COURT FILE No.: St. Catharines-15-N0514

DATE: 2016.09.07

CITATION: R. v. Cheema, 2016 ONCJ 548

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— and —

KULDIP CHEEMA

Before Justice Fergus ODonnell

Reasons for Judgment Released on 7 September, 2016

Mr. G. Settimi......................................................................................................... for the Crown

Mr. S. Baidwan.................................................................... for the defendant, Kuldip Cheema

Fergus ODonnell, J.:

Overview

1. Kuldip Cheema appeared before me on 3 and 4 August, 2016 on a charge of operating a motor vehicle with a blood alcohol concentration over the permissible limit. I heard from the two arresting officers, Constables Nikolce Iliev and Derek Watson as well as the breath technician, Constable Charles Letford. Mr. Cheema also testified, in relation to the Charter challenge specifically.

2. The trial was less about whether the offence had been made out and mostly about whether or not there had been a violation of Mr. Cheema’s Charter rights and, if so, whether or not the breath results should be excluded from evidence. I dismissed the Charter application and found Mr. Cheema guilty of the offence, with reasons to follow. These are those reasons.

The Evidence

3. Constable Iliev was a novice officer: he became a member of the Niagara Regional Police Service in November, 2014 and the events leading to this charge took place on 8 February, 2015. Constable Watson was his training or coach officer on the evening of Mr. Cheema’s arrest. This was Constable Iliev’s first “impaired operation” investigation.

4. Constable Iliev testified that he and Constable Watson were travelling in a marked police car on Lundy’s Lane near Belmont Avenue in Niagara Falls. They were stopped at a red light and Mr. Cheema’s car was travelling in the same direction. As they moved on, they noticed that Mr. Cheema’s car swerved across and out of its lane to right and left and then accelerated to about seventy kilometres per hour in a fifty kilometre zone, at which point they initiated a traffic stop.

5. Constable Iliev went to the driver’s side of the car and found Mr. Cheema to be alone in the car. He immediately smelled some odour of alcohol from within the car and from Mr. Cheema’s breath, but he also noticed a very strong odour of deodorant or body spray, a can of which was visible on the console of the car.

6. Constable Iliev said that Mr. Cheema lost his balance when he stepped out of the car, but immediately offered that that could have been due to the weather and a wet, slushy roadway, although the roads were not so poor as to affect one’s ability to operate a motor vehicle. At the back of the car, Constable Iliev noticed a strong odour of alcohol from Mr. Cheema’s breath. Mr. Cheema said he had had a drink about seven hours ago. In terms of other indicia, Constable Iliev said that Mr. Cheema’s eyes were red and glossy and that he seemed to slur his speech a bit, although Constable Iliev again volunteered that he couldn’t rule out Mr. Cheema’s accent when assessing what he perceived as slight slurring.

7. Constable Iliev testified that based on his suspicion that Mr. Cheema had alcohol in his body, he made the approved screening device demand. He explained the procedures he had gone through with that device at the beginning of his shift and there was no room for argument about the reasonableness of Constable Iliev’s reliance on the device.[^1]

8. Within eight minutes of their first observation of Mr. Cheema, Constable Iliev was reading the approved screening device demand to Mr. Cheema. He testified that Mr. Cheema made four “attempts” to provide a sample, but all involved insufficient air. After the fourth attempt, Constable Watson warned Mr. Cheema of the consequences of refusal and Mr. Cheema registered a “fail” on the fifth attempt, which demonstrated to Constable Iliev that Mr. Cheema’s blood alcohol concentration was over 99 mg/100 ml of blood so he arrested Mr. Cheema for “over 80”.

9. Constable Iliev testified that he placed Mr. Cheema in the scout car and read him his rights to counsel at 1:11 a.m., directly from his notebook. He said that Mr. Cheema said he understood and that he did want to speak with a lawyer. Constable Iliev then followed on with the caution and approved instrument demand.

10. There then followed unexceptional delays for things such as the arrival of a second police car to handle the tow and the travel to the police station in St. Catharines, where Constable Iliev testified Mr. Cheema told the booking sergeant he did not want to speak with a lawyer. Constable Iliev then provided his grounds to the breath technician, Constable Letford, which took from 1:45 a.m. to 1:59 a.m. Because there was conflict with a female prisoner being admitted to the station, Mr. Cheema was not presented to Constable Letford until 2:15 a.m.

11. Constable Watson testified that he was not present, or at least not within earshot, for all of Constable Iliev’s interaction with Mr. Cheema. At the outset, Constable Watson remained on the passenger side of the car to watch both Constable Iliev and Mr. Cheema’s behaviour. That remained the general pattern through the interaction, with Constable Watson playing mostly the role of the detached observer. He got involved more directly when he stepped in to caution Mr. Cheema after the four failed approved screening device attempts. After arranging for a tow, he came back and checked with Constable Iliev about having given Mr. Cheema his rights to counsel.

12. Constable Letford testified about being called in to the station to do a breath test and about the steps he took to prepare the approved instrument for use, whereafter he waited for Mr. Cheema to be brought to him. Constable Letford described the environs of the breath technician’s office and how it related to the area in which the female prisoner was being disruptive, making it impossible to bring Mr. Cheema for his breath test any sooner than he was brought. Constable Letford estimated that it was at most a minute between when the disruptive prisoner was dealt with and when Mr. Cheema arrived for testing.

13. Constable Letford testified that at 2:16 a.m. he read Mr. Cheema his rights to counsel and offered him a chance to speak with counsel and the information about the Legal Aid toll-free number, but Mr. Cheema declined. Although English was not Mr. Cheema’s first language, Constable Letford testified that over a fairly detailed discussion of various issues, Mr. Cheema appeared to have no trouble understanding him and communicating with him. Constable Letford obtained two samples from Mr. Cheema, registering 155 and 153 mg of alcohol in 100 ml of blood, at 2:33 a.m. and then at 2:57 a.m.

14. Mr. Cheema testified with the benefit of an interpreter. I noticed that on numerous occasions his reactions and responses demonstrated that he understood the question before it was translated for him. This is not meant by any means to challenge or undermine Mr. Cheema’s use of an interpreter. Where there is any doubt in a court proceeding, it is always most prudent for a witness to have the benefit of interpretation. The observation is simply made in relation to any issue about Mr. Cheema’s ability to understand the officers with whom he dealt. It seemed inescapable to me that when Mr. Cheema told me that his ability in English was about a three or four on a scale of one to ten, he was being more than a bit modest.

15. Mr. Cheema’s evidence about the process of him being approached by Constable Iliev after the traffic stop, of failing to give a suitable sample a few times and of being warned and then giving a sample and being arrested was generally consistent with the evidence of Constables Iliev and Watson. Where it diverged most significantly was that Mr. Cheema was adamant that Constable Iliev did not tell him anything about his right to speak to a lawyer at the scene. In cross-examination, Mr. Cheema testified that all he was told was that he was under arrest and what he was under arrest for along with the “caution” (by which he meant the warning about giving inadequate samples) and the breath demand. He was not told about a right to a lawyer, about duty counsel or about the 1-800 number. He also said there was no mention of access to counsel at the booking. The only time he was told about a lawyer was in the breath technician’s room. He said that he mostly gets by in English and knows to ask if he does not understand. He testified that he knew what “lawyer” meant, but not what “counsel” meant. He testified that when the breath technician told him he could speak to a lawyer, he did not have a lawyer of his own and did not know that they would provide one.

16. Mr. Cheema said that he was coming from work at his family’s car wash when he was pulled over. He said that there was about an inch of snow on the road and that it was normal for his car, a rear-wheel drive Dodge Charger, to swerve from side to side in those conditions.

The Legal Issues

17. Mr. Baidwan raised a few principal arguments in Mr. Cheema’s defence. He argued that Constable Iliev did not have reasonable grounds to suspect there was alcohol in Mr. Cheema’s body, meaning the approved screening device demand was unlawful. He said that Mr. Cheema was not given his rights to counsel, either in the informational sense or in the sense of being given a chance to exercise those rights and that there was no valid waiver of those rights. Finally, he argued that the Crown could not rely on the “presumption of identity” (i.e. that the blood alcohol concentration at the roadside was the same as measured at the station) because the process followed was not done “as soon as practicable”.

18. To some extent those arguments relied on Mr. Cheema’s argument that the police evidence was not very credible or reliable. I formed a very different impression.

19. Determinations of credibility and reliability are not science. They depend on assessments of what a witness says, how he or she says it (although it is prudent to place very little weight on demeanour), how that evidence fits with the witness’s other evidence, how consistent the witness is, how the witness responds to cross-examination, how the evidence fits with the evidence of other witnesses to the same event (although it will be very rare for two witnesses to recall the same event in exactly the same way), how it fits with “objective” pieces of evidence (such as video recordings of events) and how much “sense” the witness’s story makes (although if everyone did everything sensibly there would be very little work for criminal courts).

20. There is obviously a difference between an honest witness who does not recall particularly well (i.e. is honest but not reliable) and a dishonest witness. Different people will have varying degrees of attention to detail and varying degrees of ability to recall whatever detail they noted months and perhaps years later. Some are aided by notes, others are not.

21. My initial impression of Constable Iliev, who was largely the core of the Crown’s case, was that he has inclined towards attention to detail, despite his obvious inexperience in drink-driving cases which can be a trap for the unwary officer. He was more familiar with the steps involved in a drink-driving investigation than many officers far more experienced than he. The same was true of his explanation of the operation of an approved screening device, which while not particularly complicated does seem to escape the comprehension or ability to explain of numerous officers.

22. I was also left with the impression that Constable Iliev had no interest in gilding the lily. Indeed, on two occasions when he testified to observations he made about Mr. Cheema, he immediately and of his own instinct, qualified those observations with possible alternate explanations. I had no sense that he was trying to overreach in his testimony.

23. Are there issues with some of the police evidence? There are. However, if there were no inconsistencies or apparent inconsistencies at all between two witnesses, one might incline towards the view that the consistency was too perfect to be real. Indeed, perfect alignment of the evidence of two witnesses would tend to serve as a klaxon to warn the trier of fact that he or she was treading in dangerous territory.

24. I do not propose to go into all of the perceived inconsistencies, but will address a few for illustration. For example, Constable Iliev was cross-examined about whether it was snowy or slushy that night. Quite apart from the Canadian reality that the line between snow and slush can be a subjective one, any error in Constable Iliev’s notes about the precise nature of the accumulated precipitation on the ground strikes me as entirely irrelevant to his credibility or his reliability. It was far from a central focus of his investigation. I also see no illogic in his testimony about when he first smelled alcohol from Mr. Cheema (while in the car) and when he felt he first formed his reasonable suspicion (once Mr. Cheema was outside the car). To the contrary, that struck me as a prudent precaution on Constable Iliev’s part: separating the individual from the car avoids any ambiguity about whether the smell of alcohol is from one source or the other. Indeed, in his testimony, Constable Watson said that was a step that he had specifically trained Constable Iliev about. Constable Iliev’s statement that it would take about fifteen seconds to read Mr. Cheema his rights to counsel may be a bit low, but the process would not typically take much longer, even if one were timing it. All in all, these do not strike me as the raw materials out of which a finding of unreliability or lack of credibility can be fashioned, particularly in light of all of the evidence.

25. There is also an inconsistency between Constable Iliev and Constable Watson as to whether the in-car radar was operative as they were following Mr. Cheema. Constable Iliev struck me as more attentive to detail and I believe his evidence on this point is more reliable.[^2]

26. Mr. Cheema gave his evidence in a straightforward manner. He was firm in his assertion that he had first heard about a lawyer in the breath room and that even then he did not realize he could have access to one paid for by Legal Aid right there and then. I shall address his credibility and reliability while dealing with right to counsel because his evidence applies to that particular argument rather than to multiple arguments.

Reasonable Suspicion

27. The legal requirement for a police officer to administer an approved screening device is a modest one, namely reasonable suspicion that the driver has alcohol in his body. Reasonable suspicion is the lowest of the constitutionally valid levels for the making of decisions. It is of an entirely different nature than the criminal trial standard of proof beyond a reasonable doubt and falls far below the civil trial standard of proof on a balance of probabilities. It even falls below the more common standard (for search warrants, arrests, etc.) of reasonable grounds to believe, which is itself a relatively modest standard. The standard of reasonable suspicion is apt in the context of roadside screening devices, which relate to offences in a highly regulated form of conduct (driving) that result in the highest criminal cause of death in Canada every year.

28. The seizure of a roadside breath sample in this case was a warrantless seizure of evidence by the state. As such the burden is on the Crown to show that the seizure was lawful and reasonable. In this case, the seizure purported to be authorized by a defined Criminal Code provision and there is no challenge to the reasonableness of the law itself. The question as framed by Mr. Cheema is really whether or not Constable Iliev had a “reasonable suspicion” that Mr. Cheema had alcohol in his body.

29. In this case, Constable Iliev smelled alcohol from Mr. Cheema’s breath. He did so after separating him from the car (and thus from the possibility that any alcohol smell was from the vehicle itself), and also from the complicating presence in the car of the smell of body spray. He had an admission of consumption (albeit several hours earlier). He had evidence of poor driving (the weaving) and arguably mildly erratic driving (the sudden acceleration). As with the application of these and similar factors in the context of an approved instrument demand and in applying the proof beyond a reasonable doubt standard at trial, the fact that there may be other explanations is not determinative. In light of the standard as interpreted by the Court of Appeal (and in light of the language of the section itself), it seems inescapable to me that Constable Iliev had reasonable grounds to suspect Mr. Cheema had alcohol in his body while he was driving on Lundy’s Lane that morning. The approved screening device demand was, therefore, a lawful demand.[^3]

Right to Counsel

30. Mr. Cheema alleges that the police violated his Charter rights by failing to notify him of his right to counsel until he was in the breath technician’s room and similarly of failing to advise him of duty counsel or the toll-free number and of failing to allow him to exercise his right to counsel. On this application, the onus is on Mr. Cheema to demonstrate a violation of a Charter right on the balance of probabilities. If a violation is made out, any evidence derived can only be excluded if it is demonstrated that its admission would bring the administration of justice into disrepute under s. 24(2) of the Charter, as applied by the governing authorities, principally R. v. Grant, 2009 SCC 32, [2009] SCJ No. 32.

31. I have said that Mr. Cheema’s evidence was generally given in a confident manner and he was not materially moved in cross-examination. To that extent, if the onus were on the Crown to prove that he had been given his rights to counsel and if that onus were on a proof beyond a reasonable doubt standard he might be able to create a reasonable doubt about whether he was given the full extent of his Charter rights. However, the onus in this application is on him, to demonstrate on a balance of probabilities that his Charter rights were violated. On the evidence before me, he simply cannot meet that standard. That is not to say that there are no arguments to be made in favour of his version. As I have said, he testified fairly well. Some things that he said, for example, that he understood “lawyer” but not “counsel” may be plausible.[^4] And so on. Is it possible that a novice officer handling his first drink-driving case might forget to read the rights to counsel? Perhaps.

32. However, the totality of Mr. Cheema’s story did not make sense. If perhaps Constable Iliev had omitted to read Mr. Cheema his rights to counsel, would he persist in that oversight once reminded by Constable Watson? Perhaps, but not likely. What are the odds of the booking sergeant likewise failing to advise Mr. Cheema of his right to make his phone call to a lawyer? Much less than the odds of a novice officer making such a mistake and the odds of both oversights coinciding seem particularly slim. And then the odds of Constable Letford, the breath technician, remembering to give the right to counsel but omitting the duty counsel and 1-800 components? Again, a great many things under heaven are possible, but a combination such as the scenario portrayed by Mr. Cheema is certainly not made out on a balance of probabilities. At a certain point it starts to seem fantastical.

33. On the evidence before me, I am satisfied that Mr. Cheema was advised of his rights to counsel at each of the stages set out in the evidence of Constables Iliev and Letford. As such there was no breach of the informational component of his right to counsel

34. As for the “exercise” component of the right to counsel, I am likewise of the view that Mr. Cheema’s application must fail. A detainee who has been told of his right to counsel has to invoke that right. On the evidence before me, Mr. Cheema initially invoked his right to speak to counsel but then chose not to follow through on that right both before the booking sergeant and the breath technician.[^5]

35. It is for these reasons that I concluded that Mr. Cheema had failed to demonstrate a breach of his rights to counsel under the Charter.

Section 24(2) of the Charter

36. Had I found a breach to exist, I would be required to engage in an analysis of whether to admit or exclude the breath results under s. 24(2) of the Charter. Here, again, the onus would be on Mr. Cheema to justify exclusion. I note that it can be somewhat artificial for a judge who has just found there to be no breach to then follow through with a “but what if…” analysis under s. 24(2), so I shall try to be brief on that issue.

37. If there had in fact been a three-fold failure by the police at different stages (arrest, booking, breath room) properly to advise Mr. Cheema of his rights to counsel and properly to facilitate the exercise of those rights, that would be a serious violation indeed, perhaps even raising the spectre of some kind of organizational dysfunction with respect to s. 10(b) rights. If that were combined with an antecedent unlawful breath seizure, it would be even more concerning. Analysis of the first branch of the Grant test would tend towards the breach being very serious.

38. On the second branch, the impact of the breach on the defendant’s Charter rights, access to counsel is a core constitutional right. It provides both a level of comfort to a detainee in the form of someone in his corner when the resources of the state are up against him as well as a level of understanding of his options. While it may be unfashionable to say so, the options of a person in Mr. Cheema’s position are extremely limited. I would, on balance, find the second factor to be more or less a tie between Mr. Cheema and the Crown, a middling impact on his rights.

39. When it comes to the impact of exclusion on the Crown’s case, it seems to me that that factor overwhelmingly favours the Crown. The language of paragraph 111 of Grant, itself, though oft-ignored since it was written, remains the law of this country: breath samples are a minimal intrusion on bodily integrity and constitute highly reliable and probative evidence that is essential to the Crown’s case in an “over 80” prosecution. The continued vibrancy of paragraph 111 of Grant can be seen in decisions such as R. v. Rehill, 2015 ONSC 6025, [2015] OJ No. 5068 (SCJ, K. Campbell, J) and more recently in the Court of Appeal decision in R. v. Guenter, 2016 ONCA 572.

40. All things considered, a s. 24(2) analysis on this case would probably lead to a draw and on s. 24(2) a tie favours the Crown.

“As Soon As Practicable”

41. Mr. Cheema argued that the Crown should not be able to prove its case that his blood alcohol concentration at the time of driving exceeded the lawful limit of 80 gm/100 ml of blood because it failed to obtain his samples “as soon as practicable”. If that contention is sound, the Crown does not get to rely on the presumption in the Criminal Code that Mr. Cheema’s blood alcohol concentration at the time of testing and at the time of driving were identical and, in the absence of a toxicological report, there would be no evidence on an essential element of the offence.

42. Mr. Cheema relied on two periods of time to support his argument that the samples were not taken as soon as practicable, namely: (1) the fourteen minutes it took Constable Iliev to recount his grounds to Constable Watson; and (2) the fifteen minutes of delay because of the combative prisoner in the booking hall.

43. The law is clear that the Crown does not have to account for every minute of delay in the processing of a drink-driving detainee leading up to breath testing. The law is also clear that “as soon as practicable” does not mean “as soon as possible”; the police do not have to shave off every possible delay. The law requires only that the overall time be reasonable.[^6]

44. I do not believe that either of the delays referred to, either alone or in conjunction, or the overall time taken here was in any way unreasonable in the circumstances. I accept that the fourteen minutes taken to provide grounds is rather high. It does not strike me as at all unreasonable that a novice officer doing his first drink-driving case might take longer than average. Three or five or even eight minutes (which I have seen before) would be unremarkable. The difference here is not any cause for concern.

45. As for the delay while the unruly prisoner was being dealt with, I am of the view that, given the relatively short time involved, there is absolutely no fault to be found there. No prisoner stands in isolation from the world around him or her. A police station facing an unruly and assaultive prisoner has to prioritize that threat over something such as breath testing. That was an entirely reasonable decision on the part of the police. The description of the physical layout of the breath testing area in relation to the booking hall satisfies me that proceeding otherwise would have been imprudent. I can well imagine that Mr. Cheema might be raising a different Charter argument if the police had chosen to walk him through the fracas and he had been assaulted by the other prisoner.

46. On all the evidence before me I was satisfied that the breath samples were taken from Mr. Cheema “as soon as practicable.

47. In light of my conclusions about the alleged Charter breaches and the “as soon as practicable” issue and being satisfied that the charge had otherwise been proved beyond a reasonable doubt, I found Mr. Cheema guilty.

The Elephant In The Room (Or More Aptly Not In The Room)

48. It seems to me that it would be irresponsible for me to leave these reasons without addressing one rather large issue that was not talked about in court. This trial took place over parts of two days. Within its context, both counsel handled the matter professionally and efficiently, so I see no reason for complaint there. Yet I leave this case with a rather large question mark hanging over the proceedings.

49. As the Prime Minister famously observed in a very different context about a year ago, “it’s 2015” (well it was at the time of these events). Just as a reasonable Canadian in the twenty-first century might have an expectation that a cabinet would reflect the kaleidoscopic diversity of the Canadian population, a reasonable Canadian might wonder why lawyers and witnesses were battling over who said what to whom in the context of a police interaction, most of which was in front of or in a police cruiser or in a police station. A reasonable Canadian might opine that arguments of that nature, to the extent that they might have been avoided or shortened or made more efficient by the use of a device known as a camera, ought not to be churning up expenses at the rather high hourly rate that a court system costs to operate.

50. I presided over this trial as a visitor to this region. I am aware of the risk of me as an outsider passing comment on local practices being not particularly welcome. Given the part of the province whence I came and the particular intensity of feeling much of the province has for supposedly helpful input from that area, that risk may be more acute than otherwise. At the same time, I am aware of the age-old wisdom of the poet Robert Burns to the effect of, “oh what a gift the Lord would gi’e (give) us, to see ourselves as others see us”. I am more convinced by the latter advice than I am concerned by any perception of me as an outsider opining on local practices.

51. Where I come from and, indeed, in many areas, most or all of Mr. Cheema’s interactions with the officers would have been audio- and video-recorded. At a minimum there would be a video record from the point thirty seconds before the officers activated their emergency lights to stop Mr. Cheema. That video might well have resolved most or all of the issues about Mr. Cheema’s driving that took up a fair portion of this trial. It might have avoided a trial entirely. Once he was pulled over, the officers’ interactions with him would have been caught on an in-car video and by microphones taken from a charging dock on the the cruiser’s windscreen and attached to the officers’ uniforms. The reading of the rights (or the failure to read the rights) to Mr. Cheema in the cruiser would not have been in issue as it would have been caught on the rearward facing in-car camera. The entire trip to the station would have been audio- and video-recorded, as would the booking process and the breath-sampling process. Quite simply, there would have been little or no dispute about who said what to whom. This trial was almost entirely about who said (or did not say) what to whom.

52. Being from away, I do not know definitively what portions of the process are routinely recorded on audio or video or both. To the extent that such recordings may exist, perhaps more so with one police service than another for all I know, I do not know the extent to which they are routinely disclosed or the extent to which they are routinely relied on in court. Moving on from what I do not know, I do know this:

    1. It is 2016.
    2. Audio and video recording equipment is both omnipresent and cheap, to the point that some police services are graduating from car-based systems to body-cameras. If the average mountain-biking enthusiast can afford to record his every manoeuvre, it is a valid question as to why such capacity is not routinely employed when police interactions with the public are concerned.
    3. The Crown bears the burden of proof. In many cases the outcome will depend on the frailties of subjective observation, officers’ notekeeping skills and the like. Bad driving and other signs of impairment or intoxication are ideally suited for objective capture on video- and audio-recordings. Failing to video- and audio-record such interactions compromises the Crown’s ability to obtain convictions and as such appears like a false economy, not only for the police who invest investigative resources in cases that might fail for the lack of available evidence but for defendants and for the state, who spend a lot of money doing trials that might be either shortened or avoided entirely if such recordings were made.
    4. This case is a perfect demonstration of the virtues of recording. Almost every drink-driving case would be.
    5. Many other cases would benefit from such recordings. For example, those cases in which a defendant asserts he did not speak sufficient English to understand his rights become much more clear when there is a recording.[^7] Otherwise, the court is left to determine an important constitutional issue based on the evidence of a (usually) unilingual police officer and of a person who purports not to speak English.

53. As I have said, being from away, I do not know the answers to many of these questions, but I do know that they are valid and compelling questions that beg appropriate consideration. The administration of justice does not benefit from inefficiencies of this nature. It’s 2016.

Released: 7 September, 2016

[^1]: Constable Iliev’s grounds for using the approved screening device were very much in issue.

[^2]: For example, Constable Watson testified in cross-examination, in sequential questions, that there was a speed-measuring device in the cruiser, that he did not know if it was on and that if it had been on he would “absolutely” have noted it. It is hard to reconcile his uncertainty one second as to whether the laser was operational with his absolute certainty a few seconds later that it was not on (because it would be in his notes if it was).

[^3]: See, e.g. R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660 (C.A.)

[^4]: His assessment of the “normal” behaviour or rear-wheel drive vehicles in an inch of snow did not assist Mr. Cheema’s credibility.

[^5]: See, e.g., R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 18.

[^6]: See, e.g. R. v. Vanderbruggen, 2006 CanLII 9039, at paras 12, 13(ONCA).

[^7]: There was an element of that issue in this trial.