R. v. Rogers (J.S.), 2016 SKCA 105

• Judge: Jackson, Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 15, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 105;(2016), 484 Sask.R. 268 (CA)

R. v. Rogers (J.S.) (2016), 484 Sask.R. 268 (CA);

    674 W.A.C. 268

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AU.031

John Scott Rogers (appellant) v. Her Majesty the Queen (respondent)

(CACR2467; 2016 SKCA 105)

Indexed As: R. v. Rogers (J.S.)

Saskatchewan Court of Appeal

Jackson, Whitmore and Ryan-Froslie, JJ.A.

August 19, 2016.

Summary:

A police officer, acting on a tip about an impaired driver involved in a "hit and run", knocked on the door of Rogers' apartment, and formed the opinion that he was intoxicated. Subsequent police interaction with Rogers led to a breathalyzer demand and readings in excess of the legal limit. Rogers was charged with driving while his ability to operate a motor vehicle was impaired by alcohol (Criminal Code, s. 253(1)(a)) and driving over .08 (Code, s. 253(1)(b)).

The Saskatchewan Provincial Court acquitted Rogers of both counts. In the voir dire decision, reported at (2012), 394 Sask.R. 302, the trial judge found that the officer had knocked on Rogers' apartment door for the purpose of obtaining evidence against the occupant, and that this constituted a breach of s. 8 of the Charter. The trial resumed at a later date on the issue of the appropriate remedy under s. 24(2) of the Charter. The trial judge excluded all of the evidence presented on the voir dire, and entered not guilty verdicts. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 448 Sask.R. 1, set aside both acquittals and ordered a new trial. Rogers appealed, raising questions of law.

The Saskatchewan Court of Appeal allowed the appeal and restored the decision of the Provincial Court. An acquittal was entered in relation to both counts.

Civil Rights - Topic 1508

Property - Expectation of privacy - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - A police officer, acting on a tip about an impaired driver involved in a "hit and run", knocked on the door of the accused's apartment for the purpose of securing evidence as to whether the accused was impaired - The trial judge found that the officer's conduct exceeded the "implied licence to knock", and constituted a "search" - The Saskatchewan Court of Appeal concluded that the appeal court judge erred by finding that the trial judge had misinterpreted the law pertaining to the "implied licence to knock" - The case turned on the question of the proper application of R. v. Evans (1996) (S.C.C.) to the facts - "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 ... . 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." - See paragraphs 27 to 54.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused, a suspected impaired driver involved in a hit and run, was charged with operating a motor vehicle while over .08, and with impaired driving - The trial judge found a breach of the accused's s. 8 Charter rights, specifically as it related to the ruling that the police officer's attendance at the door of the accused's apartment was an unreasonable search - The officer entered the accused's "dwelling house" as soon as he had crossed the threshold of the apartment building's security door without using the buzzer system - The appeal court judge, in setting aside the acquittals, determined that the attendance by police at the door of the accused's apartment did not constitute an unreasonable search - The accused did not have a reasonable expectation of privacy in the hallway of the apartment building - The accused appealed - The Saskatchewan Court of Appeal, in allowing the appeal, stated that "the fact that [the accused] lives in an apartment building is of marginal interest to the resolution of this appeal. That is not to say that the appeal court judge erred with respect to his statements of the law pertaining to the development of the reasonable expectation of privacy principle or his examples of the application of the reasonable expectation of privacy principle generally, but I conclude that the appeal turns on Evans [R. v. Evans (1996) (S.C.C.)] and its application to the facts as found by the trial judge." - See paragraph 26.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Saskatchewan Court of Appeal stated that "the Crown is not entitled to take no position on whether impugned evidence should be excluded under s. 24(2) and then appeal the result if it is not satisfied with it. An analogy can be drawn with respect to raising a new argument on appeal. ... The Crown's decision not to make any argument with respect to s. 24(2) leaves not only the trial judge in a lurch but any appeal court judge who must consider the matter on appeal. In the absence of full argument in the court at first instance, and without the benefit of a reasoned conclusion, an appeal court judge must forge its own s. 24(2) analysis, if it decides to sustain the trial judge's finding of a Charter breach. In a case such as this one, the trial judge is entitled to assume that the Crown has concluded that the finding of the breach was sufficiently serious that the evidence should be excluded. This may not be the correct assumption, but it is one that is available to the trial judge." - See paragraphs 57 to 62.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See Civil Rights - Topic 1642 ].

Police - Topic 3181

Powers - Search - General - [See Civil Rights - Topic 1642 ].

Counsel:

John Scott Rogers, appellant, representing himself;

W. Dean Sinclair, Q.C., for the respondent.

This appeal was heard on January 15, 2016, before Jackson, Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Jackson, J.A., the Court delivered the following judgment, dated August 19, 2016.