Focus On

Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Remedies for denial of rights - Specific remedies - Exclusion of evidence

Thursday, September 15, 2016 @ 8:00 PM  


Appeal by Rogers from a decision by the summary conviction appeal judge setting aside acquittals for impaired driving and driving with a blood alcohol level above .08. The police received a tip about an impaired driver. A description of the driver and the licence plate number of the car was given. Acting on the tip, a police officer knocked on the door of Rogers’s apartment and formed the opinion that he was intoxicated. Subsequent police interaction with Rogers led to a breathalyzer demand and readings in excess of the legal limit. Rogers was charged with impaired driving and driving with a blood alcohol level above .08. Rogers was acquitted at trial of both counts. The trial judge found that the officer had knocked on his apartment door for the purpose of obtaining evidence against the occupant. The trial judge found that this constituted an unreasonable breach of s. 8 of the Charter. The trial judge excluded all of the evidence and entered not guilty verdicts. The summary conviction appeal judge allowed the Crown’s appeal, set aside the acquittals and ordered a new trial. Rogers submitted that the appeal court judge erred in concluding that his Charter rights were not violated and that the trial judge had not properly applied s. 24(2) of the Charter.

HELD: Appeal allowed. The decision of the trial judge was restored. An acquittal was entered on both counts. The summary appeal court judge erred by finding that the trial judge had misinterpreted the law pertaining to the implied licence to knock. The trial judge did not err in excluding the evidence obtained during the voir dire or at the least, it was not appropriate for the Court to embark on a re-assessment of the evidence based on the limited argument available to it. The Crown made no submissions before the trial judge as to whether the evidence should be excluded. The Crown was not entitled to take no position on whether impugned evidence should be excluded under s. 24(2) and then appeal the result if it was not satisfied with it.