ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KELLY THOMPSON
Before Justice D.F. McLeod
Heard on September 6 and 7, 2018; November 29, 2018; and January 4, 2019
Reasons for Judgment released on January 22, 2019
Mr. Richard Garwood-Jones counsel for the Crown
Mr. Brendan Neil counsel for the defendant Thompson
1Ms. Thompson is charged with one count of driving in excess of the prescribed legal limit on the 4th of October 2017.
2On the day in question Ms. Thompson was involved in an unusual set of circumstances which resulted in a collision involving her vehicle and a parked F150 truck. There were several civilian and police witnesses all of whom gave evidence with respect to Ms. Thompson’s demeanour and their perspective with respect to her level of sobriety.
3What follows is a recounting of the witnesses’ evidence, an analysis of the various legal arguments and there application to the pertinent facts.
Relevant Evidence
Mr. Tymkow
4In the early afternoon of October 4, 2017 Mr. Tymkow was attending the McDonalds located in a plaza in Ancaster. Whilst at the restaurant he could see what he believed to be a silver Caravan that appeared to have rear ended a maroon F150 truck.
5From Mr. Tymkow’s vantage point it appeared as if the Caravan had reversed into the F150. Mr. Tymkow also testified that the truck was unoccupied at the time he noticed the vehicles.
6Mr. Tymkow gave evidence that he felt there was a possibility that the driver would abscond so he took pictures to ensure there was a record of what had taken place. In total he took two photos and was able to capture the area of the collision and damage to the passenger side of the F-150
7Mr. Tymkow described the driver of the Caravan as follows;
(i) Older female
(ii) Blonde hair
(iii) Slender build
8In an attempt to see if he could find the driver of the F-150 Mr. Tymkow decided to enter the Longos. The owner was eventually located and asked if Mr. Tymkow would be willing to remain at the scene.
9Eventually the owner of the Caravan began to share her information with the driver of the F-150. Mr. Tymkow described her movements as slow and also indicated that for the most part she kept her distance.
10When asked in cross examination about her gait and mobility, Mr. Tymkow indicated that he observed no problems with her walking and saw no difficulties with her getting in or out of her vehicle. In the hour that he observed her he noticed no slurring of her words or any other obvious signs of intoxication.
Jason Irteon
11Mr. Irteon is the driver of the F-150 which is his company’s vehicle. Mr. Irteon was just leaving Longos when he noticed that his vehicle had been struck by a van. The van was still running however there were no occupants.
12Mr. Irteon testified that what he had seen seemed alarming in that the state of vehicles did not make sense to him. He had a short conversation with Mr Tymkow, he did not know him prior, but became familiar with him as a result of the incident.
13Eventually he recalls seeing Ms. Thompson approach at which point she stated “is that your truck you ran into me.” Mr. Irteon was surprised and somewhat taken aback at the allegation as clearly he was not even in his vehicle at the relevant time.
14Mr. Irteon does recall a male person attending prior to the police arrival who in his estimation appeared to be her husband and she asked him to contact the police.
15Mr. Irteon gave evidence that at times he was approximately 2 feet away from Ms. Thompson his observations of her suggested that she was angry, upset, her face appeared red and at times she slurred her speech. However he prefaced his observations in cross examination and admitted that this was the first time he had ever met Ms. Thompson and could not speak to her countenance on other occasions.
Jennifer Moyer
16Ms. Moyer on the day of the incident was employed as a fitness coach and was working at the front desk. When the incident happened Ms. Moyer had exited her place of employment to attend to a colleague’s vehicle.
17While Ms. Moyer was inside her colleague’s car she observed the impact between the Caravan and the F-150. Mr. Moyer indicated the Caravan backed into the truck and confirmed to the court that there was no one present in the F-150 at the time of impact.
18Ms. Moyer recalls Ms. Thompson getting out of the van, and looking around the vehicle notably at the point of impact. The woman (Ms. Thompson) eventually entered Ms. Moyer’s place of work at which point she spoke to Ms. Moyer.
19Ms. Moyer could smell alcohol emanating from Ms. Thompson and observed that she was red in her complexion and had a slight slur when she spoke. Ms. Moyer felt that she was intoxicated.
20Ms. Moyer and Ms. Thompson interacted with each other for about 3 minutes at which point Ms. Thompson left and walked back out to her van.
Courtney Shepard
21Courtney Shepard is a 28 year old studio manager who recalls speaking to Ms. Thompson on the day of the incident.
22Ms. Shepard indicated that her interaction with Ms. Thompson lasted approximately 5 – 10 minutes. She further indicated that Ms. Thompson appeared agitated and also indicated that there was a noticeable smell of alcohol emanating from her person.
23Ms. Shepard also testified that at one point she observed Ms. Thompson sitting in the driver’s seat of her vehicle while the car was running.
PC Ferguson
24PC Ferguson was dispatched to Ancaster. Upon his arrival he observed a black Dodge Caravan in contact with an F-150. Both cars did not appear to be have been moved since the point of impact, and the F-150 was still positioned in a parking spot.
25PC Ferguson approached the driver of the Caravan and began to engage her in conversation. He asked her a series of questions, concentrating on whether she had anything to drink that evening. He pursued this line of questioning in light of information he had received prior from individuals that had come in contact with Ms. Thompson.
26PC Ferguson could not smell anything on the breath of the driver, but did notice that she was unsteady on her feet, her eyes appeared glossy and her speech was slurred. PC Ferguson did admit however that at no time did he observe Ms. Thompson having any difficulty exiting her vehicle, tripping or leaning on any apparatus to steady herself. He was also unable to articulate what words if any were actually slurred by Ms. Thompson.
27PC Ferguson testified that the driver’s sobriety may have been in question, so he retrieved his roadside screening device and conducted a self-test to ensure the machine was calibrated correctly before administering the test on Ms. Thompson.
28At 1:55 pm PC Ferguson conducted the self-test of his device and found the machine was in good working order as a result PC Ferguson then gave evidence that PC Sorbara then performed the test on Ms. Thompson at which point she registered a fail and was arrested.
29Subsequent to the failed test and arrest PC Ferguson continued the investigation. He interviewed Mr. Tymkow and Ms. Ireton, canvassed the area for any potential CCTV footage or store video and made note of the damage to the rear driver’s side bumper of the F-150.
PC Sorbara
30When PC Sorbara arrived at the scene he observed a Dodge Caravan within a few feet of another vehicle. The van was running at the time of his arrival. PC Sorbara was eventually approached by the owner of the F-150 and then made his way over to speak with the owner of the minivan.
31When speaking with Ms. Thompson PC Sorbara testified that he knew she was a part of the police service and also mentioned that during their conversation she never made direct eye contact with him and would at times not answer his questions although the officer did not specify which questions she avoided.
32PC Sorbara testified that he could detect a smell of alcohol emanating from Ms. Thompson however it was faint and in no way overpowering. He also gave evidence that during his conversation with her he noted that her speech was somewhat slurred yet he was still able to understand her. In cross examination PC Sorbara testified that he did not make any notation in note book regarding any of the above mentioned observations.
33At 1:54 pm PC Sorbara formed the grounds that Ms. Thompson may be under the influence of alcohol while driving her vehicle. As a result PC Sorbara asked PC Ferguson to prepare the alcohol screening device as he wanted to ensure that there were no errors when the test was to be administered.
34Although PC Sorbara is aware of the appropriate measures that have to be taken when checking an ASD such as undergoing a self-test, determining the calibration, and the calibration date he did not specifically instruct PC Ferguson to undergo those testing procedures. PC Sorbara further testified that he did not inquire of PC Ferguson what testing he did in order to prove the device error free nor did he watch the procedure being done.
35At 1:56 pm PC Sorbara issued the breath demand to request a sample of Ms. Thompson’s breath. Then at 1:58 pm, he administered the first test inside of the vehicle.
36Nowhere in the notes of PC Sorbara does he indicate that he spoke with PC Ferguson prior to interacting with Ms. Thompson. Further in cross examination it’s PC Sorbara’s evidence that upon his arrival on scene he does not speak with any officer prior to speaking with the civilians Mr. Ireton and Ms. Thompson.
37Ms. Thompson was asked to breathe into the ASD at which point the machine did not register a response. A second test was conducted at 1:59 pm at which point a fail was registered indicating according to the officer that she had over 100 mgs of alcohol in 100 mls of blood.
38At 2:01 pm, Ms. Thompson was placed under arrest for over 80, put into the police cruiser and read her rights to counsel, a caution as well as her second breath demand all of which she stated she understood.
39Between 2:02 – 2:10 pm Ms. Thompson was in the back seat of the police cruiser. PC Sorbara gave evidence that he did not want to leave the scene immediately upon arrest. He indicated that he would have spoken with PC Ferguson who was also at the scene at the time, to ensure the collision information as well as witness statements were able to be done. In essence PC Sorbara did not want to abandon the scene until he was satisfied everything would be taken care of with respect to other officers’ attendance if required.
40PC Sorbara left the scene at 2:10 pm and made his way to central station, he arrived at the station at 2:26 pm. PC Sorbara also testified that he did not detect the smell of alcohol while enroute to the police division however he did make mention that the detection may have been hindered due to him always driving with his window open.
41Sorbara testified that between 2:26 and 2:45 pm he would have done the following;
(i) Parked his cruiser;
(ii) Placed his firearm in a locked safe;
(iii) Spoke with the custody Sergeant;
(iv) Spoke with the breath technician PC Cruickshank to advise him of their grounds and why they executed an arrest.
42Ms. Thompson was registered at the booking area at 2:45 pm at which point she was asked if she wished to speak to a lawyer to which she responded no. Once the formalities were completed Ms. Thompson was escorted to her cell.
43After Ms. Thompson was lodged at 2:58 pm she requested to speak with Steven Petersen regarding legal advice. PC Sorbara was not able to give a verbatim account of Ms. Thompson’s request however he believed her intention was to satisfy her right to speak with counsel of her choosing.
44PC Sorbara was familiar with Steven Petersen as a former police officer who was now practicing law in traffic court. PC Sorbara recalled a conversation to the court that he had with Mr. Petersen after his retirement. It was during this conversation that he recalls Mr. Petersen indicating to him that he was now practicing law which was confirmed by PC Sorbara seeing him around the court house.
45PC Sorbara indicated that he did not know the difference between a paralegal and a lawyer. The following exchange took place between crown counsel and PC Sorbara around Mr. Petersen’s status as a paralegal;
Q. On the 4th of October 2017 did you have any knowledge of Steven Petersen being a paralegal?
A. “I don’t know the ins and outs of lawyer terms so I couldn’t say if he was a paralegal or not, I just know he practices law he’s in court houses he represents people during trials for traffic court that’s my personal experience I’ve seen”
46In answer to a question from the court PC Sorbara indicated that it was his understanding Ms. Thompson was free to receive legal advice from anyone who is practicing law.
47After the request for counsel was made PC Sorbara looked up the phone number for Mr. Petersen and called his office at 3:03 pm and left a message with his receptionist.
48PC Sorbara indicated to the court that he was unsure how he located the number for Mr. Petersen but does recall that he would have used a secondary source (internet, a lawyer’s custody list, or lawyer’s directory). He left a message with a receptionist at Mr. Petersen’s office and awaited a return call.
49At 3:06 Mr. Petersen returned the call to central division. PC Sorbara then organized a private room and facilitated the call between Ms. Thomson and Mr. Petersen which began at 3:08 and ended at 3:12 pm
50At 3:14 PC Sorbara escorted Ms. Thompson to PC Cruickshank at which point she underwent further testing which was completed at 3:57 pm.
PC Cruickshank
51PC Cruickshank is a qualified breath technician that was working on the day of the incident. He testified that all testing was done using the 8000-C intoxilyzer and that that machine was in good working order prior to any testing with respect to Ms. Thompson.
52PC Cruickshank advised that at 2:30 pm he spoke to PC Sorbara in the sally-port and was provided with the grounds for arrest. He was advised of the following;
(i) He attended a minor motor vehicle collision;
(ii) The driver who was ultimately at fault had the odour of alcohol on her breath;
(iii) The driver was unsteady on her feet, and exhibited slurred speech;
(iv) At 2:02 the ASD demand was issued and the driver blew a fail;
(v) The driver was then arrested for operating a motor vehicle with alcohol in her system which measured over 80 mgs.
53At 3:25 pm PC Cruickshank performed the first test at which point Ms. Thompson registered a reading of 216 mgs of alcohol in 100 mls of blood. The officer then waited the requisite period of time and performed the second test which registered a reading of 200 mgs of alcohol in 100 mls of blood.
54At 3:55 Ms. Thompson was turned over to another officer and exited the breath room at 3:58 pm.
Charter issues 10(b)
55Defence counsel argues that it was incumbent upon the police to advise Ms. Thompson that although she had in effect asserted her right to counsel the end result fell short of the intended goal. The fact that Ms. Thompson spoke with a paralegal instead of counsel resulted in her failing to meaningfully exercise her Charter rights, and as such any evidence that flows from this violation should be excluded.
56The crown argues that after several inquiries Ms. Thompson requested counsel of her choosing. The name that she provided for her counsel of choice was Mr. Petersen. PC Sorbara promptly facilitated the call to Petersen. The actions done on behalf of Ms. Thompson amount to a fulfillment of the officer’s duties as per the Charter.
Section 10(b) Charter
Were Ms. Thompson’s Charter rights infringed because she spoke with a paralegal rather than a lawyer when she asserted her right to speak to counsel?
57The purpose of s.10(b) is to ensure that detained persons know their right to counsel and are able to access counsel in circumstances where the deprivation of their liberty leaves them vulnerable to legal jeopardy: R. v. Suberu, 2009 SCC 33, at para. 40; and R. v. Willier, 2010 SCC 37, at para. 28
58Ms. Thompson was asked on two separate occasions if she wished to speak with counsel and on both occasions she refused the opportunity. Eventually, when requested for a third time Ms. Thompson acquiesced and indicated that she wished to speak with Steven Petersen.
59Further to her request it was the evidence of PC Sorbara that he was aware of who Mr. Petersen was and ensured that he facilitated her wish to speak with counsel.
60During PC Sorbara’s testimony he gave evidence that he did not know the difference between a paralegal and a Barrister and Solicitor. It struck this court as peculiar that a police officer who works in the court system is unable to differentiate between the two disciplines.
61However countervailing my initial apprehension surrounding PC Sorbara’s testimony regarding legal counsel were the actions of Ms. Thompson when selecting counsel of her choice. At the point counsel was offered to Ms. Thompson she choose Mr. Petersen a retired former colleague and paralegal. In this particular circumstance her choice of representation is of some limited import.
62The choice of Ms. Thompson to choose Mr. Petersen enabled this court to make a positive determination with respect to PC Sorbara’s testimony on this issue. Her actions provided some credence to his understanding when looked at in its totality to the notion that an officer could potentially not know the difference between counsel and a paralegal.
63When confronted with the question of an officer’s obligation if any to an accused with respect to securing counsel and ensuing their competency, Justice Rose in the matter of R. v. Sandhu, 2018 ONCJ 522, believes such a responsibility may develop to such a degree that it places police officers in the undue business of quality assurance.
[41] While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. [Emphasis added]
64Justice Rose goes on to state the following in the Sandhu matter;
[62] To require the police to make positive inquiries of an arrestee about whether the person they want to speak to for legal advice is either a lawyer or a particular kind of lawyer -- absent any suggestion to the contrary -- is simply unsupported in law. Asking the arrestee if the lawyer requested is competent is the first step towards putting them in a quality of advice situation.
65PC Sorbara testified that he believed Mr. Petersen was an appropriate legal representative able to provide Ms. Thompson with the advice she required. PC Sorbara testified that he understood that it was his responsibility to facilitate putting Ms. Thompson in contact with an individual who was in the practice of law.
66It has been stated very clearly in case law that speaking to a paralegal is not the equivalent of speaking to a lawyer. Therefore a detainee who speaks to a paralegal does not thereby waive his right to counsel unless he makes a fully informed and voluntary decision in that regard: R. v. Vukasovic, [2010] O.J. No. 5862 (C.J.), at para. 34 [emphasis added]
67Subsequent to the phone call with Mr. Petersen the evidence before the court is that Ms. Thompson did not request another call, complain about the advice she did receive, nor did she request to speak to another legal representative or family member. By all accounts it appeared that she was satisfied with the information that she did receive.
68PC Sorbara testified that he believed that Mr. Petersen was counsel. This erroneous belief is what governed his actions and informed his decision making. Further, there is no mention by any of the officers that came in contact with Ms. Thompson that she was unhappy with the advice she was given or that she was dissatisfied once the call was completed.
Did PC Sorbara act with due diligence when facilitating Ms. Thompson’s right to counsel?
69In the circumstances as they present themselves in this matter the court is of the opinion that PC Sorbara acted according to a mistaken but honest belief that Mr. Petersen was counsel bolstered by the following circumstances;
(i) It was his belief that when Ms. Thompson requested to speak to Mr. Petersen she was exercising her right to counsel;
(ii) PC Sorbara also testified that independent of Ms. Thompson’s choice of counsel he also was aware of Mr. Petersen and believed him to be competent counsel for the purposes requested in light of seeing him on several occasions in traffic court;
(iii) PC Sorbara also had a history with Mr. Petersen as a colleague and was aware that he had retired approximately 5 years prior to his incident;
(iv) Further, PC Sorbara contacted Mr. Petersen’s office on Ms. Thompson’s behalf and left a voice message. PC Sorbara testified that he not alerted to anything that would have triggered suspicion on his part with respect to Mr. Petersen.
70In these very particular circumstances, I am satisfied on a balance of probabilities that PC Sorbara did not compromise the rights of Ms. Thompson in her pursuit to speak to counsel of choice and that Ms. Thompson was given an opportunity to make an informed decision and voluntarily exercised that decision to her satisfaction.
There may well be times when the police subjectively know that the person the arrestee wants legal advice from is not competent to give such advice. And in those situations the police obligation is different, see R. v. Miller 2018 ONCJ 465. But this is not one of those cases. There is no evidence that PC Brown was, as Felix J. put it in Miller, "...perpetuating the false conception that (s)he was facilitating counsel in the eyes of the...[ arrestee]." R. v. Sandhu, [2018] O.J. No. 4157 para. 63
71I have concluded that PC Sorbara was unaware of Mr. Petersen’s legal status as a paralegal, and made the assumption that Mr. Petersen was qualified to provide legal advice to Ms. Thompson in his capacity as counsel. He acted in good faith in promptly facilitating Ms. Thompson’s request to speak to Mr. Petersen as her chosen legal advisor. Were I to have concluded that PC Sorbora was aware of Mr. Petersen’s vocation as a paralegal, and more critically, that he was aware of the distinction between the qualifications of a paralegal and a lawyer, then this factor would certainly have supported a Charter breach which would have necessitated a further R. v. Grant analysis.
72In light of the above analysis I am not persuaded on a balance of probabilities that the Charter rights of Ms. Thompson were infringed.
Reasonable Suspicion
Defence Position
73Defence contends that although the threshold test is quite low an analysis of the evidence available to PC Sorbara prior to arrest is wanting with respect to supportive information and when closely scrutinized the court should find there was no merit in the initial reason for Ms. Thompson’s detention.
Crown Position
74What PC Sorbara did when he arrived at the scene was not only allowable but good police work and quite frankly common sense. PC Sorbara was able to harness the objectively and subjectively available information, asses it in conjunction with his own observations and in turn satisfied the low test of reasonable suspicion.
75Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50. [emphasis added]
76Justice Durno believes suspicion can be derived using all available and complimentary evidence at one’s disposal. He stated;
While that admission was sufficient to make the demand, there was other evidence that could have supported the suspicion. Those indicators can be examined in determining whether there was an objective basis for the suspicion, whether the officer considered them or not R v. Singh [2006] O.J. No.5133 para.18 [emphasis added]
77PC Sorbara testified that his memory was heightened by the unique circumstances of this matter and his indicators of suspicion should be analyzed in its totality rather than piecemeal. His evidence was punctuated with various hallmarks that when viewed in conjunction with other events were instructive.
78PC Sorbara pointed to the following as reasons for his enhanced ability to remember or as other evidence that supported his suspicion;
(i) The fact that the accident took place in a parking lot and involved a parked car in the officer’s estimation was unique enough in his experience for him to recall the events. Further, the unusual nature of the accident also elevated PC Sorbara’s suspicion that the driver may have been impaired in some fashion;
(ii) Upon his arrival PC Sorbara incorporated information located at the scene as well as from persons in attendance (PC Ferguson and civilians) whose information when conjoined with his own observations supplanted the notion of reasonable suspicion, namely that Ms. Thompson was unsteady on her feet and also had slurred speech;
(iii) Due to the fact that Ms. Thompson was a fellow officer, who he knew prior to the events of the day, and the unique flavour that investigating a fellow officer would bring to an investigation would also have left an indelible memory of the day’s events;
(iv) Any collateral information regarding the state of Ms. Thompson was close in time to the investigation and based on the nature of the observation (denial of alcohol consumption yet a faint smell of alcohol on her breath etc.) also allowed PC Sorbara to ground his ultimate belief that he had formed a reasonable suspicion under the circumstances.
79Indicators present on the day of the incident that could have supported PC Sorbara’s suspicion of impairment are the following;
(i) The smell of alcohol emanating from Ms. Thompson
(ii) The unorthodox nature of the accident in that it involved a parked car
(iii) Ms. Thompson’s instability while walking
80When this court analyzes the evidence of PC Sorbara in conjunction with the evidence he had garnered from others prior to forming his grounds for reasonable suspicion this court is of the opinion that there are sufficient objective indicators to satisfy the low threshold of reasonable suspicion.
Police Note taking
Should the lack of information in the officer’s notes adversely impact on PC Sorbara’s credibility and or reliability?
Defence Position
81PC Sorbara has no mention in his notes of a smell of alcohol, stuttering, or any commentary regarding impairment with respect to Ms. Thompson. It is argued that this lack of obvious and germane information within PC Sorbara’s notebook is telling, and severely compromises his testimony due to the passage of time and should not be relied upon by this court.
82Defence also suggests that upon his arrival at the scene PC Sorbara did not speak to any civilian witnesses who would have provided pertinent observations of the sobriety or lack thereof for Ms. Thompson.
Crown Position
83The crown contends that police notes are to be used as an aid to any memory that a police officer is disposed of. The belief that an officer is required to chronicle any and all interactions with a potential arrestee is not grounded in law and would create an administrative encumbrance significant enough to bog down the system if expected and codified.
Application to the Law
84Justice N. Dawson in the matter of R. v. Latiff, [2017] O.J. 4676, provides a comprehensive account of the current state of the law with respect to police notes and note-taking (para. 56 – 63) I have embedded those paragraphs within my decision due to its fulsome and helpful exploration of the area.
[56] There is a duty on a police officer to make careful notes on the events that transpire during an officer's tour of duty: Woods v. Schaeffer, 2013 SCC 71, [2013] S.C.J. No. 71 paras. 63-68 (S.C.J.) The court stated at para. 67:
Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer's duty to assist in the laying of charges and in prosecutions -- a duty that is explicitly recognized in s. 42(1)(e) of the Act.
[57] There have been a number of cases that have discussed the importance of police note taking. In some cases, the lack of police notes on a matter that is then recalled by the officer on the stand has led to a diminishment of the weight attached to the police evidence: see R. v. Sharma, [2014] O.J. No. 1289 (Ont. C.J.), para. 33; R. v. Sherry MacHayes, June 23, 2005, a decision of Wright J., O.C.J. [emphasis added]
[58] The lack of a notation can also give rise to s. 7 disclosure breaches of Charter rights: R. v. Karunakaran, [2008] O.J. No. 3468 (Ont. C.J.) This is not to say that the police must note every single thing that occurred when dealing with an accused person. This is an unrealistic expectation. When, however, it is an event that relates to an important point, the lack of a note could impact on the credibility of the officer's recollection of the event in appropriate cases.
[59] There are cases where the absence of a piece of evidence in an officer's notebook have led to an adverse inference drawn as to the officer's evidence on the point and a rejection of the officer's evidence. An example of such was in R. Zack, [1999] O.J. No. 5747, where an officer indicated he did not put an indicia of impairment in his notes because he would remember it.
[60] The law however does not require that an officer has to record everything done or seen in order to comply with disclosure requirements. In R. v. Lynch, [2010] O.J. No. 5394 (Ont. S.C.J.) paras. 31-32, the court stated:
An officer's notes are not evidence, but merely a testimonial aid. The absence of a notation just like the significance of an inconsistency in a witness' testimony must be determined by the trier of fact on a case by case basis.
A number of decisions have confirmed that neither the Zach nor Markandu [2009] O.J. No. 2625 cases stand for the proposition that if an officer has not recorded a matter in his notebook that the court should infer that the matters at issue did not occur. Rather, these cases relate to a failure to disclose evidence. The significance of an omission in an officer's notebook, just like the inconsistency in a witness' testimony must be determined by the trial judge on a case-by-case basis and a determination of that significance is, as in the case before me, entitled to deference on appeal.
[61] It is not the case, "if it's not in the notes it didn't happen" as said by Duncan J in explaining his decision in Zack. In the decision in R. v. Golubentsev, [2007] O.J. No. 4608 (Ont. C.J) paras. 29-31.
[62] At para. 30, Justice Duncan stated:
...Second, related to this, police officer notes are not a running record of everything that was seen or that occurred every step along the way. An officer will usually note observations made that are necessary to ground the authority that he then exercised -- such as indicia of impairment that formed the basis of his arrest or demand. But having noted, say, stumbling or slurring at that point, making a note of the same thing occurring again is of lesser importance and often even redundant. That the same feature or occurrence is not noted again provides little support for an inference that it was not present or did not occur.
My own decision in R. v. Zack, [1999] O.J. No. 5747 is often relied in support of an argument to the effect "If it's not in the notes, it didn't happen". That is not what Zack stands for. Rather, in that case I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it". Zack is a case about disclosure, not note taking, and it speaks to important matters -- in that case the foundational observation of unsteadiness on the feet that was the basis for the opinion of impairment and demand -- effectively holding that the police can't keep aces up their sleeve. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, disclose the significant observations that he made. Zack should not be interpreted as holding that police notes must be a comprehensive script of everything that occurred. [emphasis added]
[63] In R. v. Hawkins, [2012] O.J. No. 3134 (Ont. C.J.), Maresca J. also made reference to the Zack decision and what Justice Duncan said in that decision and also noted at para. 18:
The explanation of the officer in the Zack case was a justification of why he had not recorded something in his notes. That is not the case here. Zack is often cited for the proposition that if information is not in the officer's notes, it did not happen. Justice Duncan himself, however, stressed in R. v. Golubenstev, [2007] O.J. No. 4608 (Ont. C.J.) that Zack did not stand for that proposition
Application to the Facts
85This court finds as a fact that some of the most salient detail with respect to the investigation is absent from the notes of PC Sorbara. However, reliance solely on the officer’s lack of notes as an indication of credibility is not advisable.
86The expectation of an officer when scribing their notes with respect to an ongoing investigation can be distilled down to the officer needing to strike a reliable balance between worthwhile disclosure and necessary information to ensure an officers memory is sufficiently triggered months after an incident.
87The ultimate grounds relied upon by PC Sorbara to confirm his suspicion are mirrored in the evidence of others who were present at the scene and whose evidence this court does find credible. Therefore, absent the vital information that should have been placed within PC Sorbara’s notes the detriment to the officer’s credibility and the case at large is of lesser significance. It is the suggestion of this court that the lack of note taking did not take away from the defendant’s ability to make full answer and defence nor did it put the defence at a significant disadvantage in light of other evidence.
88Improper note taking does not engage an automatic exclusionary rule but can impact on the credibility of the officer in question. However, when the totality of the observations of PC Sorbara are analyzed this court finds that his viva voce evidence remains in alignment with that of other independent witness who were present, interacted with Ms. Thompson and whose evidence this court does believe. If the officer’s evidence was skewed drastically in favour of an alternate position this court would take a very real pause when analyzing the officer credibility; however in light of his evidence seemingly being in alignment with other credible witnesses, his credibility in large measure is still subject to the normal judicial screening process.
The Forthwith requirement
89Justice Nakatsuru holds the view that it would be wrong to measure the "forthwith" requirement with a stop watch. There is no requirement to make a demand or get a response as fast as circumstances permit. Police officers should be allowed to conduct their tasks safely, without undue pressure, and with deliberation. In that way, mistakes are not made. In that way, professionalism and courtesy is encouraged in the interactions between the police and motorists. R. v. Davloor, 2018 OJ No.757 para 13 [emphasis added].
90The requirement that the demand be made promptly by the officer once they form reasonable suspicion that the driver has alcohol in their body makes sense. Unless there is some valid reason why not, the demand can be made easily and quickly upon the officer having formed reasonable suspicion. Further, by giving such a demand promptly, the motorist is promptly made aware of the true reason for their continuing detention. Finally, if police officers are permitted to give the demand at a time of their choosing, especially in cases where an ASD device is not immediately at hand, it skews the analysis of whether the forthwith requirement has been met. For instance, if permitted to give the demand at the time the ASD arrives on scene rather than at the formulation of reasonable suspicion, the demand and response would always appear to have been made promptly relative to each other R. v. Davloor para. 15.
91In answering the question of whether the demand was made promptly upon the formulation of reasonable suspicion, Justice Nakatsuru felt it helpful to assess the following;
- When was the reasonable suspicion formed?
- When was the ASD demand made?
- How long was the intervening period of time between the two? The lengthier the time, the greater the need to explain why the police did not make the ASD demand earlier. I point out that it is not necessary to show the police could not have made the demand earlier. Rather, the focus should be on why the police did not make the demand earlier. The reasons for not doing so are then examined under the last question.
- What were the police doing during this time and was the conduct reasonable in the circumstances? This is very much a fact dependent inquiry. If the intervening time period is relatively short then there is little need to show the police conduct was reasonable. Their mere stopping of a driver, ascertaining identity and proper licensing, ensuring officer and public safety during the stop, and the investigation of potential drinking and driving offences all take some time. The law should not force a police officer to prioritize the giving of an ASD demand before pursuing other valid police objectives during a motor vehicle stop. To do so would be formalistic and would not recognize the practical realities of policing. Further, even the internal thought process engaged by the officer in observing indicia and receiving information relevant to alcohol in the driver's body, digesting this information, and concretely formulating the reasonable suspicion takes time. In some cases, the officer may wish to determine whether based upon further investigation reasonable grounds to arrest or make an approved instrument demand exists, before deciding to fall back on an ASD demand. No doubt, the amount of time this takes will vary from officer to officer and case to case. [Emphasis added]
92If the time period is longer, the police must explain why other duties or circumstances reasonably delayed the giving of the ASD demand once reasonable suspicion was formed. The assessment of whether this is reasonable should take into account the objectives of the legislation which balances the needs of law enforcement and civil liberties. In some cases, the reasonableness of the delay may be clear. For example, if an officer arrives at an accident scene where the safety of the public is of the utmost importance, taking steps to ensure this rather than giving a prompt demand would make the ensuing delay reasonably necessary. In other cases, where there is police indifference to their obligations, negligence, or a deliberate delay in giving the ASD demand in order to frustrate the objectives of the legislation, the demand will not have been given promptly. As the case law recognizes, there is no inflexible time limit that must invariably be met by the police [emphasis added]
Application to the Facts
When was the reasonable suspicion formed?
93PC Sorbara formulated his reasonable suspicion at 1:54 pm on the day of the arrest.
When was the ASD demand made?
94At 1:56 pm on the day of the incident PC Sorbara issued the breath demand to request a sample of Ms. Thompson’s breath followed by the test being administered at 1:58 pm.
How long was the intervening period between the two?
95The intervening period between steps one and two is two minutes.
What were the police doing during this time and was the conduct reasonable in the circumstances?
96During the interval between formulating his reasonable suspicion and making the demand PC Sorbara requested PC Ferguson check the ASD to ensure there were no errors with the apparatus.
97The court of appeal is of the opinion that circumstances must be taken into account when determining the rationale between periods up for consideration. The immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement. R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 – para. 48 [emphasis added]
98This court is of the opinion that the circumstances surrounding the two minute gap between PC Sorbara’s forming of reasonable suspicion and the actual ASD testing was appropriate when the totality of the situation is assessed.
Can PC Sorbara rely on the results of the ASD when he is unable to confirm if the machine at the time of use was in proper working order?
Crown Position
99The Crown argues that the case law does not require an officer who is relying on ASD results solely for the purposes of confirming or rejecting an officer’s reasonable suspicion that a motorist might be impaired over the legal limit to prove that fact.
Defence Position
100The defence submits that in light of the discrepancy in the notes between PC Ferguson and PC Sorbara, coupled with the fact that PC Sorbara did not personally undertake the quality assurance testing with respect to the ASD he cannot testify as to the working nature of the machine and therefore cannot rely on the results due to the fact that such reliance would be speculative in nature.
101Respectfully, I disagree.
102In R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288, the Court of Appeal examined whether a 'fail' result on an ASD could be used by the Crown against an "evidence to the contrary" defence to an "over 80" charge. Moldaver J.A. noted that there was no evidence in that case that the ASD was calibrated for a 'fail' reading when the driver's blood alcohol level was 100 or more milligrams of alcohol in 100 millilitres of blood, when the ASD was last calibrated or whether it was in proper working order. He continued:
Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer reasonably believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence. [Emphasis added]
103“Since the Court of Appeal has held in Coutts that there is no onus on the Crown to prove the ASD is working properly, I am unable to find that after Haas there is now an onus on the Crown to prove the calibration, that the ASD was properly calibrated or that the ASD was in proper working order when the evidence is being introduced to confirm or reject the officer's suspicions the accused was operating the motor vehicle while impaired or was driving having consumed excess alcohol.” R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 - para. 42 [emphasis added]
104At 1:54 pm PC Sorbara formed the requisite grounds that Ms. Thompson was under the influence of alcohol and requested PC Ferguson to prepare the alcohol screening device. The testing was requested to ensure there were no errors when the test was to be administered.
105PC Sorbara believed the machine was in good working order upon PC Ferguson’s return with the ASD machine. This court is aware of the discrepancies in the officer’s notes and testimony around whether the ASD test was requested or initiated without officer input. However, on both accounts the ASD was tested and believed reliable.
106The reliance by PC Sorbara with respect to the ASD was grounded on a reasonable belief that the instrument was in good working order and was not being tendered to confirm the officer’s suspicion that Ms. Thompson was driving impaired. Therefore this the readings are admissible.
Conclusion
107In light of the above analysis I am convinced beyond a reasonable doubt that Ms. Thompson is guilty of the charges before the court.
Released: January 22, 2019
Signed: Justice D.F. McLeod