Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Helen Hillman

Before: Justice J. M. Grossman

Heard: June 23 and November 2, 2015

Judgment Released: December 4, 2015

Counsel:

• A. Linds, Counsel for the Crown
• S. Nichols, Counsel for the Accused

Judgment

Grossman, J.:

[1] Helen Hillman is charged that on or about the 8th day of September in the year 2012, in the City of Toronto, in the Toronto Region having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, contrary to the Criminal Code.

[2] She is further charged on or about the 8th day of September in the year 2012 in the City of Toronto, in the Toronto Region while her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle, contrary to the Criminal Code.

[3] After hearing about twenty minutes of evidence and completing the luncheon recess, Crown counsel invited dismissal of count number 1, the Over 80 mgm. charge. Accordingly, this charge was dismissed.

Evidence

[4] Sergeant Robert Jason Crane testified. On September 8, 2012, he was called to investigate a property damage accident on Yorkdale Road just east of Dufferin Street. Once on scene, he observed a motor vehicle westbound on Yorkdale Road wedged between a steel link fence and several posts which had been taken out. Ms. Hillman was observed sitting in the driver's seat talking to several tow truck drivers.

[5] Sergeant Crane spoke with Ms. Hillman finding her to be well dressed, very pleasant and articulate. She handed him her insurance documents before searching a messy purse for her driver's licence and vehicle permit. He observed her eyes to be glossy. She had no explanation for her vehicle going off the roadway.

[6] Sergeant Crane was asked:

"Q: Was there anything further that provided you with grounds for a demand?

A: I don't – I don't really recall anything and nothing comes to mind. I don't – at the time, as I said, she presented very well to me."

(See Transcript of Evidence, June 23, 2015, p. 40, l. 14-18)

[7] He went on to say he "did have a scent of alcohol from her breath". He stated there was nothing wrong with her walking and her conversation was very professional. He had no concerns for his safety or her safety.

[8] He stated he "formed the grounds that she had been drinking in the evening and while driving the motor vehicle". (See Transcript of Evidence, June 23, 2015, p. 40, l. 1-2)

[9] He made a demand of her for a breath sample into an approved screening device. She provided a suitable sample resulting in a "Fail". Sergeant Crane arrested Ms. Hillman and gave her right to counsel before leaving the scene at 1:09 a.m. He testified they arrived at 32 Division at 1:18 a.m. and Ms. Hillman was paraded before the staff-sergeant at 1:20 a.m.

[10] Sergeant Crane related that Ms. Hillman changed into a different person in the scout car and at the station becoming rude, sarcastic, uttering profanities and making derogatory comments. He remembered them but did not record any in his notes.

[11] At the station, he stated he noticed "she was more wheezy on her feet". (See Transcript of Evidence, p. 44, l. 8-9) He said the smell of alcohol was stronger and "she was feeling the effects of whether it was alcohol or something else". (See Transcript of Evidence, June 23, 2015, p. 45, l. 23-24)

[12] Ms. Hillman spoke with Duty Counsel at 1:46 a.m. and was then escorted to the breath room where she provided samples of her breath at 2:21 a.m. and 2:46 a.m. respectively.

[13] Sergeant Crane testified that because of the way she acted in the report room (which included rude and insulting personal remarks to the officer), the way she talked, the smell of alcohol on her, and the two readings, he decided to charge her with Impaired Driving.

[14] Ms. Hillman was given copies of all appropriate documents and released at 4:15 a.m. and sent home in a cab.

[15] Entered as an Exhibit at trial was the video taping in the sallyport on arrival, booking hall, breath room and release in the booking hall. I had occasion to observe and listen to Ms. Hillman throughout.

Analysis

[16] It is quite apparent both from the evidence of Sergeant Crane and my observations of the video that Ms. Hillman experiences no difficulty in walking. She was well-dressed and articulate. She was responsive to questions. Sergeant Crane summarized it in his evidence when he stated:

"She presented herself very well to me. She was well-dressed. She was very pleasant. She's – to me, she seemed like a professional, employment wise, and she was articulate. Again, a very pleasant lady at the time and because of those signs that I articulated, I formed the grounds that she had been drinking in the evening and while driving the motor vehicle."

(See Transcript of Evidence, June 23, 2015, p. 38, l. 28 to p. 40, l. 2)

[17] I have difficulty with this evidence. The only indicia of impairment mentioned by Sergeant Crane is noticing her eyes were glossy and a scent of alcohol.

[18] The collision with the fence is evidence of an accident which may have happened because of the consumption of alcohol or may have happened otherwise. Not all bad driving reasonably gives rise to an inference of impairment.

[19] The officer's belief and formed opinion was not that her ability to operate a motor vehicle was impaired because of the consumption of alcohol but rather that she was drinking "while driving the motor vehicle". There is no foundation for this formed belief.

[20] The odour of alcohol indicates consumption of alcohol but is not conclusive of impairment. (See R. v. Gray, [2005] O.J. No. 1010, O.C.J.)

Credibility and Note-Taking

[21] Of particular concern is that other than glossy eyes, the other indicia relate to the scent of alcohol and Intoxylyzer readings. In respect of the scent of alcohol, no mention of this observation is recorded in Sergeant Crane's notes. He did not see fit to arrest Ms. Hillman for Impaired Driving at the scene. Rather, after her reversal of character which included personal insults to the officer's appearance, profanities, sarcasm and derogatory remarks, she was then arrested for Impaired Driving.

[22] Sergeant Crane stated:

"… she called me bald and fat and then there was a comment about being uneducated, how any woman could stand me, just comments like that were just throughout the whole time that I dealt with her and then having to sit in the same room with her throughout that whole time and it was obvious to me that the smell of alcohol was just so much more stronger and that – and it was. It was just like a cycle. She went up and down and you could tell that the effects, there was definitely, she was feeling the effects of whether it was alcohol or something else."

(See Transcript of Evidence, June 23, 2015, p. 45, l. 15-24)

[23] Ms. Hillman was arrested September 8, 2012. Sergeant Crane testified June 23, 2015, a little over two years and nine months later. He agreed he had no notation of smelling alcohol on Ms. Hillman that evening. He had no note of the time he was dispatched nor did he have a note of the time he arrived on scene. He referred to Ms. Hillman's several derogatory remarks, yet he had no notes in that regard. He did not note the time he entered the breath room with Ms. Hillman.

[24] I am mindful of the comments of J. Wright J. in R. v. Burrows, 2004 ONCJ 357, wherein he stated at para. 32 as follows:

"(1) Memory is, by its very nature, the faculty that forgets and therefore it is important to note down significant details so that they can be recalled at a later point in time.

(2) Specific times, events, utterances, have particular importance in police investigation and court work. The ability of an officer to make contemporaneous notes confirmatory of the events, gives comfort to the author and to the court that the information is accurate and reliable."

[25] In R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.), Duncan J. considered the issue of the importance of proper note taking and at page 2 of that judgment 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."

[26] In R. v. Lozanovski, [2005] O.C.J. 112 at page 3, Feldman J. stated:

"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."

[27] In R. v. Makhota, [2004] O.J. No. 5415, P.J. Wright J. found that the absence of notations of the information upon which the breath demand was made was fatal to the Crown's case and dismissed the charge of failure to comply with a demand for a breath sample.

[28] In R. v. Khan (2006), O.J. 2713, Gorewich J., the officer testified he had an independent recollection of the events of almost two years prior. Justice Gorewich commented at para. 17:

"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."

At para. 18, Justice Gorewich continues:

"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."

Breath Test Evidence

[29] I have already referenced the failure to note any observation of the smell of alcohol. That leaves only glossy eyes observed on the accused late in the evening. The remaining evidence relates that Ms. Hillman had no difficulty walking. She stood straight and was not unsteady on her feet. She spoke clearly with no slurred speech. She was responsive to questions. Her motor skills seemed normal. She appeared very pleasant, well-dressed and articulate. Her behaviour changed to rudeness and profanity which may have been a consequence of her being arrested. Certainly at the scene, in the scout car to the station and in the booking hall, no other indicia of impairment were observed or noted. Sergeant Crane was asked:

"Q: Was there anything further that provided you with grounds for a demand?

A: I don't – I don't really recall anything and nothing comes to mind."

(See Transcript of Evidence, June 23, 2015, p. 40, l. 14-17)

[30] There is nothing in his notes to indicate otherwise. Indeed, Sergeant Crane does not enhance the Crown's position by testifying:

"… she was feeling the effects of whether it was alcohol or something else."

(See Transcript of Evidence, June 23, 2015, p. 45, l. 23-24)

[31] With respect to the Intoxilyzyer readings, I am mindful of R. v. Letford, [2000] O.J. No. 4841; 51 O.R. (3d) 737, which found that the results of the breath test could not be used in support of a finding of the degree of impairment, absent expert evidence relating the results to that issue.

[32] However, in R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) Justice Himel concluded that blood alcohol tests could be considered as a factor going to the impairment of the accused but they must be supported by additional evidence of impairment. She also stated the reading was only evidence of consumption of alcohol and not of what impact the amount of alcohol would have had on a person's driving ability. While Nandlall is a trial ruling, it was followed on a summary conviction appeal in R. v. Haas, [2011] ONSC 4529.

[33] There was no qualified expert evidence relating the BAC readings to Ms. Hillman's ability to drive and there is no additional reliable evidence of impairment. Accordingly, I do not consider the readings.

Conclusion

[34] While I may have my suspicions, more is required than proof that the accused is probably guilty. As Cory J. stated in R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1 p. 13:

"… A jury which concludes only that the accused is probably guilty, must acquit."

[35] I am not satisfied beyond a reasonable doubt on the evidence before me of the guilt of the accused. The charge is dismissed.

Released: December 4, 2015

Signed: "Justice J. M. Grossman"