Apr 25, 2014

Charter, Search, Breach, Exclusion of Evidence, Grant, No Hot Pursuit, No Grounds To Believe persons Injured or Otherwise Requiring Assistance

R. v. Bennett, 2012 CanLII 63855 (NL PC)
R. v. Bennett, 2012 CanLII 63855 (NL PC)
Newfoundland and Labrador Provincial Court, 2012
Subject: Constitutional; Criminal (Approx. 11 pages)
The police received a call from the accused’s girlfriend that while under the influence of alcohol, the accused drove his vehicle with sufficient force into her house to knock items out of the kitchen cabinets. The police were also told that the accused’s daughter was in the vehicle at the time of the collision. Prior to their arrival the police learned that the girl friend had left the residence to go to a local bar. The police did not know whether the accused resided at the house. On arrival, after knocking and receiving no answer, the police, without announcing their presence or identity, entered the house and found the accused drunk. The accused argued that his rights were violated under s.8 of the Charter and that his blood alcohol readings should be excluded pursuant to s.24(2).
Held: Rights violated under s.8, evidence excluded under s.24(2). The police could not rely on imminent harm as they had no information (and did not seek any) from the girlfriend that anyone was injured or in need of medical assistance. The arrival of the police sometime after the actual incidents precluded reliance on hot pursuit and finally, there were no exigent circumstances within the meaning of section 529.3 of the Criminal Code.
The balancing of the factors set out in R. v. Grant,[2009] 2 S.C.R. 353, required the exclusion of the evidence in this case:
Balancing Exclusion Versus Admission
79 The final step requires that I consider the evidence in relation to each line of inquiry and determine whether admission of the individual pieces of evidence would bring the administration of justice into disrepute.
80 The Supreme Court of Canada inGrantindicated that a trial judge's role when considering a
section 24(2)Charterapplication involves balancing "the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute." InCôtéthe Court considered the balancing process it described inGrantand indicated that no single "consideration should be permitted to consistently trump other considerations" and in every case "courts must assess the long-term repute of the administration of justice"
81 In this case, the violation of section 8 of theCharterwhich occurred was deliberate in the sense that the police purposely entered Mr. Bennett's residence knowing that they did not have a warrant to do so. The arrest was based upon that violation. The police should have known that a warrant was required to enter the residence and they should have complied with the announcement requirement. Because the violation involved a residence, a heightened degree of seriousness is involved. However, the entry into the residence by the police was minimal and did not involve an intrusive search (seeR. v. Henderson
, 2012 MBCA 93).
82 Admission of the evidence of the observations made by the police when they entered the residence and the results of the breath analysis which is directly linked to those observations (seeR. v. Squires
(2005), 249 Nfld. & P.E.I.R. 14 (N.L.C.A), at paragraph 22) would send a message that the judiciary condones serious police misconduct (seeR. v. Gould, [2011] N.J. No. 133(S.C.), at paragraph 34,R. v. Obed, [2010] N.J. No. 250(S.C.), at paragraph 39,R. v. Pike, [2010] N.J. No. 183(S.C.), at paragraph 20, andR. v. Piercey, [2011] N.J. No. 79(P.C.)). I conclude that there is a strong need for the Court to disassociate itself from the conduct of the police in this case. As pointed out inGrant, there is a "long-term" element involved in section 24(2) analysis and the focus of section 24(2) is "prospective." The focus of section 24(2) of theCharteris, as stated inGrant, on "the broad impact of admission of the evidence on the long-term repute of the justice system." Balancing the three lines of inquiry, I conclude that this is a case which requires an exclusionary order in relation to that evidence.