R. v. Kanji (S.N.), (2008) 451 A.R. 365 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 24, 2008
• Citations: (2008), 451 A.R. 365 (PC);2008 ABPC 218

R. v. Kanji (S.N.) (2008), 451 A.R. 365 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.073

Her Majesty The Queen v. Shamez Nurdin Kanji (070031117P1; 2008 ABPC 218)

Indexed As: R. v. Kanji (S.N.)

Alberta Provincial Court

Allen, P.C.J.

July 24, 2008.

Summary:

The accused's estranged wife claimed that the accused was in his residence with their three young children, that he was intoxicated and suicidal and that she feared for the safety of the children. Although the police were suspicious of the truth of all that she said, they knocked on the door. The children, unharmed, answered. The police entered without warrant, looking for the accused. They found him extremely intoxicated and asleep. When they woke him, he was belligerent, uncooperative and disruptive. There was nothing to substantiate the claim that he was suicidal. The officers, concerned with the safety of the children, took them outside to the mother. The officers left the residence and pulled over a short distance away to make notes. The accused was seen driving his vehicle. One of the officers stopped the accused and made a breathalyzer demand. The officer's formation of reasonable and probable grounds was based on his previous observations of the accused in the residence. The accused was charged with impaired driving and driving while having an excessive blood-alcohol content. The accused claimed that the warrantless entry into his residence constituted an unreasonable search and seizure (Charter, s. 8), that the officer's observations of him should be excluded and that absent that evidence the officer lacked reasonable and probable grounds to make the demand. The Crown claimed that the police had the common law right to enter the accused's residence without a warrant to ensure the safety of occupants of the residence. Alternatively, an unreasonable search and seizure should not result in the evidence being excluded under s. 24(2).

The Alberta Provincial Court held that the police had a common law right and duty to enter the accused's residence without a warrant to protect life. While inside, the police conducted themselves reasonably. The accused's s. 8 Charter rights were not violated. Accordingly, the observations made in the residence were properly considered in determining whether reasonable and probable grounds existed to make the breathalyzer demand. Reasonable and probable grounds were subjectively and objectively established. The breathalyzer demand was lawful and all observations were admissible.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Alberta Provincial Court stated that "the right of privacy within a residence is top of the hierarchy of privacy interests of an individual only surpassed by the right to bodily integrity. The guarantee in s. 8 [of the Charter] is a guarantee 'to be secure from unreasonable search and seizure'. ... The guarantee of security in the section only protects a reasonable expectation of privacy. ... the totality of the circumstances must be examined to determine if the individual possessed a reasonable expectation of privacy and that expectation was objectively reasonable. It is only when there is an invasion of the reasonable expectation of privacy that a search or seizure within s. 8 occurs." - See paragraphs 25 to 26.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused's estranged wife claimed that the accused was in his residence with their three young children, that he was intoxicated and suicidal, and that she feared for the safety of the children - Although the police were suspicious of the truth of all that she said, they knocked on the door - The children, unharmed, answered - The police entered without warrant, looking for the accused - They found him extremely intoxicated and asleep - There was no evidence that he was suicidal - The officers took the children outside to the mother, then left - While pulled over a short distance away to make notes, the officers saw the accused driving his vehicle - The accused was given a breathalyzer demand - The officer's formation of reasonable and probable grounds was based on his observations of the accused in the residence - The accused was charged with impaired driving and driving with an excessive blood-alcohol content - The accused claimed that the warrantless entry into his residence constituted an unreasonable search and seizure (Charter, s. 8) and that the officer's observations of him should be excluded, which would negate the officer's reasonable and probable grounds - The Alberta Provincial Court held that the common law right and duty of police to protect life authorized the forced entry into the residence - While inside, the police acted reasonably - Warrantless entry was not authorized at common law on the basis of consent (wife no longer lived there and children too young), exigent circumstances (no grounds to arrest accused for anything) or implied invitation (authorized knock on door only) - The accused's s. 8 Charter rights were not violated - Accordingly, the observations made in the residence were properly considered in determining whether reasonable and probable grounds existed to make the breathalyzer demand - Reasonable and probable grounds were subjectively and objectively established - The breathalyzer demand was lawful and all observations were admissible - See paragraphs 33 to 84.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See Civil Rights - Topic 1646 ].

Police - Topic 2204

Duties - General duties - Common law duties - [See Civil Rights - Topic 1646 ].

Police - Topic 2204

Duties - General duties - Common law duties - The Alberta Provincial Court held that the police had "the common law right to enter a residence in response to emergency calls" - Further, "the police have a duty of response to distress calls made by citizen complaints in any manner and not just 911 calls. Where a distress call reveals that the life of someone may be in jeopardy and immediate assistance may be required to protect that life, then the police have a duty to provide immediate assistance. In fulfilling that duty the police may have a duty to enter a dwelling house without permission." - See paragraphs 53, 71.

Police - Topic 2208

Duties - General duties - Duty to warn and protect - [See Civil Rights - Topic 1646 ].

Police - Topic 3024

Powers - Common law - Scope of - [See Civil Rights - Topic 1646 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1646 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See Civil Rights - Topic 1646 ].

Cases Noticed:

Semayne's Case, [1558-1774] All E.R. Rep. 62, refd to. [para. 20].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 21].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 21].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 22].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 24].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 24].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 24].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 25].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 25].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168, refd to. [para. 25].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 26].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 26].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 34].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 35].

R. v. Rhyason (B.P.), [2007] 3 S.C.R. 108; 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282, refd to. [para. 36].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 45].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 52].

R. v. Smith (W.M.), [1998] 8 W.W.R. 620; 219 A.R. 109; 179 W.A.C. 109 (C.A.), refd to. [para. 54].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 54].

R. v. Marx (K.H.) (2005), 373 A.R. 169 (Prov. Ct.), refd to. [para. 54].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 60].

R. v. Stenning, [1970] S.C.R. 631, refd to. [para. 61].

R. v. Knowlton, [1974] S.C.R. 443, refd to. [para. 61].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 61].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 61].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 61].

R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 61].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 61].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 61].

Counsel:

S. Renouf, Q.C., for the applicant;

K. Love, for the respondent.

This matter was heard at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 24, 2008.