ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2075/12
DATE: 20140305
B E T W E E N:
HER MAJSTY THE QUEEN
GREGORY HENDRY, for the Respondent/Crown
Respondent
- and -
CHRISTOPHER BROWN
RANBIR MANN, for the Appellant
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the
Honourable M.F. Khoorshed, dated July 3, 2012]
DURNO J.
[1] When the appellant was stopped while driving, the officer noted indicia of alcohol consumption and saw that there was a half full cup of beer in the console next to the appellant. The officer made a demand for a breath sample for screening purposes without waiting 15 minutes from the time of the stop. The explanation he gave in evidence for not waiting to ensure that any mouth alcohol had dissipated before taking the screening sample was based on comments the appellant made. They were not in his notebook, the driving offence notes nor did he tell the Intoxilyzer technician what the appellant said to him. The screening sample analyzed as a ‘fail,’ the appellant was arrested and charged with driving having consumed excess alcohol. At the station, he provided two Intoxilyzer breath samples that both analyzed over the legal limit.
[2] At his trial, the appellant applied pursuant to s. 24(2) of the Charter of Rights and Freedoms to exclude the Intoxilyzer readings because his s. 8 rights were breached. He contended the officer did not have reasonable and probable grounds to make the Intoxilyzer demand because the officer objectively could not have believed the screening results were accurate since he did not wait 15 minutes before having the appellant provide the breath sample. The trial judge accepted the officer’s explanation and found the appellant guilty.
[3] The appellant appeals against the conviction contending His Honour:
erred in relying upon the appellant’s pre-Charter roadside statements in convicting;
reversed the onus when dealing with a warrantless search;
erred in relying on statements attributed to the appellant by the officer that were never disclosed to the defence and were not included in the officer’s notebook nor disclosed to the Intoxilyzer operator; and
erred in finding the officer had reasonable and probable grounds to make the Intoxilyzer breath demand.
The Trial Evidence
[4] On July 3, 2011 at 4:27 a.m., the appellant was driving a car with a dealer license plate on it. When P.C. Farrell checked the plate he determined the plate was “unattached.” While following the car, he noticed it weaved slightly within its lane. Constable Farrell conducted a traffic stop to check the driver’s sobriety and asked the appellant if he had any alcohol to drink that night. He replied that he had not.
[5] Upon speaking to the appellant, the officer observed his eyes were bloodshot and he had an odour of an alcoholic beverage coming from his mouth. The officer saw a clear plastic cup in the cup holder, next to the appellant. It appeared to contain beer. When asked, the appellant passed the cup to the officer who confirmed the cup was one half filled with beer.
[6] The officer made a demand for a breath sample into an approved screening device (ASD) at 4:35 a.m. Since he did not have an ASD, Constable Farrell requested that one be brought to his location. P.C. Carnegie, who had personally tested the ASD and found it to be in proper working order, brought it to Constable Farrell 4:30 a.m. Between 4:36 and 4:41 a.m., the appellant attempted to provide suitable breath samples and eventually produced one that analyzed a “fail.”
[7] Constable Farrell’s examination-in-chief was interrupted for the mid-morning recess. When they returned, the Crown asked him if he asked the appellant when he completed his last drink. When the officer said he did not, Crown Counsel asked why he had not asked that question. The officer said:
I did not ask the question – I don’t believe I have any notation to that effect, but my independent recollection is that Mr. Brown had advised me that he was returning from Toronto, quite a distance from Brampton. Given the time with which it would have taken to travel, I formed no ground or reason to believe that his drink had been prior to 15 minutes before that. Further to that, the cup that contains the beer, again I have no notations to this effect, but my independent recollection, I’m able to recall, that Mr. Brown had told me that the cup actually belonged to a passenger that he’d recently dropped off and that --- that being a female passenger and the cup was hers.
[8] The officer had no notes of these conversations, had not included any reference to them in the pre-printed Driving Offence Notes and had not told the Intoxilyzer technician about the conversations. The officer said he remembered the discussion about the appellant coming from Toronto and the cup being the passenger’s beer before the recess but it had obviously become important in the case. Before he started to testify, he was not aware that recent consumption was a factor in the trial.
[9] After the ASD was administered, the appellant admitted to P.C. Farrell that he had consumed one beer. The officer testified that he would not have charged the appellant had he passed the ASD and that he never had grounds to charge him with impaired operation.
[10] The officer was familiar with the danger of false high readings if a person provides an ASD breath sample within 15 minutes of consuming alcohol. Here, that there was a half full cup of beer within the reach of the appellant potentially magnified the risk of recent consumption. However, he had no reason to believe the appellant had consumed alcohol within 15 minutes because of the time to drive from Toronto and his statement that the cup contained his passenger’s beer.
[11] The Intoxilyzer technician testified that if an officer saw a half cup of beer in the cup holder he or she would ensure there was no recent consumption. The appellant provided breath samples that were analyzed at 165 and 159 milligrams of alcohol in 100 millilitres of blood.
The Reasons for Judgment
[12] The trial judge dismissed the appellant’s s. 8 Charter application to exclude the Intoxilyzer readings because of the unreasonable search and seizure based on the absence of reasonable and probable grounds to make the Intoxilyzer demand. His Honour concluded:
It is not sufficient that the officer was specifically informed by the accused himself that he had not consumed any alcohol, and that the cup belonged to a friend Are we going to now judge that the particular officer should not have accepted the statement from the accused? Is there such a thing? That has to be left to the officer’s judgment.
… Now let us look at each one of these arguments. It is not that the officer did not inquire as to who drank that cup of beer. He has testified under oath that he saw that beer, he smelt it, he asked that man as to whose cup of beer it was, and was specifically informed that it belongs to the friend he had dropped off.
That is not all though. The accused had further told the officer, according to Officer Farrell’s testimony, that he had not consumed any alcohol. These two combinations indicate that the officer had made sufficient inquiries.
But secondly, how about the combination of the accused specifically stating he had not consumed alcohol, which information was provided. And secondary, that he explained that the cup belonged to somebody else, who he had dropped off …
I think the officer has testified under oath that is exactly what he did, and I have no reason to disbelieve him. It is not a question of probability, I believe him, it is as simple as that. His evidence was very clear and honest. This is also the same officer who tells you all the things that are not wrong with the accused, namely the so-called impairment, which he denies.
It is implicit in his evidence that he had an honest belief, at least in part, because the respondent had told him he had not consumed alcohol in the past 15 minutes. Well the respondent went beyond that, he had specifically stated that he had not consumed any alcohol at all.
In our case there are no shortcuts at all, permissible or otherwise. Specific questions were asked and specific answers given.
One must keep in mind one very important point if it is so essential to know that the accused had not consumed any alcohol for at least 15 minutes, nine out of ten times that information can only come from one person, the accused. The officer was not present at the bar when the accused consumed alcohol, so that information has to come either from the accused person there. Of course, there is no other passenger. And this is what the officer depends upon so I do not think there is any issue about the reliability and the behaviour of the officer.
[13] His Honour concluded that exclusion of the evidence would not be proper, that he did not have the slightest doubt and would not exclude the evidence.
Grounds of Appeal
Did the trial judge err in his use of the appellant’s roadside pre-Charter statements?
[14] The appellant submits the trial judge erred in relying upon his statements to the officer that he had not consumed any alcohol, that he was driving to Brampton from Toronto and that the half cup of beer was his passenger’s that he had just dropped off. Since the appellant had not been given his rights to counsel at the time, he contends the evidence was inadmissible. The respondent submits the trial judge was entitled to rely on the statement on the Charter application to assess whether or not the officer had reasonable and probable grounds to make the Intoxilyzer breath demand.
[15] If the trial judge was using the statement to address the appellant’s credibility, the appellant would be correct. However, that is not what the trial judge did. A judge can consider the information the officer had at the roadside in determining whether the Crown had shown the warrantless search that resulted in the Intoxilyzer samples being taken and readings was reasonable. They were also relevant in determining whether the officer had a reasonable belief the ASD readings would be reliable. The statements were relevant and admissible for the purposes the trial judge used them on the Charter application R. v. Orbanski; R. v. Elias [2005] S.C.R. 37; R. v. Bernshaw 1995 1 S.C.R. 254.
[16] To the extent that the appellant relied upon the judgment in R. v. Brown, 2001 ONSC 6725 in support of his position that pre-Charter roadside statements cannot be relied upon for any purpose, I am not persuaded the case supports his argument. Before he was given his rights to counsel at the roadside Brown had told the officer that he had had nothing to drink. That was a lie. He testified on the Charter application and gave evidence that was significantly different than the officer’s. The trial judge was required to assess the accused’s and the officer’s credibility. Four times in his judgment on the Charter application, the trial judge referred to the lie at the roadside in rejecting Brown’s evidence.
[17] The issue in Brown was whether the trial judge erred in relying on the appellant’s roadside statement in assessing his credibility. Ratushny J. held that the trial judge had improperly relied upon the appellant’s lies at the roadside in rejecting his evidence. At para. 6, Her Honour noted that such statements were inadmissible for incrimination or impeachment purposes. That was the impermissible use to which the trial judge put the roadside statement. Since the appellant in this appeal did not testify, the concerns that arose in Brown do not apply.
[18] When assessing whether the officer had reasonable and probable grounds to make the Intoxilyzer breath demand, the trial judge here was entitled to rely on the appellant’s roadside statements.
Did the trial judge err in his use of the statements attributed to the appellant that were not noted in the officer’s notebook, in the pre-printed form or in disclosure?
[19] The appellant submits that the trial judge erred in his reliance on the officer’s evidence about statements made by the appellant that were never noted in his notebook or elsewhere and only emerged after a recess during his evidence. He contends the use of the statements “constituted a misapprehension of the evidence in a way that deprived the appellant of a fair trial and resulted in a miscarriage of justice.” The respondent submits the trial judge was entitled to accept evidence that had not been noted by the officer.
[20] This ground of appeal raises two related issues: first, whether the trial judge erred in relying on the officer’s evidence about where the appellant was coming from and that the half-filled cup of beer belonged to the passenger when those portions of the officer’s evidence were not included in his notebook or anywhere else in disclosure. The first time he ever mentioned the statements was after a recess when the relevance of potential recent consumption became relevant to him. The second aspect of this ground deals with the trial judge’s findings of fact regarding the officer’s evidence.
[21] The first branch is one that arises relatively frequently - the relevance of the failure to record events or statements in the officer’s notebook. While some cases appear to hold that the failure to record the evidence in notebooks or elsewhere is fatal to the evidence being found credible and reliable, being acted upon, I am not aware of any binding appellate authority to that effect.
[22] With respect to those who hold a different view, the absence of notebook entries should not result in the automatic rejection of the evidence. A blanket, “if it is not in the memo book” it is either inadmissible or not worthy of belief goes too far.[^1] No doubt, it is a significant factor to be assessed on a case-by-case basis by the trial judge in light of the explanation for the omission, the significance of the omission and other evidence. While officers’ notebook entries are now part of disclosure, to suggest that there is now a constitutional obligation on officers to include each and every piece of information that they will testify to in examination-in-chief and cross-examination is to put a mandate on the police that is not supported by any binding authority. It would also remove any consideration for the officer’s independent recollection of the events. If that were the law, if an officer testified to events that were not noted in his or her notebook but were assistance to an accused in his or her Charter application or trial defence, would that mean it would have to be ignored?
[23] In R. v. Taylor, 2013 SCC 10, [2013] 1 S.C.R. 465, the Supreme Court of Canada considered whether the trial judge erred in rejecting the appellant’s son’s exculpatory evidence as a fabrication partly because he had not come forward previously. The Court adopted the dissenting reasons from the Newfoundland Court of Appeal that held:
… if a witness gives unexpected evidence in circumstances where that evidence could reasonably be expected to have been disclosed earlier, he runs the risk of it being considered to be recently fabricated.
[24] While the comment occurs in a case that did not involve an officer’s notebook or a witness who was obliged to keep notes, the same principle applies when officers give evidence that they have not previously noted.
[25] I addressed the issue of officers’ notebooks in R. v. Machado (2010), 72 M.V.R. (5th) 58 as follows:
121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some … have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 2001 24186 (ON CA), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).
122 I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816:
- It should be remembered that an officer'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.
25 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.
[26] The trial judge was not required to discount or reject the officer’s evidence that was not recorded in his notebook or elsewhere disclosed before trial. While the circumstances in which this important evidence was disclosed could have led to the rejection of his evidence, the trial judge was not required to do so.
[27] Second, the trial judge found Constable Farrell to be a clear and honest witness who had sworn under oath to the accuracy of his evidence and a fair witness because he gave some evidence that benefitted the appellant. For example, that he had no basis for concluding the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol. Absent a finding of palpable and overriding error, sitting on appeal, I am not permitted to re-try the case and find the officer was not credible in relation to the comments attributed to the appellant.
[28] In R. v. D.T., 2014 ONCA 44, the Court of Appeal provided the following outline of these criteria:
80 An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-97, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291, this court described the palpable and overriding error standard:
The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: (Citation omitted). Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: (citation omitted)
[29] I am not persuaded the appellant has shown either a palpable or overriding error. The trial judge had the significant advantage of seeing and hearing the officer testify, including when confronted with the omissions from his notes and elsewhere. His Honour was entitled to believe all, part or none of the officer’s evidence. In addition, while the onus was on the Crown on the Charter application, there was no evidence denying the comments were made. There can be no suggestion the findings reflect obvious, plain to see or clear errors. The officer testified that he had an independent recollection of the conversations, providing the trial judge with evidence upon which he could make the findings he did. There was no misapprehension of the evidence. Similarly, it has not been shown that any error that would be sufficiently significant so as to vitiate the disputed findings. I am not persuaded the trial judge erred in accepting the officer’s evidence regarding the appellant’s statements.
[30] Finally, as regards the appellant’s submission that the officer obviously rejected the appellant’s initial comment that he had nothing to drink yet acted upon his statements about Toronto and the passenger, an officer is not required to believe all or nothing a civilian tells him or her. The officers are required to assess the evidence in the context of all the information known to them at the time and make a quick and informed decision whether they have reasonable and probable grounds. In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: R. v. Shepherd, 2009 (S.C.C.) 35 at para. 23. R. v. Smith (1996), 28 O.R. (3d) 74 (Ont. C.A.).
Did the trial judge shift the onus to the appellant on the Charter Application?
[31] The appellant contends that the trial judge shifted the onus with two comments in his Charter ruling:
The defence has decided not to present any witness, but there are significant arguments.
One must keep I mind one very important point if it is so essential to know that the accused had not consumed any alcohol for at least fifteen minutes, nine out of ten times that information can only come from one person, the accused. The officer was not present at the bar when the accused consumed alcohol, so that information has to come either from the accused or another person there. And this is what the officer depended upon, so I do not think there is any issue about the reliability and behaviour of the officer.
[32] The respondent says the first statement occurs when the trial judge was reviewing the facts and is nothing more than a statement regarding the evidence called and issues. The second refers to the officer relying on the appellant’s roadside statement regarding his last consumption, not that the appellant did not testify.
[33] I agree with the Crown. As regards the first comment, His Honour was reviewing the evidence and merely noted the appellant called no evidence. When the ruling is read in its entirety, the trial judge did not reverse the onus on the Crown.
[34] As regards the trial judge’s second comments, in Bernshaw, Sopinka J. addressed whether the officer was required to ask when the driver had last consumed alcohol as follows:
It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and, thus, it would be improper to impose such a duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test.
[35] I am not persuaded that His Honour was saying anything more than commenting on the issue Sopinka J. addressed in Bernshaw. He also noted that the officer here was acting on the information he was given at the roadside, that the appellant had nothing to drink and that the cup of beer belonged to a passenger the appellant had just dropped off.
[36] The determination of reasonable and probable grounds is based on what the officer knew at the time the screening sample was taken and he or she formed reasonable and probable grounds to make the Intoxilyzer breath demand. His Honour could not have meant the appellant had to testify because, assuming the appellant testified at trial that he had consumed alcohol 5 minutes before the breath sample was taken, that would not affect the officer’s view of the reliability at the time the screening demand was made. The issue is the reasonableness of the officer’s belief based on what he or she knew at the roadside, not what they learned at trial when the accused testified. R. v. Mastromartino (2004), 2004 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.) at paras. 24-28.
Did the trial judge err in finding the officer had reasonable and probable grounds to make the Intoxilyzer breath demand?
[37] The appellant submits that because of the half-filled cup of beer the officer could not have believed the ASD ‘fail’ reading was reliable. Accordingly, the trial judge erred in finding that from an objective view the officer reasonably believed he had reasonable and probable grounds to arrest the appellant and make an Intoxilyzer breath demand. The respondent submits the trial judge was entitled to make the findings he did.
[38] In R. v. Bernshaw, (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193, the Supreme Court of Canada held that “[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.” Further, the Court noted at para. 80:
If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.
[39] The Court of Appeal addressed the requirement of reasonable and probable grounds in R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 as follows:
46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.
47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.
48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang at para. 18.
[40] The appellant relies on the judgment Mastromartino for the criteria to be examined when mouth alcohol issues arise. At para. 23, the following summary regarding the mouth alcohol issue notes:
Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief
The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
[41] Contrary to the appellant’s submissions, I am not persuaded that judgment is of assistance to him. When examined with Bernshaw and Bush, I am not persuaded the trial judge erred. Applying the criteria from Mastromartino, the officer did address his mind to whether or not he would be obtaining a reliable ASD reading, while the officer could have delayed the ASD test, he concluded there was no “credible evidence which causes him to doubt the accuracy of the test.” The mere possibility that a driver has consumed alcohol within 15 minutes does not preclude an officer from relying on the accuracy of the ASD. The determination focuses on this officer’s belief as to the accuracy of the test results. The court determined the officer honestly and reasonably believed that he could rely on the ASD. Based on the trial judge’s acceptance of the officer’s evidence about what the appellant told him, it was open to the trial judge to reasonably reach the conclusion he did.
[42] Finally, as Mr. Hendry noted in relation to the appellant’s submission that the officer should have waited 15 minutes when he determined there was beer in the cup, from the time the appellant as stopped until he provided the sample that analyzed as a ‘fail,’ 14 minutes had elapsed when the appellant was with the officer and not consuming any alcohol. Unless he was drinking from the cup right before he was stopped there was no basis for the officer to delay taking the sample.
[43] I am not persuaded the trial judge erred. What the appellant wants is for the appellate court to re-try the case. That is not my function on appeal. That another trial judge would have found the objective grounds were lacking for the officer’s reliance on the ASD, is not the test. There was a basis upon which the trial judge could reach the conclusion he did.
Conclusion
[44] The appeal is dismissed.
DURNO J.
Released: March 5, 2014
COURT FILE NO.: 2075/12
DATE: 20140305
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
CHRISTOPHER BROWN
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the
Honourable M.F. Khoorshed,
dated July 3, 2012]
Durno J.
Released: March 5, 2014
[^1]: The appellant relied on the judgments in R. v. Tait, 2012 CarswellOnt 1325 and R. v. Odgers, 2009 ONCJ 287, 2009 CarswellOnt 2648. To the extent that those judgments hold or imply that the absence of a notebook entry precludes reliance on the evidence or that there is a duty on police officers to include all evidence in their notebooks, I respectfully disagree.