In the Provincial Court of Alberta Citation: R. v. Clements, 2007 ABPC 220 Between: Her Majesty the Queen - and - Date: 20070911 Docket: 050217389P101, 103 Registry: Okotoks Allan Herbert Clements Voir Dire Ruling and Judgment of The Honourable Judge Bruce R. Fraser [1] The accused is charged with three counts of what are commonly referred to as driving while over.08, impaired driving and resisting arrest. The Crown withdrew the over.08 charge. The evidence was heard in a voir dire because defence gave notice of a Charter application that Section 8 had been breached. The issue is whether the police had the right to enter the garage of the accused to gather further evidence of reasonable grounds of impairment and to arrest the accused without a Section 529.1 warrant. Facts [2] Special Constable Barber gave evidence that on the night of February 10, 2005, at approximately 7:30 p.m., he drove into the parking lot of a pub in Okotoks. He observed the accused leave the pub and approach his truck in the parking lot. The officer drove to one end of the parking lot and parked to observe. The accused entered his 3/4 ton truck with no difficulty. He sat in his truck for some time, eventually starting it and leaving the parking lot. He drove to his home some three kilometres away. The officer followed him staying between 6 and 20 metres behind.
Page: 2 He drove on a divided road with two lanes going in his direction. The officer observed him stray slightly over the dotted dividing line once. He further observed him make a jerky motion, coming close to the curb, just before he entered a left turning lane. He then drove down a residential street with parked cars on both sides and no centre lane. There was no other traffic and he drove in the centre of the road. [3] In cross-examination, it was determined the officer saw the accused observe many more rules of the road such as speed, stop signs, stop lights, signalling and so forth on numerous occasions and without fail. It could be said the good driving overwhelmingly outweighed any observations of improper driving. In my view, driving down a residential road as described and staying in the centre of the road when there is no approaching traffic, is normal driving. That leaves evidence of once straying over a line, a jerky motion before changing into a turning lane while a marked police car is following his every move, at times only six metres behind. [4] The accused used his remote garage door opener as he approached his house and drove up the driveway and into his garage. The back end of his truck was not fully in the garage when he parked. The officer testified he parked on the road outside the house and approached on the driveway. He observed the accused get out of the truck without any difficulty. The officer approached the garage door opening and straddled the opening so it could not close. The accused saw him and said, What s the problem?. They had a conversation during which the accused told him to get off his property. The officer observed some swaying while the accused spoke and thought he heard the s in what s" as a lisp or a slur. At this point he arrested him for impaired driving by entering some five feet into the garage and grabbing his wrist. There was a resistance to the arrest and a struggle during which they ended up by the door up some stairs into the house and when the door opened, his two little dogs ran out the garage. The accused asked the officer to let him get the dogs back in. He did. The officer called for back-up, the struggle continued and when the back-up arrived, the officer had the accused on the driveway by the garage on his stomach with one hand behind his back and his knee on the accused s head. He was handcuffed, arrested and taken to the police car by officer Ratchford who had arrived with Constable Warkman who assisted in effecting the arrest. [5] The accused gave evidence and said he went to the Bull Pen Pub at 4:00 p.m. for a friend s birthday. He had four 10 ounce glasses of beer and left at 7:30 p.m. He noticed the police car pull into the parking lot and stop. He made some business calls on his cell phone while sitting in his truck, then proceeded to drive home. He saw the police car follow him. He thought the officer would probably stop and check him but he was not concerned. He suggests the one sway over the line may have occurred when he lit a cigarette. He does not recall any jerking at the left turn lane. He said he did not speed, signalled all turns, stopped appropriately at all stop signs and stop lights and regularly drives near the centre of the road on that residential street, so as not to get too close to the parked cars.
Page: 3 [6] When he entered his driveway, the police car continued on. He got out of his truck, went to the stairs to enter his house when he heard a voice yell, Come here. He turned and saw the officer standing in his garage. He told him to leave, that he was trespassing. He started up the stairs and the officer came up behind him, kicked him in the knee, and grabbed him from behind around the neck. It was at that time the dogs got out, while he had a hand on the railing and was holding the door open. He asked him to release him so he could get the dogs. He did, but continued holding and steering him. He got the dogs back in and the officer continued pulling him and they wrestled to the garage door opening. His face was on the cut in the cement between the garage floor and the driveway. The officer s knee was on his face and his hand was pulled behind him when the back-up officers arrived. He had pain in his knee where the officer kicked him causing him to limp. Four days later he sought medical attention and received treatment. He was told he had a sprained knee and a torn MCL. No evidence was called to verify what he was told and therefore cannot be accepted for its truth, only for what the accused believed he was treated for. [7] The Crown called the two back-up officers, Warkman and Ratchford, but their evidence has no bearing on the issues to be decided in the voir dire. Issues [8] (1) Did the officer have reasonable and probable grounds to arrest before entering the garage? (2) Did the officer require a 529.1 warrant before entering the garage? (3) If so, did any of the exceptions exist such as : (I) exigent circumstances 529.3(1) (ii) hot pursuit under the common law [9] I will deal with each issue in the order set out: (1) Reasonable and Probable Grounds to Arrest [10] There are a number of cases over the years from the Supreme Court of Canada on this issue, the most recent one being R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.), all of which indicate that besides a subjective assessment of grounds to arrest, the officer must also have objective reasonable and probable grounds to arrest. This is a threshold requirement. One is not required to establish a prima facie case for conviction before making an arrest. The fact the police intend to continue the investigation after the arrest does not invalidate it.
Page: 4 [11] It is important to determine if reasonable and probable grounds to arrest existed at the time the officer entered the garage in order to determine the issue of a 529.1 warrant. All of the grounds the officer had were based on his own observations. There was no complaint or information received from others. He observed the accused leave a pub where alcohol was served. He did not know whether he had been drinking alcohol. He observed him drive three kilometres during which he crossed a line separating two lanes once, make a jerking motion before changing to a turning lane, and drive down the centre of a residential street with no centre lane and parked cars on both sides. I have already said I find that to be normal. Against this, he observed him enter his large truck and exit without any difficulty and obey all rules of the road throughout the drive home. Up to the point he entered the garage, he had observed no odour of alcohol, no slurring or swaying or difficulty with balance. [12] In my view, and from the evidence, I find it is unlikely the officer subjectively had grounds to arrest. He entered the garage for the purpose of obtaining further grounds. If he thought he had grounds to arrest, why did he not pull him over before he got to his house? In any event, I find a reasonable person in the position of the officer would not and could not have reasonable and probable grounds to believe the accused was driving while impaired, based on the two driving incidents he observed, particularly in light of his other driving and his ability to enter and exit a large vehicle. The fact he came out of a pub is proof of nothing and does not provide evidence he was drinking alcohol. [13] Therefore, at the time he entered the garage, I find the officer had neither subjective nor objective grounds to arrest for impaired driving. The evidence he gathered after entering the garage may well have provided proper grounds. The officer may have had suspicions he was driving impaired, but this was an arrest and not an investigative detention for a roadside test. (2) Could the Officer Enter the Garage to Arrest Without Warrant? [14] It must be remembered there is an implied licence for all members of the public, including police, to approach a door of a residence and knock. This includes walking up a walkway or a driveway. It is appropriate to approach the house for the purpose of communicating with the resident, and by doing so you may obtain consent to enter or you may be told to leave. If told to leave, you must leave or become a trespasser. This common law is set out in a number of cases, the most recent being R. v. LeClaire (2005), 208 C.C.C. (3d) 559 (N.S.C.A.), a case provided to me by Crown counsel. In that case the court found an open garage was an extension of the driveway and the police were allowed to enter the garage for the purpose of approaching the door to the house to communicate with the resident, since there was no one in the garage with whom to communicate. If there had been someone in the garage, it is my view the court would not have seen the garage as an extension of the driveway, and particularly if they had been told to leave, it would not be permissible for the police to ignore that request and approach the door through the garage. At paragraph 32 of LeClaire the court stated:
Page: 5 The Noerenberg and Kaltsidis cases where the suspects were followed into their garages by the police are entirely distinguishable from the facts in this case. Since Mr. Kaltsidis and Ms. Noerenberg were personally present in their garages with the doors open, the police did not stop to knock. The police in those cases just walked right in without asking any permission. Therefore the drivers had no opportunity to choose not to answer the knock on the door or to refuse to be observed or engaged in conversation. Unlike in the present case, the police in those cases were able, by entering into the garages, to obtain relevant evidence about the condition of the drivers without first asking permission to enter. Another difference is that in both of those cases the suspects objected to the presence of the police in their garages. There was obviously no implied invitation to enter or an explicit invitation like the one extended by Mr. LeClaire in response to the knock. Any implied invitation to enter the garage in Noerenberg and Kaltsidis was clearly and expressly retracted. [15] Warrantless entry of a dwelling has been constitutionally prohibited since R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.), and Parliament s response by enacting Section 529.1, except in exigent circumstances, as set out in 529.3(1) or the preserved common law exception of hot pursuit. [16] In R. v. Noerenberg (1997), 31 M.V.R. (3d) 139 (Ontario Court Justice, General Division), the accused drove into her garage by activating the opener. The garage was attached and formed part of the house. The police, who were following her based on a complaint of an impaired driver, pulled into the driveway and confronted her in the garage. In the garage they obtained evidence of impairment and arrested her. At page 143 the court stated: The police have no authority to enter a person s home unless they have a warrant, are engaged in hot pursuit or exigent circumstances existed....entering a person s driveway without a warrant is a lot different than entering a person s home without a warrant....the fact they entered only the garage portion of the home - entered through an open door - does not take away from the clear breach of Section 8 of the Charter. [17] In this case there is a conflict in the evidence as to how far the officer entered into the garage to confer with the accused. The officer says he straddled the opening so the door could not close and entered five feet to effect the arrest. Yet he says the door could not close because the truck was not all the way in, which makes his purpose unnecessary. The accused says he was approaching the stairs at the far end of the garage when he was kicked and grabbed by the
Page: 6 officer. This evidence is more consistent with the evidence of the dogs getting out than the officer s. I find I accept the evidence of the accused as to how the confrontation began and as to how far the officer entered the garage. In any event any entry by the officer into the garage with the accused present for the purpose of observing indicia of impairment to gather evidence of grounds to arrest is impermissible without a warrant under Section 529.1. [18] However, the officer could not have obtained a 529.1 warrant because at the time he entered, as I have found, he did not have the grounds to arrest and could not have the grounds to obtain a warrant. Therefore, the entry was unreasonable without a warrant and even with a warrant. (c) Do any Exceptions Exist [19] Exigent circumstances as defined in Section 529.3(1) do not apply here and do not exist in these circumstances. There is no hot pursuit since at no time before entering the garage did the officer have grounds to believe an offence had been committed. Hot pursuit must be a continuous pursuit conducted with reasonable diligence so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction. (R. v. Macooh (1993), 82 C.C.C. (3d) 481 (S.C.C.)). Without proper grounds to believe an offence has been committed, there cannot be any single transaction. No exception can exist when there are no proper grounds to grant the warrant. [20] Therefore, I find the Section 8 rights of the accused under the Charter were breached and the officer had no right to enter the garage and no right to arrest the accused inside his home which included the garage. Section 24 [21] The defence submits the evidence obtained by illegally entering the garage and the illegal arrest as well as any evidence obtained after the arrest by Constables Warkman and Ratchford should not be admitted. This includes any observations of indicia of impairment in the garage or subsequent. [22] Such evidence of observations is not conscriptive according to R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.), and therefore, does not automatically make the trial unfair. Nonconscriptive evidence will rarely make a trial unfair if admitted. However, the actions of the police in illegally entering the home of the accused and illegally arresting him is a flagrant breach of the Charter. A person s home is still his castle where he should be safe and protected from illegal entry by the police. The sanctity of the home must be protected, otherwise the administration of justice would be brought into disrepute. [23] Where the police have nothing but suspicion and no legal way to obtain other evidence, they must leave the suspect alone, not charge ahead and obtain evidence illegally and
Page: 7 unconstitutionally. When they take the latter course, the Charter violation is plainly more serious. (R. v. Kokesch (1990), 61 C.C.C. (3d) 207 (S.C.C.) [24] Applying the Collins factors and the law of Stillman from the Supreme Court of Canada, I find all observations of the accused by any police officer after the illegal entry into the home and unlawful arrest, is inadmissible in the trial. All other evidence of the Crown in the voir dire is admissible in the trial proper. [25] As the Crown have indicated they have no other evidence to call, and the defence have indicated they are not calling evidence, it is obvious that if the Crown evidence does not qualify as grounds to arrest, it certainly cannot qualify as evidence to convict of impaired driving. I find the accused not guilty of count one. [26] As the arrest of the accused was illegal, he cannot be convicted of resisting a lawful arrest. He is entitled to resist an illegal arrest. I find the accused not guilty of count three. [27] Count two was withdrawn and need not be addressed. Dated at the Town of Okotoks, Alberta this 11th day of September, 2007. Appearances: Allan Kay for the Defence Peter Roginski for the Crown Bruce R. Fraser A Judge of the Provincial Court of Alberta