R. v. Rogers (J.S.), (2014) 448 Sask.R. 1 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 05, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 448 Sask.R. 1 (QB);2014 SKQB 167

R. v. Rogers (J.S.) (2014), 448 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.012

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

(2012 QB No. 44; 2014 SKQB 167)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Chicoine, J.

June 5, 2014.

Summary:

Rogers, 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 devolved into a voir dire to deal with Rogers' alleged breaches of his Charter rights from the moment of police entry, without a warrant, into the apartment building where Rogers resided, and to determine the voluntariness of statements Rogers made.

The Saskatchewan Provincial Court, in a decision reported at (2012), 394 Sask.R. 302, found breaches of Rogers' s. 8 and s. 9 Charter rights. The trial resumed at a later date for argument on the issue of the appropriate remedy under s. 24(2) of the Charter.

The Saskatchewan Provincial Court determined that the appropriate remedy was to exclude all of the evidence presented on the voir dire. In the end result, the Court acquitted Rogers on both charges. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the summary conviction appeal and ordered a new trial on both charges. The new trial judge was to be bound by the Court's determination that the attendance by police at the door of Rogers' apartment did not constitute an unreasonable search. The Court also determined that the trial judge: (1) erred in law in the application of the burden on the Crown to establish reasonable and probable grounds for the breathalyzer demand; (2) did not conduct a proper analysis of the voluntariness of the warned statement; (3) did not give adequate reasons for his decision to exclude all of the evidence; and (4) erred in law in not considering all of the evidence relating to the charge of impaired driving independent from the evidence relating to the charge of driving while over .08.

Civil Rights - Topic 1508

Property - Expectation of privacy - The Saskatchewan Court of Queen's Bench reviewed how numerous trial and appellate courts, including the Supreme Court of Canada, applied the reasonable expectation of privacy principle, including cases dealing with the approach by police officers to the home of a suspected impaired driver or a driver involved in a hit and run - See paragraphs 77 to 122.

Civil Rights - Topic 1508

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

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See Civil Rights - Topic 1646 ].

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 finding that the police officer's attendance at the door of the accused's apartment was an unreasonable search - The ruling was based on the finding that the officer entered the accused's "dwelling house" as soon as he had crossed the threshold of the building's security door without using the buzzer system - The Saskatchewan Court of Queen's Bench determined on the appeal 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 officer approached the accused's home in order to communicate with him regarding a collision and a report of a possible impaired driver - "[W]here the sole purpose of the police officer is to ask questions of the home owner, no evidence is gathered until the occupant chooses to speak. Investigative questioning does not exceed the bounds of the implied right to approach and knock and is not trespassory or in breach of s. 8 of the Charter." - See paragraphs 123 to 131.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds (incl. burden of proof) - 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 held that there were no objectively reasonable grounds to make a breathalyzer demand, and therefore that the accused's s. 9 Charter rights were breached - The Saskatchewan Court of Queen's Bench determined on the appeal that the trial judge erred in law in the application of the burden on the Crown to establish reasonable and probable grounds for the breathalyzer demand "in that he failed to articulate whether the investigating officer, based on his observations and the information available to him at the time, subjectively believed that [the accused's] ability to drive a motor vehicle was impaired by alcohol or that he was 'over .08' (and that he had driven within the preceding three hours), and to thereafter determine whether that belief was rationally sustainable on an objective basis" - See paragraphs 132 to 147, 172.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - 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 that the Charter breaches were serious but he did not conduct the required analysis suggested in R. v. Grant (2009) (S.C.C.) - He determined that the appropriate remedy was to exclude all of the evidence presented on the voir dire - In the end result, the accused was acquitted on both charges - The Saskatchewan Court of Queen's Bench, in allowing the Crown's summary conviction appeal, stated that "the blanket application of the exclusion of all evidence presented on the voir dire from the moment that the police officer entered the accused's apartment building, without considering the impact of the individual breaches and the interest in the adjudication of the case on its merits did not meet the requirements of the Grant analysis" - The Court determined that the trial judge did not give adequate reasons for his decision to exclude all of the evidence presented on the voir dire as a remedy under s. 24(2) of the Charter - See paragraphs 165 to 169.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Saskatchewan Court of Queen's Bench, in allowing the Crown's summary conviction appeal, found that the trial judge had improperly confused the issue of the voluntariness of the written statement given by the accused (prior to his release after his arrest) with the issue of a breach of his s. 9 Charter right not to be arbitrarily detained or imprisoned - The alleged Charter breach did not go to the issue of voluntariness of the statement but could only be considered in the context of a remedy under s. 24 - The trial judge addressed the issue of whether the statement was voluntary, but only in the context of whether the accused might have been misled about the admissibility of his earlier oral statement - He did not address the four factors of threats or promises, oppression, operating mind or other police trickery - In summary, the Court found that the trial judge "did not conduct a proper analysis of the circumstances under which the warned statement was given in the context of the modern common law confessions rule." - See paragraphs 160 to 163.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Saskatchewan Court of Queen's Bench, in allowing the Crown's summary conviction appeal, stated that it was inappropriate for the trial judge to consider, in his analysis of voluntariness, that the accused was not warned that his previous oral statement was problematic - "There is no requirement, legal or otherwise, for a police officer to give legal advice on the admissibility or reliability of prior statements made by an accused person to a person in authority before proceeding with further investigative questioning. There is no rule that states that if a previous statement is ruled inadmissible (which did not occur in this case as the Crown withdrew its request to admit the statement) that a second or any subsequent statement is tainted by the first and is also deemed inadmissible." - See paragraph 162.

Police - Topic 3061.1

Powers - Arrest and detention - Intoxicated persons - [See Criminal Law - Topic 1372 ].

Words and Phrases

Dwelling house - The Saskatchewan Court of Queen's Bench considered the meaning of the term "dwelling-house" as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 74 to 131.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 2].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 6].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 7].

R. v. Ramos (M.G.) (2011), 371 Sask.R. 308; 518 W.A.C. 308; 2011 SKCA 63, refd to. [para. 8].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 9].

R. v. Erickson (L.D.) (2012), 398 Sask.R. 172; 2012 SKQB 234, refd to. [para. 10].

R. v. Krzychowiec (J.J.) (2004), 228 N.S.R.(2d) 14; 723 A.P.R. 14; 2004 NSPC 60, refd to. [para. 47].

R. v. Chomik (S.L.), [2011] A.R. Uned. 377; 15 M.V.R.(6th) 144; 2011 ABPC 152, refd to. [para. 47].

Semayne's Case (1604), 77 E.R. 194 (K.B.), refd to. [para. 49].

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, consd. [paras. 49, 71].

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; 131 D.L.R.(4th) 654, consd. [para. 50].

R. v. Tricker (R.) (1995), 77 O.A.C. 1; 21 O.R.(3d) 575 (C.A.), refd to. [para. 53].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 57].

R. v. Laurin (R.R.) (1997), 98 O.A.C. 50; 113 C.C.C.(3d) 519 (C.A.), consd. [para. 62].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 63].

R. v. Sandhu (K.S.) (1993), 28 B.C.A.C. 203; 47 W.A.C. 203; 82 C.C.C.(3d) 236; 22 C.R.(4th) 300 (C.A.), refd to. [para. 66].

R. v. Vu (D.A.) (1999), 121 B.C.A.C. 66; 198 W.A.C. 66; 133 C.C.C.(3d) 481; 1999 BCCA 182, leave to appeal dismissed (1999), 250 N.R. 194; 135 B.C.A.C. 320; 221 W.A.C. 320 (S.C.C.), refd to. [para. 78].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 78].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 79].

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. 79].

R. v. Piasentini, [2000] O.J. No. 3319 (Sup. Ct.), refd to. [para. 82].

R. v. Thomsen, [2005] O.J. No. 6303 (Sup. Ct.), refd to. [para. 86].

R. v. Nguyen (T.V.) et al. (2008), 462 A.R. 240; 2008 ABQB 721, refd to. [para. 89].

R. v. Beune, 2005 BCPC 175, refd to. [para. 92].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 94].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161; 6 M.V.R.(4th) 248 (Sup. Ct.), consd. [para. 98].

R. v. Grotheim (K.) (2001), 213 Sask.R. 141; 260 W.A.C. 141; 2001 SKCA 116, consd. [para. 103].

R. v. Grotheim (K.) (2000), 201 Sask.R. 201; 2000 SKQB 590, consd. [para. 104].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 2003 MBCA 1, consd. [para. 107].

R. v. Renouf (A.) (2013), 413 Sask.R. 226; 2013 SKPC 34, consd. [para. 113].

R. v. Renouf (A.) (2014), 437 Sask.R. 91; 2014 SKQB 36, consd. [para. 115].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, consd. [para. 116].

R. v. MacDonald (E.) (2011), 303 N.S.R.(2d) 185; 957 A.P.R. 185; 2011 NSCA 46, refd to. [para. 117].

R. v. MacDonald (E.) (2012), 317 N.S.R.(2d) 90; 1003 A.P.R. 90; 2012 NSCA 50, refd to. [para. 117].

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; 2004 SCC 52, refd to. [para. 117].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 119].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193, refd to. [para. 134].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 552 W.A.C. 11; 289 C.C.C.(3d) 145; 2012 SKCA 63, refd to. [para. 140].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 141].

R. v. Gunn (V.E.), [2010] Sask.R. Uned. 77; 212 C.R.R.(2d) 98; 2010 SKPC 63, refd to. [para. 142].

R. v. Churko (J.R.) (2010), 361 Sask.R. 240; 2010 SKPC 5, refd to. [para. 144].

R. v. Churko (J.R.) (2013), 424 Sask.R. 77; 2013 SKQB 235, refd to. [para. 144].

R. v. Churko (J.R.) (2014), 433 Sask.R. 317; 602 W.A.C. 317; 2014 SKCA 41, refd to. [para. 144].

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; 2000 SCC 38, refd to. [para. 151].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 151].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433, refd to. [para. 151].

R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.(3d) 449 (C.A.), refd to. [para. 155].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 156].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 157].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(4) [para. 5].

Authors and Works Noticed:

La Fave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (3rd Ed. 1996), vol. 1, p. 486 [para. 64].

Counsel:

Adam M. Breker, for the Crown;

Joelle F. Graham and Lori A. Dunford, for the respondent.

This appeal was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment, dated June 5, 2014.