ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-034
DATE: 20120405

BETWEEN:

HER MAJESTY THE QUEEN – and – DANIEL FOX Respondent

M. Minns, for the Crown/Appellant
D. Wilcox, for the Respondent

HEARD: March 26, 2012

REASONS FOR JUDGMENT

On Appeal from the Judgment of Mr. Justice J.J.Douglas
dated January 6, 2011.

HEALEY J.:

[1] The respondent was acquitted on January 6, 2011 by His Honour Justice Douglas on the charge of Over 80 contrary to section 253(1) (b) of the Criminal Code of Canada . The Crown seeks an order granting the appeal and remitting the matter back to the Ontario Court of Justice for trial.

[2] The sole issue on this appeal was whether the trial judge erred in assessing the evidence of whether the breath samples were given pursuant to a demand made under section 254 (3) of the Code .

[3] The Crown provided evidence of the demand through two witnesses, the arresting officer P.C. Lagace and the intoxilyzer technician, P.C. Kinsella. After considering their testimony it was the conclusion of Douglas J. that there was insufficient evidence to meet the Code requirement of the respondent having been told that the samples were being taken pursuant to a demand made under section 254(3). He concluded that the Crown had not met the burden of proving that a proper demand had been made.

[4] In his examination-in-chief P.C. Lagace was firm in his testimony that he read Mr. Fox the breath demand, stating that that was his invariable practice in the Over 80 and impaired cases in which he has been involved, estimated to be in excess of a hundred in number. He did not make a note of having made the demand, which left open an attack by defence counsel on his assertion of common practice. P.C. Lagace was asked by Mr. Wilcox whether he had a picture in his mind of having read a breath demand to Mr. Fox that night, and this question was repeated by Douglas J., seeking clarification. At no time did P.C. Lagace confirm that he could envisage the act of reading the demand to Mr. Fox, although he was unequivocal in confirming that he had done so.

[5] P.C. Kinsella testified with respect to written recordings made by her on a partially pre-printed document entitled “Will State of Provincial Constable Jennifer Kinsella #11285” (the “will state”), a document that she developed to ensure that she did not miss a step in the course of her investigation. This document is significant in two respects: it records information obtained from P.C. Lagace, and in particular the fact that Mr. Fox was given a breath demand at 0301 hours.; and it indicates that at 0350 hours, she herself read the breathalyzer demand to Mr. Fox. It was her evidence that it was her common practice to read the demand to a subject from the duty card, because even though she is not the investigating officer she wants to ensure, once the subject is in her custody, that he is aware of his rights and is aware of why he is there. Her notebook did not specifically record that she read the demand to Mr. Fox but instead contained the note "explained the tests required". In her examination-in-chief she testified that this note referred to the fact that she explains to the subject that there are two test required, the reading of the breath demand to the subject, and explaining what is required to have a proper test. Under cross-examination her testimony remained unequivocal that both her handwritten note and the insertion of the time on the will state confirmed that she read the breath demand to Mr. Fox at the time that she explained the tests that were required of him. However, in the same manner as P. C. Lagace, she was unable to provide reassurance that she had a recollection independent from those documents of making the breath demand. In his Reasons, Douglas J. concluded that the question of actual recall of the event in question was never, in his view, sufficiently answered by either officer, yet he went on to conclude that neither officer had a picture-like memory of having made the demand.

[6] The Crown did not request, at trial, that the will state be entered into evidence for the truth of its contents. The Crown now argues that the document should have been accepted as substantive evidence of the timing and fact of the request because it is both necessary and reliable evidence. However the record is clear that such an argument was never made at trial, and therefore cannot form the basis for this appeal.

[7] The court in R. v. Antoniak , [2007] O.J. No. 4816 (S.C J.) , a case containing similar facts to those present in this case, stated at para 21:

An appellate court is entitled to review the evidence, re-examining it and re-weighing it, but only for the limited purpose of determining if it is reasonably capable of supporting the trial judge's conclusion. The fact that there was another reasonable conclusion is an insufficient basis for appellate intervention. The appellate court is not to substitute its views for that of the trial judge, or to permit doubts it may have to persuade it to order a new trial. Due deference must be given to the trier of fact who actually saw and heard the witnesses. [ Yebes v. The Queen (1987) 1987 17 (SCC) , 36 C.C.C. (3d) 417 at 430 (S.C.C.); R. v. Biniaris (2000), 2000 SCC 15 () , 143 C.C.C. (3d) 1 (S.C.C.) at paras 36 , 37 and 49].

[8] Antoniak also held that the significance of an omission in an officer's notebook must be determined by the trier of fact on a case-by-case basis, and the determination of that significance is entitled to deference on appeal.

[9] Douglas J. was thorough in reviewing all of the evidence in this case that may have supported the inference that a formal breath demand was made by either of the officers. He considered the evidence of P.C. Kinsella regarding her ability to have her memory refreshed by the notations on her will state, but concluded that she had no recall, refreshed or otherwise, as to what actually was said to Mr. Fox. In his Reasons he referred to "the utter absence of recall by any of the witnesses", by which he meant the absence of a pictorial memory of uttering the formal demand. This comment was not made in error, given that neither officer gave evidence of having such a recollection. Given that neither officer made a note that explicitly stated that the formal demand had been read, it was open to Douglas J. to infer, after examining all of the available evidence, that the Crown had failed to prove that such a demand had taken place.

[10] While this may not have been the decision made by this court, I find that the evidence does support the trial judge’s conclusion. In particular the notion that an officer testifying must, in the absence of a note, be required to dredge up a pictorial memory of routine events in order to base a finding that the demand was made, does not accord with the reality of an officer’s daily work and the effects of the passage of time on recall. Had the will state become evidence, very likely the outcome would have been different because the trial judge would have had potentially reliable proof of, first, a conversation between the two officers as to the initial formal demand being read, and second, proof of the time at which the demand was given by P.C. Kinsella. However, having found that neither officer had an independent recollection of these events, which he was entitled to do on the evidence, P.C. Kinsella’s testimony while referring to her notes and will state was insufficient to persuade him that the requirements of section 254 (3) of the Code had been met.

[11] Accordingly the appeal is dismissed.

HEALEY J.

Released: April 5, 2012