Court File and Parties
Ontario Court of Justice
Date: May 8, 2014
Court File No.: Halton 12-3866
Between:
Her Majesty the Queen
— and —
Callum Ramsay
Before: Justice L.M. Baldwin
Heard on: December 9 and 10, 2013, and April 14, 2014
Rulings on ss. 7, 8 and 10(b) Charter Applications released on: April 14, 2014
Reasons for Judgment released on: May 8, 2014
Counsel:
- K. Frew and J. Dibski, counsel for the Crown
- P. Stunt, counsel for the defendant Callum Ramsay
BALDWIN J.:
Overview
[1] Callum Ramsay pled not guilty to Impaired Driving and Over 80 with respect to events on December 14, 2012 in Oakville.
[2] The Crown proceeded summarily.
[3] Date, jurisdiction, and the fact that Mr. Ramsay was impaired by the consumption of alcohol when he dealt with civilian witnesses and the police on the day in question were admitted at the outset.
[4] The Crown's evidence was presented in a blended voir dire/trial manner; the Applicant testified on the Charter voir dires only.
[5] Both counsel stated at the end of the proceedings that there would be no more evidence called at trial.
Section 7, Section 8 and Section 10(b) Charter Applications
[6] The Applicant asserts that he was not properly given his rights to counsel at the time of his arrest and, further, that any statements he did make to the officer both before and after his arrest were compelled statements because he had been in an accident and he believed he had a statutory duty to answer questions with respect to that matter.
(1) The Applicant asserts that the pre-arrest statements were compelled statements and are inadmissible per R. v. White, [1999] 2 S.C.R. 417 and cases subsequent thereto.
(2) The Applicant submits that without these statements, the Crown has not met their onus to establish reasonable and probable grounds for the arrest and breath demand.
(3) The Applicant asserts that statements made after his arrest violated his 10(b) right to consult counsel.
[7] The Applicant seeks exclusion of statements attributable to him before and after the arrest, and the exclusion of the results of the analysis of breath samples taken from him pursuant to s. 24(2) of the Charter.
[8] The Crown asserts that there were no Charter violations in this case. Alternatively, the Crown submits that given the seriousness of the offence and relatively minor nature of any s. 10(b) breach, the repute of the administration of justice would suffer if the breath test results were excluded.
[9] Written submissions were filed in this case. The Court also heard from 8 witnesses. Mr. Ramsay testified on the Charter Applications. Verbal submissions were also heard on these Applications.
Section 1 – s. 8 Application
The Evidence of RPG That Does Not Include Statements Made by the Applicant to the Arresting Officer
[10] There is no issue that Mr. Ramsay was highly impaired from alcohol consumption when he dealt with the arresting Officer, Chris Peters. Mr. Ramsay was initially observed to be sleeping/passed out and leaning up against a candy display counter in the Petro Canada station. When roused by the officer, Mr. Ramsay had difficulty standing, he was slurring his words, his eyes were red and watery, there was an incredible amount of alcohol on his breath, and it appeared to the Officer that Mr. Ramsay was confused and in a 'stupor'.
Testimony of Officer Chris Peters
[11] He has been an officer with HRPS since 2009.
[12] On December 14th 2012 he was working in a uniform capacity at 20 Division in Oakville.
[13] At approximately 6:04 a.m. he was on parade at the Division. Communications called the parade room stating there was an incident at Third Line and Speers Road which he left the Division to investigate.
[14] During his ride to this scene, Communications advised that it appeared to be a single motor vehicle collision. He also received information from Communications that an employee of the Petro Canada had contacted them stating there was a male inside, stating that he was involved in the collision and was requesting CAA. They also advised communications that this male appeared to be highly intoxicated.
[15] Communications also advised that other witnesses from the plaza had entered a Tim Horton's at approximately 6 a.m. and the car was not there. When they exited 5 minutes later the white SUV was there. The officer testified that this gave him grounds to believe that the white SUV had just arrived there. Together with the information from the Petro Canada employees, the officer believed that Mr. Ramsay had been driving the car at approximately 6 a.m.
Just prior to arriving at the gas station, the officer observed a white motor vehicle in the southbound lanes of Third Line just south of Speers. The vehicle was partially in the curb lane and partially on the grass. It appeared to be a SUV with front end damage.
[16] The officer arrived at the station at 6:23 a.m. Two staff people were behind the counter and Mr. Ramsay was up against the candy display.
[17] The two gas station employees pointed Mr. Ramsay out to the officer and said, "That's him, that's him".
[18] He woke Mr. Ramsay and brought him out to the cruiser parked right out front of the gas station and they started talking there. Mr. Ramsay was leaning against the trunk of the cruiser and the officer was facing him and speaking to him.
He arrested Mr. Ramsay for Impaired Driving at 6:25 a.m. While both of them were seated in the cruiser he read Mr. Ramsay rights to counsel from his police notebook; at 6:26 a.m. he read him the caution from his police notebook; he read him the breath demand from his police notebook.
[19] At 6:37 a.m. he left the scene with Mr. Ramsay, arriving at 20 Division at 6:55 a.m.
[20] While Mr. Ramsay was being processed in the booking room, Officer Peters placed a call to Duty Counsel at 7 a.m.
[21] Duty Counsel called back at 7:15 a.m. and Mr. Ramsay spoke in privacy with them.
[22] The call concluded at 7:20 a.m. and Mr. Ramsay was taken to the breath testing room.
[23] In cross-examination, the officer stated that when he searched Mr. Ramsay he did not find the key or fob to the SUV on his person.
Gas Station Witnesses
Testimony of Glen Pearson
[24] Mr. Pearson made the call to 911 reporting that a man had walked into the station asking for assistance with a disabled vehicle. The man said he had car problems and wanted them to call CAA for him. He noticed that the man seemed impaired.
He described the man to the dispatcher as approximately 6 foot in height with short dark hair.
[25] At one point the man left the store and walked back over to the vehicle. From inside the store, Mr. Pearson could see the lights of the vehicle. "I do not recall the lights being on steady. I do recall the lights flashing as he walked over to it".
[26] The car was partially on the roadway and partially into the driveway of a manufacturing plant across the road from the station.
[27] It was a large sport utility-type vehicle. The man in the store had indicated that it was a Land Rover which the vehicle seemed to match. It was white or light in colour.
[28] Mr. Pearson also could see extensive damage to the front end of the vehicle.
[29] After he saw the hazard lights come on for a second, the lights on the car went out and the man came back into the store. At no time did the man ask him to call the police.
[30] Mr. Pearson testified that he called the police approximately 5 to 10 minutes after the man first walked into the station. The man first entered the station before 6 a.m. This was the same man that the officer dealt with when he arrived on scene.
Testimony of Margaret Ann Tiedje
[31] Ms. Tiedje was working in the Petro Canada store with Mr. Pearson that morning.
[32] A man came into the store around 6 a.m. and asked her to call CAA for him because his car was broken on the road. He wanted CAA to tow his car home. She called CAA for him. While waiting for CAA, the man went out to the car which looked like a white vehicle on the road. She heard the car alarm go on and a few minutes later it went off. The man came back into the store and said it was too cold to stay outside.
[33] The man did not ask for the police to be called. The man did not mention having had an accident.
[34] He stayed in the store until the officer arrived approximately 15 minutes later.
Tim Horton's Witness
Testimony of Timothy Russell Crane
[35] Mr. Crane also called 911 with respect to this matter.
Just before 6 a.m. he was exiting the Tim Horton's adjacent to the Petro Canada station when he saw a vehicle that appeared to be abandoned partially in a driveway and partially on the road on the west side of Third Line. There were no vehicle lights on.
[36] It was a light coloured Range Rover-type SUV. There appeared to be damage on the front driver's side.
[37] Mr. Crane was not asked by the 911 operator if he had seen the car before he entered the Tim Horton's.
Testimony of Lukasz Walczykiewicz
[38] This officer arrived on scene at 6:26 a.m. – one minute after Mr. Ramsay was arrested at 6:25 a.m. His evidence did not inform any of the issues raised with respect to the s. 8 Application.
Ruling on s. 8 Application
[39] I am satisfied that the Crown has established RPG on the part of Officer Peters to believe that Mr. Ramsay was intoxicated and that he had operated a motor vehicle within the preceding 3 hours. (R. v. Haas (2005), 200 C.C.C. (3d) 81; 76 O.R. (3d) 737 (Ont. C.A.))
[40] The Officer had a subjective belief that was based on the information he got from Communications and from the Petro Canada store clerks when he attended on scene. His grounds are found to be objectively reasonable.
[41] I do not accept the defence submission that Officer Peters needed to know when the accident happened to form his grounds for impaired operation. The Officer had to have information as to when Mr. Ramsay had been driving. That information came to him over Communications from the 3 civilian witnesses who testified at trial and another civilian who called 911 to say that the SUV had not been on the road before 6:00 a.m. and then was there when that person left the Tim Horton's at approximately 6:00 a.m. All of this led the officer to make a reasonable deduction that Mr. Ramsay had driven the SUV half off of the road just outside the Petro Canada gas station shortly before he entered the store and asked for assistance. Mr. Ramsay entered the store at minutes before 6:00 a.m.
[42] Mr. Ramsay told the store clerks that his car was broken on the road and that he needed CAA towing to take it home. Ms. Tiedje saw Mr. Ramsay leave the store and approach the SUV. She heard the car alarm go on and a few minutes later it went off. Mr. Pearson said that the car lights were flashing as Mr. Ramsay approached it. This is consistent with Mr. Ramsay having the means to access the workings of the vehicle. Mr. Ramsay then returned to the store stating it was too cold to stay outside.
[43] When Officer Peters arrived on scene, the store clerks pointed Mr. Ramsay out to him saying, "That's him".
[44] I have considered the legal tests in concluding that the Officer had reasonable and probable to grounds to arrest in this matter with reference to R. v. Bernshaw, [1994] S.C.J. No. 87; R. v. Rhyason, 2007 SCC 39, [2007] S.C.J. No. 39; R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.); R. v. Cooper (1993), 46 M.V.R. (2d) 231; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.).
[45] The s. 8 Application is denied. The Crown has satisfied their onus on a balance of probabilities.
Section 2 – s. 7 Application
Were the Pre-Arrest Statements Made to Officer Peters Compelled Statements and Therefore Inadmissible to Inform the RPG Issue?
[46] Mr. Ramsay filed an affidavit on these Applications and was cross-examined.
[47] During the Crown cross-examination, Mr. Ramsay acknowledged that he was highly impaired by alcohol during the events in question. He could not say when he left his house with his mother's Range Rover. He thinks he hit a hydro pole when he was backing out of the driveway to leave. He does not remember what he was thinking after he hit the pole. He could not say where he went after that. He did drink more alcohol. He thinks he was on his way back home when the car died.
[48] Mr. Ramsay agreed that he did not report the accident to the police at the time he hit the pole. He agreed that he did not ask for the police to be called at the gas station because he was drunk.
[49] Mr. Ramsay agreed that his priority at the time was to get the car back home.
[50] Other statements made by Mr. Ramsay that he only told the officer he was driving and had hit a pole before his arrest because he knew he had a duty to report the accident to the police is rejected as absurd in these circumstances. His own evidence contradicts this being the case.
[51] Accordingly I find that there has not been a s.7 violation in this case. The statements were not compelled statements and they could be used to inform the officer's RPG. I have declined to do that in this case given the findings I make regarding the inadequacy of police note-taking as discussed below.
[52] The s. 7 Application is dismissed.
Section 3 – s. 10(b) Application
Was There a s. 10(b) Charter Breach?
[53] The Applicant has met his onus of establishing a breach of s.10(b) of the Charter due to the total absence of any police notes made at the scene by Officer Peters; and further due to confusing notes later made back at the Detachment; and still further, due to another version of events on this issue appearing in a typed Will State made sometime after the events which was not dated.
[54] It was not clear in the evidence just when Mr. Ramsay said that he wished to speak to duty counsel. He may have said this immediately upon being given his rights to counsel at the scene or he may have said it sometime while en route to the detachment.
Despite having his notebook in hand as the caution, rights to counsel and breath demand were read, Officer Peters recorded nothing in his notebook. He did not record any questions he asked of the Applicant or any responses he was given. This included the critical response concerning if the Applicant wished to call a lawyer now. The evidence on this issue was all over the map and it is impossible for me to determine what Mr. Ramsay said about exercising his rights to counsel at the scene.
A sample of the cross-examination of Officer Peters on this issue illustrates this point: [from Dec. 9th/13 Transcript page 61 (line 13) through to 67 (line 14)]
Q. On your route to the police station that Mr. Ramsay asked to speak with duty counsel?
A. Yes.
Q. Can you—do you have your notebook with you, sir?
A. I do.
Q. I'm going to suggest to you that that's absolutely not the case.
A. It is the case. It wasn't marked in my notebook however, once I was at the station duty counsel was called and....
Q. Sir, look at your notebook. Page 49 in the brief and it looks like it's page 20 of your notebook. Okay?
A. Uh-hum.
Q. I'm going to—in the left hand margin quite typically you have a time. Do you see the times?
A. Yes.
Q. And then to the right of that that's the narrative of what is occurring...
A. Correct.
Q. That you're, that you're making a note about.
A. Correct.
Q. 0625 hours it says, "92 for 945." That means...
A. Correct.
Q. ...in police jargon that's an arrest for an impaired?
A. That's correct.
Q. "Rights to counsel understood." That's your view...
A. Correct.
Q. ...right? The very next line says, "Requested duty counsel once at 20 Division...
A. Correct.
Q. ... not at time."
A. Correct.
Q. So he did request duty counsel immediately after you spoke to him—read him his rights.
A. That, that, that's, that's incorrect.
Q. It's in your notes.
A. These notes were made shortly after the event not specific at 6:25, it was made shortly after. While on route to the station he requested duty counsel. He did not request duty counsel when he was read his rights and cautioned at that time. It was shortly after.
Q. Well, when did you make these notes?
A. Shortly after, right as we arrived at the station.
Q. Officer, any right—would you—look at them. It says immediately after you read him his rights...
A. Uh-hum.
Q. ... requested duty counsel once at 20 Division."
A. Right. But not....
Q. That's what happened, isn't it?
A. No, it's not. No.
Q. Here, here's what typically happens, if you can agree. If you're at a place where there's an arrest being made...
A. Correct.
Q. ...he's sitting cuffed in the back of your cruiser, is this correct?
A. Correct.
Q. You read him his rights from your notebook, is that right?
A. Correct.
Q. The last phrase of—it's a long recitation but the last statement is, "Do you wish to..."-sorry, "Do you wish to call a lawyer now?"
A. Right.
Q. And then you record an answer. And did you not say to him something to this affect, "If you want to speak to a lawyer we'll do it as soon as you get to the station"?
A. As I said, at the time when I read him that information he did not request it. It was after we were on route driving the vehicle that he requested to speak with counsel at the station.
Q. Okay. You didn't leave the scene until 6:55?
A. Correct.
Q. Sorry, that's not true.
A. Oh.
Q. You left the scene at 6:37?
A. Correct.
Q. You got to the station at 6:55?
A. Correct.
Q. So are you telling me you wrote this note in the cruiser?
A. No. I wrote it after. Once we were at the station that's when I wrote the notes.
Q. Well how do—if I look at your notebook how do I know which portions are written contemporaneously, that means as you observe the event, and which portion are written sometime later at the station? How do I know?
A. You—what happens if it's on scene immediately I'll talk to dispatch and they'll make times. So I'll have the times shortly after and I'll add it to my notebook. If it's, if it's a ongoing investigation, like, if things are happening fast, that's what I'll do.
Q. The guy's in custody in the back of your cruiser...
A. Right.
Q. ...nothing's happening fast, is it?
A. Right. Well, no, we're still trying to figure out—we have witnesses calling. We're trying to figure out if the damage to the car was due to someone being hit. So we're still trying to figure out all that information.
Q. And there are other officers on the scene at this point aren't there?
A. There were—started to arrive, yes.
Q. Who were engaged in the investigation?
A. They started to arrive, yes. As I left the scene that's when they started to arrive.
Q. Your—Officer I'm going to put it to you this way, at 6:25 when you read him his rights, are you saying that there is zero conversation about his request to speak to duty counsel? Is that your evidence?
A. That's correct.
Q. But you've noted in your book that he did?
A. As I said, they weren't made at the exact time. They were made shortly after. So, I'm, I'm saying at the time when he was read the information he did not request counsel. It was at the time that we were....
Q. Okay. Let's go through your notes then. At 6:37, "ENR" which means on route, "20 Division".
A. Correct.
Q. No mention at that point of the conversation that you say occurred on route about wanting to speak to duty counsel, is there? Not a word, right?
A. Correct.
Q. That's where it would go if it happened, wouldn't it? Right there, on route to the station he asks...
A. Right as...
Q. ...to speak to duty counsel.
A. ...as we started proceeding to 20 Division that's when he requested counsel.
Q. But that's not when you put it in your notebook, is it?
A. Correct. It's not but I have an independent recollection of him requesting it as we proceeded to the station.
Q. Isn't your best recollection what happened in your notebook at 6:25? That's what you make notes for. To refresh your memory, isn't it?
A. Correct.
Q. Isn't that your best recollection now, sir?
A. No. I, I have a recollection that he did not request it at the time so I....
Q. Do you understand the concept of, that's fairly popular, making late entry notes?
A. Correct, yes.
Q. Whether it's a good one or not. Anywhere in your notebook does this, does it make it clear where it is late entry as opposed to contemporaneous?
A. No it does not.
Q. No. Would you agree, at least, that this is-what's recorded in your notebook at 0625 hours is utterly misrepresentative of what you now say occurred?
A. No.
Q. How is it accurate?
A. As I said, this is the book that helps refresh my memory. This helped me remember that at the time after I read him his rights and everything he did not request counsel. He—it was shortly after. Upon us driving—me driving the police vehicle to the station that he requested it.
Q. Show me in your notebook the conversation that occurred, even in short form or anything, about what happened, as you say, in the cruiser. The conversation that—where he said all of the sudden, "I want to speak to duty counsel". Where is that?
A. There's—it's not in my notes.
Q. Doesn't exist?
A. Not in my notes.
Q. Tell us what unfolded then? Did you mention it, did he mention it? Who brought it up?
A. I can't say. I don't recall. I just recall as we proceeded he requested counsel. So once we got to the station I called counsel for him.
Q. We don't know how that unfolded?
A. I, I don't recall.
Q. In the ordinary course when you have a person in custody, cuffed in the rear of your cruiser and you read them their rights and they say something "Yes, I would like to speak to a lawyer or duty counsel" you tell them "As soon as we get to the station we'll do that", don't you? You, you don't...
A. Correct, yeah.
Q. ...you don't use your police radio to call the duty counsel, do you?
A. Correct.
Q. So what you've got in at 6:25 is exactly the way you would expect it to see—to read if somebody at that time had asked to speak to the duty counsel, right?
A. It appears that way however, that's not what transpired.
[Page 71 (line 32) through to 73 (line 9)]
Q. And as you testified earlier, and I quoted this, "we started talking there".
A. Right.
Q. Who started?
A. I started talking to him. Woke-waking him up to try to....
Q. What questions did you put to him?
A. I can't say at the time the specific questions. I know in the store my main thing was just to wake him up. Once he was somewhat alert we went outside and talked.
Q. Is it fairly clear that you were putting questions to him?
A. Yes.
Q. Did you record the answers, sir?
A. No.
Q. Did you record the questions?
A. No.
Q. Anywhere?
A. No.
Q. When you went back to the station, as you described it, later and started filling out, at least portions of your notes...
A. Right.
Q. ...did you fill in the questions and answers then?
A. No.
Q. Okay. How many questions do you think you put to him?
A. I can't say for sure. It was more of a conversation, so I can't say the exact number of questions that, that I asked.
Q. Did he respond to your questions?
A. For the most part.
Q. Excuse me, excuse me for a minute. So we don't know how many questions and we don't know what the questions were?
A. That's correct.
Q. So if I ever wanted to know that or, or Her Honour wanted to know that you wouldn't be able to get that information?
A. Not specific questions, no.
[55] Trial Judges have written extensively, and over a number of years now, on the requirement for police officers to keep accurate notes during their investigations. There appears to be a deficit in police training in this area that is resulting in layers of confusion in the testimony of some officers.
[56] Because I have no idea what the Applicant said with respect to rights to counsel at the scene, I find that there has been a violation of s. 10(b) and the remedy shall be the exclusion of all utterances made to Officer Peters after the arrest.
[57] The utterances made to Officer Peters before the arrest would have been admissible as noted above, but for the fact that I have no idea what they were. The officer cannot tell the Court what questions he asked or what responses he was given. The Court is left with just the gist of an important part of the investigation. This is not acceptable.
[58] Accordingly, all statements made by Mr. Ramsay at the scene to Officer Peters are excluded from the evidence.
[59] Mr. Ramsay spoke to Duty Counsel promptly at the station and there has been no complaint in this case about that. The confusion that arises in this case has to do with when the Applicant stated he wished to speak to Duty Counsel. No other issue was raised with respect to facilitating rights to counsel.
[60] After rights to counsel were facilitated at the station, the Applicant provided 2 suitable samples of his breath.
Section 24(2)
[61] After balancing all the factors set out in the case of R. v. Grant, 2009 SCC 32 with respect to the s. 24(2) analysis, I adopt the position set out in the written Crown's Response.
Seriousness of the Charter-Infringing Conduct by the State
[62] I conclude that the s. 10(b) breach was minor in this case. Although I am very critical of the note-taking in this case, I do believe that Officer Peters understood he had to cease questioning of an arrestee after they state that they wish to speak to counsel. Further, immediately upon arriving at the Division, Officer Peters called Duty Counsel for Mr. Ramsay.
Impact on the Charter-Protected Interests of the Accused
[63] In R. v. Ritchfield (2003), 178 C.C.C. (3d) 23 at para 16 (Ont. C.A.), the Ontario Court of Appeal held that breath samples are "minimally intrusive", "routinely performed" and "essential to control the tragic chaos caused by drinking and driving" and concluded that the admission of unconstitutionally obtained breath samples does not necessarily render a trial unfair.
Society's Interest in an Adjudication on the Merits
[64] I conclude that an informed member of the public would view the testing as minimally intrusive. The improper note-taking of utterances made was a minor infringement, and the appropriate remedy is to exclude all of the Applicant's utterances made at the scene and en route to the Detachment.
[65] Accordingly, I have determined that the public interest strongly favours admission of the breath tests.
[66] As stated by Ontario Superior Court Judge B. Durno in R. v. Yamka, [2011] O.J. No. 283, January 20, 2011:
It is in the long term interest of the administration of justice that valid and important measures to promote highway safety not be frustrated and that constitutional rights not be trivialized by highly technical interpretations of the Charter that serve no ascertainable interest in furtherance of individual rights and freedoms. I suggest that this is exactly the sort of case – where windfall exclusion resulted from minor and technical breaches – that the Supreme Court of Canada had in mind in its reformulation of the exclusionary rules in the Grant trilogy.
[67] I conclude that the repute of the administration of justice would suffer if the breath testing results in this case were excluded.
Summary of Charter Rulings
[68] Section 8 – Dismissed.
[69] Section 7 – Dismissed.
[70] Section 10(b) – Granted. Section 24(2) Remedy - the exclusion of all utterances made by Mr. Ramsey to Officer Peters at the scene and en route to the Detachment.
[71] Breath test results not excluded.
Additional Evidence at Trial
Testimony of Martyn Beckett
[72] Mr. Beckett is Mr. Ramsay's step-father. They live together with Mr. Ramsay's mother, and two other sons aged 13 and 17 years old at the time. The address was 363 Lakeshore Road West in Oakville.
[73] The white Range Rover in question is registered to that address in the name of Mr. Ramsay's mother, Sandra Beckett.
[74] On December 13, 2012, Mr. Beckett and his step-son went out for a pub dinner at approximately 9:00 p.m. At the pub Mr. Ramsay had 2 pints of beer and Mr. Beckett had 3 beers. They left the pub at 11 p.m. Mr. Beckett was driving.
When they returned home they sat in the kitchen talking. Mr. Beckett had 2 or 3 Baileys when they got home. Mr. Ramsay had one Baileys.
[75] At approximately 12:30, quarter to one, they both went to bed. The Land Rover (plate number ARAS 291) was in the driveway.
[76] At approximately a quarter to seven the next morning he was alerted by his youngest son that police were at the door. His 2 younger sons were in the house at the time. Mr. Ramsay was not.
[77] Mr. Beckett described how the keys work for the Land Rover. You push a button and the lights to the car flicker.
[78] Mr. Beckett testified that Callum Ramsay had not asked to borrow the Land Rover that night/early morning.
Trial Testimony of Lukasz Walczykiewicz
[79] Officer Walczykiewicz has been an officer with the HRPS since 2008.
[80] At approximately 6:15 a.m. on December 14, 2012, he was dispatched to the location of Third Line and Speers Road in response to a hit-and-run type of incident involving a white Land Rover vehicle.
[81] He arrived at the scene at 6:26 a.m.
[82] He approached the damaged SUV which was half on and half off of the roadway. He did a query on the licence plate ARAS 291.
[83] The car was unlocked and had been left in neutral.
[84] He looked inside the car and found a bag with the name 'Beckett' on the tag.
[85] He located the keys under the passenger seat, which also contained house keys.
[86] After the SUV had been towed away, the officer learned who the registered owner was. He attended 363 Lakeshore Road West and returned the house keys to Martyn Beckett.
Testimony of Joshua Broomer
[87] Officer Broomer has been employed with the HRPS since 2008 and is a qualified breath technician.
[88] He was dispatched to this call at 6:45 a.m. He left Milton and attended 20 Division in Oakville at the same time Mr. Ramsay was going through the booking process.
[89] He received grounds for the arrest and subsequent breath demand from Constable Peters and went to prepare the Intoxilizer 8000C for the test.
[90] After Mr. Ramsay spoke to Duty Counsel, he took custody of him at 7:20 a.m.
[91] Officer Broomer described how he prepared voir dire Exhibits A and B (now trial Exhibits 1 and 2) and verified their accuracy.
[92] He took 2 samples of Mr. Ramsay's breath according to the information on the certificate which resulted in truncated readings of 180 and 170 milligrams of alcohol in 100 millilitres of blood. (First sample completed at 7:26 a.m.; second sample commenced at 7:49 p.m.).
[93] Impairment in this trial was admitted. Following the rulings on 3 Charter Applications the final trial issues are as follows:
Re: Impaired Operation
Has the Crown Proven Beyond a Reasonable Doubt that Callum Ramsay was the Driver of the White SUV Land Rover, Plate Number ARAS 291?
[94] The Crown submits that there is circumstantial evidence to prove that Mr. Ramsay had been driving this motor vehicle before it stopped on the street outside of the Petro Gas Station. The Crown points to the evidence of Martyn Beckett, Mr. Ramsay's stepfather. As referenced in the summary of his evidence above, Mr. Beckett and Mr. Ramsay had been together until approximately 12:30 or quarter to one that morning at the family home. Mr. Ramsay's mother's car, the Land Rover in this case, had been sitting in the driveway when Mr. Beckett retired for the night.
[95] Approximately 6 hours later, Mr. Beckett was speaking with the police at his front door. They were returning the house keys attached to the Land Rover keys that was the subject of the investigation and arrest of Mr. Ramsay.
[96] Mr. Ramsay was not in the house at this time. His two other brothers were in the house with Mr. Beckett. There was nothing to suggest that anyone other than Mr. Ramsay had taken the car without his parents' consent during the morning hours of December 14, 2012. He had the opportunity to do so.
[97] The Crown submits that the statements Mr. Ramsay made to the Petro Canada clerks are proof that Mr. Ramsay was driving that particular vehicle. These statements, as noted above in the summary of Mr. Pearson's and Ms. Tiedjes' evidence, are that Mr. Ramsay was speaking of having car problems with his car. Mr. Ramsay was requesting that CAA be called because of this car.
[98] Both of these witnesses also saw Mr. Ramsay approach this car and access the fittings of the car when lights and/or a car alarm were briefly activated.
[99] The defence submits that this evidence falls short of proof of driving beyond a reasonable doubt. The defence submits that nobody puts Mr. Ramsay behind the driver's seat of this car. He is only seen to walk toward it and away from it with some evidence of the car lights flashing. This evidence amounts to suspicion only.
Decision on Identity of the Driver Issue
[100] I accept the position as articulated by the Crown. There was no suggestion that someone else drove Mr. Ramsay's mother's car and left it disabled on the roadway that morning, except for Mr. Ramsay himself.
[101] The evidence is consistent with this conclusion and inconsistent with any other rational conclusion.
[102] Accordingly a finding of guilt is entered on Count #1 – Impaired Operation.
Re: Over 80
Has the Crown Proven that the First Breath Test was Taken Within the 2 hour Window Set Out in s. 258.(1)(ii) of the Criminal Code?
[103] Section 258. (1) (c) (ii) reads:
In any proceedings under subsection 255(1) in respect of an offence committed under section 253…(c) where Samples of the breath of the accused have been taken pursuant to a demand under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken…
[104] The first sample of breath in this case was taken at 7:26 a.m. The Crown must establish that the driving occurred from 5:26 a.m. (2 hour read back) to the time when civilians are interacting with Mr. Ramsay on scene and the call to dispatch at 6:04 a.m.
[105] The Crown submits that there is circumstantial evidence establishing the time of driving from the two gas station clerks, and some evidence from Mr. Crane the Tim Horton's witness.
[106] Mr. Pearson testified that he called police approximately 5 to 10 minutes after Mr. Ramsay walked into the gas station before 6:00 a.m. Ms. Tiedje testified that Mr. Ramsay came into the store around 6:00 a.m.
[107] After Mr. Ramsay went back outside and walked toward his car and then came back into the gas station, he told her it was too cold to stay outside.
[108] Mr. Crane saw the abandoned Land Rover just before 6:00 a.m. as he exited the Tim Horton's. The Land Rover was 10 to 15 metres away from the exit to the drive-through of the Tim Horton's.
[109] Mr. Crane could not say for sure that he saw the Land Rover when he entered the Tim Horton's just minutes before, but he did not think he did.
[110] "It would have been very close to six o'clock (when he saw the vehicle). It's a fairly regular routine on workdays that I generally leave the house around quarter to six and I would be at that location very close to six o'clock."
[111] The defence submits that this evidence does not amount to proof beyond a reasonable doubt as to the time of driving. It amounts to suspicion only.
Decision on Time of Driving
[112] I accept the position articulated by the Crown. There is nothing in the evidence to suggest that the Land Rover had been left partially on the roadway and partially off, for any significant period of time.
[113] The evidence points to Mr. Ramsay having exited his broken down car soon after it stopped and then entering the nearest gas station so they could call CAA on his behalf. Mr. Ramsay himself stated to the store clerks that it was too cold to wait outside. There is nothing to suggest that he did wait outside after his car broke down.
[114] Accordingly I am satisfied that the first breath test was taken within two hours of his driving the damaged Land Rover before it came to a stop.
Can the Court Place Any Weight on the Breath Test Certificates and the Testimony of Officer Broomer – Intoxilizer Breath Technician in this Case?
[115] In closing submissions the Crown stated that they are not relying on the photocopy of the original breath certificate in this case. They are relying on the viva voce testimony of Officer Broomer.
[116] During the trial, Officer Peters explained that due to an unrelated SIU investigation, his evidence bag in this case got misplaced. The original breath certificate is in 20 Division somewhere, but he has not been able to locate it to date. What was returned and filed in court is a photocopy of that original certificate, a true copy of which was served upon the accused.
[117] The defence submits that because Officer Broomer adopted the contents of this photocopied certificate as being true regarding the breath testing he conducted in this case, his evidence cannot support a finding of guilt as to the breath testing process and results.
Decision on Over 80
[118] The Crown is not relying on the certificates to prove the breath readings in this case.
[119] Officer Broomer testified that he received suitable samples of Mr. Ramsay's breath which resulted in a truncated reading of 180 milligrams of alcohol in 100 millilitres of blood, and the second test resulted in a truncated reading of 170 milligrams of alcohol in 100 millilitres of blood.
[120] Officer Broomer adopted the contents of the photocopied original breath certificate filed at trial as being true which contain all relevant details of the testing procedure.
[121] There was nothing in the evidence to raise a reasonable doubt with respect to the accuracy of the breath testing taken in this case. The Crown has met their onus of proof.
[122] Accordingly a finding of guilt is registered on count #2 – that count is conditionally stayed at the request of the Crown.
[123] A finding of guilt is registered on count #1 – Impaired Driving.
Released: May 8, 2014
Signed: "Justice L.M. BALDWIN"
OBITER: Reasons for Judgment
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 adequately factored into trial time estimates by counsel. In Halton, the fastest growing Region in Canada, judgment writing 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. (3d) 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; R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387.