Court File and Parties

Ontario Court of Justice

Date: 2017-07-11

Brampton Court File No.: 15-12897

Between:

Her Majesty the Queen

— and —

Emmanuel Rodriguez

Before: Justice Patrice F. Band

Reasons for Judgment

Counsel:

• I. Singh, for the Crown
• D. Holmes, for the defendant Mr. Rodriguez

BAND J.:

I. Introduction

[1] As a result of incidents that took place late in the evening of October 11, 2015, Mr. Rodriguez was charged with operating a motor vehicle when his blood alcohol content exceeded the legal limit and while his ability to do so was impaired by alcohol.

[2] Because Mr. Rodriguez was arrested in the underground parking garage of his apartment building, the doctrines of hot pursuit, exigent circumstances, third party consent to enter and implied invitation to knock are among the issues in this case.

[3] The matter came to the attention of police because a paramedic had seen a gray Hyundai SUV go through a red light. He pursued it and had a brief interaction with the driver up the road. The driver, a male, was alone in the SUV. Based on his observations, the paramedic believed that the driver was intoxicated.

[4] The paramedic called 911 and provided information about the SUV and the driver to the dispatcher. He also followed the SUV continuously for approximately 10 minutes to an address less than five kilometers away. There were two large apartment buildings at that location. The paramedic lost sight of the SUV when it went into the driveway and around the first of the two buildings. The paramedic did not enter the property; he remained by the side of the road.

[5] Police arrived approximately one minute later. At least two police officers attended the scene. Both had received information from the dispatcher concerning the paramedic's observations. One officer, PC Wallace, testified that he spoke to the paramedic for approximately one minute, briefly searched the above ground parking lot for the SUV and then decided to try to enter the underground parking garage ("the garage"). He was given access by someone he believed to be another resident, who opened the garage door using a fob. This was two to three minutes after he had arrived on scene. Within two minutes of entering the garage, PC Wallace saw a male walking away from the area where a gray Hyundai SUV was parked. He made additional observations and concluded that he had reasonable and probable grounds to arrest the male. That male was Mr. Rodriguez.

[6] A total of 13 minutes elapsed from the moment the paramedic saw the SUV go through the red light to the time of Mr. Rodriguez's arrest.

[7] Later, Mr. Rodriguez provided suitable samples of his breath into an approved instrument. The results were in excess of the legal limit and he was charged accordingly.

II. Issues – the Charter and the Trial Proper

[8] The Defence argued that Mr. Rodriguez's s. 8, 9 and 10(b) Charter rights were violated. The trial and Charter motion were conducted in a "blended" fashion. Mr. Rodriguez testified only as to the Charter issues. The voluntariness of his statements to police in the breath room was conceded.

[9] The following is a summary of Mr. Rodriguez's arguments.

i. Section 10(b) of the Charter

[10] Mr. Rodriguez alleges that PC Wallace did not advise him of his right to counsel until they had arrived at the police station, some 20 minutes after his arrest.

ii. Sections 8 and 9 of the Charter

[11] Mr. Rodriguez had a reasonable expectation of privacy in the underground garage. PC Wallace's warrantless entry was presumptively unreasonable. Everything that flowed from it ought to be excluded pursuant to s. 24(2) of the Charter. That is: PC Wallace's observations of the SUV and of Mr. Rodriguez, the breath results and the contents of the videotaped breath sample procedure, including Mr. Rodriguez's utterances and behaviour in the breath room.

[12] In the alternative, the Defence also argued that PC Wallace lacked the requisite grounds to arrest Mr. Rodriguez, either because his stated grounds ought to be questioned in light of Mr. Rodriguez's evidence or because they are objectively insufficient to found a belief that Mr. Rodriguez was the driver that the paramedic had seen and followed.

[13] Finally, if the alleged Charter breaches lead to the exclusion of the evidence as sought, the Defence argues that the Crown has not proved that Mr. Rodriguez's ability to operate a motor vehicle was impaired by alcohol.

[14] The Crown's responses to the Charter arguments are as follows.

i. Section 10(b) of the Charter

[15] The Crown submitted that Mr. Rodriguez's evidence was unreliable and ought to be rejected in favour of PC Wallace's. PC Wallace testified that he briefly delayed advising Mr. Rodriguez of his rights at the scene. Rather than immediately provide them in the garage, he decided to first drive up the ramp to ground level, where he then stopped the police car and advised Mr. Rodriguez of his rights. He did this largely for safety reasons.

ii. Sections 8 and 9 of the Charter

[16] Referring to the factors set out in R. v. Edwards, the Crown argued that Mr. Rodriguez failed to demonstrate on a balance of probabilities that he had a reasonable expectation of privacy in the underground garage. As a result, his argument about PC Wallace's warrantless entry into the garage must fail.

[17] In the alternative, the Crown relied on the following doctrines to argue that PC Wallace's entry into the garage was lawful:

a. The common law relating to consent of a co-resident;

b. The Criminal Code's provisions concerning exigent circumstances;

c. Hot pursuit; and

d. Implied invitation to knock.

III. Analysis

Reasonable Expectation of Privacy

[18] A warrantless search is presumptively unreasonable, and the Crown bears the burden of demonstrating that it was nonetheless reasonable for purposes of s. 8 of the Charter. However, s. 8 is not engaged unless the party claiming its protection has established that he or she has a reasonable expectation of privacy.

[19] In Edwards, the Supreme Court of Canada explained that a reasonable expectation of privacy is to be determined on the basis of "the totality of the circumstances" and provided the following non-exhaustive list of factors to consider:

• presence at the time of the search;
• possession or control of the property or place searched;
• ownership of the property or place;
• historical use of the property or item;
• the ability to regulate access, including the right to admit or exclude others from the place;
• the existence of a subjective expectation of privacy; and
• the objective reasonableness of the expectation.

[20] Mr. Rodriguez's testimony established that, at the time, he was living in the building to which the garage was attached. Residents are assigned a parking spot. Only residents and building staff have fobs to gain access to the garage. The Crown did not challenge him on these points.

[21] PC Wallace testified that there is an intercom at the garage door, which he rang, and that a resident arrived and opened the door for him.

[22] On this basis and by analogy to R. v. Ayoub, Mr. Rodriguez argues that he has established a reasonable expectation of privacy. Ayoub involved the parking garage of a residential building. Access and egress were controlled by key or remote control. The officer was unable to leave the garage without assistance. After reviewing a number of authorities involving garages and parking garages, the trial judge found that the accused had a reasonable expectation of privacy, albeit a diminished one.

[23] One of those authorities was R. v. Kaltsidis. In that case, sitting as a summary conviction appeal judge, Tulloch J. (as he then was) confirmed the trial judge's ruling that the accused had established a reasonable expectation of privacy regarding the carport attached to his home and in which he stored personal effects. His Honour cited R. v. Clarke, a 2005 case involving the underground parking lot of a residential building. In that case, the Ontario Court of Appeal held that:

The parking garage was an element of the respondent's dwelling but, as the trial judge found, one does not have the same reasonable expectation of privacy in such a parking garage as one has in one's dwelling.

[24] In closing, His Honour then wrote:

a parking garage of an apartment building with multiple occupants who are essentially strangers to each other, but have access to the same underground garage is very different from the occupant of a single dwelling house with an attached garage or carport, where ownership, access and the right to quiet enjoyment is limited to the owner of the dwelling house. The occupants of the apartment building expect to share access and enjoyment of the underground garage with other occupants, most of whom will be strangers to each other, and thus each would have a reduced expectation of privacy from that of the single-dwelling home owner with respect to his/her garage or carport.

[25] Mr. Rodriguez also relies on the Court of Appeal's decision in Clarke.

[26] The Crown points to the fact that Mr. Rodriguez did not testify about his subjective expectation of privacy, and that his evidence lacked sufficient detail or precision concerning his entitlement to use the parking garage and his ability to admit or exclude others from it.

[27] While it might have been preferable for Mr. Rodriguez to provide evidence about his subjective expectation of privacy, the Edwards factors are not a rigid mathematical formula. Indeed, like Mr. Rodriguez, the accused in Clarke did not testify that he had an expectation of privacy. To the contrary, when asked if he thought that because he was on private property the police could not follow him, his response was "I wasn't thinking anything like that."

[28] Based on the combined evidence of Mr. Rodriguez and PC Wallace, it is clear that the public was not allowed free access to the parking garage. Whether or not Mr. Rodriguez had the right to exclude others, he had a reasonable expectation that members of the public would not enter the garage without permission. He also had the ability to admit persons with the fob in his possession.

[29] I am satisfied that Mr. Rodriguez probably had a reasonable expectation of privacy in the circumstances – albeit a significantly reduced one. While s. 8 protects people and not places, and there are no "categorical answers," this finding is reinforced by the existence of appellate authority and dicta on point.

[30] As a result, the analysis must turn to whether PC Wallace's warrantless entry into the garage violated Mr. Rodriguez's right to privacy.

Reasonable and Probable Grounds – upon Entry

[31] I begin with an analysis of PC Wallace's grounds leading up to the moment he entered the garage because reasonable and probable grounds are essential requirements of the doctrines of hot pursuit and exigent circumstances. The question is whether, at that moment, PC Wallace had reasonable and probable grounds to believe that the SUV driver was in the garage and that his ability to drive was impaired.

[32] I find that he did. PC Wallace had received information from dispatch that a paramedic had seen a male go through a red light in the SUV and then observed him to be visibly impaired with slurred speech. He was advised in real time that the paramedic was following the SUV and that it had turned into the driveway. When he arrived one minute later, he received further information about where the SUV had last been seen.

[33] Here, there are some discrepancies in the evidence. The paramedic testified that he only spoke to one officer, who relayed information on the radio and remained with him until a suspect was apprehended. However, PC Wallace believed that he had spoken to the paramedic briefly before continuing the search. The paramedic did not testify about the garage. However, PC Wallace believed that the paramedic told him that he had last seen the SUV at the entrance of the garage.

[34] These discrepancies are not significant and do not detract from PC Wallace's reliability or grounds. PC Wallace referred to a note he had made indicating that the paramedic had advised he had lost sight of the driver at the entrance of the garage. He acknowledged that it was not a verbatim note. It may be that he was mistaken about how he received that information – directly or by radio – but I am satisfied that he did. It is also consistent with his description of where the garage entrance was relative to the route the SUV had taken from the vantage point of someone in the paramedic's position.

[35] PC Wallace testified that it was possible that the male was still driving in the garage. Having just canvassed the parking lot above ground with negative results, PC Wallace's belief was reasonable. This was two or three minutes after the paramedic had last seen the SUV in motion and the building was large.

Hot Pursuit

[36] The law of hot pursuit was canvassed in great detail by my colleague Forsyth J. in R. v. Hayer, a decision that was upheld on appeal. I adopt it for purposes of these reasons. From that case and the authorities cited within it, a number of principles emerge. First, a police officer can be in hot pursuit of a suspect even when the officer was not directly involved in the entire pursuit but takes it over at some point. The question is whether the entire event can be seen as a single transaction. It is not necessary for the officer to know the identity of the suspect. "Continuity of observations and exclusivity of opportunity" are sufficient substitutes. Nor is it necessary that the suspect know he is being pursued by police. These principles make a great deal of sense when applied to impaired driving investigations in modern society, where motorists frequently call police from their mobile phones and provide running commentary as they pursue suspects until police arrive. While "flight" from police may be an indicator of consciousness of guilt, it is unrealistic to impose it as a requirement in the context of impaired driving offences which, by their very nature, do not easily lend themselves to that concept.

[37] Approximately 12 minutes had elapsed from the time the paramedic first saw the SUV to the time PC Wallace saw it and Mr. Rodriguez. The paramedic's pursuit was continuous and police were advised of it in real time. The brief time PC Wallace spent searching the parking lot and awaiting entry to the garage did not break the chain of events or constitute a lack of reasonable diligence. For these reasons, I find that the paramedic's pursuit and its continuation by PC Wallace constituted a single transaction.

Exigent Circumstances

[38] I also find that the provisions of s. 529.3(1) of the Criminal Code are applicable in this case. PC Wallace's belief in the possibility that the SUV was still in motion was reasonable. So too was his belief that the driver and others could be harmed. When asked why he did not stop to seek a warrant, PC Wallace cited concerns about the preservation of evidence which was being destroyed every moment that went by. This, too, was reasonable.

[39] For both of these reasons, PC Wallace's entry into the parking garage did not violate Mr. Rodriguez's s. 8 Charter rights.

Consent of a co-resident

[40] Given that there is no evidence that the co-resident was advised of his right to refuse PC Wallace's request to enter the garage, Mr. Rodriguez argues that the Crown has failed to demonstrate that the consent was valid.

[41] The Crown argues that "there is nothing to suggest that the resident was unaware of his right to refuse." So, in the absence of evidence to the contrary, I ought to infer that the co-resident was duly informed. I disagree with this suggested approach. It is clear that the Crown bears the onus of demonstrating that consent is informed: see R. v. Wills and R. v. Reeves. That said, the question in this case might be recast as follows: how much information should PC Wallace have provided to the co-resident in these circumstances? In light of my findings concerning hot pursuit and exigent circumstances, it is unnecessary for me to resolve this issue.

Implied invitation to knock

[42] The Crown submitted that "there was arguably an implied invitation to enter when the garage door was opened." Again, given my conclusions above, it is unnecessary for me to resolve this issue. But based the fact that PC Wallace's stated purpose was to enter the garage to look for the SUV (i.e. incriminating evidence), and that he would have continued to other levels of the garage to do so, a strong argument can be made that he would have exceeded the limits of the scope of the license afforded to him by any implied invitation: see Kaltsidis, supra, and R. v. Erskine.

Reasonable Grounds to Arrest Mr. Rodriguez and the Right to Counsel

[43] Resolution of these two issues requires further discussion of the evidence of what took place in the garage and thereafter. Mr. Rodriguez's version of events differs significantly from PC Wallace's. As result, I address them together.

[44] PC Wallace testified that he entered the garage and then proceeded on foot out of concern for his safety. Portable radios are more reliable underground than the ones in police cars. Within two minutes, approximately 15 feet from him, he saw Mr. Rodriguez walking away from a parking space in which a gray Hyundai SUV was parked. He was 5-10 feet from the SUV at first. He was stumbling and unsteady on his feet, like someone wearing heels "who is new to wearing heels." PC Wallace asked him where he was coming from and Mr. Rodriguez pointed to the SUV and said "the car." He slurred when he said that. As Mr. Rodriguez was approximately 10 feet away from him, he saw a key fob in Mr. Rodriguez's open hand. The car and key fob had the same logo, which he recognized to be Hyundai.

[45] Mr. Rodriguez then placed the car keys in his pocket. As Mr. Rodriguez drew nearer, he detected a strong odour of an alcoholic beverage emanating from his breath, and noticed that his face was flushed and red and his eyes were red-rimmed, watery and bloodshot. He believed that Mr. Rodriguez was the driver of the SUV and placed him under arrest. He was not sure whether he confirmed the SUV's license plate before or after arresting Mr. Rodriguez. He felt like he had the required grounds to arrest Mr. Rodriguez with or without confirming the license plate.

[46] While he believed that he removed Mr. Rodriguez's keys from his pocket during the search incident to arrest, PC Wallace acknowledged that Mr. Rodriguez might have done so at his direction.

[47] After the search, PC Wallace noticed that some traffic had built up and was concerned for safety as they were both underground. He placed Mr. Rodriguez in his police car and drove up the ramp. He denied that he felt pressure to hurry up out of a concern not to inconvenience other residents trying to enter the garage.

[48] Once at ground level, PC Wallace began to read Mr. Rodriguez his rights at 10:23 p.m. He took detailed notes of the questions and answers that followed.

[49] Mr. Rodriguez testified that he was approximately 40 feet from the SUV when the police car entered the garage. His keys were not in his hands. PC Wallace said something he did not understand and then said "you know why I'm here." He was arrested almost immediately. He was made to put his hands on the police car. PC Wallace asked him to remove his keys. He then asked him where his car was. He made a pointing gesture behind his back from that position. Then he saw his car being driven out of the garage. PC Wallace did not stop at the top of the ramp, and no one told him about his rights until he got to the station.

[50] In cross-examination, Mr. Rodriguez admitted that he had consumed two 900 ml bottles of beer and that his last sip had been at approximately 8:15 p.m. He agreed that he would not drive or go to work in that condition. He also agreed that he had not taken notes and that his ability to recall specific details was "maybe" affected because of the condition he was in. He agreed that the first thing PC Wallace said to him could have been "where are you coming from?"

[51] He did not remember speaking to the paramedic but then admitted that he may have. He said it was not possible that he had his car keys in his hand as PC Wallace described, but then admitted that it was possible that they were for his first few steps as he walked away from the car.

[52] I found Mr. Rodriguez's evidence to be unreliable and lacking in credibility. For instance, it is impossible to believe that he saw his car being taken out of the garage while he was being arrested. Things could not have taken place so quickly. This very clearly demonstrates that Mr. Rodriguez's sense of time and ability to recount the events were distorted. By his own admission, the effects of alcohol contributed to his inability to relate details accurately. Also, cross-examination yielded important inconsistencies. As a result, I reject Mr. Rodriguez's evidence.

[53] By contrast, I found PC Wallace's evidence to be clear, detailed and reliable. It made sense in terms of content and chronology. Also, he was willing to acknowledge areas in which he was uncertain. I struggled with his evidence about his ability to identify the logo on the key fob from 10 feet away, but do not find it to be incredible or unreliable. It is a well-known logo and the distance was not so great. In any event, it is of little moment. I believe that Mr. Rodriguez pointed to the SUV in response to PC Wallace's inquiries.

[54] I believed PC Wallace's evidence concerning the totality of his grounds for believing that Mr. Rodriguez was the driver that the paramedic had pursued and that his ability to do so was impaired by alcohol. I find that those grounds amply met the requisite standard as set out in Storrey v. the Queen and discussed in R. v. Bush in the context of impaired driving.

[55] As a result, I find that the Crown has established that PC Wallace's arrest of Mr. Rodriguez did not violate his s. 8 rights.

[56] For the same reasons, I also believe PC Wallace that he advised Mr. Rodriguez of his right to counsel at the top of the ramp and reject Mr. Rodriguez's evidence to the contrary.

[57] Mr. Rodriguez did not argue that the brief delay associated with the search and moving the police car up the ramp constituted a failure to advise him of his rights "without delay." Given PC Wallace's legitimate safety concerns, I am satisfied that the brief delay was Charter-compliant.

[58] Mr. Rodriguez has failed to demonstrate that his s. 10(b) rights were violated.

[59] As a result, the Crown's evidence in this case is admissible.

[60] During the breath testing procedure, Mr. Rodriguez admitted that he had been driving the SUV as described by the paramedic. As a result, the only remaining issues are whether the Crown has proved beyond a reasonable doubt that he did so with "excess alcohol" and that his ability to do so was impaired by alcohol.

Excess Alcohol

[61] The Crown called viva voce evidence of PC Haramis, the Qualified Breath Technician, and filed the certificate of analysis. The readings were 120 and 110 mg of alcohol in 100 ml of blood. PC Haramis was satisfied that the approved instrument was in good working order and that the samples he received directly into it were suitable. None of this was challenged.

[62] This count has been proven beyond a reasonable doubt.

Impaired Driving

[63] The Crown must prove beyond a reasonable doubt that Mr. Rodriguez's ability to operate a motor vehicle was impaired. Impairment need not be extreme. Proof beyond a reasonable doubt of a slight impairment of his ability is sufficient.

[64] A brief review of the evidence on this count is required. After seeing Mr. Rodriguez go through a red light, the paramedic caught up and pulled up on his right. The paramedic asked him two questions: "do you know that you went through a red light?" and "are you OK, do you need help?" Mr. Rodriguez responded to both in the same way: "ya, I'm sorry man." As he did so, he was slurring and his head was tilted back and swaying. He was not making eye contact. The second response was not consistent with the question, in the paramedic's experience.

[65] For all these reasons, the paramedic believed that Mr. Rodriguez was impaired.

[66] In cross-examination, the paramedic fairly conceded that he had hesitated when the 911 operator asked if the driver "sounded drunk." As a professional, he does not use that word. He prefers impaired or intoxicated. He conceded that he could not be "certain" that the driver was impaired. When it was suggested that he was not "100% sure" about the slurring, he explained that it was more of an "observation", and specified that Mr. Rodriguez slurred as he said the word "sorry." He was also aware that Mr. Rodriguez spoke with an accent. He conceded that he had not told the 911 operator or the police in his statement that Mr. Rodriguez's head had swayed.

[67] I believed the paramedic's evidence. It was detailed and provided in a fair and neutral fashion. Also relevant, in my view, is the fact that he has dealt with 100s of impaired persons in his 27 year career. Despite its absence from his prior statements, I believed him that Mr. Rodriguez's head was tilted back and swaying.

[68] What is more, the paramedic's evidence was consistent with the observations and opinions of the two police officers who dealt with him later. In PC Wallace's case, less than 15 minutes later. In PC Haramis's, approximately 55 minutes later. Among other things, both testified that Mr. Rodriguez was slurring.

[69] In addition, I observed behaviour on the breath room video that was consistent with the descriptions given by the witnesses. Mr. Rodriguez's speech was slow and, at times, was incomprehensible to the officer (and me), such as when he was talking about the wall to his right. I perceived slurring at times, including when he spoke about his work at the Vancouver airport. Finally, he giggled when talking about work benefits and at times appeared dozy as his head lolled about.

[70] Based on the totality of the evidence, I find that the Crown has also proved beyond a reasonable doubt that Mr. Rodriguez's ability to operate a motor vehicle was at least slightly impaired by alcohol at the relevant time.

IV. Conclusion

[71] Findings of guilt will be entered on both counts. I would invite the Crown to advise which count ought to be stayed pursuant to the rule in R. v. Kienapple.

Released: July 11, 2017

Justice Patrice F. Band