Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jason Killeen
Before: Justice C.M. Harpur
Heard on: January 6, 2014 & April 2, 2014
Reasons for Judgment released on: April 24, 2014
Counsel
I. Kandola — counsel for the Crown
I. Shaikh — student at law assisting the Crown
J. Leckey — counsel for the defendant
HARPUR J.:
1. Overview and Undisputed Facts
1Mr. Killeen is charged with impaired care or control of a motor vehicle and care or control with excess blood alcohol on March 1, 2013. On that date, P.C. Mitch Dietrich was dispatched to 54 Metcalfe Drive in Bradford, Ontario at 10:55 p.m. to deal with a possible impaired driver. P.C. Dietrich was told by O.P.P. dispatch that a complainant had followed a vehicle to that address and had described the operation of it as "excessive speeds, all over the roadway, apparently narrowly [missing] striking the complainant's vehicle".
2P.C. Dietrich reached the address – a home in a residential neighbourhood – at 10:59 p.m. A vehicle was in the drive. P.C. Dietrich walked up the drive to the vehicle. He spoke to Mr. Killeen, who had been its driver. On the basis of the information received from dispatch and his own observations of Mr. Killeen when speaking to him in the driveway, P.C. Dietrich arrested Mr. Killeen for impaired operation at 11:06 p.m. and, at 11:07 p.m., gave Mr. Killeen his rights to counsel, caution and breath demand. Mr. Killeen stated that he did not wish to speak to counsel.
3Mr. Killeen was taken by P.C. Dietrich to the police station. On being paraded, Mr. Killeen said he did wish to speak to duty counsel. At 11:23 p.m. Mr. Killeen was put in touch with duty counsel by way of a telephone in a room for that purpose in the O.P.P. South Simcoe detachment. The door to the room was closed during the call. At 11:27 p.m. Mr. Killeen completed his call with duty counsel and was taken from the telephone room to his cell.
4At 11:35 p.m., P.C. Dietrich presented Mr. Killeen to the authorized breath technician, P.C. Ivan Coulter. Mr. Killeen gave samples of his breath. The samples were properly taken. If the Certificate of a Qualified Technician of P.C. Coulter were admitted it would disclose two excessive blood alcohol readings.
5At one point while in P.C. Dietrich's custody at the detachment, following the call with duty counsel, Mr. Killeen advised P.C. Dietrich that he had been at the Keg restaurant that night with his cousin, that he had had two glasses of wine and some scotch and that he had made a mistake.
6On the combined trial and voir dire in this matter, Mr. Kandola and Mr. Shaikh called civilian witness Thomas Carrique, detachment booking officer Sergeant Todd Ferrier and arresting officer Dietrich. Mr. Leckey for Mr. Killeen called his client to give evidence on both the voir dire and the trial.
7Mr. Leckey has filed comprehensive materials in support of an application by Mr. Killeen to exclude much of the Crown's evidence concerning the charges against him. The application is based on Charter sections 8, 9, 10(a) & (b) and 24(2). Mr. Killeen asserts that his rights under the Charter were violated in the following ways: (i) Mr. Killeen submits that P.C. Dietrich's approach in his driveway was a warrantless search and has not been shown by the Crown to be reasonable, in breach of his s. 8 rights; (ii) he submits that, whether or not one excludes the observations made by P.C. Dietrich of Mr. Killeen in Mr. Killeen's driveway, P.C. Dietrich lacked any basis to detain Mr. Killeen and lacked probable grounds to arrest him for impaired care or control or to demand breath samples, in breach of Mr. Killeen's s. 9 rights; (iii) he submits that P.C. Dietrich detained Mr. Killeen in Mr. Killeen's driveway but failed to advise him of the reason for his detention or of his right to retain and instruct counsel without delay, in breach of Mr. Killeen's s. 10(a) and (b) rights; and (iv) he submits that the police failed to provide to Mr. Killeen the opportunity to speak in private with counsel at the police detachment, contrary to Mr. Killeen's s. 10(b) rights.
8With respect to the over 80 charge, Mr. Leckey asks for the exclusion of P.C. Dietrich's driveway observations of Mr. Killeen thus, he submits, clearly eliminating reasonable grounds for the demand for breath samples and the incriminating results of those samples. Mr. Leckey also seeks exclusion of the samples on the basis of the alleged Charter s. 10 breaches.
9With respect to the impaired charge, Mr. Leckey submits, again, that P.C. Dietrich's driveway observations of Mr. Killeen and Mr. Killeen's utterances to P.C. Dietrich should be excluded and that, absent these pieces of evidence and the evidence of Mr. Killeen's conduct subsequent to his arrest, and bearing in mind Mr. Killeen's evidence of his lengthy use of his cellphone during the drive leading to the civilian complaint, at least a doubt should exist as to whether Mr. Killeen's ability to operate his vehicle on the night of March 1, 2013 was impaired by alcohol.
10For the reasons which follow, I do not regard Mr. Killeen's Charter rights as having been infringed and I regard the Crown's evidence as establishing Mr. Killeen's commission of both offences beyond reasonable doubt.
2. The Impaired Charge
a. The Evidence
(i) Mr. Thomas Carrique
11The civilian complainant who eventually called 911 about Mr. Killeen's driving was a person experienced in the observation of potentially criminal behavior. Mr. Carrique, when on duty, was the Deputy Chief of Operations of the York Regional Police Service. He had 23 years of experience as a police officer, including experience as officer in charge of York Region's RIDE program. On the night of March 1, 2013, Mr. Carrique was off duty and driving northbound on Yonge Street accompanied by his sixteen year old daughter.
12He said he was travelling in the curb lane of the two northbound lanes of Yonge Street and that the vehicle ultimately shown to have been operated by Mr. Killeen passed him to the left, also travelling north.
13He said Mr. Killeen's vehicle gradually strayed into his lane, forcing him to brake to avoid a collision, and then proceeded northbound. Mr. Carrique said Mr. Killeen's vehicle continued to veer as it travelled, first veering back into the outer northbound lane, then toward the centre median, and then again toward Mr. Carrique's lane. Mr. Carrique said that this "wandering" by Mr. Killeen's vehicle continued over some ten minutes of travel from the north end of Newmarket into Bradford.
14Mr. Carrique said that his concerns about Mr. Killeen's driving then increased because Mr. Killeen began to veer so far left as to enter a centre turning lane and even to go beyond it into the outer southbound lane of traffic. Mr. Carrique said Mr. Killeen's speed at this point was approximately 100 kilometres per hour as Mr. Killeen and he approached a 50 kilometre per hour zone. Mr. Carrique said this more extreme improper lane use persisted for slightly less than one kilometre. He said Mr. Killeen then continued to drive unsteadily in his lane, veering within it, as he proceeded west on Holland Street to Simcoe Street where he turned south and proceeded, still wandering in his lane, to the driveway at 54 Metcalfe.
15Mr. Carrique said he called 911 when Mr. Killeen reached Holland Street in Bradford and that he remained on the line with the police dispatcher through to his arrival in front of 54 Metcalfe.
16In cross-examination, Mr. Carrique acknowledged that Mr. Killeen's more egregious driving occurred prior to the placing of the 911 call, that Mr. Killeen used his directional signals at least some of the time while Mr. Carrique observed his driving, and that Mr. Carrique told 911 that Mr. Killeen was impaired or "possibly diverted by something".
(ii) Sergeant Todd Ferrier
17Sergeant Ferrier, in front of whom Mr. Killeen was paraded, said he noted the smell of alcohol on Mr. Killeen's breath, that Mr. Killeen swayed slightly as he removed a necklace at the detachment and that his eyes were bloodshot.
(iii) P.C. Mitch Dietrich
18P.C. Dietrich said that, when he approached Mr. Killeen in the driveway, Mr. Killeen was "just stepping out of his vehicle" with the driver's door still open. P.C. Dietrich said he noted that the window on the driver's door was down, that he told Mr. Killeen this, that Mr. Killeen then fumbled with the truck key as he tried to put it in the ignition in order to put up the window, and then fumbled with the window switches on the driver's door trying to activate the right one. P.C. Dietrich said he smelled alcohol on Mr. Killeen's breath as the two spoke from a distance of about two feet.
19P.C. Dietrich said he then arrested Mr. Killeen for impaired care or control. He said that, to the time of arrest, Mr. Killeen's walking was normal and that his eyes, although glossy, were only slightly bloodshot.
20In cross-examination, P.C. Dietrich acknowledged that Mr. Killeen was cooperative throughout their dealings, responsive to questions and directions, non-threatening, not exhibiting balance issues at any time and not swaying as he removed his necklace at the detachment, although slow to do so. P.C. Dietrich acknowledged asking Mr. Killeen twice at the car door whether he had had anything to drink. He said that his questioning did not appear to surprise Mr. Killeen.
(iv) Mr. Jason Killeen
21As indicated, Mr. Killeen testified both for purposes of the voir dire and the trial. He said that he met his cousin for dinner at the Keg restaurant in Newmarket on March 1, 2013, ate a three course meal with two glasses of wine and one scotch and proceeded to drive to his home on Metcalfe Drive. Mr. Killeen said that the alcohol was consumed from approximately 7:00 p.m. until 10:00 p.m. He said he texted his cousin and brother on his cell phone as he drove home and checked that phone for email and text messages. In court, Mr. Killeen identified two "screen shots" of his cell phone showing a text to his brother at 10:13 p.m. and one to his cousin at 10:34 p.m. Mr. Killeen said he was looking at email and text as he drove from 10:34 until 10:59 p.m., when he was in his driveway and again sending a text to his cousin.
22Mr. Killeen said initially that he did not recall his use of his cell phone affecting his driving. He then said it had not done so and that there was nothing exceptional or improper about his driving from the restaurant to his home. In cross-examination, Mr. Killeen reiterated that his ability to operate his motor vehicle was not impaired. He denied ever straying out of his driving lane and said that he maintained the speed limit or close to it. He did acknowledge that his use of his cell phone while driving was unwise.
23Mr. Killeen said that he was sitting in his truck in his driveway when P.C. Dietrich surprised him there.
24He denied having any difficulty removing his necklace once at the police detachment or swaying while he did so.
b. Analysis
25I regard the first issue to be addressed in assessing the Crown's case on this charge to be the extent of the impairment evidence which is to be considered. Mr. Killeen's Charter application does not affect the potential admissibility of Mr. Carrique's observations of Mr. Killeen's driving. What the application could affect is P.C. Dietrich's observations of Mr. Killeen in the driveway, Mr. Killeen's apology to P.C. Dietrich and any observations of alleged indicia by the police after Mr. Killeen was taken to the police detachment.
(i) Was the search a trespass?
26I turn first to Mr. Killeen's allegations of improper search in his driveway. Was P.C. Dietrich's approach and encounter with Mr. Killeen in the driveway an infringement of Mr. Killeen's privacy entitlement? The search was warrantless and the onus of proof is the Crown's. Mr. Leckey argues, as was argued in R. v. Lotozky, that P.C. Dietrich's approach and encounter with Mr. Killeen has not been shown by the Crown to be reasonable. The unreasonableness proposed here is two-fold: first, it is said to involve a trespass by P.C. Dietrich onto Mr. Killeen's property; and second, it is said to have been carried out in an unreasonable fashion, with P.C. Dietrich abruptly opening Mr. Killeen's truck door and questioning him aggressively about his drinking earlier that night.
27On the first of these matters, Mr. Kandola and Mr. Shaikh submit that, whether on the basis of implied licence or on the basis of maintenance of a pursuit, P.C. Dietrich was not trespassing in attending at Mr. Killeen's truck in his driveway in order to question him. As to implied licence, the Crown relies on Lotozky, supra. As to maintained pursuit, the Crown relies on R. v. Clark. Mr. Leckey fairly concedes that these authorities and those to which they refer weaken his argument for trespass. He submits, however, that Mr. Killeen's circumstances are distinguishable in that it was Mr. Carrique and not P.C. Dietrich himself who had observed Mr. Killeen prior to P.C. Dietrich's approach in the driveway. He proposes that the legality of such intrusions on private property should be seen as confined to cases where the pursuit of a suspect has been conducted, pre-intrusion, by the officer or officers who intruded, not by a third party whose information has been passed on to the police.
28I agree with the Crown that, on the authority of Lotozky, supra, at paras. 20-24, P.C. Dietrich acted within the ambit of an implied licence in approaching Mr. Killeen at his truck and speaking to him.
29I find as well that the implied licence was not revoked until after Mr. Killeen was arrested. In this regard, Mr. Killeen testified that he demanded that P.C. Dietrich leave his property prior to his arrest. P.C. Dietrich testified that it was after Mr. Killeen's arrest that Mr. Killeen first protested the officer's presence in the driveway.
30I accept P.C. Dietrich's evidence on the point, as well as in respect of the other aspects of his dealings with Mr. Killeen in the driveway. He gave his evidence generally in a detailed and even-handed manner. Unlike Mr. Killeen, he had made notes of his involvement in the arrest which he used to refresh his memory. Also unlike Mr. Killeen, he had not consumed any alcohol during the evening prior to the incident. Mr. Killeen's reliability as a witness was weakened when he testified initially that he could not recall driving poorly and then that he did not do so. I do not accept Mr. Killeen's assertion of demanding that P.C. Dietrich leave his property prior to his arrest, nor the other aspects of his evidence of the encounter with P.C. Dietrich where that evidence conflicts with P.C. Dietrich's.
31Since P.C. Dietrich's implied licence persisted until the time of arrest, I do not regard his observations after arriving at Mr. Killeen's truck door as vulnerable to exclusion as part of an unreasonable search.
32I am also persuaded, on the basis of Clark, supra, that the doctrine of maintained pursuit would apply in this case to preserve from potential Charter s. 24(2) application P.C. Dietrich's intrusion onto Mr. Killeen's property. In Clark, the pursuit onto private property was regarded as reasonable by Sharpe, J.A., because the police had seen Mr. Clark make a right turn without signalling, believed a Highway Traffic Act offence had been committed and were entitled to demand that Mr. Clark stop under the provisions of that statute. So here, P.C. Dietrich had Mr. Carrique's information as relayed by dispatch and, thus, reasonable grounds to effect a stop and to investigate Mr. Killeen's sobriety. The fact that these grounds were based on hearsay rather that P.C. Dietrich's personal observation does not appear to me to be a material distinction absent some basis for P.C. Dietrich's to doubt the reliability of the report to dispatch.
(ii) Was the search carried out reasonably?
33Mr. Killeen testified that he expected privacy as he sat in his parked truck in his driveway, that he was sitting in the truck with his door slightly ajar when P.C. Dietrich came up to him, that P.C. Dietrich opened the door wide, that he did not immediately recognize P.C. Dietrich to be a police officer, that P.C. Dietrich stood within two feet of Mr. Killeen, that P.C. Dietrich immediately asked him if he had been drinking and then repeated the question more aggressively after receiving a negative response, that he then felt trapped, that P.C. Dietrich then positioned his face within one foot of Mr. Killeen's and that Mr. Killeen told him to leave the property prior to being arrested.
34I have already described P.C. Dietrich's version of their encounter. It was quite different. For the reasons indicated earlier, it is P.C. Dietrich's which I accept. He said that Mr. Killeen did not appear to him to be startled and confirmed that, following his arrest of Mr. Killeen, Mr. Killeen protested P.C. Dietrich making the arrest on Mr. Killeen's property. On the basis of P.C. Dietrich's description of his encounter with Mr. Killeen prior to the arrest, I am persuaded that, to the extent it constituted a search of Mr. Killeen by way observations of his conduct and the posing of questions, it was not unduly aggressive or intrusive. Mr. Killeen's s. 8 right was not breached in this manner either.
(iii) Charter s. 10 – at the scene
35Mr. Leckey submits that Mr. Killeen was detained by P.C. Dietrich early in their encounter in the driveway and ought to have been given his informational rights under Charter s. 10 at that time. Mr. Killeen's evidence was that it was not until he was placed by P.C. Dietrich in P.C. Dietrich's police cruiser that he was told why he had been detained. Mr. Killeen also testified that he was only then told that he had a right to call a lawyer or a right to call free duty counsel. P.C. Dietrich, on the other hand, testified from his notes that he arrested Mr. Killeen outside his cruiser at 11:04 p.m. for "impaired operation of a motor vehicle" and, after placing him in the cruiser, read to Mr. Killeen rights to counsel and caution at 11:07 p.m. using the O.P.P-issued text in the back of his notebook. He said he told Mr. Killeen on confronting him that he had received a complaint of a person driving all over the road. For the reasons indicated previously – that is, P.C. Dietrich's detail in his testimony, apparent absence of any bias or tendency to embellish, advantageous opportunity to observe and make note in comparison to Mr. Killeen's and Mr. Killeen's self-contradiction about his driving – I regard P.C. Dietrich's evidence concerning these matters to be reliable. That evidence discloses no breach. Even assuming Mr. Killeen was detained from the time P.C. Dietrich began questioning him, the context of Mr. Killeen's detention and P.C. Dietrich's remarks about the citizen complaint would readily convey the reason for it: R. v. Kumarasamy, [2011] O.J. No. 2114 (S.C.J.). Moreover, P.C. Dietrich's obligations regarding Mr. Killeen's informational s. 10(b) rights were lawfully deferred while he investigated the s. 253 C.C. offence: R. v. Orbanski; R. v. Elias, 2005 SCC 37.
(iv) Charter s. 10 – at the detachment
36Mr. Killeen's evidence was that he was able to hear voices of persons he assumed were police officers while he spoke to duty counsel in the room at the detachment in which he had been placed for that purpose. He said he concluded, accordingly, that he could be heard by them and thus felt constrained in his discussion with duty counsel. Mr. Killeen did not testify that he was able to hear the words being used by those persons whose voices he heard. He conceded that he made no complaint to the police and he said he had not done so because he felt "powerless".
37Mr. Leckey submits that Mr. Killeen's Charter s. 10(b) right was thus breached.
38P.C. Dietrich testified that, with respect to Mr. Killeen's call with counsel at the detachment"you can tell that someone is talking but you can't hear what they are saying. It's like muffled – you can hear someone's voice but you can't make out words". He said he heard none of Mr. Killeen's conversation. He said Mr. Killeen told him he was satisfied with the call and confirmed that Mr. Killeen never expressed any concerns about privacy. He said the metal door to the phone room was shut.
39Sergeant Ferrier, the booking officer, testified that he did not hear Mr. Killeen's conversation with counsel and never had heard such a conversation. Like P.C. Dietrich, he said one can hear sounds during such a conversation but that one cannot hear the words of a detainee.
40The onus on this aspect of Mr. Killeen's application is his to satisfy me on a balance of probabilities that Mr. Killeen was actually denied privacy while speaking to duty counsel or that he reasonable believed that he lacked privacy: R. v. Cairns. I do not regard Mr. Killeen as having discharged his onus. The constellation of relevant pieces of evidence here is much the same as it was in Cairns: the detainee being advised of the right to counsel, being given the opportunity to speak to counsel in a room alone, speaking for several minutes and expressing no concerns about lack of privacy or feeling inhibited. Mr. Killeen's evidence that he did not complain because he felt "powerless" is weakened by the fact that, earlier, his confrontation with the police in his driveway, described by him as intimidating, did not deter him from expressing his view that his arrest was unlawful. Thus, I do not regard the police conduct in presenting Mr. Killeen with these circumstances for his call with duty counsel as violating his Charter s. 10(b) right.
c. Conclusion Concerning the Impaired Charge
41The police conduct not having breached Mr. Killeen's s. 8, 9, or 10 Charter rights, the Crown is not at risk of exclusion of the evidence of any of its witnesses.
42The Crown's onus is to establish beyond reasonable doubt through those witnesses that Mr. Killeen's ability to operate his truck when he had its care or control on March 1, 2013 was impaired by alcohol. R. v. Stellato holds that, while the Crown's proof must be beyond reasonable doubt, it suffices if it proves any degree of impairment by alcohol, from slight to great.
43Although Mr. Killeen ultimately denied the egregious driving described by Mr. Carrique, or, indeed, any improper driving, Mr. Leckey in submissions submitted that Mr. Carrique may well be right in his version. Mr. Leckey suggested, however, that the record gives rise to material uncertainty whether the cause of the bad driving was alcohol consumption or cell phone use.
44The defence position is that the combination of Mr. Killeen's undisputed cell phone use while driving, the admitted eventual improvement of his driving, Mr. Killeen's undisputed balance at the scene and apparent physical coordination and proper speech at the detachment as reflected on the videos which were made Exhibits 3 and 4, his admitted cooperativeness throughout and, finally, the fact that he was released approximately one and one-half hours after his arrest, all of these should leave doubt about impairment by alcohol in Mr. Killeen's ability to operate his motor vehicle.
45The difficulty the defence faces in suggesting that Mr. Killeen drove badly because he was using his cell phone is that Mr. Killeen both denied this fact in his evidence at one point, and, at another, conceded the possibility of distraction for "five to ten minutes". If Mr. Killeen's denial is to be seen as his ultimate evidence, I find that he is incorrect and that Mr. Carrique has accurately described his driving, a finding damaging to Mr. Killeen's credibility generally. If his concession of a possible five to ten minutes of distraction is to be taken as his evidence, that would leave unexplained by cell phone use the additional six to eleven minutes of weaving described as the relevant period by Mr. Carrique.
46The array or constellation of indicia of impairment on the record remain formidable even if one takes into account the countervailing conduct cited by Mr. Leckey of cooperativeness, generally good balance and proper speech. The evidence of releasing Mr. Killeen at 12:45 a.m. given by P.C. Dietrich fell considerably short of a concession that Mr. Killeen was then able to operate a car.
47I accept Mr. Carrique's description of Mr. Killeen's driving. I also accept P.C. Dietrich's description of (i) Mr. Killeen's fumbling efforts both to insert his key in his truck's ignition and to raise his driver's window; (ii) Mr. Killeen's eyes being slightly bloodshot and glossy; (iii) Mr. Killeen's breath smelling of alcohol; and (iv) Mr. Killeen being slow to remove the necklace at the detachment.
48Sergeant Ferrier corroborated P.C. Dietrich's evidence about the smell of alcohol on Mr. Killeen's breath and a bloodshot quality to Mr. Killeen's eyes.
49Sergeant Ferrier also testified to a slight imbalance on Mr. Killeen's part as he attempted to remove the necklace. However, this evidence of imbalance was contradicted by P.C. Dietrich's evidence and I was unable to see in Exhibit 3 or 4 any imbalance during Mr. Killeen's slow removal of the necklace. I do not find that there was any.
50On my earlier finding of absence of Charter breach, there is no basis on which Mr. Killeen's apology to P.C. Dietrich and admission that he had made a mistake would be subject to exclusion under the Charter. However, the apology and admission of mistake are equally consistent with circumstances other than Mr. Killeen's commission of the offence under s. 253 C.C., such as his earlier, false assertion to P.C. Dietrich that he had had nothing to drink. Accordingly, I do not regard his apology and admission of mistake as proof of his commission of impaired care or control.
51Nonetheless, considering the totality of indicia which I have described and which I do accept, the Crown has met its burden of proof and I am obliged to find Mr. Killeen guilty on this charge.
3. The Over 80 Charge
52The defence application for exclusion of the Certificate evidence is based on the alleged breaches of Mr. Killeen's Charter rights previously described and the absence of reasonable grounds for the making of the breath samples demand. Mr. Leckey acknowledges that no other issue – such as improper operation or instrument error - is taken with the procedure leading to the provision by Mr. Killeen of his breath samples or the results as evidenced by the Certificate.
53For the reasons previously set out, I have found that Mr. Killeen's Charter rights were not, in fact, breached.
54As to grounds for the breath samples demand, P.C. Dietrich acknowledged in his responses to Mr. Leckey's questions that it would have been insufficient for him to rely only on the information he had received from dispatch in forming grounds to arrest Mr. Killeen. Parenthetically, this concession seems to go somewhat beyond the law: hearsay information can constitute reasonable grounds depending upon its degree of reliability: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.). However, in any event, P.C. Dietrich did not rely solely on Mr. Carrique's information as provided to O.P.P. dispatch. That information, together with his own observations, previously described, seem to me quite clearly to have met both the test for lawful arrest of Mr. Killeen on the impaired charge and for a lawful demand for breath samples. The latter requires reasonable grounds, the former reasonable and probable grounds. Neither requires a prima facie case for conviction. What is required is a subjective belief in the existence of grounds and objective reasonableness of that belief in the circumstances. The test is not particularly onerous: R. v. Wang, 2010 ONCA 435. I am satisfied that the information being considered by P.C. Dietrich did and would reasonably lead him to conclude that he had sufficient grounds.
55Accordingly, the Crown's evidence of excess blood alcohol is admissible, the s. 258 C.C. presumptions apply, and Mr. Killeen's blood alcohol concentration is deemed to be excessive at the time of his care or control when attended by P.C. Dietrich on March 1, 2013. There will be a finding of guilt on this charge also.
Released: April 24, 2014
Signed: "Justice C.M. Harpur"
Justice C.M. Harpur, O.C.J.
