Cite as: R. v. Comeau, 1991 NSCO 15 1990 C.D. No. 2956 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MAJESTY THE QUEEN APPELLANT - and -MARTIN DENNIS COMEAU RESPONDENT HEARD: At Digby, Nova Scotia, on the 23rd day of January, A.D. 1991 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 253(b) of the Criminal Code DECISION: The 13th day of February, A.D. 1991 COUNSEL: V. Blaine Allaby, Esq., Q.C., for the Appellant R. Alain Deveau, Esq., Q.C., for the Respondent D E C I S I 0 N 0 N A P P E A L
HALIBURTON, J.C.C. This is a Crown appeal Accused on the charge That he on or about the 17th day of February, or near Meteghan in the County of Digby, Nova Scotia, did operate consumed alcohol in such concentration thereof in milligrams of alcohol in blood, contrary to Section 253(b) of the Criminal Code. The Accused was acquitted accepted the arguments of Counsel as put forward in a Post-Trial Brief in which it was argued that occurred, that the results of a breathalyzer test as reported in a Certificate of Analysis were tainted by the breach, the evidence ought to be excluded under 24{2) of the Charter. FACTS The facts as disclosed follows: While two police constables were involved in a routine highway patrol, they observed that the opposite direction was emitting muffler. The police turned to follow this vehicle, observed it overtake and pass a second vehicle in activated the emergency equipment stopped it. The driver of the vehicle brought it to a its lefthand shoulder of the approached on either side of the vehicle at which time they were from the acquittal of the 1990, at Province of a motor vehicle having a quantity that the his blood exceeded eighty one hundred millilitres of when the Trial Judge a Charter breach ( s. 8) had and that the provisions of s. by the transcript are as a motor vehicle passing in a loud sound from its a fifty kilometre zone, on the police vehicle and stop on highway; the police constables
- 2 able to recognize the driver. off and, inspite of the fact that the police constables hurried back to their own vehicle, they apprehend the vehicle and its driver. it in view until it turned approximately one kilometre on a houses. The police vehicle was constable did follow on foot while the other drove the police car to a side road on which the residence of the Accused was located. Constable Bidal, who was the officer on foot following the tracks, arrived first at the residence where he observed the vehicle parked by the rear door. at the back door approximately eight minutes after the vehicle had done. Depending upon whose constable knocked loudly or banged locked. He apparently hesitated entered without permission. The father of the Accused, testified that at around quarter to two, loud banging at the back door. his pants, proceeded toward anticipating that it was his son From the den to the rear door is Comeau, Sr., testified that when he got into the den, he saw the police constable in the hallway Comeau then turned on the light. invited the constable to come inside the house; that nobody did. The driver, however, then drove were unable to overtake and They did, however, keep off the highway and drove snow-covered track behind some unable to follow. One police He estimated that he arrived evidence is accepted, the on the door. It was not for some seconds and then the owner of the house, he was awakened by a Startled, he got up, pulled on the door through the den who had banged on the door. a fifteen-foot hallway. Mr. shining his flashlight. Mr. He testified that he had not
- 3 He did not, however, protest the constable's presence house and was present over the next the Accused, entered the same with the pol ice constable. Ultimately, given to the son with a failed breathalyzer test resulted in the Certificate which Judge excluded from evidence. THE GROUNDS OF APPEAL The grounds of appeal are: l. THAT the learned Trial Judge erred in entry into the dwelling of Hector Comeau was "not proper" in that Constable Bidal was in individual at the time he Comeau; 2. THAT the learned Trial Judge erred in law in not admitting evidence obtained after Constable Bidal entered the dwelling of Hector Comeau on the ground that even if such entry did violate the rights of Hector such violation was committed urgency or necessity at the time; 3. THAT the learned Trial Judge erred 1n that the violation of the would not bring the administration of justice into disrepute in these particular circumstances and should therefore have allowed the evidence obtained thereafter; GROUND NO. 1 The Trial Judge found that the entry into the dwelling was "not proper". The Appellant takes the position that it was proper because it was effected in the course of "hot pursuit". "Hot pursuit", I presume, is that which is described in Black's Law Dictionary as "fresh pursuit'' in the following terms: -1n the few minutes when his son, room and had some conversation an ALERT demand was result and a subsequent the Trial law in finding the "hot pursuit" of an unknown entered the dwelling of Hector Comeau and/or Martin Comeau in good faith and there was law by not findinq Charter of Rights was such as
- 4 -A pursuit instituted immediately reclaim or recapture, after an animal escaped, flying with stolen goods, etc. Both the concept and the authority are discussed ln Halsbury's Laws of England, Third Edition, following. The quotations below considering the issues raised paragraph 647): If a felony has been committed followed to a house and there is entering, any person may, it seems, break open the door of the house, to arrest the offender. done if a felony will probably be committed unless some person interferes to prevent it. If an affray occurs in the presence of a constable, and the offenders run away and are the constable and they enter may be broken open by the constable to apprehend them in the course of the immediate pursuit. Before doors are broken open to effect notice must be given and refused. Counsel have debated whether in view of the time lapse of eight minutes there was, in this case, fresh pursuit or not. it were fresh pursuit, that concept without "demand" and a refusal. constable, himself, and the evidence of the owner of the house, the father of the Accused, seems to establish clearly that while it might be said that the police constable he did not wait for a response before entering. true that he did not break down the door or force an entry into the household, the door was closed to him and his entry was not and with intent to a thief at Volume 10, page 351 and appear to be relevant in on this appeal (page 354, and the felon is no other means of This may also be immediately pursued by a house, then the doors an arrest, due admission be demanded and Even if does not authorize entry The evidence of both the demanded admission, While it is
- 5 authorized. The constable, himself, in explaining his actions, said: At that time, I was what fresh pursuit of an individual indictable offence and had entered the believed the driver of that vehicle was in that house. Had Mr. Comeau turned on the light or not regardless would have proceeded through the house. The reference to the indictable offence made constable in this passage was never explained. no indictment was ever laid. The obvious conclusion is that in the constable's own mind, except if he was in fresh pursuit of an individual who had just committed an indictable offence, his action in entering the house and proceeding to conduct a of it was unlawful. I would conclude that his entry into the unlawful under the traditional Province. CHARTER SECTION 8 The Defence has relied on s. provides: Everyone has the right unreasonable search and seizure. Drawing only upon materials contained in the Canadian Charter of Rights, Annotated, and the Post-Trial Counsel for the Accused, I find myself in agreement with that position. In the draft resolution proposed in 1980, s. 8 read: I considered in pursuit, in who had committed an residence ... I I by the It is clear that search house was law or the common law of our 8 of the Charter which to be secure against Memorandum submitted by
- 6 -Everyone has the right not to be subjected to search or seizure except on grounds procedures established by law. The same right is established under Section l:Article 8, in the following terms: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference authority with the exercise of his right except such as is in accordance with the democratic society in the security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, protection of the rights and freedoms of others. In Hunter v. Southam, Inc. (1984) 1n the Canadian Charter of Rights, This section guarantees a broad and general right to be secure from unreasonable search and seizure beyond mere protection of property. Its protections go at least as far as protecting an expectations of privacy .. . The of protecting individuals intrusions upon their privacy preventing unjustified searches before they happen, not simply of determining after the fact whether they ought to have occurred in the first place. accomplished by a system of prior authorization, one of subsequent validation. feasible to obtain prior authorization is a pre-condition for a valid search and seizure. Defence Counsel has cited to the Court the decision of Mr. Justice Dickson in Hunter v. quoted from Ent ick v. Carrington wherein Lord Camden observed: and in accordance with the European Convention, by the public law and is necessary in a interests of national or for the 14 c.c.c. (3d) 97, as reported individual's reasonable purpose in this section from unjustified state requires a means of This can only be not Accordingly, where it is authorization, such Southam, supra, who in turn ( 17 6 5) , 19 State Tr. 102 9,
- 7 The great end, for which men entered into society, to preserve their property. sacred and incommunicable instances where it has not been taken away or abridged by some public law for the good of the whole. Our law holds the property of every man so sacred, that no man can set his foot without his leave; if he does he is a trespasser though he does no damage at all; if he will tread neighbour's ground, he must justify it by law. The Defence relies upon Bourque (1975) 2 S.C.R. 739 to negative "fresh pursuit" as a justification for a warrantless search. that case, the Court observed that the police constable had right "after proper demand" to enter the ancient and oft quoted Semayne's Case is quoted in Eccles: In all cases when the King is party, the doors be not open) may either to arrest him or to King's process, if otherwise before he breaks it, he ought to signify the cause of his coming, and to make request to open doors. I have reviewed the provisions of the with respect to whether the police constable before entering this home had any objective grounds a warrant to search the home or a Accused. The police constable, in his testimony, indicated that he was pursuing someone who had committed an indictable offence. There is, however, no evidence of an indictable offence having been committed. There is nothing other suspicion on the part of the police constable -was That right is preserved (incommutable) in all upon his neighbour's close upon his the decision in Eccles v. the Crown's claim of In a home forceably. The the Sheriff (if break the party's house, do other execution of the he cannot enter. But Criminal Code upon which to obtain either warrant for the arrest of the than a well founded that there must
- 8 have been some very good reason interview with the two police highway location in such a hurray. The entry by Constable Bidal into the Comeau residence in the early morning hours when without the permission of the occupants constituted a breach not only of the Charter rights of reasonable privacy protected under s. 8, but it was similarly a breach of the common law right to the security of their own horne and place of residence. THE REMEDY In the circumstances of this Charter breach, Trial Judge correct in excluding the breathalyzer certificate as being the appropriate remedy? have been raised by Counsel in arguing the appeal. himself, precipitated a chase by his failure to comply with the directions of the police officers on the highway. of the police constable is that he believed he had the authority in the case of fresh pursuit to enter the residence as he did. When challenged, however, he offence which he believed had occurred. several "occupants" of the residence the policeman entered at the sufference of his father occupant. This, then, raised the issue of whether the rights of the Accused had been abridged or infringed by the entry of the policeman or whether it was the rights of the father only who was affected. for the Accused to avoid an constables and to leave the the house was in darkness the occupants to have their was the A number of relevant questions The Accused, The evidence did not identify the indictable The Accused was one of who might be termed the legal
- 9 -The sanctity of the horne and the protection it affords must extend to all those persons who are within its walls with the knowledge and consent of the regular occupants. otherwise would be to entirely erode the principle. by the police constable was a privacy of that household. The Trial Judge made it is not certain whether the circumstances were such as to entitle him to make the entry he did but, in any event, the evidence indicates that had he waited a entering, he would have been able to do so with permission. The Accused was eventually breathalyzer. The evidence indicates that there were indications of impairment observable by the police constable. By his own evidence, it was only after the administration of an ALERT test that he believed he grounds to make a breathalyzer demand. Defence Counsel has referred to the analysis in R. Collins (1987) 33 C.C.C. (3d) considered the nature of the administration of justice into disrepute. was made by the Court in R. v. Genest (1989) These factors have been divided by the Court into three groups, the first group being those factors affecting the fairness of the trial, particularly, where evidence is obtained as of a Charter violation. The seriousness of the violation To conclude The entry flagrant infringement of the no finding and officer genuinely believed before the Court clearly minute or two longer before charged with failing the no real had reasonable and probable v. 1 where Mr. Justice Lamer factors which might bring the A similar analysis 45 C.C.C. (3d) 385. a result second group relates to the and considers whether it was
- 10 triggered by urgency or necessity; was necessary to effectively carry whether other "investigatory techniques" third set of factors "requires the Court to balance the effect of excluding the evidence against the effect of admitting it". Defence Counsel has Submission very cogently: To condone the actions of Hector Comeau's residence is to ignore that: {1) "The Sanctity of the home is deeply rooted in our traditions". It serves to protect the security of the person and as stated by Mr. Landry {S.C.C.) {1986) 25 c.c.c. {3d) {2) ignores Semayne's Case; {3) ignores Entick v. Carrington; {4) ignores Section 8 of the Charter; {5) ignores the trend of the Supreme Court of Canada in cases such as Hunter, Therens {1985) 18 c.c.c. {3d) 481. As 1n Genest, supra, the evidence in this case fails to justify the manner in which There is a reasonable basis in the evidence to conclude that if a request to enter had been made, would have acceded to that request. simply a little over zealous in the circumstances. at the time was, no doubt, affected by the fact that the Accused had deliberately avoided direct contact with the constables on the highway and followed the constable's exercise on foot. In the final analysis, with balancing the interests of investigate what must have been a i"'fJ!!!Jil ed whether the impuned action out the investigation or were available. The argued in his Post-Trial the police in relation to Justice LaForest in R. v. 1 at Page 16; Dyment, Collins and R. v. the search was carried out. the occupants of the house The police constable was His judgment high speed tracking the Court is faced society in having the police suspicion of impaired driving
- 11 in the absence of any certain knowledge been committed, with society's sanctity of a citizen's home. sanctity of the home must be administration of justice would Finally, it is clear that the certificate flowed directly from the Charter breach. the case, I conclude that the Trial Judge decision to exclude the Certificate pursuant to s. 24(2). if the creation of the Certificate had not flowed directly from the breach, having found that there was to be no alternative remedy available other than excluding the evidence. DATED at Digby, Nova February, A.D. 1991. JUDGE OF DISTRICT NUMBER TO: Ms. Cyndi Pierce Deputy Clerk of the County Court P.O. Box 668 Digby, Nova Scotia BOV lAO that any offence had interests in protecting the There is no contest. The protected; otherwise, the be brought into disrepute. creation of the breathalyzer That being was correct in his Even a breach, there appears Scotia, this 13th day of OF THE COUNTY COURT THREE
- 12 -AND TO: Mr. V. Blaine Allaby, Esq., Q.C. Crown Attorney P.O. Box 1449 Digby, Nova Scotia BOV lAO Solicitor for the Appellant Mr. R. Alain Deveau, Esq., Q.C. Barrister & Solicitor P.O. Box 70 Meteghan, Nova Scotia BOW 2JO Solicitor for the Respondent CASES AND STATUTES CITED: Canadian Charter of Rights, Annotated, s. 8 and s. 24(2) Halsbury's Laws of England, Third Edition, at Volume 10, page 351 European Convention, Section l:Article 8 Hunter v. Southam, Inc. (1984) 14 C.C.C. (3d) 97 Entick v. Carrington (1765), 10 State Tr. 1029 Eccles v. Bourque (1975) 2 S.C.R. 739 R. v. Collins (1987) 33 C.C.C. (3d) 1 R. v. Genest (1989) 45 c.c.c. (3d) 385
CANADA PROVINCE OF NOVA SCOTIA 1990 CASE NUMBER 139848 IN THE COUNTY COURT JUDGE 1 S CRIMINAL COURT OF DISTRICT NUMBER THREE ON APPEAL FROM THE PROVINCIAL COURT HER MAJESTY THE QUEEN -versus-MARTIN DENNIS COMEAU HEARD BEFORE: His Honour Judge John R. Nichols,J.P.C. PLACE HEARD: Little Brook, Nova Scotia DATES HEARD: May 30th and July 24th, 1990 CHARGE: That he on or about the 17th day of February, 1990, at or near Meteghan in the County of Digby, Province of Nova Scotia, did operate a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to Section 253(b) of the Criminal Code. V. Blaine Allaby, Esq., Q.C., for the Prosecution R. Alain Deveau, Esq., Q.C., for the Defence ' . CASE 0 N APPEAL (,,~-,j!l~{r~r~~;r or u.s. I J ....,.• t• l .! •..• , L: ·,: ; I:-'· 3 NOV : ~ ') 1990
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