Court File and Parties

Ontario Court of Justice

Date: 2019-10-04

Court File No.: Guelph 18/0903

Between:

Her Majesty the Queen

— and —

Natalia Mieszczanska

Before: Justice M.K. Wendl

Heard on: May 9, June 7, July 12, and October 4, 2019

Reasons for Judgment released on: October 4, 2019

Counsel

M. Dolby — Counsel for the Crown

C. Avery — Counsel for the Defendant Natalia Mieszczanska

Judgment

WENDL J.:

Introduction

[1] Natalia Mieszczanska is charged with operating a motor vehicle while her blood alcohol level was over 80 mg of alcohol in 100 ml of blood [over 80]. The facts are straightforward and common. A traffic stop, the smell of alcohol, an Approved Screening Device [ASD] demand, an ASD fail, a breath demand and a breath sample of over 80 mg of alcohol in 100 ml of blood. The defence raises two arguments.

[2] First, the arresting officer, Constable Green, did not copy his scratch notes. The evidence is lost. Therefore, counsel argues that this court should grant a stay or exclude the breath samples.

[3] Second, which is connected to the first, that the lack of the scratch notes renders Constable Green's testimony unreliable; meaning that this Court cannot rely on his grounds for the arrest.

[4] The presumption of accuracy, identity and the admissibility of the breath certificate, subject to the Charter challenge, are not an issue in this trial.

Scratch Notes

[5] I take it as axiomatic that the failure of Constable Green to copy his scratch notes, which he says he took on his hand at the time of the arrest, is a breach of section 7 of the Canadian Charter of Rights and Freedoms.

[6] Although Constable Green agreed with the suggestion put to him in cross-examination that there is no direct copy of what was on his hand, there is no evidence in front of me to suggest that his transcription of the scratch notes is not accurate. The detail of Constable Green's testimony based on his notes, from the time of the stop, the pattern of driving, the time and place of the accused's last drink, that the accused first gave an unsuitable sample in the ASD, and the time of the fail on the ASD, and the fact that he was not shaken in that detail under cross-examination support my conclusion that he transcribed his scratch notes with care and attention.

[7] Counsel argues that what makes this case more aggravating is that Constable Green may have taken notes at the station, not only on his hand, but on other pieces of paper which he lost.

[8] On the second day of trial, Constable Green testified that the phone numbers that were provided to him by the accused were in his notebook. Based on the way the evidence came out, it is not clear to me whether he took down the phone numbers in his notebook or on pieces of paper, but again on the evidence in front of me, there is no suggestion that the numbers in his notebook are not accurate.

[9] Constable Green also clarified that the times for the Right to Counsel in his notes — i.e. calling counsel, the accused speaking with counsel, etc. — were taken off the whiteboard. The arrival time was taken from the ICAD and the time she was returned from the breath technician was given to Constable Green by the breath tech.

[10] There is no evidence in front of me that Constable Green did not transcribe those times accurately.

[11] My analysis is similar to the Court of Appeal in R. v. Hersi, 2019 ONCA 94. Although Hersi involved text messages, and not police notes, the trial judge found that while the text messages themselves were not available to the accused, the substance of them were. The same applies here: while the scratch notes were not available to the accused, the substance of them are.

[12] Also, similarly to Hersi, I do not find that Constable Green's conduct was anything more than a mistake. There was nothing intentional in his conduct, nor did he have any intentions of subverting the course of justice or the prosecution.

[13] In Hersi, a jury trial, the Court of Appeal found that the only appropriate remedy was a jury instruction. This is a judge-alone trial; therefore, I find that this breach does not merit a remedy — either a stay or an exclusion of evidence.

[14] I will add that not copying scratch notes is simply wrong. If further evidence comes before this Court that this is a systemic issue, it may well merit a remedy under section 24(1) or 24(2).

Lack of Reasonable Grounds: Unreliable Notes

[15] Constable Green undertook a valid Highway Traffic Act stop. The only facts that this court needs to make the finding of reasonable grounds in the case of an arrest based on an ASD fail are: (1) valid traffic stop; (2) reasonable suspicion of alcohol; and (3) an ASD fail that is subjectively and objectively reliable.

[16] Given my finding above, that the notes were transcribed accurately, this argument cannot succeed. Again, Constable Green's evidence is replete with detail. I find his evidence that he smelled alcohol on the accused reliable.

[17] I also find his evidence that he completed a self-test on the ASD at the beginning of his shift and another one prior to administering the ASD to the accused reliable and sufficient to make Constable Green's reliance on the ASD fail reasonable. He was not shaken in cross-examination that he conducted a self-test prior to administering the ASD to the accused.

Conclusion

[18] Although I find a breach of section 7 of the Charter, there is no remedy. And, since the presumptions of identity and accuracy were admitted, and the breath certificate was otherwise admissible, I find the accused guilty.

Released: October 4, 2019

Signed: Justice M.K. Wendl