSIS [29] Section 24(2) of the Charter speaks to the exclusion of evidence obtained by virtue of an infringement or denial of a Charterright or freedom. It reads as follows: 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. A.

Basic principles [30] The burden of proof under s. 24(2) – the burden of proving that the administration of justice would be brought into disrepute bythe admission of the evidence – is on the party seeking the exclusion of the evidence. The applicable standard of proof is “balance ofprobabilities”. See: R v Bartle, (SCC), [1994] 3 SCR 173 at 209 [Bartle]. However, matters beyond the primary facts suchas the degree of the seriousness of Charter-infringing conduct are “not susceptible” of proof in the ordinary sense but are issues ofnormative characterization.

See: Bartle at 210. [31] In Grant, the Supreme Court prescribed a framework of analysis for determining whether evidence should be excludedpursuant to s. 24(2). The Court said that a judge faced with a s. 24(2) application should have regard to (

a) the seriousness of the Charter-infringing state conduct, (

b) the impact of the breach on the Charter-protected interests of the accused, and (

c) society’s interest in theadjudication of the case on the merits. The judge’s role is to balance these considerations to determine whether, considering all of thecircumstances, the admission of the evidence would bring the administration of justice into disrepute. [32] If a trial judge has considered the proper factors under s. 24(2) and has not made any error of principle or unreasonable finding,“appellate courts should accord considerable deference to his or her ultimate determination”. See: Grant at para 86. Appellate courts may

conduct the trial judge’s s. 24(2) analysis anew if it is tainted by errors of fact or law that are relevant to the trial judge’s ultimate conclusion. See: R v Arnault , 2019 SKCA 109 at paras 70–80 , [2020] 5 WWR 620; R v C ôt é , 2011 SCC 46 at paras 52 and 87 , [2011] 3 SCR 215. [ 33 ] This appeal, being an appeal from a decision of the

summary conviction appeal court on a question of law alone, involves review of the appeal decision on the correctness standard. B. The evidence in issue [ 34 ] Before looking in detail at the s. 24(2) issue, it is necessary to identify or confirm the evidence that is at stake here. In this regard, it is useful to begin with the “Notice of Charter Application” filed on behalf of Ms. Babich with the Provincial Court. It requested the following relief: 1. Exclusion from evidence all evidence obtained with respect to the accused at the point of attendance at [Ms. Babich’s] dwelling home; 2.

Exclusion from evidence all evidence of impairment against [Ms. Babich]; 3. Exclusion from evidence of refusal to provide breath sample; 4. Such other remedy that this Honourable Court sees fit to grant. [ 35 ] During the course of the submissions made by counsel for Ms. Babich at the end of the trial, the trial judge asked counsel to clarify what evidence he was seeking to have excluded. Counsel did not provide a responsive answer, stating as follows: Okay.

First of all, if you look at -- even on your decision of Renouf you have -- you -- if I recall Renouf correctly, and there might be another case that I -- that I’m referring to -- you have a -- you have -- you don’t have gaps. Okay. So what you -- what you have -- what you have here is this, you have a complaint going in. [ 36 ] There was not a great deal of precision or clarity in what followed. In her decision, the trial judge concluded that admitting “the evidence” would bring the administration of justice into disrepute and that, as a result, “the evidence” should be excluded.

She did not specifically identify what evidence she had in mind. In its notice of appeal to the

summary conviction appeal court, the Crown listed one of its grounds of appeal as being that the trial judge had erred “by excluding evidence of the refusal or failure to comply with a demand pursuant to

section 24 of the Charter”. The Crown’s brief also referred, albeit very much in passing, to the evidence in issue being evidence of the refusal to comply with the ASD demand. For Ms. Babich’s part, her brief for the

summary conviction appeal stated that the trial judge had made no reversible error “by excluding the evidence of the results of the breathalyzer tests administered”. This, obviously, was an error or oversight of some sort because no breathalyzer test was administered. In his decision, the appeal judge, like the trial judge, did not identify or refer to the specific evidence that was at issue. He simply concluded that the trial judge had not erred in excluding “the evidence”.

Therefore, in order to discover what is at issue here, it is necessary to consider matters somewhat further. [ 37 ] Section 254(2) of the Criminal Code , which was in force at the time of the offence in issue here, read as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … or had the care or control of a motor vehicle … whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: … (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 38 ] It follows that, in order to secure a conviction pursuant to s. 254(2) for failing to provide a breath sample, the Crown had to prove that (

a) Constable Clement had reasonable grounds to suspect that Ms. Babich had alcohol in her body, (

b) Constable Clement had reasonable grounds to suspect that Ms. Babich had operated a motor vehicle within the preceding three hours, (

c) Constable Clement had made an ASD demand of Ms. Babich, and (

d) Ms. Babich had refused to comply with the demand. [ 39 ] The focus of the submissions in this case has been Constable Clement’s evidence concerning what happened on the doorstep: her account of Ms. Babich’s statement that she, Ms. Babich, had just driven from the 7-Eleven and her observations about the smell of alcohol emanating from Ms. Babich, and Ms. Babich’s slow speech and glossy eyes.

However, the authorities in this area take a relatively generous approach to the question of whether any particular piece of evidence can be considered to have been “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” as per s. 24(2). There need not be a strict causal relationship between the breach and the obtaining of the evidence and a court should consider the entire chain of events between the accused and the police. See, for example: R v Lichtenwald , 2020 SKCA 70 at para 57 , 388 CCC (3d) 377; R v Wittwer , 2008 SCC 33 at para 21 , [2008] 2 SCR 235.

As a result, at least for the purpose of the analysis required here, I am prepared to proceed on the assumption that the evidence of the making of the ASD demand and of Ms. Babich’s refusal to comply with the demand also properly came within the scope of the s. 24(2) application. [ 40 ] With that bit of clarification, I turn now to the approach to the s. 24(2) issue taken in the courts below. C. The three Grant factors

[ 41 ] The trial judge was fully aware of Grant and purported to apply it in the course of deciding that the evidence should be excluded. For his part, the appeal judge simply indicated, in

summary terms, that the trial judge had properly taken account of Grant and had identified and applied the principles set out in that case to the evidence before her. He found the trial judge had considered the appropriate factors and had not erred in excluding evidence pursuant to s. 24(2). [ 42 ] The Crown submits the appeal judge erred in law by endorsing the work of the trial judge because the trial judge had misapprehended or mishandled the applicable principles in the course of her s. 24(2) analysis. As explained below, I agree with much of that submission. 1.

The seriousness of the breach [ 43 ] A review of the trial judge’s treatment of s. 24(2) most usefully begins with her consideration of the first Grant factor, the seriousness of the Charter breach. In this regard, she wrote as follows: [32] When I consider the first line of inquiry I have to look to Constable Clement’s actions that night. I accept that Constable Clement’s felt this was acceptable police procedure. Indeed the Rogers case is a very recent judgment of the Court of Appeal dated August 19, 2016 of the within incident.

From the case law it is clear that the police and indeed often courts have upheld this type of investigation. What I do find more serious with respect to the police actions that evening was the entering of the home without consent or invitation and following Ms. Babich around the home so she did not lose eye contact with her. In addition the arrival of other officers on scene and placing Ms. Babich in handcuffs outside the police car and requesting that she go down to the police station initially, I find more objectionable.

Although I do not find the police officer behaviour egregious I do find the Charter breach is serious. [ 44 ] The Crown suggests this analysis was fundamentally flawed because it considered matters that were irrelevant to the necessary s. 24(2) inquiry and, moreover, treated them as having the effect of increasing the seriousness of the Charter breach in issue. The first such matter, according to the Crown, was Constable Clement’s entry into Ms. Babich’s home.

It underlines that the evidence in question, the evidence that was the subject of the s. 24(2) application, was Constable Clement’s testimony as to what she heard and observed and learned at the door of Ms. Babich’s home, i.e., Ms. Babich’s acknowledgment that she had been driving the car in issue and the fact that Ms. Babich smelled of alcohol, spoke slowly and had glossy eyes. None of that evidence was obtained from, or was in any way dependent upon, Constable Clement’s entry into the house.

Thus, says the Crown, Constable Clement’s entry did not impact the seriousness of the Charter breach that led to the impugned evidence being obtained. [ 45 ] The Crown’s position in this regard finds support in the decision of the Court of Appeal for British Columbia in R v Vu , 1999 BCCA 182 , 133 CCC (3d) 481. In that case, police went to the door of an apartment to confirm the presence and identity of a man who had recently sold drugs to an undercover agent. Upon knocking on the door of the apartment, the police officers stepped across the doorstep into the front hallway of the apartment.

Chief Justice McEachern dismissed the significance of the entry into the apartment by writing as follows: [15] … In my view nothing turns on the fact that the officers actually entered the premises because they looked for no evidence there and the Crown placed no reliance on any information they obtained inside the premises beyond looking at the accused before they stepped across the threshold.

In my view the question of Charter infringement must be decided on the basis of the officers walking to the door of the premises, knocking on the door, and looking at the accused when he opened the door. [ 46 ] Even if Constable Clement’s entry into Ms. Babich’s home cannot be split away from what happened on the doorstep as clearly and completely as the Crown suggests, I nonetheless find that the trial judge erred by failing to have regard for the particular nature of the “entering the house” part of what happened on the night in question.

In this regard, it is important to note that Constable Clement formed the intention to make an ASD demand while she was still on the doorstep. Indeed, after speaking to Ms. Babich, smelling alcohol, noting the glossy eyes and slow speech, Constable Clement went so far as to advise Ms. Babich that she would be making an ASD demand. It is reasonable to think that she proceeded in this way, i.e., delayed in making a formal demand, because Ms. Babich was holding a young child. When Constable Clement did go into Ms. Babich’s home, she did not enter for the purpose of conducting an investigation or gathering evidence.

Rather, she followed Ms. Babich into the house as Ms. Babich attempted to find the nanny. The Constable did this to ensure that Ms. Babich did not consume something that would interfere with the ASD test. When Ms. Babich found the nanny and transferred the child to her, Constable Clement immediately made the ASD demand. All of this could not have taken more than a very few minutes at most and the transcript suggests Constable Clement conducted herself throughout in a way that was fully professional.

Seen in context, therefore, there was no search or investigative dimension to Constable Clement’s entry into the house. It was an entry aimed at ensuring the integrity of an ASD sample which had been referred to on the doorstep but not formally demanded. Ms. Babich does not suggest that there was anything improper, in and of itself, about Constable Clement acting for this purpose.

She takes exception only to the fact that the Constable entered her home. [ 47 ] In my respectful view, even assuming for the sake of argument that the trial judge, and the appeal judge in turn, were entitled to consider the entry into Ms. Babich’s home as part of the s. 24(2) analysis, they erred nonetheless by failing to see that entry in its full context. Not all police entries into a home are alike. Here, the trial judge appears to have taken no account of the specific reason why Constable Clement went into the house. Second, she overlooked the fact that no evidence was sought or obtained by way of the entry.

Third, the trial judge paid no regard to how Constable Clement conducted herself while in the house or to the unusual circumstance presented by the presence of the child. When all of this is taken into account, it can be seen that, even if Constable Clement’s entry into the house can be seen as being relevant to the seriousness of the Charter breach, it did not meaningfully elevate its seriousness. [ 48 ] The Crown also submits that the trial judge put a second irrelevant matter on the scale in considering the seriousness of the Charter -infringing conduct.

This was the arrival of other officers on the scene, the placing of Ms. Babich in handcuffs at the police car and the request that she go to the police station. The trial judge found all of this “more objectionable” than Constable Clement’s attendance at Ms. Babich’s door and her entry into her home. [ 49 ] Once again, and with respect, this analysis involved an error in principle. The issue before the trial judge was whether evidence obtained in a manner that infringed the Charter should be excluded.

As noted, the Charter breach in issue occurred on the doorstep and, perhaps arguably, when Constable Clement briefly entered Ms. Babich’s house. Ms. Babich being handcuffed was entirely disconnected

from any conduct said to have infringed the Charter ; it cannot be seen as having amplified the seriousness of the Charter breach in issue. Handcuffing Ms. Babich might not have been necessary and it might have embarrassed her but it did not make the police conduct said to have breached the Charter either more or less serious. It was simply not relevant to the first line of inquiry mandated by Grant . [ 50 ] In Grant , the Supreme Court recognized that state conduct resulting in Charter violations can be of variable degrees of seriousness.

At one end of the spectrum, said Charron J., there are inadvertent or minor violations of the Charter that may minimally undermine public confidence. At the other end of the spectrum, willful or reckless disregard of Charter rights will inevitably risk bringing the administration of justice into disrepute. Justice Charron also explained that extenuating circumstances such as the need to preserve evidence can attenuate the seriousness of police conduct.

Further, “good faith” on the part of the police will also reduce the need for a court to disassociate itself from police conduct. [ 51 ] Here, Constable Clement was motivated to knock on Ms. Babich’s door by a concern that an impaired driver, with a child on board, might be on the street. Further, the trial judge found as a fact that Constable Clement believed that her actions in questioning Ms. Babich on the doorstep were acceptable police procedure. In this regard, it is noteworthy that the events in question happened on May 20, 2016.

Given the state of the law at that time, Constable Clement’s position was a reasonable one. [ 52 ] It is true, of course, that Constable Clement went beyond questioning Ms. Babich on the doorstep and followed her into the house. However, as explained above, even if her actions in that regard can be factored into the s. 24(2) analysis, they did not materially impact the significance of the Charter breach in issue. [ 53 ] In the end, therefore, I conclude that the Charter -infringing conduct that underpins this appeal was not nearly as serious as the trial judge believed.

I do not see this Grant factor as weighing meaningfully in favour of excluding the evidence. 2. The impact of the breach [ 54 ] The Crown submits that the second error of principle in the trial judge’s approach to s. 24(2) was made in the course of her consideration of the second Grant factor – the impact of the breach on Ms. Babich’s Charter -protected interests. [ 55 ] In Grant , the Supreme Court explained that this line of inquiry calls for an examination of the extent to which the breach “actually undermined the interests protected by the right infringed” (at para 76).

Such impact can range from fleeting and technical at one end of the spectrum to profoundly intrusive at the other. The more serious the impact, the greater the risk that admitting the evidence in issue may bring the administration of justice into disrepute.

With respect to s. 8 of the Charter in particular, the Court observed that a search in which the state intrudes on an area where the accused enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than a breach that does not have such effects. [ 56 ] On this point, the trial judge wrote as follows: [33] The second stage of analysis calls on the court to consider the extent to which the breach undermines the interest protected by the Charter. Here I find the unreasonable search contrary to

Section 8. It affected the accused’s privacy, liberty, and human dignity. She was in her own home. She did not ask the police officer in and as I have said the police officer’s accompanying her around the home and the actions outside of the home in full public view in a residential neighbourhood are serious. [ 57 ] In approaching things in this way, the trial judge failed to engage with the considerations involved in the second Grant factor. In light of Rogers , Ms. Babich had established a breach of her right under s. 8 of the Charter to be free from unreasonable search and seizure.

The question, therefore, concerned the extent to which the breach had undermined the interests protected by s. 8, i.e., the extent to which it had undermined Ms. Babich’s reasonable expectation of privacy. The trial judge’s concerns about Ms. Babich’s “liberty” and about the way in which she was later handcuffed and otherwise treated at the police car, all as endorsed by the appeal judge, were not relevant to the inquiry the trial judge was required to conduct. Her approach thus involved an error in principle. [ 58 ] The breach that is in issue here, as per Rogers , featured Constable Clement asking Ms.

Babich where she had come from and Ms. Babich responding that she had come from the 7-Eleven, and Constable Clement making observations about Ms. Babich’s slow speech, glossy eyes and about the smell of alcohol that emanated from her. Ms. Babich could not have had anything but a low expectation of privacy in any of that. Just minutes before, she had been at the 7-Eleven and there had revealed to the world, so to speak, the various symptoms that suggested she was intoxicated. Ms.

Babich had also driven in full public view and, by virtue of that, could have had little or no expectation that the fact of her driving would be private. She voluntarily opened the door when Constable Clement knocked and, on the doorstep, she voluntarily answered Constable Clement’s questions and revealed the various indicia of impairment that led to the ASD demand. Ms.

Babich did have a high expectation of privacy in relation to the interior of her home but, at the same time, Constable Clement’s entry into it had no investigative, search or information-gathering purpose or consequence. [ 59 ] It follows from all of this that the impact of the Charter breach in issue had a substantially less significant effect on Ms. Babich’s Charter -protected interests than what was entailed in the analysis of the trial judge, as accepted by the appeal judge. In my view, this Grant factor does not suggest, at least in any significant way, that the evidence should be excluded. 3.

Society’s interest in adjudication [ 60 ] The Crown submits that the trial judge, and the appeal judge in turn, also erred in their consideration and application of the third Grant factor – society’s interest in having the charge against Ms. Babich adjudicated on its merits. On this issue, and rolling it in with the requirement to balance the three Grant factors, the trial judge wrote as follows: [34] Finally the third factor in Grant being the adjudication of the case on its merits has to be considered. Breath samples of course constitute very reliable evidence with respect to this charge.

The refusal to provide samples is also viewed as a serious offence and carries the same penalty. An individual should not be allowed or rewarded for frustrating the system and frustrating the detection of impaired

drivers. Parliament and society at large have acknowledged the serious social impact of impaired drivers. On the other hand again I cannot over emphasize Ms. Babich was in her own home when the police officer came and entered the home for one specific purpose only. There were other methods to obtain this information such as a search warrant. Certainly the public has a strong interest in the detection of impaired drivers but also I would suggest the public has equally or stronger interest in the right of citizens to be free from police interference in their own home without proper judicial authorization.

Therefore balancing the three lines of inquiry in the Grant analysis I do not condone such Charter breach when other avenues were available to the police. I find admitting the evidence would undermine the long term repute of the administration of justice. As such the evidence will be excluded.

Counsel at the outset said my decision on the voir dire would be determinative of the final decision in this matter. [ 61 ] The Crown’s key submission on the trial judge’s analysis of this point is that it was substantially, and incorrectly, based on the idea that the police could have obtained judicial authorization to knock on Ms. Babich’s door and to question whoever might have opened it. I accept this criticism.

There is no provision in the Criminal Code that would have permitted the police to have gone forward in the way the trial judge believed they should have proceeded. [ 62 ] What, then, is the proper analysis? To begin, I note that there has been no suggestion – either by the trial judge, the appeal judge or Ms. Babich – that the evidence in issue here is anything but reliable.

This is of some note because, as stated in paragraph 81 of Grant , “[t]he reliability of the evidence is an important factor in this line of inquiry”. [ 63 ] Grant also indicated that a factor to be considered in connection with the “society’s interest in an adjudication on the merits” factor is the importance of the evidence to the prosecution. As Charron J. said at paragraph 83 of her decision, “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution”. That, self-evidently, was the situation here.

The exclusion of the evidence led directly and unavoidably to Ms. Babich’s acquittal on the refusal charge. [ 64 ] The trial judge correctly observed that impaired drivers have a serious “social impact” and there is considerable public interest in seeing a case like this one tried fairly on its merits. However, as Grant makes clear, this is not a consideration that cuts in any clear way one way or the other on the question of whether evidence obtained by way of a Charter violation should be admitted.

While the public has a keen interest in seeing a serious charge resolved at trial, it also has a vital interest in having “a justice system that is above reproach, particularly where the penal stakes for the accused are high” (at para 84). [ 65 ] Overall, I do not see the third Grant factor as pushing particularly strongly one way or the other with respect to whether the evidence in issue should have been admitted. D.

The final balancing [ 66 ] In Grant , the Supreme Court described the nature of the need to balance the three factors that I have just examined: [85] … Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck.

Mathematical precision is obviously not possible. … [ 67 ] As explained above, the trial judge’s examination of each of the three Grant factors was corrupted by errors of law or principle and those errors, in turn, corrupted her balancing of the factors. It follows that the appeal judge erred in law by simply deferring to, or adopting, the trial judge’s s. 24(2) analysis. It thus falls to this Court to do the balancing anew in light of the proper or revised assessment of the three factors that are to inform it. [ 68 ] In my view, this case is something of a close call. However, I conclude that Ms.

Babich has not met her burden of establishing that the admission of the evidence would bring the administration of justice into disrepute. In the end, the balance tips against the exclusion of the evidence. [ 69 ] Constable Clement was acting in exigent-type circumstances in that she had a report of an impaired driver and was concerned that the driver, with a young child as a passenger, was out on the streets. Her actions were not arbitrary. She went to Ms. Babich’s home on the basis of information that the vehicle in question was registered to a company bearing Ms. Babich’s name.

Constable Clement knocked on the door. Ms. Babich voluntarily opened the door and engaged in a conversation wherein she indicated that she had just come from the 7-Eleven store and revealed signs of impairment. Ms. Babich herself had put all of that information into the public domain just moments before. Constable Clement believed she was acting lawfully. [ 70 ] Having obtained information that entitled her to make a lawful ASD demand, Constable Clement advised Ms. Babich that she was going to make such a demand. At that point, as Ms.

Babich looked to deal with her child, Constable Clement followed her into the house with the limited objective of ensuring that she did not consume something that would corrupt the ASD test. That entry had no investigative or evidence-gathering purpose. Once the child had been dealt with, Constable Clement immediately made the formal ASD demand. [ 71 ] In light of all of these circumstances, and weighing the three Grant factors, I am unable to conclude that the administration of justice would be brought into disrepute if the evidence gained by Constable Clement on the doorstep was introduced as evidence. VII.

CONCLUSION

[ 72 ] I would allow the Crown’s appeal. The acquittal with respect to the charge of refusing an ASD demand is set aside and a conviction entered. This matter is remitted to Provincial Court for sentencing. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.