FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] On 10 November 2018 the respondent, Claudia Flores, driving a black Mercedes, exited the Gardiner Expressway at Parklawn Road and collided with another vehicle pushing it onto a sidewalk and into a boulevard.

[2] Two individuals saw the respondent flee the Mercedes and run north on Parklawn Road before turning onto Ringley Avenue. The two individuals followed the respondent to Ringley and one of them saw her enter one of the houses but was unsure whether that house was number 65 or 67 Ringley.

[3] Police, responding to 911 calls, attended the area and met with one of the pursuing witnesses who provided them with information.

[4] Three officers initially attended 67 Ringley where the respondent’s son, whom the police believed to be between the ages of 10 and 13, answered the door. He informed the officers that his mother was not at home as well as letting them know that his grandparents resided next door at 65 Ringley.

[5] The officers entered 67 Ringley and searched the house from top to bottom but found no one. They now turned their attention to 65 Ringley, the respondent’s parents’ home. When they called, they were met by the respondent’s mother who invited them into her house. When they described the woman they were seeking to the respondent’s mother she agreed that this might be her daughter but insisted her daughter was not in the house.

[6] Nevertheless, two officers proceeded to the backyard where the respondent was discovered hiding in a garden shed. Displaying indicia of impairment, the respondent was arrested and taken to the station.

[7] She provided breath samples which resulted in readings of 142 and 125 milligrams of alcohol per 100 millilitres of blood. At trial, a toxicologist testified that at the time of the accident her readings would have been between 120 and 135 milligrams of alcohol in 100 millilitres of blood.

The Trial Judge’s Reasons

[8] The defence brought a challenge under s. 8 of the Charter of Rights and Freedoms seeking to exclude the breath readings, arguing that the respondent had a reasonable expectation of privacy in both her and her parents’ home. Although the police had an implied licence to knock at the door of 65 Ringley, they had no right to search either property without the respondent’s consent. Accordingly, their discovery of the respondent was a violation of her Charter rights.

[9] At trial, the Crown conceded that there was a reasonable expectation of privacy at the respondent’s own home but argued that the respondent had no standing to challenge the search of 65 Ringley as she had no reasonable expectation of privacy in that residence. It also argued that both searches were reasonable because the police were investigating a serious motor vehicle accident and required to check on the driver’s well-being. In addition, the Crown argued that even if there was a violation of the respondent’s s. 8 rights in the search of her home, then there was no nexus between that breach and the manner in which the evidence—the breath samples—was obtained.

[10] The judge found that the respondent had no standing to challenge the search of her parents’ house. However, he found a police violation in the search of the respondent’s home at 67 Ringley. The judge also decided that the Charter breach was sufficiently connected to the respondent’s subsequent discovery and provision of breath samples. After conducting an assessment under s. 24(2) of the Charter, the trial judge excluded the breath readings and the respondent was acquitted.

The Grounds of Appeal

[11] The Crown appeals on the following grounds:

The trial judge erred in finding a s. 8 violation when the police searched 65 Ringley as the respondent had no standing to challenge the search of her parents’ home;
The trial judge wrongly connected the search of the respondent’s home to the search of 65 Ringley, where the respondent was found hiding in the shed as there was no temporal connection between the two searches
The trial judge misapprehended the evidence when finding that the police were not searching for the respondent out of concern for her well being
The trial judge misapplied the test in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, in finding that the police conduct was serious.

ANALYSIS

[12] At trial, the Crown (not Ms. Song), conceded that the respondent had a reasonable expectation of privacy in her own home. In my view, the judge’s conclusion that the respondent’s s. 8 rights were violated by a warrantless search of the house, from top to bottom, reveals no error.

[13] This was not a case of a search following a hot pursuit nor was it a case where the police had to enter the house to preserve life and prevent serious injury as explained in cases such as R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, and R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311.

[14] The police were not in continuous pursuit of the respondent so “that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction”: R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802, at p. 817. The judge also found that none of the police stated that they intended to arrest the person who left the accident as required by the hot pursuit doctrine: R. v. Van Puyenbroek, 2007 ONCA 824, 226 C.C.C. (3d) 28, at para. 21.

[15] I agree with the appellant that the judge confused the issue relating to the Charter breach by including an analysis of the search of the respondent’s parents’ house.

[16] That was an unnecessary inquiry. Since Feeney requires the police to obtain a warrant before entering a residence without consent, the search of the respondent’s home was a violation of her s. 8 rights.

[17] However, since the respondent was discovered in her parents’ house, the appellant argues that the judge erred by finding that the breath readings were obtained in a manner that violated the Charter. The appellant argues that error stemmed from the trial judge’s incorrect conclusion that the respondent had standing to challenge the search of her parents’ house.

[18] I disagree. When assessing the Charter breaches, the judge reminded himself of the factors determining whether a party has a reasonable expectation of privacy set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and conducted the appropriate assessment. He explicitly found, at para. 26 of his judgment, that the respondent did not have a reasonable expectation of privacy in 65 Ringley and therefore no standing to challenge that search.

[19] The confusion on the issue of standing arises because of the manner in which the judge appeared to determine the search of the respondent’s home. There, he referred to a search of a third party residence as being a factor in deciding reasonableness of the search at 67 Ringley. With respect, this was an irrelevant and unnecessary factor to consider in the inquiry.

[20] Notwithstanding the lack of standing to challenge the search of the respondent’s parents’ home, the judge concluded that the s. 8 breach in relation to 67 Ringley was sufficiently connected to the respondent’s discovery and arrest to make a finding that the breath readings were obtained in a manner that invited review under s. 24(2) of the Charter.

[21] Counsel for the appellant argues that the link between the two searches was too tenuous to provide the necessary nexus. She maintains that the police always intended to search 65 Ringley as the respondent had been seen going into either 65 or 67 Ringley.

[22] I agree that if the police had (a) gone directly to 65 Ringley or (b) not entered and searched 67 Ringley before going to 65 Ringley, the respondent could not have challenged the admission of the breath samples as she would have had no standing to do so.

[23] However, the necessary connection triggering s. 24(2) does not need to be causal.

[24] In R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, Laskin J.A. set out the guidelines to determine whether a sufficient connection existed between a Charter violation and the discovery of evidence so as to warrant a s. 24(2) assessment:

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire “chain of events” between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

• But the connection cannot be either too tenuous or too remote.

[25] Here, the police entered the respondent’s home, without a warrant, mere minutes before going to 65 Ringley. They searched 67 Ringley, from “the top floor to the bottom”. Some of the officers testified that they went to 65 Ringley after being told by the respondent’s son that his mother’s parents lived next door. The police went to 65 Ringley looking for the respondent and conducted a search on that premises without the respondent’s parents’ permission.

[26] In my view, there was a sufficient basis for the judge to find a temporal connection between the s. 8 violation of the search of the respondent’s home and the discovery of the respondent at her parents’ house.

[27] In reviewing the trial judge’s s. 24(2) ruling, I remind myself that deference must be accorded to that decision.

[28] The judge properly considered the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He concluded that the search of the respondent’s home without warrant was serious and continued into the search of the parents’ home revealing a pattern of disregard for Charter rights. Although there was no bad faith, he found the police did not fully understand their Charter obligations and that the first limb of Grant warranted exclusion.

[29] The judge also found that the second limb of Grant also favoured exclusion as it significantly impacted on the respondent’s Charter protected rights. Finally, he found that the third limb favoured admission because exclusion of the readings would result in the end of the prosecution.

[30] After balancing the factors, he found that the evidence should be excluded. I find no error in his analysis.

[31] Accordingly, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 26 November 2020

COURT FILE NO.: CR-20-50000007-00AP

DATE: 20201126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CLAUDIA FLORES

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Flores, 2020 ONSC 7283

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

The Trial Judge’s Reasons

The Grounds of Appeal

ANALYSIS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 4

Legislation 1