Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 05 17 COURT FILE No.: Region of Niagara 998 19 N2121

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Nicholas Boudreau

Before: Justice J. De Filippis

Heard on: March 30-31 & April 8, 2021 Reasons for Judgement released on: May 17, 2021

Counsel: Mr. A. Brown........................................................................................ counsel for the Crown Mr. J. Loconte............................................................................... counsel for the defendant

De Filippis, J.:

Introduction

[1] The defendant was tried on an Information with two counts: Mischief and driving with a blood alcohol level that exceeded the legal limit (“Over 80”). The defendant applied to exclude the evidence in question because his rights pursuant to sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms were violated. I heard from three civilian witnesses and five police officers. The Defence did not call evidence.

[2] By the time this case proceeded to submissions, it became clear that the defendant must be found guilty if the evidence is admitted and that the only viable Charter argument is grounded in section 8; the right to be free from unreasonable search and seizure. This arises because of the manner in which the police entered a home in which the defendant was found and arrested. I have concluded that the application to exclude evidence must succeed. Accordingly, after setting out the basic facts of the offences, these reasons will focus on the evidence of the police entry into the home.

The Collision and Flight on Foot

[3] On March 30, 2019 at around 1 AM, a white Dodge Charger travelled through an intersection in Niagara Falls and collided with a pole. It was a clear and dry night. The paved road was in good condition. The driver and lone occupant of the motor vehicle – who the Crown has proven to be the defendant – exited the car and was heard to yell, “fuck, fuck, fuck, my life is over”. After trying, unsuccessfully to push the car off the curb, the defendant ran down Atlantis Avenue. As he did so he knocked over a mail box and punched a hole in the window of a local business, McLeod Auto Shop. Witnesses to these events called the police and reported what they had seen.

[4] The police arrived within minutes. An officer took photographs of the damaged car and pole. The car smelled of alcohol. Drinking glasses and melting ice were also observed inside it. The car was registered in the name of Alphonse Boudreau, with a nearby address on Atlantis Avenue.

The Police Entry into the Home

[5] Sgt. Levasseur knew that the driver of the damaged car had fled the scene, running down Atlantis, smashing a window along the way. He was not told of any injuries. He set up a perimeter around the area and called in the K-9 unit. The officer said this was a criminal investigation but that his primary concern was the well-being of the driver. He noted that there had been a collision and added that the driver “could have a head injury, for example”.

[6] Sgt. Levasseur and PC Gilby arrived at the address of the registered owner of the damaged car in at 1:43 am and knocked on the door. Both officers were in uniform. It was answered by an elderly man, who may have been asleep, and who identified himself as Alphonse Boudreau. He acknowledged he owned the white Dodge Charger and said that his son had the car. Sgt. Levasseur explained that the car had been involved in an accident down the road and the driver had fled the scene. He added that the police wanted to know if the driver was in this home as they were concerned for his welfare. The officer said he did not demand to be admitted nor did he force his way inside; rather, Mr. Boudreau allowed the police into his home. They looked around for a few minutes and not finding anyone else, they departed.

[7] Sgt. Gilby confirmed the testimony given by Sgt. Levasseur and added that they told Mr. Boudreau the driver had fled and could be hurt. The officer testified that this, at this point, this was not a criminal investigation, but a welfare check and that Mr. Boudreau said they were welcome to come into the home.

[8] Sgt. Levasseur returned to his cruiser and remained in the area. At 2:03 AM, the officer observed a man matching the description of the person who fled the damaged car jump a fence. This information was radioed to other officers. Sgt. Levasseur soon learned that an arrest had been made inside Mr. Boudreau’s home. He went there and saw the defendant in the living room, in the presence of other officers. The defendant was upset and yelling.

[9] PC Findlay was dispatched to the scene of the collision. He looked into the abandoned car and noticed the strong odour of alcohol within it. He received information from two civilians that a man had fled from that vehicle, southbound on Atlantis avenue. He went down that street and met the two Sergeants at the home of Mr. Boudreau. He confirmed their account of the conversation with Mr. Boudreau and entry into the home.

[10] PC Findlay returned to the home when he learned that a man had jumped over the backyard fence. Again, Mr. Boudreau answered the knock on the door by police. The officer told him that he believed the driver of the damaged car was in the house and that he wanted to check on his welfare. He testified the elderly man allowed him to enter. The officer acknowledged that he had a dual purpose; to check on the defendant’s well-being and to pursue a criminal investigation. He conceded that an ambulance had not been called and that the police did not tell Mr. Boudreau that he could refuse permission to enter.

[11] PC Findlay walked with Mr. Boudreau into the living room and saw the defendant on the ground crying. The officer cautioned him about the investigation and asked about his well-being. He testified that, in response, the defendant stood up and held out his hands to be cuffed. As he did so, the defendant said, “I was driving drunk and I hit a pole, arrest me”. The officer noted that there was blood on his knuckles and detected the strong and obvious odour of alcohol on his breath. The defendant had a flushed face, watery blood shot eyes, and was unsteady on his feet. At 2:07 am, PC Findlay arrested the defendant for the present offences, demanded a sample of his breath, and read him his right to counsel.

[12] PC McNulty accompanied PC Findlay into the home. He understood that Mr. Boudreau was 76 years old, having been born in 1943. He confirmed the evidence given by his partner, including the fact that the police had a dual purpose in wanting to search the home and that the elder Boudreau was not told this.

[13] PC Findlay transported the defendant to the police station. During this trip, the defendant said “I fucked up, I was driving drunk and crashed and punched that window, why does my girlfriend make me do these things, I ruined my life”. At the station, when asked if he wished to speak to a lawyer, the defendant replied, “fuck you, you stupid pig”. Later he provided suitable samples of his breath into an approved instrument with readings that exceeded the legal limit, namely, 150.

[14] The Alcohol Influence Report prepared by the intoxilyzer technician who obtained the defendant’s breath samples was admitted as evidence, on consent, in lieu of that officer’s trial testimony. The officer recorded in the report that the defendant stated that he lived at the home with his father and provided the address in question.

Submissions

[15] The Defence position begins with the fact that the police did not have a search warrant. Counsel submits that a warrantless search of a person’s home is only permitted in cases of hot pursuit, exigent circumstances, or with consent. It is also argued that this is not a case of hot pursuit or exigent circumstances. The Defence position rests on the fact that the police did not obtain a valid consent to enter the home in which the defendant was found. Counsel referred me to several precedents and relies, in particular, on R. v. Wills (1992), 7 O.R. (3d) 337 (OCA) and R. v. Fors, 2002 O.J. 5042.

[16] The Defence concedes that the elder Boudreau said “come in” or words to that effect and allowed the police to enter his home. It is asserted, however, that this was not an informed consent because the police did not comply with the law as described by Wills. In particular, the police failed to disclose that they had a dual purpose in searching the premises. The police said they wanted to check on the well-being of the defendant; they did not also tell Mr. Boudreau that they were investigating criminal offences that could (and did) lead to his son’s arrest.

[17] The Crown takes no issue with the Defence legal submissions. That is, the Crown acknowledges that this is not a case of hot pursuit or exigent circumstances. Moreover, the Crown concedes that it is not possible for the elder Boudreau to waive his son’s Charter rights. Rather, the Crown claims that the evidentiary record does not permit me to conclude that the defendant had an expectation of privacy in his father’s home. All I know is that the defendant was found on the living room floor, crying. In the alternative, assuming a shared occupancy by father and son, the Crown argues that the defendant cannot complain if the elder Boudreau decided to admit the police into the home. In this regard, the Crown relies on R. v. Reeves, 2017 ONCA 365 (reversed by the Supreme Court of Canada on other grounds; 2018 SCC 56).

The Charter Violation

[18] On the evidence before me it is a reasonable inference that the home in question is owned by the elder Boudreau. Ultimately, this is beside the point. Notwithstanding who owns the home, it is clear that the defendant lived there with his father. I know this because of the Alcohol Influence Report. As such, he had a reasonable expectation of privacy in it and section 8 of the Charter is engaged.

[19] The law on consent searches for joint residents was discussed by the Court of Appeal for Ontario in Reeves. This law is not entirely settled. In any event, those principles do not apply in the present case because I conclude that the consent given by the elder Boudreau was not informed and, accordingly, not valid.

[20] In Wills, Justice Doherty said the following:

In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:

(i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,

(vi) the giver of the consent was aware of the potential consequences of giving the consent.

[21] There are no credibility or reliability issues in this case. I accept that all officers were concerned, to a greater or lesser degree, with the welfare of the driver who had been involved in a collision and fled on foot. I also find that all officers, to greater or lesser degree, were investigating criminal offences. In this regard, I note that the first action taken by the first officer who located the defendant was to caution him and, on the invitation of the defendant, to arrest him. The witnesses did not deny their dual purpose or the fact that the elder Boudreau was not informed of this. Moreover, the police did not tell the elder Boudreau that he could refuse his consent. To be clear, the police are not required to provide this advice, but its absence can lead to a finding that the giver of the consent was not aware of the right to refuse. I find that the final three criteria in Wills were not complied with.

[22] The police entry into the Boudreau home occurred without a warrant, hot pursuit, or exigent circumstances. It can only be justified on the basis of informed consent. In this case, the consent was not informed. As such, the entry was unlawful and in violation of the defendant’s Charter rights.

[23] Without the evidence gathered by this breach, the police would not have identified the defendant as the driver of the motor vehicle or have the requisite grounds to believe he was impaired and demand breath samples. The admission of the impugned evidence means the defendant must be found guilty. Its exclusion is fatal to the Crown’s case.

The Evidence Must Be Excluded

[24] Section 24(2) of the Charter provides that evidence obtained in violation of its guarantees shall not be admitted if doing so would bring the administration of justice into disrepute. In this regard, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, 2009 SCC 32.

[25] I agree with the Defence that the evidence obtained by the police inside the Boudreau home – the identity of the defendant, the indicia of intoxication, his admission of guilt, and the resulting breath samples – must be excluded in this case.

[26] The violation of s. 8 was serious: This was an unlawful entry into a private residence. That the police were genuinely concerned with the welfare of the defendant does not mitigate the severity of the breach because they did not obtain the informed consent of the elder Boudreau to enter and search; he was not aware of the full extent of the police conduct about which he was asked to consent or the potential consequences of giving consent. Since the police only told him they wanted to ensure his son was not injured, he likely did not understand his right to refuse consent. The impact of the breach on the defendant’s rights is substantial; without it, the police would not have found him and the Crown has no case against him. Society’s interest in the adjudication of the case on its merits is significant; breath readings are highly reliable and drinking and driving offences are a matter of pressing public concern.

[27] In balancing the interests mandated by Grant, the decision of the Court of Appeal in R. v. McGuffie, 2016 ONCA 365, [2016] 336 CCC (3d) 486, is instructive:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 2009 SCC 34, 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009].

[28] The balance in this case supports exclusion of the evidence because the breach is so serious and the impact on the defendant is so great. These considerations outweigh the fact that exclusion is fatal to the prosecution.

Result

[29] This case is more important than the defendant’s guilt or the fact that he was an obnoxious drunk. The law has long recognized the sanctity of one’s home. The legal authority to enter a residence is neither new nor controversial and ought to be known by all police officers. When such well-established principles are ignored, the administration of justice may suffer if resulting evidence is admitted. This is one of those cases.

[30] The Defence has persuaded me that the right to be free from unreasonable search and seizure was violated and that the evidence must be excluded. This ruling means the charges must be dismissed.

Released: May 17, 2021 Signed: Justice J. De Filippis