[jolinar of malkshor]

CASE 2

Two police officers responded to reports the accused ("Fowler") drove his truck into a vehicle parked at his estranged wife's residence, left to go to his parent's home and was possibly impaired. The officers proceeded to Fowler's parent's home and saw a truck parked in the driveway that had been recently running, as evidence by heat emanating from its underside and a ticking sound coming from the engine. The house was in total darkness but some windows were wide open.

Wanting to speak to the occupants to further their investigation, the officers knocked on both the front and rear doors but received no response. While returing to their vehicle, they heard a voice from inside the house state "Don't answer the door, I've been home all night. I've been home all night". The officers returned to the back door and knocked again.

Fowler answered the door but was wearing only his underwear. He had a strong odour of liquor on his breath, his eyes were red and glassy and he was unsteady on his feet. One of the officers told Fowler he had reasonable and probable grounds to believe he left the scene of an accident and was impaired. Fowler replied he had been home all night and closed and locked the door.

While the officer discussed the matter with a supervisor, Fowler exited the house and approached the officers. He was cautioned, advised of his right to silence and breath samples were demanded. Two breath samples subsequently obtained revealed a blood alcohol level of 150mg%. Fowler was charged with impaired operation of a motor vehcile with a blood alcohol content over 80mg%.

At trial in New Brunswick Provincial Court, Fowler argued the certificate of analysis was inadmissible because police violated his right to be secure against unreasonable search and seizure under S.8 of the Charter. In Fowler's view, police could not attend at the home and knock without a search warrent - and because there was no warrant, the observations they made during the unreasonable search tainted the certificate of analysis.

The Crown submitted that police had the right to enter on the property to communicate with its occupants under the implied licence doctrine. Their observations therefore did not constitute an unreasonable search, it argued, and the certificate shouldbe admitted.

(Under Common law there is a longstanding principle that people, including police officers, have impliedlicence to approach and knock on someone's door for the purpose of convenient communication with the occupant(s). If the police purpose is to communicate with the occupant(s), there is no search for constitutional purposes. However, if the police approach the residence to secure evidence against the occupant, then a search has taken place and reasonableness enquiry will be undertaken under S.8. Similarly, if the police have dual purpose in mind (communication with the occupant and secure evidence against the occupant), their conduct will constitute a search and S.8 is engaged.)

So....was the certificate of conviction thown out?

They must have had some pretty solid eye witness evidence to even lay the original charge of driving over, since the police did not actually see him commit the offence.