Court File and Parties

Ontario Court of Justice

Date: August 29, 2013

Court File No.: Halton 12-1616

Between:

Her Majesty the Queen

— and —

Ryan Knight

Before: Justice L.M. Baldwin

Heard: July 24, 2013

Reasons for Judgment Released: August 29, 2013

Counsel:

• S. Bradley, counsel for the Crown
• P. Dotsikas, counsel for the defendant Ryan Knight

Ruling on a Section 8 Charter Application

(and the Role of a Coach Officer)

Baldwin J.:

[1] Ryan Knight is charged with impaired operation and Over 80. The events in question occurred on May 26, 2012 in Milton.

[2] Two witnesses testified for the Crown in this case. There was no defence evidence.

[3] HRPS Officer Kevin Magee was in training at the time and he was the officer-in-charge of this investigation. Officer Dwaine Newham was riding as a passenger in the cruiser Officer Magee was driving. Officer Newham was the Coach Officer and later was the Intoxilizer Technician in this case.

[4] The defence advances a section 8 Application asserting that Officer Magee did not have reasonable and probable grounds to arrest Mr. Knight for Impaired Operation of a motor vehicle and to demand breath samples.

[5] The onus is on the Crown to establish that Officer Magee had the reasonable and probable grounds ("RPG") to make the breath demand on a balance of probabilities – R. v. Haas (2005), 200 C.C.C. (3d) 81; 76 O.R. (3d) 737 (Ont. C.A.)

Testimony of Officer Kevin Magee

[6] Officer Magee testified that he has been a member of the HRPS since December 2011, just 6 months prior to this investigation. During the first 3 months (January to March) he received police training. The last 3 months (April to June) he was on duty with his Coach Officer. He had been on the road for approximately 2 months before this investigation occurred. Officer Magee had effected one prior arrest in a drinking driving case less than two weeks before this incident.

[7] Officer Newham has been an officer with the HRPS since April 2006 (7 years prior to this investigation). He is also a qualified Intoxilyzer technician.

[8] Officer Magee testified that he was on general patrol with Officer Newham in Milton when he first observed the motor vehicle driven by the accused. It was approximately 3:00 a.m. and the motor vehicle turned out from a plaza and proceeded northbound on Bronte Road heading toward Main Street.

[9] Officer Magee testified he first observed that the validation tag on the licence plate was a temporary tag. The evidence has established that these temporary tags are like neon signs to police as they are only valid for 10 days and are usually found to be expired when they are checked.

[10] The validation tag on the vehicle Mr. Knight was driving was immediately queried and came back as having been expired for over a year.

[11] Officer Magee started to follow the vehicle and put the cruiser emergency lights on to effect a traffic stop. Mr. Knight did not pull to the right and stop which he is required to do pursuant to the Highway Traffic Act.

[12] Mr. Knight continued to drive northbound on Bronte Road, which has one lane going in each direction.

[13] Officer Magee testified that Mr. Knight continued driving for 50 metres or so (after the emergency lights were activated) until he approached the intersection at Main Street.

It began to straddle the left-hand turn lane and the through lane approaching Main Street…His car was positioned directly centre over the dotted line in between the left-hand turn lane and the through lane…(the vehicle) slowly came to a stop as the light was turning red.

[14] Officer Magee turned off the emergency lights when he was behind Mr. Knight at the red light as it was not a safe location to affect a traffic stop. He did not want his emergency lights to cause the vehicle to proceed into the intersection.

[15] When the light turned green, Mr. Knight turned left onto Main Street. The officers followed and reactivated the emergency equipment.

[16] Mr. Knight proceeded for a distance of approximately 20 metres before he pulled over to the right and stopped his vehicle on Main Street. The time of the stop was 3:06 a.m.

[17] The cruiser pulled in behind and both Officers exited the cruiser. Officer Magee approached the driver's side. Coach Officer Newham approached the passenger's side, where a female was seated in front.

[18] The driver's window was rolled down and Mr. Knight was seated in the driver's seat. Officer Magee asked for his driver's licence and pertinent driving documents.

[19] At this time he sensed a "strong odour of alcoholic beverage".

[20] As Mr. Knight was searching for his insurance slip, Officer Magee observed a bottle of Bacardi rum beside the passenger's left thigh. It appeared to be opened and half empty/full.

[21] Officer Magee asked Mr. Knight how much he had had to drink that night.

[22] Mr. Knight stated that he was just returning from Shoeless Joe's (a nearby bar) and he had had a few drinks.

[23] Officer Magee testified that Mr. Knight's eyes appeared to be "drowsy and fairly glossy".

[24] Officer Magee testified that based on Mr. Knight's admission to consuming alcohol, the indecisive driving and the physical observations he had made, he had grounds to believe that Mr. Knight was operating a motor vehicle while under the influence of alcohol.

[25] "I proceeded to ask him out of the vehicle and informed him that he was under arrest for impaired driving." The arrest was made at approximately 3:10 a.m.

[26] Mr. Knight was very slow in walking to the back of his vehicle. At the time, he was adjusting his pants.

[27] Mr. Knight was cuffed and placed into the back of the cruiser. He was given rights to counsel, cautioned, and read the breath demand.

[28] At approximately 3:22 a.m., the officers left the scene and drove Mr. Knight to 12 Division, arriving at 3:25 a.m.

[29] Thereafter, Mr. Knight was processed at the division, exercised his rights to counsel, and was turned over to Officer Newham who continued in his new capacity on this case as the qualified Intoxilyzer technician.

[30] Officer Magee provided his grounds for arrest and demand breath samples to Officer Newham in both verbal and written form. (Note: these were not explored in any more detail in the evidence.)

[31] Mr. Knight provided two suitable samples of his breath. The Certificate of a Qualified Technician was marked as Exhibit 'A' on this Application.

[32] In cross-examination, Officer Magee testified that his Coach Officer did not direct him to do anything with respect to this investigation. The decisions to arrest and make the breath demand were decisions he made on his own.

[33] Officer Magee testified in cross-examination that the distance from the time he first observed the vehicle until it stopped at the red light at Main Street was at least 500 metres, but he was not sure. He testified that he had the emergency equipment activated for approximately 50 metres before the vehicle stopped at the red light, although again he is not sure of the distances.

[34] He did not observe any driving concerns when he activated the emergency equipment. He did that solely because of the expired validation tag.

[35] Officer Magee did not note any speeding.

[36] Officer Magee testified that the vehicle straddled the left turn lane and the single lane going northbound for "say 20 metres" of the 50 metres travelled while the cruiser's lights were activated.

[37] The vehicle straddled the northbound lane and the dotted line for the turning lane. When it stopped for the red light it had not completely come into the turning lane.

[38] The vehicle made a proper turn on the green light and the cruiser followed with lights again activated.

[39] The vehicle proceeded on Main Street for approximately 20 metres and pulled over onto the shoulder of the road.

[40] Mr. Knight had no difficulty producing his driving documents.

[41] The strong odour of alcohol was coming from Mr. Knight's breath.

[42] Officer Magee testified that he observed Mr. Knight's eyes to be "drowsy" which he did not interpret to be because of fatigue. He observed Mr. Knight's eyes to be "squinting".

[43] Mr. Knight was never asked if he had consumed any rum from the bottle in the car. The existence of the open rum bottle was not a factor in forming his grounds.

Testimony of Officer Dwain Newham – the 'Coach Officer'

[44] Officer Newham testified that he helped Officer Magee investigate this case.

[45] "We were conducting an investigation".

[46] He testified as to the role of a Coach Officer as follows:

Coach Officer essentially is to help the new officer transition from police college into operational mode. It's a 12-week program here in Halton directly with the coach officer and learning the system, just acclimatizing themselves to the city and the patrol zone, answering questions that they still have being a newer officer. I'm just there to accompany him and, you know, offer my advice if it's needed. …they have all their authorities…they're doing their job. It's his investigation. I'm there to assist.

[47] Officer Newham testified about seeing Mr. Knight's vehicle and right away noticing the expired validation tag.

[48] The emergency lights were activated and the vehicle did not stop.

[49] "My partner was explaining some driving evidence he was witnessing at that time. There was some varying speeds …we kind of talk it out. We're obviously seeing the same things…It's like a verbal mental note. You see some driving concerns, he's weaving and whatnot in the lane as he's travelling north on Bronte Street."

[50] Officer Newham testified that the vehicle was crossing the median and was not staying in its lane. He repeated that there were "varying speeds" involved.

[51] As the vehicle approached the red light it went into the left turn lane and the cruiser's emergency equipment was shut off for safety reasons.

[52] After the light turned green, the vehicle made the turn onto Main Street and stopped approximately 30 to 50 metres past the intersection.

[53] Officer Newham exited the cruiser and dealt with the passenger. He did not deal with Mr. Knight. "This was not my investigation".

[54] In cross-examination, Officer Newham repeated that he observed varying speeds before the vehicle stopped at the red light. He observed the vehicle to cross over the centre median and to be weaving within its lane. He observed these driving concerns for 300 to 400 metres as the cruiser followed the vehicle to the red light.

[55] Officer Newham agreed that there is no reference in his notes about any bad driving concerns.

[56] "…the way I was dealing with this is as a coach was my partner was the investigating officer…he's the arresting officer…they're his grounds…I was not the investigating officer…my role as the coach officer is not to conduct the investigation for my partner".

[57] Officer Newham acknowledged that his testimony about the driving concerns he observed is based on his recollection only. He agreed that he probably should have taken notes. He knew that he may be called as a witness.

RPG to Arrest for Impaired Driving and Demand Breath Samples

Officer Magee's Evidence:

1. Delayed stop after cruiser's emergency equipment was activated
2. Straddling the left hand turn lane and the through-lane before stopping for the red light; distance travelled approximately 20 metres
3. Strong odour of alcoholic beverage – coming from Mr. Knight's breath as stated in cross-examination
4. Eyes appeared to be "drowsy", "fairly glossy", "squinting"
5. Admission to consuming alcohol at a bar

Officer Newham's Evidence:

1. Delayed stop after cruiser's emergency equipment was activated
2. Varying speeds; distance travelled 300 to 400 metres
3. Weaving and whatnot in the lane; distance travelled 300 to 400 metres

[58] The two officers have given inconsistent evidence about the driving concerns in this case.

[59] Officer Magee said nothing about varying speeds in his testimony. He said that the vehicle was not speeding.

[60] Officer Magee said nothing about the vehicle weaving in its lane. Both officers give different evidence as to the distance travelled while they observed driving concerns.

[61] A significant concern affecting the reliability of Officer Newham's evidence with respect to the driving is his total absence of notes. As a Coach Officer and as an Intoxilyzer Technician, he should know the importance of taking notes as he is part of an investigation. He was on duty as a police officer and he was witness to an investigation. As the passenger, he was in an ideal position to be taking accurate and detailed notes of the driving in this case. As a Coach Officer he is not relieved of his obligations as an investigative police officer. He does not become a phantom ride-along officer because he is coaching a trainee officer. This is poor police practice and should be addressed so that the investigations/arrests made by other trainee officers are not undermined by the failure of their Coach Officer to take notes of the investigation.

[62] The Courts have written for years now on the critical importance of police officers taking detailed notes. The quality of these notes affects the reliability of their trial evidence. Coach Officers should be training on the importance of good note taking as part of an investigation and they should be leading by example.

[63] When a Coach Officer fails to take notes of an investigation he/she is part of and witnessing, they are defeating one of the purposes of coaching a trainee officer as the trainee is deprived of seeing how good investigative notes look from an experienced officer.

[64] I also found Coach Officer Newham's testimony to be internally inconsistent with respect to his role as an investigator in this case. His evidence varied from helping out his trainee with the investigation, to describing it as a joint investigation, and then to saying it was not his investigation at all.

[65] I find that Coach Officer Newham was an investigator/witness and should have made notes of the alleged driving concerns that go to the very heart of the section 8 RPG Charter issue and to the ultimate trial issue.

[66] Accordingly I find that there is no reliable evidence of bad driving in this case. There is a delayed stop for police for a distance of between 50 to 400 metres up Bronte Road before the red light at Main Street.

[67] That leaves the Crown with the odour of alcohol on Mr. Knight's breath, drowsy/squinting and fairly glossy eyes, and an admission to the consumption of alcohol.

[68] These factors do not equate with objectively verifiable RPG to arrest for Impaired Driving and demand breath samples. (R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Berlinski, [2001] O.J. No. 377 (C.A.)). These factors would have supported a demand for an ASD breath sample which was not even considered in this case.

Section 24(2) Analysis

[69] I have considered the seriousness of the Charter infringing state conduct; the impact on Charter-protected interests of the accused; the effect of admitting the evidence on the public interest in having a case adjudicated on its merits per R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.).

[70] I agree with the approach articulated by Ducharme J. in R. v. Au-Yeung, 2010 ONSC 2168, [2010] O.J. No. 1597 and by Lipson J. in R. v. Khan, [2010] O.J. No. 3861 and adopt their analysis as part of these reasons for judgment.

[71] The bottom line is that the public should expect that when they are stopped by the police, their Charter rights will be respected and that the police will not detain or arrest drivers without the requisite grounds. Where, as here, this legitimate expectation is not fulfilled, the administration of justice is brought into disrepute.

[72] The breath sample evidence is excluded. The Over 80 charged is dismissed.

Impaired Operation

[73] There is no evidence to support a conviction for Impaired Operation as there is no reliable bad driving evidence.

[74] No observations of impairment by alcohol were noted en route to the division or at the station before Mr. Knight was turned over to the Intoxilyzer Technician/Coach Officer in this case for breath testing.

[75] The Impaired Driving charge is dismissed.

Sufficiency of Reasons for Judgment

[76] During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges have. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin 2013 SCC 38, [2013] S.C.J. No. 38; R. v. S. (T.), [2012] ONCA 289 (OCA); R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky, [2011] 107 O.R. 93 d) 595 (OCA); Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making, David Stratas, Administrative Law Roundtable (C.I.A.J.) May 2010; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

Distribution of Reasons

[77] I request that the Halton Crown Attorneys' Office provide a copy of these reasons to the HRPS for training purposes. I will leave a copy of these reasons in the HRPS pick-up tray in the Burlington Courthouse to expedite the process.

Released: August 29, 2013

Signed: Justice L.M. Baldwin