R. v. Petri (V.R.), 2003 MBCA 1

• Jurisdiction: Manitoba
• Judge: Philp, Kroft and Monnin, JJ.A.
• Neutral Citation: 2003 MBCA 1
• Citation: 2003 MBCA 1,(2003), 170 Man.R.(2d) 238 (CA),171 CCC (3d) 553,9 CR (6th) 170,[2003] MJ No 1 (QL),104 CRR (2d) 95,170 Man R (2d) 238,170 Man.R.(2d) 238,170 ManR(2d) 238,(2003), 170 ManR(2d) 238 (CA),[2003] M.J. No 1 (QL)
• Date: 07 January 2003
• Court: Court of Appeal (Manitoba)

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238 (CA);

    285 W.A.C. 238

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. JA.018

Her Majesty The Queen (appellant) v. Victor Robert Petri (accused/respondent)

(AR 02-30-05176; 2003 MBCA 1)

Indexed As: R. v. Petri (V.R.)

Manitoba Court of Appeal

Philp, Kroft and Monnin, JJ.A.

January 7, 2003.

Summary:

An accused was acquitted of impaired driving and driving while having an excessive blood-alcohol content after evidence was excluded as having been obtained in violation of the accused's s. 8 Charter rights respecting unreasonable search and seizure. The Crown appealed under s. 830 of the Criminal Code, seeking a new trial.

The Manitoba Court of Appeal allowed the appeal, but ordered a further hearing on the unaddressed issue of whether the court had jurisdiction under s. 834(1) (direct summary conviction appeal) to order a new trial.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police responded to a 3:44 a.m. citizen complaint about an erratically driven vehicle by going to the registered owner's address - They did not know who was driving and alcohol was not an issue - Police knocked on the door - The accused answered - Police entered the house as the accused backed away while talking to them - The accused admitted driving the vehicle - Noting signs of impairment, the officers arrested the accused for impaired driving - While being transported to the police station, the accused was advised of his Charter rights and given a breathalyzer demand - The trial judge acquitted the accused after excluding the evidence obtained, finding a violation of the accused's s. 8 Charter rights - The Manitoba Court of Appeal set aside the acquittals - Police had authority to knock on the accused's door to investigate - They were entitled to enter without warrant with the accused's implicit consent and arrest him without warrant once he admitted driving and appeared impaired - The court held that even if the accused's s. 8 Charter rights were violated, the evidence should not have been excluded under s. 24(2) of the Charter - See paragraphs 1 to 27, 36 to 37.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 7632

Summary conviction proceedings - Appeals - New trials - Jurisdiction - The accused was acquitted by a Provincial Court judge - The Crown brought a direct appeal under s. 830 of the Criminal Code - Section 834(1) empowered the appellate court to affirm, reverse or modify the verdict, remit the matter to the Provincial Court with the appellate court's opinion, or to "make any other order ... that it considers proper" - The Manitoba Court of Appeal stated that there was an issue whether the court had authority under s. 834(1) to order a new trial - As the issue was not addressed by the Crown or accused, the court requested that the Crown and accused reappear to address the issue - See paragraphs 39 to 41.

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - Police entered the accused's residence with implicit consent to communicate with the accused respecting a citizen's complaint of an erratically driven vehicle - Police had no reason to believe the accused, the registered owner, was the driver or that alcohol was involved - The accused stated that he was driving - The officers noted signs of impairment, arrested the accused and charged him with impaired driving - The Manitoba Court of Appeal held that the trial judge erred in finding that the warrantless entry and arrest of the accused in his own residence violated s. 8 of the Charter - The court stated that "there were no reasonable and probable grounds for arrest until the police had already legitimately entered the residence in the course of their investigation. To impose a requirement that a specialized form of warrant then be obtained to effect the arrest for the purpose of a breathalyzer simply makes no sense" - See paragraphs 28 to 32.

Police - Topic 3108

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

Police - Topic 3108

Powers - Investigation - Power to enter private property - The Manitoba Court of Appeal discussed the interrelationship between the authority of police to enter a private residence without warrant when investigating a matter and s. 8 of the Charter - The court stated that where police enter a residence with expressed or implied consent for the lawful purpose of investigating by communicating with the occupant, they are entitled to continue that communication unless and until the occupant makes known his intent to withdraw that cooperation - See paragraphs 1 to 37.

Cases Noticed:

R. v. Wills (1992), 52 O.A.C. 321; 12 C.R.(4th) 58 (C.A.), refd to. [para. 2].

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. 2].

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. 2].

R. v. M.C.G. (2001), 160 Man.R.(2d) 131; 262 W.A.C. 131 (C.A.), refd to. [para. 9].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161; 6 M.V.R.(4th) 248 (Sup. Ct.), refd to. [para. 12].

R. v. K.L. et al. (1999), 118 B.C.A.C. 106; 192 W.A.C. 106 (C.A.), refd to. [para. 12].

R. v. Mulligan (D.) (2000), 128 O.A.C. 224 (C.A.), refd to. [para. 12].

R. v. Grotheim (K.) (2001), 213 Sask.R. 141; 260 W.A.C. 141; 161 C.C.C.(3d) 49 (C.A.), refd to. [para. 12].

R. v. Vu (D.A.) (1999), 121 B.C.A.C. 66; 198 W.A.C. 66; 133 C.C.C.(3d) 481 (C.A.), refd to. [para. 13].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 16].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 16].

R. v. Niles (1987), 85 N.B.R.(2d) 32; 217 A.P.R. 32 (Q.B.), refd to. [para. 20].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 29].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 33].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 35].

R. v. Fliss (P.W.) (2002), 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 161 C.C.C.(3d) 225 (S.C.C.), refd to. [para. 36].

R. v. Sheppard (C.) (1999), 178 Nfld. & P.E.I.R. 1; 544 A.P.R. 1; 138 C.C.C.(3d) 254 (Nfld. C.A.), affd. (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298 (S.C.C.), refd to. [para. 40].

R. v. Giambalvo (1982), 70 C.C.C.(2d) 324 (Ont. C.A.), refd to. [para. 40].

R. v. Byrnes (1949), 8 C.R. 285 (Alta. C.A.), refd to. [para. 40].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 834(1) [para. 39].

Counsel:

E. Szach and R.G. Garson, for the appellant;

J.P. Miller, for the respondent.

This appeal was heard on September 17, 2002, before Philp, Kroft and Monnin, JJ.A., of the Manitoba Court of Appeal.

On January 7, 2003, Kroft, J.A., delivered the following judgment for the Court of Appeal.