Court File and Parties

Court File No.: Kitchener 3359/11 Date: 2012-03-19 Ontario Court of Justice

Between: Her Majesty the Queen — and — David Howard Moser

Before: Justice G.F. Hearn

Heard on: January 9, 2012

Reasons for Ruling on Application released on: March 19, 2012

Counsel:

• Ms. Ernewein, for the Crown
• Mr. Wansbutter, for the accused David Howard Moser

Hearn, J.:

Background

[1] David Moser came before the court on January 9, 2012 and at that time entered pleas of not guilty to two counts relating to events on June 23, 2011. The charges allege that on that date Mr. Moser operated his motor vehicle while his ability to do so was impaired and that he operated the vehicle having consumed an amount of alcohol resulting in a concentration in his blood in excess of 80 milligrams of alcohol in 100 millilitres of blood.

[2] Prior to trial defence counsel had served a notice of application under the Charter alleging that Mr. Moser's rights under s. 8 of the Charter had been breached. As a result the defence asked for relief excluding evidence, specifically the results of the Intoxylizer tests ultimately conducted. The Crown opposes the application or alternatively submits that even if there was a breach of Mr. Moser's s. 8 rights upon a proper analysis under s. 24(2) no evidence should be excluded.

[3] As is common in this jurisdiction, the matter proceeded by way of blended hearing. The Crown presented its evidence on the trial and application matters. Defence elected to call no evidence on the application, but reserved the right to call evidence on trial issues following this ruling.

Issue to be Determined on the Application

[4] The issue to be determined at this stage is whether or not Mr. Moser's s. 8 rights under the Charter were breached as a result of the alleged entry by one of the investigating officers into a garage where Mr. Moser was located on the day in question in order to affect an arrest and a subsequent search by other officers.

Evidence Relevant to the Determination of the Application

1. Evidence at the Bar

a) Barbara Ledgur:

[5] Ms. Ledgur was at the time of the events on June 23, 2011 the owner of a bar in Kitchener known as "Fat Cats". She was familiar with Mr. Moser as a customer who had attended at the bar 15 to 20 times over the preceding year.

[6] Mr. Moser attended the bar on June 22 between 5:30 p.m. and 6:00 p.m. and was served a can of beer by Ms. Ledgur. In addition, she apparently offered a "shooter" on the house which appears to have been provided although she could not say whether or not it was consumed. At that time Mr. Moser presented as normal without concern.

[7] Mr. Moser re-attended at the bar later that evening on June 23 at about 12:30 a.m. to 12:45 a.m. Ms. Ledgur noted his appearance and that he appeared to be staggering when walking and exhibiting speech that appeared to be slurred. She judged him not fit to serve and when Mr. Moser asked for service she refused. She described his speech as not his normal pattern of speech, that he was not articulating like he usually does and that together with her other observations led to the refusal. It would appear she was also advised or asked how Mr. Moser had got to the bar and he indicated that he had driven. She also observed that he had other interaction with another employee at the bar.

b) Matthew Barnett:

[8] Mr. Barnett was an employee of Fat Cats on the night in question. He had contact with Mr. Moser on that evening. His recollection is that Ms. Ledgur or another employee had expressed concern about Mr. Moser driving home. He had involvement with Mr. Moser prior to him departing the bar and as he left. He noted him to be very intoxicated and followed him to the parking lot where Mr. Moser prepared to leave on a motor vehicle which has been described as a three wheel motorcycle.

[9] As Mr. Moser was putting on his helmet, Mr. Barnett asked him where he was going. Mr. Moser responded that he was going home and Mr. Barnett requested that he not drive, given his condition. Mr. Moser seemed indifferent and Mr. Barnett indicated that he would call the "cops" if Mr. Moser drove off. Mr. Moser responded to the effect that he did not care, that he had nothing to drink at the bar and there is "nothing you guys can do about it".

[10] Mr. Moser then put on his helmet and left the parking lot on the motorcycle, going through a stop sign in the process. It was at that point Mr. Barnett called the police, providing the police with information which included a licence plate number of the motor vehicle.

[11] Mr. Barnett's evidence is clear that Mr. Moser was very intoxicated, was "drunk" and should not have been driving. He in fact told Mr. Moser that he should not be driving as he was "drunk".

2. Evidence at the Residence

a) Cst. Corey Smith:

[12] Cst. Smith was an officer in training with the Waterloo Regional Police on the night in question. He was with his coach officer in a marked cruiser when they received a dispatch at 1:18 a.m. on June 23 to attend at a residence which he believed was the residence of the registered owner of the motor vehicle attached to the licence plate number which had been provided to the police by Mr. Barnett. He arrived on scene and noted Cst. Gardner to be already present.

[13] Cst. Gardner is a member of the canine unit of the Waterloo Regional Police Service and this officer noted the van used by Cst. Gardner to be parked at the end of the driveway.

[14] This officer's first recollection is observing Mr. Moser approaching Cst. Gardner in what appeared to be a combative mode with his fists clenched. He also noted Mr. Moser to be yelling and staring intently at Cst. Gardner. As this officer and his coach officer approached up the driveway, Mr. Moser appeared to "settle down".

[15] Cst. Smith noted that Cst. Gardner's van was a fully marked police van and the lights had been activated on it. He noted Cst. Gardner to be in front of a garage the door of which was open. He could not recall if Mr. Moser was on the threshold of the garage or into the driveway portion. Mr. Moser was yelling and referencing something to Cst. Gardner about whether or not he was within his rights "as to the garage door". The officer could not recall exactly what was said.

[16] He observed the garage to be a detached garage set back from the house and although not attached to the house there was a covered walkway between the house and the garage. He was uncertain if the door from the garage went directly into the house. He did not believe there was a common wall between the house and the garage.

[17] When he first observed Cst. Gardner he described him as being a couple of feet from where the garage door would close, but outside on the driveway and Mr. Moser to be on the threshold of the garage or just outside.

[18] As he approached there was an odour of an alcoholic beverage from Mr. Moser and Mr. Moser appeared to be taking small steps to avoid losing his balance. He also noted Mr. Moser's speech to be slurred.

[19] As a result of the information he had received from dispatch and his observations he placed Mr. Moser under arrest at 1:28 a.m. as, in this officer's view, Mr. Moser was "too intoxicated to safely operate a motor vehicle". He had noticed the odour of an alcoholic beverage, the slurring of speech, and the difficulties Mr. Moser had with his balance. He relied as well on the information received from the bar that Mr. Moser had left the bar in an intoxicated state notwithstanding that the employees of the bar had advised him not to leave.

[20] The arrest took place on the driveway outside of the garage toward the right side of the property and near a wooden fence which separates the house from the next door residence. Rights to counsel were read at 1:31 a.m., a caution at 1:33 a.m. and a demand at 1:34 a.m. When read the rights to counsel and asked if he understood, Mr. Moser responded that he had done nothing wrong and when asked if he wished to call a lawyer, Mr. Moser responded "you guys are out of line".

[21] They left the scene at 1:43 a.m., arriving at the detachment at 1:52 a.m. They had to wait for a period of time for the breath tech to arrive. Mr. Moser was lodged in an interview room and at 2:34 a.m. Mr. Moser was taken to the Intoxylizer room and an initial test was conducted. The officer had already provided the grounds to the breath tech and at 2:37 a.m. Mr. Moser was returned to the officer who then conducted an alcohol influence report following which Mr. Moser was returned to the breath tech at 3:03 a.m.

[22] Documentation was served on Mr. Moser thereafter and copies of the certificate of a qualified technician and notice of intention to produce have been filed. There is no issue taken with the service of those documents.

b) Cst. Derek Gardner:

[23] Cst. Gardner was on patrol on June 23 when he received a dispatch indicating that a male impaired by alcohol had left the Fat Cats bar on a three wheel motor vehicle. He happened to be in the area, cleared the licence plate that had been provided and attended at the address attached to that plate. He was in a marked van, pulled up at the driveway and saw a gentleman that he identified as Mr. Moser coming out of the garage, pulling down the door to the garage. He activated his lights on the police van and went to approach the garage.

[24] He described the garage as a detached garage which was not attached to the home and that one would have to exit the garage to go into the house. As he went to approach the garage, Mr. Moser then went into the garage quickly and closed the garage door behind him.

[25] The officer believed as he approached, he told Mr. Moser to stop, and although he was pretty sure he said that he could not definitely recall. He walked up the driveway dressed in his uniform. It was his evidence that the door was closed by Mr. Moser as he was walking up the driveway.

[26] He knocked on the garage door and yelled on a couple of occasions for Mr. Moser to open. There was no response so he pulled the garage door up himself and observed Mr. Moser to be inside the garage standing with his arms crossed beside the motorcycle.

[27] He had seen the motorcycle when he first arrived on scene as the garage door at that point was completely open. He testified that when he opened the door it was not locked. He did not believe there were windows on the garage door otherwise he stated he would have looked into the garage.

[28] When he opened the door and saw Mr. Moser with his arms crossed, Mr. Moser advised him that he could not come into the garage. The officer stated that he could and ordered Mr. Moser to come out of the garage. Mr. Moser was a little hesitant at first, but eventually did come out of the garage and was cooperative with the officer. When speaking with Mr. Moser the officer noted slurred speech.

[29] The officer testified that upon opening the door he himself stepped into the garage two or three feet and Mr. Moser had stated that he could not come in once he had actually stepped in. The officer could not see Mr. Moser's hands as they were crossed and he ordered Mr. Moser out to check his hands for officer safety reasons. Mr. Moser cooperated by showing his hands. At that point as well the officer noted Mr. Moser's eyes to be red and glassy.

[30] He believed Mr. Moser was out of the garage when the other two officers had arrived on scene. It was one of the other officers that arrested Mr. Moser and this constable had no further dealings with him.

[31] He did look into the garage and noticed two cases of empty beer bottles as well as the keys in the ignition to the motorcycle and the motorcycle appearing to be wet. A light rain had fallen that day.

[32] The officer stated that the time from when he stopped until the time Mr. Moser exited the garage was very short and estimated that it was about fifteen seconds. He had been dispatched at 1:20 a.m. and arrived on the scene at 1:21 a.m.

[33] The officer was asked by the Crown at the time he approached the closed garage door whether he believed he had grounds at that point to arrest Mr. Moser. The officer stated he believed he did have such grounds and apparently those grounds existed as a result of the information he had received from dispatch that an individual had left the bar appearing to be drunk and had left on a three wheeled motorcycle. As a result, he stated he believed the driver was under the influence.

[34] In cross-examination he re-affirmed that he believed he had reasonable and probable grounds to make the arrest immediately upon his arrival at the property based on the information received and could effectively make the arrest without further investigation as put to him by defence counsel.

[35] The officer testified that the purpose of opening the door was to ensure officer safety and keep Mr. Moser under observation until backup arrived. He testified that upon opening the door, his intention was not to arrest Mr. Moser when he stepped inside, but to facilitate and convince him to step out of the garage away from any weapons. The officer had seen a shovel in the garage at that time. He agreed with defence counsel that he commanded Mr. Moser to come out of the garage. The officer could not say whether or not the walkway from the garage to the house was covered.

c) Sgt. Tim Lederman:

[36] Sgt. Lederman was the coach officer with Cst. Smith on June 23, 2011. At 1:19 a.m. he and Cst. Smith received information of a complaint of an impaired driver leaving Fat Cats bar. A licence plate was provided, a registered owner was found to be attached to that plate and Sgt. Lederman and Cst. Smith attended the address of the apparent owner of the motor vehicle.

[37] Upon arriving at the scene, Sgt. Lederman noticed Cst. Gardner in the process of opening the garage door as Sgt. Lederman walked up the driveway. He estimated that at that point the door was about one and a half feet off the ground as it was being opened.

[38] He noted once the door was open that Mr. Moser was inside the garage and he heard Cst. Gardner identify himself as a police officer. He testified that Mr. Moser appeared to be initially aggressive, staring, shoulders forward and fists clenched. His first thought was that there might be an altercation.

[39] Both he and Cst. Gardner asked Mr. Moser to step out of the garage which Mr. Moser did. While walking, Mr. Moser appeared to be "wavering". Once outside the garage Cst. Gardner took control of Mr. Moser and had him move to the right.

[40] This officer noted an odour of an alcoholic beverage coming from the breath of Mr. Moser and that his speech was drawn out and slurred. As a result of the information that had been received from dispatch and the observations made at the scene with respect to Mr. Moser's condition, the sergeant instructed Cst. Smith to affect an arrest for impaired operation.

[41] The arrest was affected at 1:28 a.m., the breath demand read at 1:33 a.m. and he, Cst. Smith and Mr. Moser were en route to the detachment at 1:43 a.m., arriving at 1:51 a.m.

[42] In the cruiser the officer noted the continuing strong odour of an alcoholic beverage, the speech of Mr. Moser to be slurred and once at the detachment noticed issues with Mr. Moser's balance and steadiness.

[43] Sgt. Lederman could not recall any details of conversations or utterances made by Mr. Moser. He specifically could not recall any comment Mr. Moser might have made that the officers could not enter the garage. He was not saying that was not said, he simply could not recall.

[44] With respect to the request to come out of the garage he stated that he did not yell at Mr. Moser or tell him he had to come out. Mr. Moser had the option to remain, but the officers were not about to enter the garage as it was an area or an element as the officer put it that Mr. Moser was familiar with, whereas the officers because of officer safety reasons did not want to enter.

[45] That concluded the evidence relevant to the application. As noted previously, the defence elected to call no evidence on the application.

Analysis of Facts and Law

[46] Here the issue to be determined is whether or not Mr. Moser's s. 8 rights under the Charter were breached as a result of Cst. Gardner opening the garage door in the manner in which he did and thereby conducting what the defence alleges is an unreasonable search and seizure. As the search here is a warrantless one, the onus rests with the Crown to satisfy the court that the search was in fact reasonable. If that onus is not met and a breach is established the court must go on to consider whether or not evidence should be excluded pursuant to s. 24(2) of the Charter.

[47] Section 8 of the Charter of Rights and Freedoms reads as follows:

"Everyone has the right to be secure against unreasonable search or seizure."

[48] With respect to the arrest of a citizen in a dwelling house, the requirement for the police to obtain prior judicial authorization to do so became mandatory following the decision of Regina v. Feeney, 115 C.C.C. (3d) 129, a decision of the Supreme Court of Canada. At paragraph 49 of that decision Justice Sopinka noted as follows:

"In my view, then, warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest, it is incumbent on the police officer to obtain judicial authorization for the arrest by obtaining a warrant to enter the dwelling house for the purpose of arrest. Such a warrant will only be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that the person will be found at the address named, thus providing individuals' privacy interests in an arrest situation with the protection Hunter required with respect to searches and seizures. Requiring a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion that Hunter held should be avoided under the Charter; invasive arrests without a basis of reasonable and probable grounds are prevented, rather than remedied after the fact. Such a policy was reflected in the following recommendation of the Law Reform Commission of Canada (Working Paper 41, Arrest (1985), at p. 115):

The sanctity of the family dwelling is such in our legal tradition that, as with search, there ought to be no forcible entry into a private dwelling unless such entry is authorized by judicial authority."

[49] Following the decision in Regina v. Feeney, s. 529.1 of the Criminal Code was enacted to deal with the issuing of a warrant to enter a dwelling house and the grounds for such a warrant being issued. Also, following Feeney, amendments to the Code permitted entry without a warrant to affect an arrest if exigent circumstances existed or the police are in "hot pursuit".

[50] The above Code sections and Regina v. Feeney deal with arrests which take place within a dwelling house. The case law has evolved since Feeney and considerations of arrests on private property have extended beyond the actual dwelling house. The various cases provided by counsel show the extent to which the finding in Feeney has been applied. This includes arrests on property surrounding a dwelling, garages, carports, front porches and other outbuildings.

[51] It is clear however that neither Regina v. Feeney nor the Criminal Code provide that an entry warrant is required if police lawfully and by invitation go to a dwelling house for the purpose of an investigation and/or for the purpose of making a lawful arrest outside a dwelling house.

[52] In Regina v. Nguyen, [2006] O.J. No. 4393 Justice Hill wrote at paragraph 49 when talking about an "invitation to knock" as follows:

"Leaving to the side for the moment Mr. Nguyen's actions, the police, as does any member of the public, had the right to directly approach the front door of the Harrowsmith residence to knock for the sole purpose of convenient communication with the occupants: R. v. Evans, [1996] 1 S.C.R. 8, at para. 13, 16; R. v. Tricker, (1995), 21 O.R. (3d) 575 (C.A.) at p. 579 (leave to appeal refused [1996] 1 S.C.R. ix); R. v. Mulligan, (2000), 142 C.C.C. (3d) 14 (Ont. C.A.) at para. 23-4. The implied licence ends at the door of the dwelling: R. v. Tricker, supra, at p. 579. This implied licence to enter does not include authority to effect a warrantless entry to arrest: see R. v. Grotheim, 2001 SKCA 116, (2001), 161 C.C.C. (3d) 49 (Sask. C.A.) at para. 25 (leave to appeal refused [2002] S.C.C.A. No. 17)."

[53] In this particular case the issue is not one involving a residence, but a garage. Defence places heavy reliance on Regina v. Kaltsidis, (2005) O.N.C.J. 388, affirmed on appeal [2007] O.J. No. 1400 which dealt with a situation where the police were investigating a complaint about a citizen driving erratically on a highway. The police followed the vehicle into a driveway and the vehicle then went into a carport which was attached to the accused's house by a common wall, a continuous roof extension and was demarcated by fencing on the back and right hand side of the garage. The officer approached the accused in that case completely inside the carport and after some conversation and observations were made, the accused was arrested and charged with impaired driving. Up to that point the officer had had no information that the accused was impaired by alcohol nor did the officer have a lawful reason to speak to the accused such as a statutory duty under the Highway Traffic Act. The officer further had no evidence whatsoever of any deviant driving on the part of the accused. In that particular case, Mr. Kaltsidis gave evidence on his own behalf confirming the layout of the carport and the circumstances surrounding the police officer's approach.

[54] In Kaltsidis the court found that Mr. Kaltsidis' s. 8 Charter rights had been infringed by the officer approaching and conducting the investigation in the carport. Again, it is of note that Mr. Kaltsidis gave evidence with respect to the issues. The carport appears to have been attached to the residence and would be part of the dwelling house within the meaning of the definition of dwelling house as set out in the Criminal Code.

[55] That definition reads as follows:

"dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence."

[56] An issue here is whether or not the garage in question was part and parcel of the house and therefore within the definition of dwelling house. Further, if the garage here was not within the definition of dwelling house, but effectively a building on the property, should it be accorded the same level of expectation of privacy as an individual would have in the home situated on the same property? With respect to that expectation of privacy there is virtually no evidence before the court that Mr. Moser had such an expectation. He did not provide any evidence in that regard himself and there is no direct evidence before the court that he was even the owner or an occupant of the residence on the property.

[57] The issue of standing was not addressed by counsel during submissions and as a result following submissions the court asked counsel to re-attend and address that particular matter. The court advised of the concern that it had with respect to no evidence being available to satisfy the court that Mr. Moser had a reasonable expectation of privacy in respect of the garage and whether or not he had standing to bring the s. 8 application at all.

[58] Counsel considered the matter and have now advised that neither had anticipated the issue nor appreciated the lack of evidence in that regard. Counsel have agreed notwithstanding the absence of evidence the court can proceed on the basis of an admission by the Crown that Mr. Moser was in fact the owner and occupant of the residence situated on the property in question on June 23, 2011. Counsel have effectively agreed to Mr. Moser's standing to bring the s. 8 application. The court therefore proceeds on that basis and there is no issue taken in that respect by the Crown.

[59] The issue then is whether or not the conduct of the police encroached on Mr. Moser's reasonable expectation in the detached garage. If the police activity invaded such expectation, then the action of Cst. Gardner involved a search.

[60] Still it is important to remember in dealing with s. 8 as noted in Regina v. Maciel, [2003] O.J. No. 126 at paragraph 14:

"The focus of the guarantee in s. 8 is privacy and not property rights or trespass. The purpose of the section is to prevent encroachments by the State on an individual's reasonable expectation of privacy. The Charter protects only a reasonable expectation of privacy."

[61] For the purposes then of determination of the application I find the following:

1. Mr. Moser was refused service at the bar in the early morning hours of June 23, 2011 and notwithstanding the urging of an employee at the bar left the parking lot apparently while intoxicated on a three wheeled motorcycle, the licence plate which was noted by the employee.

2. The employee phoned the police when Mr. Moser refused to heed his warning not to drive. Mr. Moser had advised that "there is nothing you guys can do about it" and that he did not care if the police were called. Information was provided to the police which was subsequently dispatched over the air. That information was conveyed to the officers who attended and included a complaint of an impaired driver leaving the bar with a licence plate provided and a registered owner attached to that plate determined. It was then that the three officers attended at the residence.

3. Cst. Gardner was the first on scene. He was in full uniform in a police van with lights activated and upon his arrival he noted Mr. Moser in the garage with the garage door open and the motorcycle present. Upon activating the lights on his police van he began to approach the garage up the driveway. At or about the time of his arrival Mr. Moser was in plain view of the officer, about to pull down the garage door and then, as I understand Cst. Gardner's evidence, re-entered the garage and closed the door at that point. I find that Cst. Gardner's attendance and approach to the driveway all took place within a very short period of time after dispatch had received the information from the bar and relayed it to the officer.

4. I find that the garage is a detached garage without a common wall with the residence on the property and not attached nor connected to the residence at all. There is apparently a covered walkway leading from the door of the garage to the door of the home, but that walkway is not an enclosed passageway.

5. I find that Mr. Moser had in fact seen the police, was in all likelihood expecting their presence given the contact at the bar with the employee and pulled the garage door down to effectively evade or avoid contact with the police.

6. I find Cst. Gardner went to the garage door, knocked and asked that the door be opened, without success. I find that Cst. Gardner then opened the unlocked garage door to find Mr. Moser standing beside the motor cycle with his arms crossed within the garage and indicating to the officer that he could not come into the garage.

7. I find that Cst. Gardner although perhaps light on reasonable grounds given the fact that at that time he was relying solely on the information received from dispatch felt he had sufficient grounds to arrest Mr. Moser and that was the purpose of him opening the door. I further find however that it was not his intention to arrest Mr. Moser immediately upon seeing him nor in the garage as he was concerned about officer safety and ordered Mr. Moser from the garage.

8. I find that Cst. Gardner stepped only briefly into the garage entrance, did not approach Mr. Moser within the garage, but ordered him out and although Mr. Moser was hesitant at first he exited the garage on his own.

9. I find that once outside the garage Cst. Gardner made further observations of impairment by alcohol as did the other officers who were then present and thereafter he had no further involvement with Mr. Moser. I find that the time from the arrival of Cst. Gardner at the address until Mr. Moser exited the garage was an extremely short period of time, perhaps as short as fifteen seconds.

10. I find that Cst. Smith had reasonable and probable grounds to affect the arrest that he ultimately did based on the information he had received from dispatch as well as his own observations at the scene. I also find that Mr. Moser when first observed by Cst. Smith was outside of the garage and appeared to be in a combative mode with his fists clenched, yelling and staring at Cst. Gardner. I find those observations were consistent with the observations of Mr. Moser made by Sgt. Lederman while Mr. Moser was inside the garage, once the door had been opened by Cst. Gardner.

11. I find that the garage is not a dwelling house within the meaning of the Criminal Code. It was a stand-alone building on the property and that for anyone to exit the garage they would either have to go through the front door or a side door which would then lead outside albeit with a covered walkway to the door of the residence.

12. I find the officers were not in "hot pursuit" of Mr. Moser and in fact none had seen him operate the vehicle at all nor can there reasonably be said to be exigent circumstances here although if Cst. Gardner had had the necessary grounds to affect the arrest that he anticipated and that arrest had taken place within the garage, there might have been an argument that such exigent circumstances existed. However the Crown has not pursued that and the evidence here would not justify that conclusion.

[62] Here the initial issue is what is the reasonable expectation of privacy in a garage? Both the defence and the Crown have provided a number of cases in their books of authorities and I have reviewed same. It would appear notwithstanding Regina v. Kaltsidis, supra, that the case law has evolved to the point where entry by police officers onto driveways and into open garages, depending on all the facts, have been held not to be unlawful or give rise to breaches of the Charter (for example, see Regina v. Lotozky, [2006] O.J. No. 2516 and Regina v. Kandiah, [2011] O.J. No. 2752).

[63] However, each case depends largely on the facts determined by the court. Here, clearly there was an implied invitation for the police to attend and at least knock on the door of the residence and certainly on the door of the garage. However, given Cst. Gardner's position that he had reasonable and probable grounds to make an arrest, the implied invitation cannot reasonably be said to be in place to permit entry once the door was open. The purpose of Cst. Gardner was not to initiate further communication or investigation. It was to apparently make an arrest and although certainly the case law would support that an officer can formulate his grounds based on information provided by third parties, that information must be reliable and is usually corroborated in some fashion by the officer during an investigative detention, for example. Here, no such further investigation or indeed any communication was in place when Cst. Gardner made the decision to arrest based solely on third party information.

[64] Further, the invitation to knock was revoked by not only the words apparently uttered and heard by the officer when the door was open, but also by the demeanour of Mr. Moser.

[65] Assuming then that there was some reasonable expectation of privacy in the detached garage on the part of Mr. Moser and further assuming that the invitation to knock had been revoked by his comments once the door was open the court still must consider the circumstances surrounding the door being opened in the first place which are as follows:

1. There was a legitimate concern that an impaired driver had left the bar.

2. The driver was riding a motor vehicle with a licence plate associated with the address where the police attended.

3. That information was received promptly by the police and acted upon in the same manner. They arrived at the residence noted to the plate owner very shortly after the information had been received from dispatch which in turn was received shortly before from the bar employee.

4. The arrival of Cst. Gardner and the exit of Mr. Moser from the garage took place over a very short period of time. There is no doubt and the court finds that Mr. Moser was attempting to evade the police. Cst. Gardner was in plain view, his van lights had been activated and the officer was approaching the garage when the garage door was shut by Mr. Moser. It was a wilful and intentional act on the part of Mr. Moser to avoid contact with the officer. There could have been no surprise on the part of Mr. Moser as to why the police were there, otherwise the door would not have been shut in their clear presence as one would have thought Mr. Moser would reasonably be quite interested in finding out why the police were attending at his residence and would have left the door open to communicate with them.

5. Cst. Gardner attempted to gain access with permission. When that failed the unlocked door was opened. Cst. Gardner only made a minimal intrusion into the garage with no intention to arrest within the garage for the reasons he noted.

6. I find that Mr. Moser voluntarily exercised his options and made a decision to exit the garage pursuant to the command and/or request of the officers. The further observations by Cst. Smith took place outside of the garage and Cst. Smith relied on no other information other than his own observations and the information received from dispatch to affect the arrest.

[66] Given the evolving case law and the facts in this particular case, it is the court's ultimate finding that there has not been a breach of Mr. Moser's s. 8 rights by virtue of Cst. Gardner lifting the garage door and opening it and stepping a minimal distance into the garage and thereafter requiring Mr. Moser to exit. His actions were, in effect, reasonable steps to take in the circumstances here. If there is a concern about Cst. Gardner's actions at all, it is his position that he had grounds to arrest. However, he had near grounds and they were certainly enhanced once he had an ability to observe Mr. Moser who had purposefully and intentionally tried to avoid such observations by the officer by closing the door when the officer's presence was readily apparent. Further, it is clear that Cst. Smith, the arresting officer, relied on nothing other than the presence of Mr. Moser and his own observations and the information from the bar in affecting the arrest as noted.

[67] The situation ultimately I find is no different than Cst. Gardner approaching Mr. Moser if he had been able to do so prior to Mr. Moser entering the garage on the driveway to the garage. It is also no different than approaching Mr. Moser while the garage door remained open and having conversation with him just inside the garage. In my view, the facts here are readily distinguishable from those in Kaltsidis. Further, there would have been nothing wrong with Cst. Gardner rather than opening the door, simply sitting outside waiting for Mr. Moser to eventually exit as he would have ultimately done to go to the residence as the garage was detached from the home and would require him to go outside prior to entering the residence.

[68] I find here that Cst. Gardner acted reasonably and conducted the search of the garage in a minimally intrusive and responsible manner. He entered the garage only briefly and marginally and although the invitation to knock and then enter was revoked by Mr. Moser's attitude and comments, it was Mr. Moser who exited the garage to the driveway where further observations were made and ultimately an arrest by Cst. Smith.

[69] I find on an analysis of all the evidence and given what I find to be a reduced expectation of privacy in a detached garage given all the circumstances here, that the search conducted was reasonable and I dismiss the application as I find there is no breach of s. 8.

Section 24(2) Analysis

[70] However, if I am incorrect and in fact there was a breach of Mr. Moser's s. 8 rights as a result of the actions of Cst. Gardner, then upon a proper analysis under s. 24(2) pursuant to the test set forth in Regina v. Grant, 2009 SCC 353, I would ultimately have found in any event in balancing the factors to be considered that no evidence should be excluded. Indeed I would find that the exclusion of any evidence obtained by the police after simply opening the unlocked garage door would in fact bring the administration of justice into disrepute and I would not have excluded same.

[71] Briefly, with respect to an infringement if one had been found, it is clear that an infringement does not automatically lead to the exclusion of evidence and the party seeking to exclude the evidence, in this case Mr. Moser, must satisfy the court on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

[72] In Regina v. Grant, the Supreme Court clarified the relevant criteria for determining when, in all the circumstances, the admission of evidence obtained by a Charter breach would bring the administration of justice into disrepute. There are in fact three lines of inquiry:

1. the seriousness of the Charter infringing state conduct;

2. the impact of the breach on Charter protected interests of the accused; and

3. the societal interests and adjudication on the merits.

[73] The first stage the court must consider is the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the State conduct that led to the Charter violation the greater the need for the court to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence and ensure State adherence to the rule of the law.

[74] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by in the infringed right. The more serious the incursion on those interests, the greater the risks that admission of the evidence would bring the administration of justice into disrepute.

[75] At the third stage, the court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process in the balancing of these concerns is a matter for the courts in each case.

[76] The inquiry is an objective one and it asks whether a reasonable person informed of all the circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. The s. 24(2) focus then is not only long term but prospective. The fact of the Charter breach means damage has already been done to the administration of justice and s. 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police or providing compensation of the accused, but rather at systemic concerns.

[77] The role of the court under s. 24(2) now is to balance the various assessments made under the analytical approach set out in Grant and determine whether in all of the circumstances admission of the evidence would bring the administration of justice into disrepute. The balancing is not a mathematical exercise as noted in Grant, it is qualitative. A trial judge must be careful not to give undue emphasis to one line of inquiry or to neglect the importance of any of the three lines of inquiry and the s. 24(2) analysis should not simply be boiled down to a contest between the degree of police misconduct and the seriousness of the offence.

[78] Here, if a s. 8 breach had been found, I am satisfied that that breach was effectively minimal. There is nothing in the police conduct that would indicate Cst. Gardner in particular acted in a reckless or wilful manner. He subjectively believed he had the grounds to arrest Mr. Moser. He arrived at the scene and in a relatively short period of time noted Mr. Moser avoiding his presence by pulling down the garage door. He had made observations at that point of both the motorcycle and Mr. Moser and at the very least had an implied invitation to knock on the garage door. When Mr. Moser did not respond, if there was an error at all on the part of the constable it was when he then opened the door and made the observations that he did.

[79] However, even if his conduct in that regard resulted in a breach, that breach as I have noted was minor in nature and was not compounded any further than simply opening the door. Cst. Gardner only stepped minimally into the garage, Mr. Moser exited and any observations thereafter were made by another officer leading to the arrest of Mr. Moser by that other officer based on his own observations and the information he received from dispatch. The whole event from the time of Cst. Gardner's arrival to Mr. Moser stepping out of the garage was about fifteen seconds. Cst. Gardner's action in opening the door was more reactive to the circumstances in place over that short period time including Mr. Moser's obvious attempt to evade the police.

[80] Mr. Moser was clearly intent on avoiding detection. The police officer acted instinctively and appropriately and although technically there may be a breach by the opening of the unlocked garage door, I do not find the conduct of the police serious nor warranting significant concern. Mr. Moser had a lower expectation of privacy in the garage. He was clearly evading detection and the police conduct would appear to be objectively reasonable, given all of the circumstances of the approach to the garage, the opening of the door and the conduct of the police once the door was opened.

[81] With respect to the degree to which the violation intruded upon the privacy, bodily integrity and the human dignity of Mr. Moser, in general where an intrusion is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded notwithstanding its relevance and reliability. On the other hand, as noted in Grant itself, where the violation is less egregious and the intrusion on privacy, bodily integrity and dignity is less severe, bodily evidence may be admitted. In Grant it was specifically indicated that this would usually be the case with breath sample evidence where the method of collection is relatively unintrusive.

[82] In dealing with this line of inquiry, there is no evidence from Mr. Moser as to the impact the police actions at the garage had on him. Indeed, in many ways he was the author of his own circumstance when he effectively chose to evade the police by closing the door in their immediate presence. Mr. Moser was in fact in my view attempting to create a "garage free zone" where he perceived he was immune from any further investigation or contact with the police. The intrusion was brief into an area where expectation of privacy is less than in a dwelling house and I find that the actions of Cst. Gardner are not profoundly intrusive and indeed, quite the contrary. The court appreciates that Mr. Moser was arrested, transported to the detachment, apparently placed into a cell and ultimately taken to a breath room and submitted two samples of his breath. Still, fully appreciating that those circumstances are significant, I find that all of the circumstances under which the samples were ultimately provided indicate that the taking of such samples was relatively unintrusive.

[83] With respect to the third line inquiry and society's interests in having the case adjudicated on its merits, clearly the samples here are reliable and there is no issue taken with respect to the reliability of the breath samples at this point by counsel. They are relevant and without the samples the Crown's case will fail. The third line of inquiry favours the inclusion of the breath samples as evidence at trial.

[84] Considering and balancing the various factors, I find in this particular case that the admission of the samples into evidence would not bring the administration of justice into disrepute. I say this particularly in light of the fact that I have found that the conduct of the police in this matter was minor and inadvertent. All of the circumstances surrounding the opening of the garage door and the contact with Mr. Moser resulted from Cst. Gardner acting without perhaps a great deal of forethought, but that is to be expected in the short timeframe over which this event took place. Nevertheless I find that he acted in good faith. When looking at the second and third lines of inquiry in Grant and balancing all factors, I am satisfied that the evidence obtained after the arrest of Mr. Moser and in particular the breath samples, should not be excluded from evidence at trial. I would again state that if such evidence were in fact excluded that exclusion itself would bring the administration of justice into disrepute.

[85] In summary then I find there has been no breach of s. 8 for the reasons noted and even if a breach had been found, the court would not have excluded evidence pursuant to s. 24(2) in the circumstances of this particular case.

[86] The application is therefore dismissed.

Released: March 19, 2012

Signed: "Justice G.F. Hearn"