Court File and Parties

Court File No.: 12-0530

County of Renfrew

Date: 29-04-13

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Stephanie Stevenhaagen

Before: Justice R.G. Selkirk

Heard on: December 10th, 2012 and March 7th, 2013

Reasons for Judgment released on: April 29th, 2013

Counsel:

Elizabeth Ives-Ruyter — for the Crown

Will Murray — for the accused, Stephanie Stevenhaagen

Judgment

SELKIRK, J.:

Facts and Charges

[1] Ms. Stevenhaagen was charged with Impaired and Over 80 arising out of an incident on May 5th, 2012.

[2] At the end of the trial the Crown invited me to dismiss the Impaired and I did so.

Issue

[3] The issue in the Over 80 is whether the Crown has established that the arresting officer gave a s.254(3) demand to the accused at the scene. It was conceded that there is no evidence of such a demand being given at any other time.

[4] The Crown must establish such a demand on a balance of probabilities. If it cannot then two results could follow. The first is that the presumption in s.258(1)(c) would not be available and without a toxicologist's evidence to read back the results to the time of driving the offence could not be established. The second is that a breach of s.7, 8 and 9 of the Charter of Rights could be found and the evidence of the breath tests could be excluded pursuant to s.24(2).

[5] If the Crown can establish that a s.254(3) demand probably was made then the accused would be found guilty as there are no other issues.

Chronology of Events

[6] At 02:26 hours, Sergeant McDonald stopped the vehicle driven by the accused. Upon noting grounds for an ASD demand, he made one at 02:28 hours. This resulted in a Fail. Based on this, as well as the odour of alcohol on her breath, bloodshot eyes, some minor driving lapses and that she had just left a bar, he arrested her at 02:33. At this same time he said he also read to her the rights to counsel and the primary caution. At 02:34 he read the secondary caution. She was then cuffed and placed in the back of the cruiser. At approximately 02:36 he radioed in to dispatch to locate a Breath Technician. At 02:48 the dispatch told him to proceed to the Upper Ottawa Valley Detachment. They arrived there at 02:57.

[7] Sgt. McDonald then re-read the rights to counsel and two cautions to the accused and at approximately 3:00 a.m. she was lodged in a cell. She had declined to speak to counsel.

[8] The above reflects not only Sgt. McDonald's evidence to this point but also the order in which he gave that evidence. Having reached his description of events up to 3:00 a.m., he then says, "I just remembered, before leaving the scene, I read the road-side breath demand just before 02:48."

[9] He then picks up the chronology again by indicating he turned the accused over to the Breath Technician at 03:21 hours having given his grounds and answered the Breath Technician's questions at 3:09 a.m.

Sergeant McDonald's Notes

[10] In cross-examination it was pointed out that there was nothing in either the General Occurrence Report or the Case File Synopsis, both prepared by Sgt. McDonald on May 5th, 2012 with respect to a s.254(3) demand having been made.

[11] It was also pointed out to Sgt. McDonald and confirmed later by the Breath Technician that when asked, at the detachment by the Breath Technician, what was the time of the demand, that Sgt. McDonald told the Breath Technician 02:28. This, of course, is the time of the ASD demand and is inconsistent with Sgt. McDonald's evidence that he gave the s.254(3) demand shortly before 02:48 hours.

[12] Sgt. McDonald was then taken through his duty book notes. They read as follows at page 51:

02:27 - Stephanie Stevenhaagen - odour of alcoholic beverage emanating. I asked if she had been drinking, "absolutely not" - eyes bloodshot;

02:28 - demand -

DYU - A "Yep"

02:31 – "F"

02:33 - arrested for > .08 and Impaired operation.

Q - DYU?

A - Yep

Q - DYWTCALN? (his short hand for do you want to call a lawyer now);

A - No

02:34 – Caution - Q - DYU – A - I understand

Q - DYWTSAIAA __ ___ (short hand for do you want to say anything in answer to the charge).

02:34 – A No

S.C (2nd caution) DYU? – A – "Yep"

* (Waiting for OPP)

[13] Then, consistent with his evidence, that while waiting to hear back from the OPP that among other things he did his notes at this point. One can see that he does his more detailed notes as to what had preceded, starting with the driving mistakes he had noted and the route travelled prior to the stop. He describes who was in the vehicle, asking for the driver's licence, describes her clothing and how she denied drinking twice. He writes that "he detected odour and asked her to accompany to rear of car 3." This is at the bottom of page 53.

[14] On page 54 his notes continue at the top:

– Ø cuffs & in back seat. Demand read

- Q DYU - A "Yes"

ASD - Drager 7410

.... - 02:56 (#1) (I do not know what this refers to);

- calibrated 28 April, 2012

DL - Stephanie Lynn Stevenhaager

- address

02:48 - UOV confirms 10-4 to come ahead

02:48 - 10 - 8 (leaves scene)

02:57 – 10 - 7 UOVOPP (arrives at detachment)

[15] In cross-examination, Sgt. McDonald said that the reference to "Demand read" at the top of page 54 is a reference to the s.254(3) demand.

Email Correspondence

[16] A series of e-mails between the Crown and the police were then introduced.

[17] On August 1st, 2012, which was approximately two weeks after a trial date had been set, the Crown asks, "What was going on between 02:34 and 02:48 on the roadside....it is not entirely clear that anything was happening besides sitting and waiting."

[18] On August 2, 2012, Sgt. McDonald writes back that:

"between 02:34 and 02:48 the accused sat in the back of the cruiser while I awaited confirmation the OPP had a breath technician we could use and made notes of the investigation preceding the stop. I also read her the roadside demand and checked the date of calibration and made notes of her driver's licence."

[19] On August 6, 2012, Sgt. McDonald sends to the Crown a copy of his will-say. The crucial part of that is the following:

"I detected an odour of an alcoholic beverage emanating from her person as she spoke and noted her eyes wee bloodshot after which I read her the roadside demand and asked that she accompany me to the back of car #3 where I had her sit in the back seat. I then administered the ASD the accused and found that the sample provided by her was "F". At this point I arrested her for over .08 and impaired operation and read her rights to counsel and cautions. I then called the OPP for a breath tech and waited, made notes and documented ASD particulars, the accused drivers license and read the breathalyser demand to her."

[20] I note two things about this will-say. The first is that the cited passage is a combination of his notes from p. 51 to p. 54 and not strictly consistent with the order in which they are made. This is not a criticism, just an observation. The second thing is that Sgt. McDonald clearly distinguishes between "roadside demand" and "breathalyser demand" in his e-mail in a fashion that is used by most when distinguishing between the two types of demands.

[21] In his evidence-in-chief, however, when he said he just remembered that he gave the "roadside demand" at 02:48 he explained in cross-examination that "roadside demand" can mean either a demand under s. 254(2) or a demand under s.254(3).

Court's Analysis

Credibility and Reliability

[22] I am not satisfied that the Crown has met its onus of establishing on a balance of probabilities that Sgt. McDonald read to the accused a demand pursuant to s.254(3). I appreciate that he thinks he did but I am not convinced beyond this being a possibility.

[23] I say this for a number of reasons. The first is that I do not accept that the reference to a demand being made at the top of p.54 of his duty book is to the s.254(3) demand. I believe it is to the s.254(2) demand because the lines immediately preceding it deals with getting the accused out of her vehicle and back to the cruiser for the purpose of the ASD test and the lines immediately following it describes the nature of the ASD used. It does not seem likely that a completely different step in the investigation would be shoe-horned in at this point. Every other step in the investigation is given not only its own line in his notes but also, for the more significant stop, the time is noted. As the demand must be made as soon as practicable after the grounds for the demand are obtained as required by s.254(3), then the time of the demand under s.254(3) is such an important piece of evidence that it is unlikely that the time of the demand, if made, would not be noted.

Importance of Police Note-Taking

[24] This raises the issue of what inference can a trial judge make when an important step in the investigation is not captured in an officer's notes. In R. v. McGee, 2012 ONCJ 523 this issue is discussed. It reads, at paragraphs 61 to 66:

[61] "In R. v. Zack, Duncan J. considered the issue of the importance of proper note-taking. At page 2 of that judgment he stated:

"In this day of full disclosure, it cannot be an acceptable explanation for an officer to say 'I did not note it because I would remember it.' It is necessary for the officer to at least somewhere … Put the significant observations he made … The absence of questioned observations in his notebook lead to the conclusions that those observations were not, in fact made at the time, but are perhaps something that over the course of time the officer has come to believe that he saw."

[62] Feldman J. in R. v. Lozanovski, 2005 ONCJ 112, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following:

"It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory."

[63] Gorewich J. in R. v. Khan (2006), O.J. 2717 referred to Duncan J. in R. v. Zack and Feldman J. in R. v. Lozanovski and stated at paragraph 17 of his judgment as follows:

"17 In considering that evidence, the comments of Duncan, J. to which I referred to a moment ago, are particularly applicable. The officer testified that these are facts he knew he would remember from almost two years ago. I must ask myself how does this lack of note taking on key issues impact on the reliability of his evidence. It is not difficult to conclude that the reliability of this evidence is diminished. I have also referred to Feldman, J. comments in R. v. Lozanovski.

18 The failure to make a note of these observations is serious. It is simply not acceptable for the officer to say that I did not note these things because I knew I would remember them. It bears on the credibility of the officer, as well as the reliability of his evidence."

[64] In Khan, two years had passed from the arrest date to the trial date. In the case at bar, over twenty-nine months had passed.

[65] In R. v. Hayes, 2005 ONCJ 5057, P. Wright J. made reference to the absence of important information in a police officer's notebook and stated at paragraph 9 as follows:

"9 The decisions of this Court R. v. Zack, decision of Justice Duncan, a decision of mine in R. v. Burrows, 2004 ONCJ 357, [2004] O.J. No. 5377, and R. v. Makhota, 2004 ONCJ 5415, make it quite clear that the absence in the police officer's notes of specific recollection of the important information have allowed me to conclude that that information, that evidence is not reliable. In other words, for an officer to come to court and simply say I have an independent recollection doesn't cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore."

[66] The absence of notes in relation to pivotal issues by any of the police officers is troubling and to a certain degree, diminishes the weight attached to their evidence."

[25] I caution myself that it is not quite as black and white an issue as perhaps expressed in Hayes. Other courts have indicated that you must look at each case on a case by case basis. It is not a straight line from the fact of no note to the finding that it, therefore, did not happen. It all depends on the particular circumstances. However, having said that, it is clear that poor notes do not enhance an officer's reliability.

Timing and Procedure

[26] It is unlikely that the demand would not be made, if made, immediately following the rights to counsel and the cautions for two reasons. The first as set out above is that the demand must be made as soon as practicable and there was nothing, no situation or circumstances, that would prevent the officer from making the demand as soon as practical since neither the accused or her passenger were presenting any problems, there were no officer safety issues, nor was there any traffic issues. There is no answer on the evidence to the question as to why would Sgt. McDonald wait fourteen minutes before making the demand.

[27] A second reason for questioning whether a demand was ever made is that the rights to counsel, the cautions, and the demands are all contained on pre-printed forms in the officer's duty book. There is, again, no explanation for why the officer would turn to that part of his duty book and read the rights to counsel and the cautions but not the demand especially when he is required by law to do so. Common sense and common police practice is that the three go together: rights to counsel, cautions and demand. Thus there are good reasons for the demand, if made, to be made immediately following the cautions and no good reason to wait fourteen minutes. This suggests the demand was not made shortly before 02:48 as indicated by Sgt. McDonald but rather not at all.

Absence from Reports

[28] Another reason to doubt the demand was made is that there is no reference to it in either the General Occurrence report or the Case File Synopsis, both prepared by Sgt. McDonald on his next shift later that same day. He prepared those with the use of his notes and apparently did not recognize the reference to a s.254(3) on page 54 of his notes or I would have to presume he would have included this important step in the investigation.

Inconsistent Statements

[29] There is also the evidence of the Breath Technician that when Sgt. McDonald was asked when he read the demand that he replied, "02:28". This, of course, is the time of the ASD demand and not the breathalyser demand. This could be just a slip of the tongue but it does not seem likely given that the breathalyser demand, if given, was given within minutes of the Breath Technician asking the officer when he gave it.

[30] In the e-mail from Sgt. McDonald to the Crown on August 2nd, 2012 he says he gave her the "roadside demand" between 02:34 and 02:48. He did not say he gave her the breathalyser demand. In his evidence he said that "roadside demand" could mean either demand, that he uses roadside demand interchangeably between the two demands. But that is not accurate because in his e-mail of August 6th, 2012 he uses "roadside demand" in reference to the s.254(2) demand and "breathalyser demand" in reference to the s.254(3) demand which is how the two demands are normally described and distinguished.

[31] In the e-mail of August 6th, 2012 he does state that he gave the s.254(3) demand while the accused was in the back of the cruiser after the arrest; the rights to counsel; cautions; the call to the OPP; waited; made notes and documented the ASD particular, the driver's licence and then he writes, read the breathalyser demand. This is not in the same order or chronology as contained in his notes where the breathalyser demand is sandwiched between two references to the ASD procedure.

[32] This is another factor that does not establish that the demand was read when the officer says it was.

Reliability and Memory

[33] This August 6th e-mail is three months after the incident. Sgt. McDonald is usually on general patrol. He runs a shift. This means he deals in some way with a large number of incidents. It is questionable, without notes or reports which detail such a step being taken that he could reliably recall such a step as well the timing of it.

Officer Preparation

[34] I do not give much weight to his explanation that the demand on page 51 is a different demand on page 54 because on page 51 he wrote she responded "yep" and on page 54 he wrote she responded "yes". This sounded to me at the time as a stretch and it still does. It likely is derived from the Crown telling the officer in the days immediately preceding the trial that the lack of a note for the s.254(3) demand will be an issue. While I am not saying there is anything wrong with the Crown preparing their police witnesses in this fashion, it does run the risk of turning the officer from an impartial witness to an advocate for his case. Several of the officer's responses in cross-examination suggested he had crossed that line.

Conclusion on Demand

[35] While it is a close call because I do not doubt the officer's credibility but rather on this one specific point his reliability, I cannot conclude that the Crown has established that a s.254(3) demand was made on a balance of probabilities. I believe this to be no more than an oversight by the officer and recognize I could be wrong because it is possible that he did but that is not the test the Crown must establish.

Legal Consequences

Statutory Presumption

[36] What is the result of that finding? The law is well set out in R. v. McCarthy, 2013 ONCJ 467, a Summary Conviction Appeal found at [2013] O.J. 467, a decision by I. A. MacDonnell J. At paragraphs 20 and 21 he writes:

[20] "Subsection 258(1), on the other hand, contains eleven evidentiary provisions. Six of those provisions deal with the admissibility of certificate evidence. Five create or are concerned with presumptions of fact. In an 'over eighty' case, the provisions most likely to be invoked are ss. 258(1)(g), which permits the Crown to establish the results of an analysis of breath samples by means of a certificate, and ss. 258(1)(c), which deems a subject's blood alcohol concentration at the time breath samples were taken to be the same as at the time of the alleged offence. These are statutory shortcuts, which enable the Crown to dispense with viva voce evidence from the person who conducted the tests and with expert evidence relating the test results back to the material time.

[21] Before either of those shortcuts can be invoked, a number of preconditions must be satisfied. One of those preconditions is that the breath samples were taken "pursuant to a demand made under subsection 254(3)". If the Crown, for whatever reason, cannot or does not establish that precondition it does not follow that the results of the analysis of the breath samples are inadmissible. Section 258 does not deal with the admissibility of breath samples per se. An inability to satisfy the requirements of s. 258(1)(g), for example, would not preclude the Crown from calling the qualified technician to testify as to the manner in which he or she conducted the analyses and the results thereof: see, e.g. Regina v. Showell (1971), 4 C.C.C. (2d) 252, at 254 (Ont. H.C.); affirmed 1971 O.J. No. 701 (C.A.). Nor would an inability to satisfy the preconditions for the presumption of identity preclude calling a toxicologist to 'relate back' the results of the analysis to the time of driving. The preconditions set forth in ss. 258(1)(c) and (g) are preconditions to the availability of short cuts, not to the admissibility of the results themselves."

[37] At paragraph 25 of the same decision he writes:

[25] "That is not the end of the matter, of course. The evidence of the qualified technician in this case only showed what the respondent's blood alcohol concentration was the time of testing. In order to establish that the concentration was the same at the time of driving the Crown needed the assistance of the presumption of identity set forth in ss. 258(1)(c). To invoke that presumption, the Crown needed to establish that the samples of the respondent's breath were "taken pursuant to a demand made under subsection 254(3)". It has long been established, however, that to satisfy that requirement, it does not have to be shown that the person making the demand had reasonable grounds for the demand."

[38] I do note that McCarthy echoes Justice MacDonnell's finding in R. v. Lee 2008 ONCJ 1056 when he sat in the Ontario Court of Justice.

[39] McCarthy is binding on me. The result is that the Crown did not have the benefit of the presumption in s.258(1)(c). The Crown did not call a toxicologist to relate the readings at the time of the test to the blood alcohol concentration at the time of driving. Without that evidence there is no evidence of the blood alcohol concentration at the time of driving and the accused must therefore be acquitted.

Charter Application

[40] The Court in McCarthy goes on to distinguish this situation where the Crown does not enjoy the presumption in s.258(1)(c) to the situation where the Court is asked to not admit the results of the tests at all. To deny admissibility, however, the accused needs a successful Charter Application and exclusion under s.24(2).

[41] In this case the accused has argued that the lack of a demand results in a breach of s.8 and 9 of the Charter. While it is not necessary to decide this issue given the above finding, I will assume for the sake of argument, find that is so. In my view, however, that is of little benefit to the accused because I would not in these circumstances exclude the evidence under s.24(2).

[42] The lack of a demand was an oversight. The officer was acting in good faith. The officer clearly had reasonable and probable grounds to make the demand. The readings are reliable and essential to the Crown's case. There was little to no prejudice to the accused as she obviously knew she was being investigated for a drinking/driving infraction and reacted accordingly. In these circumstances the administration would be brought into disrepute if the readings were excluded. The Charter Application is dismissed.

Final Verdict

[43] The end result, however, is that the accused will be found not guilty because the Crown has not established her blood alcohol concentration at the time of driving and the failure to comply with s.258(1)(c) means the Crown does not receive the benefit of the presumption contained therein.

Released: April 29th, 2013

The Honourable Mr. Justice Robert G. Selkirk