Court File and Parties

Court File No.: 0411-998-13-9963

City of Ottawa

Date: March 14, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Zaher Noureddine

Before: Justice Robert G. Selkirk

Heard on: January 21, 2014

Reasons for Judgment released on: March 14, 2014

Counsel

Z. Horricks — for the Crown

T. Brown — for the accused Zaher Noureddine

Reasons for Judgment

SELKIRK J.:

[1] The accused is charged with the offence of Over 80 contrary to section 253(1)(b) of the Criminal Code arising out of an incident on the 16th of March, 2013 in the City of Ottawa.

[2] The only issue raised is whether the Crown has established that the accused understood the demand under section 254(3). The defence asserts that because the officer did not record in his notes any response made by the accused to the demand that the Crown has failed to establish this pre-condition to the admissibility of the breath sample evidence and the reliance on the presumptions under section 258. No Charter application was made in support.

[3] The defence relies on R. v. Brown, 2013 O.J. 285, a Summary Conviction Appeal decided by Gonsolus J. I will address this decision after setting out the facts.

Facts

[4] Constable Gregan was on patrol in a fully marked cruiser at 02:44 hours when a vehicle driven by the accused passed him at a high rate of speed. He noted that the rear lights were off as well. He followed and executed a Highway Traffic Act stop. Upon speaking with the driver, he noted a strong smell of alcohol on the accused's breath. The accused admitted to consuming alcohol. Constable Gregan observed the accused to be pale and sweaty. He fumbled with his documents. He exhibited a slight slur to his speech.

[5] Based on these grounds he made an ASD demand under section 254(2) at 02:53. At 02:56 a "Fail" result was obtained and the accused was arrested for Over 80. He was taken back to the cruiser where he was searched. He was then read his right to counsel and the two cautions. At 02:59 he was read the demand under section 254(3).

[6] In chief, Constable Gregan said he asked if the accused understood and said that the accused said, "Yes, to all demands and rights".

[7] Shortly thereafter they left for the station. At 03:30 the accused spoke with a lawyer. He was then turned over to a Breath Technician. Analysis of his breath resulted in readings twice the legal limit.

[8] At 04:51, Constable Gregan indicated in his notes that he served all necessary documents on the accused prior to his release.

[9] The Crown filed the Certificate of Analysis in order to establish the results of the breath samples. It was noted that the accused signed the Certificate as having received it but that Constable Gregan neglected to sign it indicating that he had served it. Nonetheless, Constable Gregan's viva voce evidence that he did serve it was not seriously challenged and the accused did not testify.

[10] In cross-examination, Constable Gregan agreed that he did not record any responses to the right to counsel or the cautions in his notes but did so at 06:00 in his Investigative Action report.

[11] With respect to the demand there was nothing noted as to the accused's response in either his notes or in the Investigative Action report. The officer explained that if there is no issue raised or no questioning of the demand that he does not record the response to the demands. He said there was no indication that the accused did not understand the demand and that it was his practice to ensure the demand was understood.

Legal Analysis

The Issue of Police Note-Taking

[12] The defence argues that the lack of any note is evidence that throws into doubt whether the demand was understood. Counsel relies on R. v. Zack, 1999 O.J. 5747, OCJ.

[13] In Zack, the officer failed to note two important observations which were that the accused was unsteady on his feet and was confused. At paragraph 6, the Court wrote:

"6 It is common ground that it is Jackson's grounds that must be assessed and they must be assessed subjectively and objectively. With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to Jackson. The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion 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. I cannot accept, on the balance of probabilities, that those observations were made."

[14] As a result the Court concluded the remaining observations were insufficient to establish reasonable and probable grounds and excluded the breath tests.

[15] This issue is also addressed in R. v. McGee, 2012 O.J. 523, OCJ. At paragraphs 61 to 66 it is written:

[61] "In R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.), 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] O.J. No. 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, [1999] O.J. No. 5747, 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] O.J. No. 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."

[16] After citing the above passage in R. v. Stevenhaagen, 2013 O.J. 1989, OCJ, I wrote at paragraph 25 that:

"[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."

[17] I believe this is consistent with the finding in R. v. Assimi, 2012 O.J. 6428, ONSC, Himel J. where the following is written at paragraphs 17 to 22:

"17 Counsel for the applicant submits that the evidence of the police officers is not reliable or credible because of a lack of certain notes. She argues that a negative inference should be drawn where a police officer testifies about matters that were not mentioned in the officer's notes. Counsel submits that the court should conclude that the observations did not take place.

18 For example, counsel for Mr. Assimi points to the fact that Officer McConachie and Officer Hargreaves testified that they located four cell phones on the applicant's person. However, there were no notes made in their notebooks concerning where the cell phones were located and by whom. Another example is that the three police officers testified that they learned that there was an outstanding warrant for the applicant's arrest on a drug charge and that was a consideration for them in deciding that there was a reasonable suspicion that there were drugs in the car. However, the officers' notes do not reflect that the warrant was for a drug related offence. Counsel asks the court to find their evidence generally not credible or reliable.

19 Police officers are trained to make notes in order to refresh their memory of events for the purpose of relating evidence to the court. The absence of certain notes may be relevant in assessing a police officer's credibility. In the case of R. v. Truong [2012] O.J. No. 537 (CA.), the court referred to the trial judge attaching less weight to a police witness' testimony where, "he had no recollection of the events at issue, few notes of what occurred and very limited experience as a police officer, let alone as a police witness in judicial proceedings, at the relevant times." In R. v. Zack, [1999] O.J. No. 5747 (Ont. Ct. of Justice), the trial judge noted that an experienced police officer did not have in his notes the observation of an accused being unsteady on her feet or that she was confused. The court wrote at para. 6, "... the failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted." The trial judge concluded that the observations were not, in fact, made at the time. A similar approach was made by the court in R. v. Mercer [2006] O.J. No. 5522 (Ontario Court of Justice) where the court commented at para. 6: "... There was nothing in his notes about her being unsteady on her feet, that she was using the vehicle to steady herself, that she almost fell back into the vehicle. In fact, what we are left with at the scene as it relates to notes, ends with his observations of the accused before she attempted to exit the vehicle." The court held that it could not conclude that the observations were made.

20 In the case of R. v. Antoniak [2007] O.J. No. 4816 (Ont. Sup. Ct.), on an appeal from a conviction for driving while over the legal limit, Justice Garton considered the issue of whether a court should accept an officer's testimony where the officer had not recorded his or her observations and she said at para. 22:

Certainly the absence of a note is a fair issue for cross-examination and may support an inference that the unrecorded event did not take place. However the fact that there is no mention of an event in an officer's notebook does not necessitate a finding that it did not take place.

21 She went on to explain at para. 24:

It should be remembered that an office's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis. The determination of that significance is entitled to deference on appeal.

22 In summary, the significance of the absence of police notes is to be determined on a case by case basis with reference to the specific circumstances of the case. The lack of mention of certain information in the notes of the officer does not mean that the events did not take place. It is a factor that is relevant to the consideration of the credibility and reliability of the police witness."

[18] I will return to this issue shortly.

Analysis of R. v. Brown

[19] In Brown, supra, the issue was whether the accused understood the demand. At paragraphs 4 and 5 the Court writes:

"4 In this case, the appellant provided a roadside sample of his breath into the Alcotest 7410 GLC, which registered a fail. When giving evidence in relation to the nature of the breath demand, the arresting officer answered "To providing suitable samples of his breath back at the station.

5 There was no testimony, beyond that statement, as to what was actually said by the arresting officer to the appellant or whether or not the appellant understood."

[20] The Court writes at paragraphs 13 to 26 the following:

"Discussion

13 In both Benson and Stewart, a fulsome assessment of the nature of the demand, when the demand took place, whether the demand was understood, and whether the demand was complied with, was confirmed by the direct evidence of the arresting officer.

14 The transcript of evidence and reasons for judgment rendered in this matter discloses that there was no direct evidence given by Crown witnesses that the appellant indicated that he understood the demand that was made of him. Rather, the trial judge surmised that from "those bits of the conversation that we have", it was abundantly clear and would have been clear to the appellant, that what was going on was an investigation into him driving when he had been drinking. The trial judge goes on to find that is the context in which the demand for Intoxilyzer samples is made.

15 I believe that it is not sufficient to indicate, in a matter of this nature, that a general context in which demands for Intoxilyzer samples are made is sufficient to determine whether or not an accused understands the nature of the demand that is being made of them.

16 As was stated in both Benson and Stewart, evidence is required to establish that:

(a) Demands were made in relation to an alcohol and driving related incident;

(b) When the demands were made;

(c) That the accused understood the nature of the demands; and

(d) That the demands were complied with.

17 In the case before me, evidence was presented in relation to (a), (b) and (d) but no evidence was presented in relation to (c).

18 Nowhere in the transcript or the reasons is there any indication that the arresting officer gave evidence that he believed, or that the accused indicated that, he understood the demand or his rights in relation thereto. In fact, no evidence was offered through the arresting officer in relation to whether or not the appellant understood. (emphasis added in the original).

19 It is permissible, based upon a fulsome assessment of the evidence surrounding the nature, timing, understanding and compliance to determine whether or not a lawful demand was made. In Benson at page 6, paragraph 23, the arresting officer's evidence was that the accused was read the demand, given a caution and the accused indicated that she understood the demand. In R. v. Stewart, at page 13, paragraph 33, the evidence of the arresting officer was that a demand was made, and although the particulars of that demand was not given in evidence, the officer did testify that the appellant acknowledged that he understood the demand.

20 The appellant in this case did not testify, but as argued by his counsel, the presumption of innocence applied. The right to silence was engaged, and therefore the issue of the appellant's understanding may only be decided on the evidence tendered and, in this regard, the arresting officer was not asked about, and gave no evidence on this issue. Thus, the informational component was not met. The officer is obliged not only to explain the demand and rights, but also to provide evidence as to whether or not the accused indicated they comprehended. 4 In this case the officer, simply, was not asked. That evidence was missing.

21 As stated by Justice D.J. Gordon in Belanger, a breach of the informational component differs from that at the implementational stage. Breach of the informational component, means you "do not get to the latter for consideration of other matters." 5

22 In the case before me, evidence by the arresting officer that the appellant acknowledged or appeared to understand the nature of the demand made of him, was not presented. Rather, it would appear that there was speculation and a reading between the lines in order for it to be determined that, perhaps, the appellant understood the nature of the demands made of him. The evidence in relation to the accused's comprehension of the caution and rights given to him, could also have been made clearer by way of specific questioning of the investigating officer.

23 The Crown is provided with an evidentiary presumption in section 258 which allows, among other things, for the Crown to produce the results of the tests by means of a certificate of evidence. This certificate, of course, may be introduced into evidence only if certain conditions precedent are met 6. To that end, evidence in relation to each of the conditions precedent to the introduction of the certificate should be introduced by way of evidence in as clear and unequivocal fashion as possible. While there is no question that the totality of the evidence may show that an accused in a particular case understood such a demand, no evidence was lead to suggest such an understanding, and therefore the criteria as set out in Benson and Stewart would not appear to have been met.

24 Knowing why one is being investigated is but one element of the basket of an accused's rights. Being given a caution, rights to counsel and demand, that one would expect a reasonable person to understand, and that is actually understood, are all part of that basket of rights. Evidence that an accused was afforded each of these rights and understood each one should be provided to the trier of fact, when it is available, in as clear a fashion as possible.

25 To that end, the lack of evidence in this regard prohibits introduction of the breath sample evidence at trial.

26 In the result, the appeal is granted, the conviction and sentence are set aside and an acquittal is entered."

[21] I am mindful that as a Summary Conviction Appeal decision that it is binding on me.

[22] The Court in Brown relies upon Benson, 2008 Carswell Ont. 4661, a Summary Conviction Appeal and Stewart, 2009 Carswell Ont. 10, also a Summary Conviction Appeal in reaching its decision that the Crown must lead clear and unequivocal evidence that the accused understood the demand.

[23] However, in Benson the issue under appeal is set out at paragraphs 14 to 16:

"14 The appellant submits that the crown should be put to strict proof of the wording used in the making of breath demands pursuant to sections 254(2) and (3). The appellant argues that the presumption in section 258(1) offers the crown an evidentiary advantage. The absence of evidence of specific and unequivocal wording demanding the applicant supply samples of her breath should render inadmissible the results of the breath samples provided.

15 In support of this argument, the appellant relies on the dissenting judgment of Dubin J.A. in R. v. Humphrey [FN8], and the Alberta decision of R. v. Jackson [FN9] Both judgments hold that in a prosecution under section 253(b), as a condition precedent to the introduction of results of breath analysis, the court must be satisfied that a proper demand has been made to provide samples for analysis. This condition is not met based on conclusory evidence given by the officer that he made a breath demand without further detail or elaboration.

16 The appellant submits that P.C. Sabo's evidence that she demanded the appellant supply samples of breath, amounts to no more than a conclusion absent evidence of the specific words used, in making those demands. Lacking evidence of a lawful demand, the breath readings provided are inadmissible at trial."

[24] Thus the necessity for unequivocal evidence that the accused understood the demand was not the issue before the Court.

[25] Having said that, the Court in Benson at paragraph 22 does write:

"22 …The requirement of proof of a lawful breath demand remains the same, whether the test results provided are introduced into evidence by viva voce testimony or by a certificate of analysis. In both cases, a fulsome assessment of the nature of the demand, when the demand took place, whether the demand was understood, and whether the demand was complied with, is capable of satisfying the trier-of-fact that a lawful demand was made. In these circumstances, the requirements of a lawful demand pursuant to sections 254(2) and (3) are met, even in the absence of the specific words used." (my emphasis)

[26] At paragraphs 23 to 25 of Benson, the Court sets out the evidence and its conclusion:

"23 Constable Sabo testified with respect to the approved screening device demand, and the breathalyser demand as follows:

I subs — subsequently read the roadside screening — uh — roadside — uh — demand, and I read the caution, which Miss Benson indicated that she understood. [FN12]

I also read the breathalyser test demand which she indicated she understood. There was onsite mobile R.I.D.E. unit for the intoxilyzer test. [FN13]

24 Pursuant to both demands, the appellant supplied samples of her breath into an approved screening device and an intoxilyzer unit.

25 Given the uncontradicted and unchallenged evidence from P.C. Sabo that she made both demands, that the appellant understood both demands, and thereafter the appellant provided breath samples suitable for analysis, the inference drawn by the trial judge that proper demands were made is consistent with the decisions of R. v. Boyce and R. v. Pickles. In coming to that conclusion, the trial judge stated:

The only reasonable inference that this court can draw, is that the accused accompanied the officers and performed the breath tests pursuant to those demands made moments earlier and within the context of a police apprehension at a R.I.D.E. program. No other reasonable inference arises on all of that evidence. [FN14]

Therefore, this court finds that the trial judge made no error in concluding lawful demands were made for the appellant to provide samples of her breath absent evidence of specific words used."

[27] In Stewart, the evidence was quoted at paragraphs 3 and 4 as being:

"Q. Once you noticed the odor of alcohol, the bloodshot eyes and the bottle of beer, what did you do then?

A. At that time I issued the breath demand, which was at 11:54 p.m.

Q. What time did you commence this stop?

A. That would have been 11:55 p.m. I was explaining the operation of the approved screening device.

Q. Sorry. What time did you initiates a roadside stop?

A. Initially the traffic stop?

Q. Yes, thank you.

A. Was 11:49 p.m.

Q. And again, when did you make the demand, sorry?

A. 11:54 p.m.

Q. And can you identify — can you take us through the steps of the demand that you engaged in with the accused, officer?

A. Yeah. Once I formed the grounds that there was alcohol on his breath and stuff like that, I issued the breath demand from our force issued card.

Q. And once the demand had been issued, what took place then?

A. At that point the accused followed me back to my police cruiser. I explained the operation of the approved screening device to him and he provided a reasonable sample, at which time he registered a fail.

4 Although Constable Blommaert stated in his testimony "I issued the breath demand from our force issued card", the officer did not recite to the court the words of the demand in respect of the appellant providing a sample of his breath for use in the approved screening device. Also, there is nothing in the transcript to indicate that the court was shown the "force issued card"."

[28] With respect to the section 254(3) demand the evidence was at paragraph 5:

"….A. At that point, I placed the accused under arrest at 11:59 p.m. for over 80. I advised him of his rights to counsel and caution, at which time he stated he understood. At 12:04 a.m. I also issued the accused the breathalyzer demand, which he responded that he understood.

Q. To the rights to counsel, what was his response?

A. He responded yes, he understood.

Q. And to his demand for the breath sample, what was his response?

A. He said yes, he understood."

[29] The issue under appeal is stated at paragraph 17:

"17 The appellant's position is that to obtain the benefit of the presumption under s. 258(1)(c) the Crown must establish it complied with the opening words of s. 258 (1) (c), namely, "where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)." The appellant submits that the evidence fails to establish that a valid demand was made as Constable Blommaert did not state the words he used in making the breathalyzer demand. The appellant submits that if the demand under s. 254 (3) has not been established then the presumption is lost. Further, since there was no expert evidence called to interpret the breathalyzer readings and relate the readings to the level of alcohol in the appellant's blood at the time of the alleged offence the charge has not been proven beyond a reasonable doubt."

[30] The Court then goes on to thoroughly discuss what evidence is sufficient to establish that a demand under section 254(3), as is required by section 258(1)(c), was made. At paragraph 35 the Court concludes:

"35 There were two breathalyzer demands made. The words used in those demands are not before the court. The appellant indicated he understood the demand and he fully complied with the two breathalyzer demands. I conclude that there was evidence before the trial judge, which was reasonably capable of satisfying the requirements of s. 258 (1) (c), thus enabling the Crown to rely on the presumption created by that section of the Code and in turn reasonably supporting the trial judge's ultimate finding of guilt. The appeal is dismissed."

[31] Thus in neither Benson nor Stewart was the accused's "understanding" of the demand at issue. Nonetheless in Brown, based on these two decisions, the Court concludes that they stand for the proposition that as a pre-condition to the application of section 258(1) that there must be clear and unequivocal evidence that the accused understood the demand such that the context within which the demand was read, as well as the fact that there was no evidence of not understanding or misunderstanding nor any questions raised and where the accused apparently complied without any confusion is still insufficient to establish compliance with section 258(1)(c).

[32] With the greatest of respect, I cannot agree that Benson and Stewart establish this. I know of no other caselaw which isolates and elevates the accused's understanding of a demand to such a degree that only direct evidence, if that is how clear and unequivocal evidence is defined, and it appears to be so given the conclusion in Brown at paragraph 18 cited above, that the accused was specifically asked if he understood the demand and unequivocally answered in the affirmative.

[33] If that is the finding in Brown then I decline to follow it as it does not address a large body of caselaw which discusses the sufficiency of the evidence of the demand under section 254(3) in order for the Crown to receive the benefit of the presumptions in section 258.

[34] I believe the law on this point is accurately stated in R. v. Tash, 2008 O.J. 200, Hill J. sitting as a Summary Conviction Appeal at paragraphs 26 and 27 which reads:

"26 The Crown may benefit from the presumption in s. 258(1)(c) of the Code "where the samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)". Section 254(3) states that where a police officer has reasonable grounds to believe a driver has committed a s. 253 crime "as a result of the consumption of alcohol", she or he may "by demand made to that person" require the motorist to forthwith or soon as practicable accompany the officer and submit to intoxilyzer testing for such samples of the person's breath as in the opinion of a qualified technician are necessary to ensure proper analysis to be made of the driver's blood/alcohol concentration.

27 There is no statutorily prescribed text for the s. 254(3) demand and the prevailing caselaw has not required any formulaic approach provided a demand is communicated to the driver giving the unambiguous message of what is required of him or her: R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) at para. 6-7; R. v. Humphrey (1978), 38 C.C.C. (2d) 148 (Ont. C.A.) at 149-50; R. v. Ghebretatiyos, [2000] O.J. No. 4982 (S.C.J.) at para. 17-21. The trial judge correctly considered the constable's testimony that he read "the breath sample demand for the intoxilyzer test" as a short-form summary of conveying to the appellant a s. 254(3) demand. The constable was not cross-examined on the issue. As we know, Mr. Tash fully complied with the demand. Mr. Anders agreed that in a refuse/fail to provide breath sample case it may be more important for the court to know the precise words spoken by the arresting officer."

Application to the Present Case

[35] I find it is logical to hold that a person understood the demand because he or she complied with it without any sign of confusion or need for further explanation.

[36] I also find that if "understanding" was a stand-alone pre-condition to admissibility this could lead to an absurdity. If a person is asked if he or she understands the demand and the person exercises their right to silence, the Crown would not be able to prove "understanding" with clear and unequivocal evidence. This cannot be an appropriate result.

[37] If I am wrong in the above analysis, I find that Brown can be distinguished because in the case at bar there was evidence that the accused understood the demand.

[38] I accept the officer's evidence that he did ask and he did receive a response that indicated the accused did understand the right to counsel, the cautions and the demands. His explanation that he made no note of the accused's response with respect to the demand was because there were no questions asked or confusion indicated. In other words, he saw no need to record the obvious. I accept his explanation. This is a different fact situation than in Brown where the Court found there was no evidence from the arresting officer in relation to whether or not the appellant understood. (See paragraph 18). Here I find the officer did testify that the accused understood the demand and I accept that testimony.

[39] As such, I would decline to apply Zack in the circumstances of his case. An officer's notes cannot be equated with an audio/video recording device capturing every detail no matter how mundane or obvious. It is always a best practice to record every utterance by a detainee but it is not always necessary or possible. I cannot find that the failure to note the accused's response is grounds to reject the officer's un-contradicted evidence that the accused indicated he did understand the demand. The surrounding circumstances are consistent with this finding.

[40] I say this while recognizing the Supreme Court of Canada dictum in Wood v. Schaeffer, 2003 SCC 65, 2003 SCJ 71, where at paragraph 67 it is written:

"67 ….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."….

[41] Obviously this duty is subject to an officer doing the best he or she can and by recognizing that not everything can be recorded so that an officer must make choices as to the importance of each detail and make notes accordingly.

[42] Thus, I accept the officer's testimony as to his practice that he always inquires if the demand was understood and that there was nothing out of the ordinary to record.

[43] Finally, I will make the comment that during submissions there was discussion as to whether Rilling or Charette had any application to this case. I agree with the defence that in the circumstances of this case that they do not.

Conclusion

[44] I find the demand under section 254(3) was sufficiently expressed and understood for the Crown to establish the admissibility of the Certificate and to receive the benefit of the presumption in section 258. This being the only issue raised the accused will be found guilty.

Released: March 14, 2014

The Honourable Mr. Justice Robert G. Selkirk