Court Information

Date: 2015-01-13

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kenneth Kivisto

Before: Justice J.F. Adamson

Reasons for Judgment released on: January 13, 2015

Counsel:

• D. Bronowicki, for the Crown
• T. Balka, for the accused K. Kivisto

ADAMSON J.:

Witness Evidence

[1] A call to D.R.P.S. by Rick Joensen brought this matter to the attention of police. Mr. Joenson was driving his daughter home along Finch Avenue in Pickering when he observed Mr. Kivisto's truck swerving. Twice its tires hit the gravel before being corrected, but twice half the width of the vehicle was on the gravel. Mr. Joensen decided to follow and observed the vehicle make a very slow and awkward left turn from Finch onto Spruce Hill Drive. He also noted that the vehicle would slow and move over (coming to a complete stop once) when other cars approached from the opposite direction on this two-lane road. When the vehicle approached Mr. Kivisto's driveway, Joenson took up a position 90 to 100 feet to the north where he could observe what happened. Around this time he called police. Mr. Joenson saw the vehicle then attempt to reverse into the driveway three to four times, each time missing the entrance, hitting the curb and proceeding forward to hit the curb on the other side of the street before trying again. Eventually the vehicle got into the driveway and Mr. Kivisto got out. Mr. Joenson moved closer once the vehicle was in that position. To Mr. Joenson it appeared obvious that Mr. Kivisto was drunk as he staggered back and forth on the driveway and actually fell into the side of the house as he approached the door. Mr. Joenson saw Mr. Kivisto fumble with what looked like his keys before he went inside.

[2] Mr. Joenson provided all of this information, including a description of the driver, to the police via his cell phone. He recalled an officer arriving who asked if he would testify if needed and he made a statement shortly thereafter in which he confirmed that the man who emerged from the house with the police officer was the same man who had got out of the truck.

[3] I found Mr. Joenson to be a helpful and independent witness who was clear and consistent in his description of events. He seemed to make a genuine effort to avoid any embellishment and to admit any limitations. His evidence falls short of proving the offence of impaired driving only in that he had no opportunity to determine the cause of the obvious difficulties he observed Mr. Kivisto experiencing. The missing piece was evidence of the presence of alcohol in Mr. Kivisto's system. This element of the offence could be satisfied by either the results of the breath tests or the observations of P.C. Goldenberg if they were ruled admissible. Defence counsel went so far as to concede that the offence of impaired driving would be made out if P.C. Goldenberg's observations were admitted and accepted.

Charter Challenges

[4] The challenge to the admissibility of P.C. Goldenberg's evidence is based on Sections 8, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. The issues can be summarized as follows:

Section 8

• The defence asserts that once P.C. Goldenberg passed the threshold of Mr. Kivisto's home he became a trespasser and his evidence gathering was therefore illegal and the resulting evidence should be excluded.

Section 10(a)

• The defence asserts that P.C. Goldenberg did not promptly advise Mr. Kivisto of the reason for his detention upon that event and continued to gather evidence that again should be excluded.

Section 10(b)

• The defence asserts that P.C. Goldenberg did not promptly advise Mr. Kivisto of his right to counsel upon detention and continued to gather evidence that therefore must be excluded.

P.C. Goldenberg's Evidence

[5] As the Applicant did not testify, the only evidence of what transpired in Mr. Kivisto's house came from this officer. He described how he arrived at the scene, gleaned the gist of what Mr. Joenson had to say, and then proceeded to the door. He was clear that he did not have grounds to arrest or detain Mr. Kivisto at that point. He proceeded to the door to investigate a possible impaired driving incident by communicating with Mr. Kivisto but was alive to the fact that he had heard nothing about alcohol and that there may have been a medical explanation for what had happened. Counsel agree he was entitled to approach the door, knock and speak to Mr. Kivisto.

[6] P.C. Goldenberg testified in-chief that when Mr. Kivisto answered the door he observed that Mr. Kivisto matched the description of the driver in question. He said there was "an initial conversation that carried on just inside the door". The officer said he never left the general area that he described as "by the door", but it was clear that he was actually inside. Both in-chief and under cross-examination, P.C. Goldenberg could not describe in any detail the gestures or words of Mr. Kivisto that he felt invited him into the house. He could only say that Mr. Kivisto was "very cooperative and just allowed me in". Under cross-examination he said he had no recollection of not being allowed in and his report was silent on the issue.

[7] P.C. Goldenberg did not arrest Mr. Kivisto until approximately ten minutes after he entered the house. He testified that he did not make the arrest until he had fully canvassed the situation which included: asking for (and seeing) Mr. Kivisto's driver's licence, asking if he had anything to drink, and inquiring after his health (he had observed what appeared to be an odd curvature of Mr. Kivisto's spine). During this conversation P.C. Goldenberg made observations that Mr. Kivisto was very unsteady on his feet, had a strong odour of alcohol on his breath, was incoherent in conversation, had slurred speech and that his eyes were glassy, red and watery. Mr. Kivisto also made some statements that could be construed as incriminating.

[8] P.C. Goldenberg was steadfast that he did not form his grounds to arrest, and that he did not consider Mr. Kivisto to be detained, until he actually arrested him. This position was held to notwithstanding that many of his observations would have been made early in the conversation. In particular an early question from the officer was the request for the driver's licence which prompted an observation that Mr. Kivisto fumbled while trying to get it. The officer also conceded that by that point he had already observed the strong smell of alcohol from Mr. Kivisto's breath. At no point before the arrest did P.C. Goldenberg tell Mr. Kivisto that he was under investigation for impaired driving, but only said that "he had been observed driving erratically".

Section 10(a) and 10(b) Analysis

[9] The argument on both the Section 10(a) and 10(b) issues is that P.C. Goldenberg carried on gathering evidence long after it was clear to him that he had grounds to arrest this man, had in fact detained him, and should therefore have advised him of his rights to counsel and the reason for his detention. The officer's evidence was sadly lacking in specifics as to the order of questions, observations and responses. It was obvious to me that the officer's grounds had crystalized before he was prepared to admit it. There was therefore a duty on him to advise Mr. Kivisto of his jeopardy and his right to counsel before he did. Given that finding it follows that at least some of his investigation is in jeopardy of exclusion. But what part? As I have alluded to earlier, the missing piece as the officer approached the door was the presence of alcohol. That element was satisfied when the officer smelled the strong odour of alcohol on Mr. Kivisto's breath. That was a passive observation, one that did not depend on any question and answer exchange and occurred early in their interaction. The same could be said of Mr. Kivisto's obvious unsteadiness and his glassy, watery, red eyes. I have no hesitation in holding that these observations are admissible as the officer could not have formed the grounds that triggered the Section 10(a) and Section 10(b) requirements without them. Given counsel's concession as to the effect of these observations, I will leave aside the other evidence gathered and turn to whether there is any other basis for exclusion of these specific observations.

Section 8 Analysis

[10] What has been argued is that none of the officer's observations of Mr. Kivisto are admissible as a result of a breach of Section 8 of the Canadian Charter of Rights and Freedoms. Section 8 holds that everyone has the right to be free from unreasonable search and seizure. As stated, counsel conceded that P.C. Goldenberg had the right to approach the door, knock and have initial communication with Mr. Kivisto. The defence here argues that P.C. Goldenberg's evidence gathering from his position inside the door amounts to a search and that it was unreasonable as P.C. Goldenberg was a trespasser in Mr. Kivisto's residence when it occurred. As this would be a warrantless search, the onus would then shift to the Crown to show that it was reasonable. The Crown counters by arguing that there was no search here at all, only communication, and therefore there is no onus on the Crown as Section 8 is not engaged.

[11] The proposition that P.C. Goldenberg was a trespasser rests on a number of cases that begin with R. v. Tricker, [1995] O.J. No. 12 (C.A.). Specifically I would cite R. v. Evans, [1996] 1 S.C.R. 8 (S.C.C.) where it was held that while police may approach a door to knock to facilitate communication, "only those activities that are reasonably connected with the purpose of communicating with the occupant are authorized by the implied licence to knock". There it was held that the police had always had a secondary purpose to their approach, namely to smell for growing marihuana, and that their olfactory investigation was an unlawful search.

[12] The defence also cited R. v. Van Wyk, a decision of Hill, J of the Ontario Superior Court of Justice at [1999] O.J. No. 3515 for the proposition that police have no jurisdiction to enter a dwelling house unless properly admitted. Hudson v. Brantford Police Services Board, [2001] O.J. No. 3779 (C.A.) further underlined that the implied invitation ends at the door and further entry requires a more explicit justification.

[13] The argument is that here, at some point, P.C. Goldenberg exceeded any implied invitation because he actually entered Mr. Kivisto's home without being able to point to an explicit invitation and the observations at issue were made after that entry.

[14] The Crown quite properly points out that P.C. Goldenberg found Mr. Kivisto to be cooperative throughout the proceedings, to the extent that he was not even handcuffed until he entered the cruiser, and that the officer's recollection that "he just allowed me in" is consistent with these observations. It is also noted that at all times the officer stayed in the area of the doorway and that though the officer did converse with Mr. Kivisto for ten minutes, the relevant observations occurred early in that time frame. The Crown also cited R. v. Desrochers, a decision of MacKinnon, J of the Ontario Superior Court of Justice at [2007] O.J. No. 1482 and confirmed on appeal to the Ontario Court of Appeal at [2008] O.J. No. 1273. This decision makes it very clear (at paragraph 23):

"That the fact of an interview occurring slightly within the boundary of a home and within the radius of the front door - cannot vitiate otherwise lawful conduct. To so hold would be trivialize the right protected by the Charter."

This case also quotes the same authorities relied on by Hill, J. in Van Wyk including R. v. Petri, 2003 MBCA 1, [2003] M.J. No. 1 (C.A.) from which Justice MacKinnon quoted Kroft, J.A. as follows: (at paragraph 21)

"If the police are present for the lawful purpose of conducting an investigation by communicating with the occupant they can continue the communication unless or until the occupant makes known that his cooperation has been withdrawn".

Mr. Kivisto did not testify and there is no evidence before me of his cooperation being withdrawn before Constable Goldenberg smelled his breath and saw his eyes and his unsteadiness.

[15] Another case that appears to be straight on point was filed with the Crown's materials, but also referred to by the defence. It is R. v. Graham, [2007] O.J. No. 2785, a decision of Kenkel, J of this Court. In that case an Officer Reid approached and knocked on a door in very similar circumstances to the case at bar. The defendant answered and Constable Reid detected the odour of alcohol on her breath and her glassy, watery eyes. Ms. Graham proceeded to invite the officer in, but he arrested her within seconds as his observations were already made.

[16] The issue for Kenkel, J was (at paragraph 13) "is there a Section 8 search where the police approach a home to communicate with the occupant, but while doing so happen to observe evidence related to their investigation?" Justice Kenkel reviewed many of the same decisions that I have been referred to and found, as I do with P.C. Goldenberg, that Officer Reid's intent was to investigate a complaint through conversation. He dealt with the issue as follows (at paragraph 16):

"In this case I find the applicant has failed to prove on a balance of probabilities that there was a "search" that would engage Section 8. Constable Reid's purpose was to communicate with Ms. Graham in relation to the complaint he had received. The fact that he detected an odour of alcohol during that conversation does not transform the licensed act into a search. An officer is not required to hold their nose or avert their eyes when otherwise lawfully speaking with a citizen in order to avoid engaging Section 8 of the Charter."

[17] I have been urged to distinguish Graham on the basis of P.C. Goldenberg's position in the house, his lengthier stay, or Ms. Graham's explicit invitation. I disagree. P.C. Goldenberg's relevant observations were made early. His position in the home was within the bounds contemplated by decisions referred to earlier and Ms. Graham's case turned on observations made while the officer still relied on the implied invitation.

[18] For these reasons I find that there was no search to engage Section 8 and therefore that Application fails as well. In conclusion then, on the totality of the evidence, the Crown has proved beyond a reasonable doubt Mr. Kivisto operated a motor vehicle when his ability to do so was impaired by alcohol. I find him guilty of that charge.

The Over .08 Charge

[19] I will address this issue only briefly given my previous finding but it should be obvious from the foregoing that I had significant reservations about the officer's conduct following his proper formation of grounds to arrest. His continuing with investigative questioning when he had concluded that Mr. Kivisto should speak to counsel would likely result in that evidence being excluded pursuant to Sections 10(a) and 10(b). The Crown has also conceded that the questioning that took place in the cruiser was improper. I am thus left with the peculiar situation that the officer himself asserted in his evidence that he did not have a subjective basis for his breath demand without relying on some clearly inadmissible evidence. While I have found that an objective basis existed, without that subjective basis, the demand itself was without foundation and its results, the breath readings, were obtained in contravention of Section 8. Should they be excluded? In R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) the Supreme Court of Canada expressly held that all Charter breaches should not result in exclusion of evidence in the over .08 context. Applying the three parts of the Grant test and balancing the competing interests leads inexorably to the conclusion that the breath readings here are admissible. There was little impact on Mr. Kivisto as he was properly arrested for the other charge. While the Court does not wish to condone these aspects of the officer's approach in this case, what is sought to be excluded is reliable evidence that is central to the adjudication of this charge on its merits. After balancing these considerations I conclude that the breath readings and subsequent interpretation by the C.F.S. are admissible with a blood alcohol level of between 250-280 milligrams per 100 millilitres of blood at the time of driving. Mr. Kivisto will be found guilty of that charge as well.

Released: January 13, 2015

Signed: Justice Adamson