CITATION: R. v. Steenson, 2015 ONSC 2160
COURT FILE NO.: 283/14
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
MURRAY DeVOS, for the Respondent/Crown
Respondent
- and -
JAKE DONALD STEENSON
STEVEN MENZIES, for the Appellant
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable N.S. Douglas, dated March 12, 2014]
DURNO, J.
[1] The appellant was stopped in a RIDE program. In making his demand for the appellant to provide a breath sample, the officer testified that he relied upon the odour of alcohol on the appellant’s breath. He said that he had the appellant get out of the vehicle to make sure the odour of alcohol was from his breath and not from his passengers’ breath. The officer’s checklist for drinking and driving investigations showed the odour of alcohol was absent. He had no notes of asking the appellant to get out of the truck. He had no recollection whether he asked the appellant how much he had to drink.
[2] The roadside screening breath sample resulted in a ‘fail’ reading. The appellant was arrested and provided two breath samples at the detachment that analyzed over the legal limit.
[3] While the appellant had filed a Charter application contending his s. 8 rights to be free from unreasonable search and seizure were violated, with the agreement of the Crown and trial judge and relying on comments made to the appellant’s counsel by another trial court judge, the Charter application was withdrawn. The trial proceeded on the basis that the Crown had to prove beyond a reasonable doubt that the officer had a reasonable suspicion to make the screening demand as an element of the offence.
[4] The trial judge accepted the officer’s evidence in relation to his grounds to make the roadside demand and convicted the appellant.
[5] Mr. Steenson appeals contending the finding in relation to the officer’s grounds was unreasonable, that the trial judge erred in his analysis of the factors that were either not in the officer’s notes or were to the opposite effect in his notes and in his approach to assessing the police officer’s credibility.
[6] Finally, depending on the findings on the other issues, it may be necessary to determine whether an accused who contends he or she was improperly required to provide a roadside breath sample that analyzed as a ‘fail’ and the result formed the basis upon which an Intoxilyzer breath sample was demanded must bring a Charter application to exclude the Intoxilyzer readings or whether the Crown is required to establish as part of its case that the officer had a reasonable suspicion the accused had alcohol in his or her body. If the Crown must establish the basis for the demand in every case it would require proof beyond a reasonable doubt as an element of the offence. If it requires a Charter application, as a warrantless search, the Crown would have to establish the search was not unreasonable on a balance of probabilities.
[7] For the following reasons the appeal is dismissed.
The Evidence
[8] The only witness was Constable Kirk MacDonald of the Ontario Provincial Police. While conducting a RIDE program at 10:15 a.m. on July 21, 2013, he stopped the appellant who was driving a pick-up truck with two passengers. The initial contact with the appellant was when he came into the RIDE program which was in a live lane of traffic.
[9] The officer testified that when he spoke to the appellant he noted an odour of an alcoholic beverage on his breath. His face was quite flushed and his eyes were red-rimmed and watery. The officer asked the appellant if he had been drinking and he said he had his last drink between 12:30 and 1:00 a.m. that day. At that point Constable MacDonald formed the suspicion the appellant had alcohol in his body while operating a motor vehicle.
[10] Because the truck was in a live lane of traffic, the officer asked the appellant to pull onto the shoulder. Because there were three occupants in the truck, the officer asked the appellant to get out. Part of the reason for doing so was to ensure that the smell of alcohol he was smelling on the appellant’s breath was not confused with any odour of alcohol that may have been on the other occupants’ breath. He also wanted to read the breath demand to the appellant. Once the appellant was out of the truck, the officer could smell the alcohol on his breath and read the breath demand.
[11] While the officer was with the Ontario Provincial Police (OPP) on July 21, 2013, he had previously worked for the Peel Regional Police (PRP). He found a Driving Offence Notes and Evidence Form that was used by the PRP was helpful in investigating drinking and driving offences and continued to use it while with the OPP. On the Peel Police form the officer had checked off odour of alcohol “absent.” When that was pointed out to him in cross-examination, he said he “clearly made an error on checking that off and to be quite frank, I might have not had my reading glasses on at that point.” None of the other items he checked on the form were inaccurate.
[12] When asked if the odour of alcohol was the “single biggest thing” in making a roadside breath demand, the officer said, “ … I think that is a very important role, but I think there’s other factors that are – are just as important as well, the person’s physical condition.” He had to look at things collectively and had dealt with people who had consumed a great deal of alcohol and had no odour on their breaths. However, the officer agreed that the odour of alcohol ranked very high on his “interest list” as a police officer whether he noted the odour of alcohol or not.
[13] The officer agreed that his notebook did not contain any reference to observations about alcohol, or red-rimmed or watery eyes. His notes contained detailed notes regarding the appellant’s valid photo identification, his name, address, and postal code. The officer was not cross-examined on whether the observations of red-rimmed and watery eyes were noted in the PRP form.
[14] The officer made a breath demand for screening purposes and at 10:24 a.m. the appellant provided a suitable sample that analyzed a ‘fail’. He was arrested and at the detachment provided two suitable samples that produced readings of 160 and 150 milligrams of alcohol in 100 milliliters of blood based on samples taken at 11:42 a.m. and 12:04 p.m.
[15] The officer did not recall if he had asked the appellant how much he had to drink and had no notes if he had done so. He also had no notes that he had ever asked the appellant to get out of the truck before making his final decision to give the breath demand. He testified that it was something that he would remember.
[16] The officer was asked whether he made his decision to make the demand before or after the appellant got out of the truck and said,
… I had the suspicion when I had them pull over. Otherwise if I didn’t have the suspicion I would have let them go on their way. I had the suspicion to begin with, but with the three occupants in the vehicle the smell of alcohol, I certainly didn’t want to misjudge the driver if there was alcohol in one of the passengers per se.
[17] The officer admitted that he had never met the appellant before so would have no idea why he might have some flushing in his face although he was a redhead. He also had no way of knowing why his eyes might have been red-rimmed.
Reasons for Judgment
[18] The trial judge identified the issue as whether he had “some doubt about the reliability of the officer, the officer’s sworn evidence, and that because there is a difference in what he said under oath and what his notes say.” His Honour then addressed his overall assessment of the officer’s evidence as follows:
I found him to be credible. I found there not to be a hint of any hidden agenda, any desire to see the accused convicted. I agree with the Crown that he seemed to be legitimately surprised in the box that he did tick off and he explained that in the witness box, and it is for me to determine whether that explanation is satisfactory, or whether it raises a doubt. There was nothing, absolutely nothing in the officer’s evidence that caused me to, in the least, be concerned about his credibility, or his reliability.
[19] His Honour then referenced the judgment in R. v. Zack [1999] O.J. No. 5747 (C.J.) regarding omissions from officers’ notes. The trial judge acknowledged that if there was something in the evidence that concerned him he would probably do what Duncan J. did in Zack and find the officer’s evidence unreliable. His Honour continued:
That is not the case here at all. Officers are entitled to refresh their memory by their notes. It is too high a standard to put on them to say everything that you did must be in your notes. If that was the case we could simply have trial by notes. The officers would simply send their notes in. It is too high a standard to expect the police officer, particularly an experienced police officer who does things every time he investigates a particular offence, for him to write everything down that happened, whether the accused was asked to get out of the car at the moment he came to the suspicion, or just after he came to the suspicion, why isn’t that written down? No it isn’t too much to expect an officer to have written down that the accused had an odour of alcohol on his breath. That is key. That is important as Mr. Menzies says, but he explained it. I accept the explanation. It’s just something that he neglected to do.
The other alternative is, well why would he say that if he didn’t smell the odour of alcohol on his breath, why? Does he want to give up his career for an over 80 case and perjure himself? There is nothing in his evidence that causes me to be suspect about Constable MacDonald’s investigation here and even without the odour of an alcohol beverage on his breath, there is evidence before me that I can accept that some people don’t have an odour of alcoholic beverage on their breath even though they have had a lot to drink. So I find that the suspicion that he had when he stopped the accused at 10:15 and that led him to make the breath demand at 10:17 was subjectively and objectively reasonable: the face quite flushed, the eyes red-rimmed and watery, the admission that he consumed alcohol earlier that day, albeit some nine to ten hours earlier, and I accept his evidence that he smelled an odour of an alcohol beverage on the accused breath and that he asked the accused to get out of the car just so that he could make sure that that odour that he testified about, wasn’t from the car and not from the mouth of the accused.
Therefore, I find that the argument of the defence does not raise a reasonable doubt. ….
The Grounds of Appeal
Was the Verdict Unreasonable?
[20] As the appellant’s oral submissions developed it became apparent that, in part, he was contending the finding of sufficient grounds to make the demand was unreasonable. If that is correct, the appeal succeeds without having to examine the other grounds. Accordingly, it is appropriate to consider that ground first.
[21] In R. v. Willcock (2006), 210 the Court of Appeal addressed the test to be applied as follows:
[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).
[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:
To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. …
[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.
[22] The Court of Appeal has also described the test as follows in R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467 at para. 51: The question is not whether a conviction was the only reasonable verdict, but whether it was a reasonable verdict.
[23] I am not persuaded the finding that the officer had the requisite suspicion was unreasonable. His Honour had evidence before him that the appellant had the odour of alcohol on his breath and that the officer asked the appellant to get out of the car. He was not required to accept that evidence. However, neither was he required to reject it. His Honour saw and heard the officer testify. That provides a distinct advantage over reading the transcript. In addition, the appellant had a flushed face and watery, red-rimmed eyes. While individual indicia can have alternative explanations, all the circumstances have to be considered. There was an evidentiary record before the trial judge upon which he could reasonably conclude the officer had the requisite suspicion the appellant had alcohol in his body.
Did the trial judge err in his determination of whether the officer had a reasonable suspicion the appellant had alcohol in his body?
[24] This area involves two factors: the trial judge’s assessment regarding the omissions and errors in the officer’s notes and whether the appellant has shown errors in His Honour’s assessment of the officer’s evidence merit a new trial.
Did the trial judge err in his analysis of the omissions from the officer’s notes?
[25] The appellant contends that the omissions from the officer’s notes of significant aspects of his account and the contradiction between his notes in relation to presence of the odour of alcohol and his testimony were not properly assessed by the trial judge.
[26] The use of officer’s notes including omissions has been addressed in numerous cases. In R. v. Machado (2010) 2010 ONSC 277, 92 M.V.R. (5th) 58 I attempted to summarize the law 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 CanLII 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:
24 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.
[27] I am not persuaded the trial judge erred in his assessment of these issues. Put simply, whether to accept the officer’s evidence was the trial judge’s call. The officer gave an explanation for the error and said that he recalled getting the appellant to get out of his truck. While His Honour was not required to accept the explanation, the officer’s credibility was for the trial judge to determine.
Did the trial judge’s assessment of the officer’s evidence reflect reversible error?
[28] The applicable test where an appellant seeks to overturn a conviction by having the appellate court interfere with findings of fact and inferences drawn has been provided by the Supreme Court of Canada as follows in R. v. Clark, (2005), 2005 SCC 2, 193 C.C.C. (3d) 289 at para. 9:
… Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]
[29] The Court of Appeal summarized the law in regards to palpable and overriding errors in R. v. D.T., 2014 ONCA 44 as follows:
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 CanLII 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: Housen v. Nikolaisen, [2002 SCC 33](https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html), [2002] 2 S.C.R. 235, at paras. [5-6]. 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: Schwartz v. Canada, [1996 CanLII 217 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii217/1996canlii217.html), [1996] 1 S.C.R. 254, at para. [35].
[30] The appellant has not shown that the error or errors were obvious, plain to see or clear. There was no misapprehension of the evidence. The officer provided a plausible explanation for his error on the PRP form that showed the appellant did not have the odour of an alcoholic beverage on his breath. The trial judge was entitled to accept that explanation. The officer testified that while it was not in his notes, he recalled asking the appellant to get out of his truck. Again, that the trial judge accepted that evidence does not show a palpable and overriding error as discussed above. Finally, while it may be routine and may have been helpful for the officer to know how much the appellant consumed he was not required to ask the appellant that question.
Did the trial judge err in relying upon the fact the officer could lose his career as a police officer and be charged with perjury in assessing the constable’s credibility?
[31] The one problematic area in the trial judge’s Reasons is His Honour’s alternative basis for believing the police officer – Does he want to give up his career for an over 80 case and perjure himself? I agree with the appellant that His Honour erred for the following reasons.
[32] The analysis starts with the erroneous premise that based on the fact the witness was a police officer that he began with enhanced credibility because he would lose his career if he perjured himself. There is no presumption or starting point that a police officer enters the witness box with enhanced credibility. Indeed, it is error to start with the presumption that any witness is telling the truth. As the Court of Appeal held in R. v. Thain 2009 ONCA 223 at para. 32: “Witnesses are not presumed to tell the truth. The evidence of each witness is to assessed in light of the totality of the evidence without any presumptions except the general and over-riding presumption of innocence.”
[33] As is the case with police officers’ opinions in relation to impairment, there is no special reason for preferring police officers’ evidence over lay persons. R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. In R. v. Kampe 2012 ONCA 858 Juriansz J., in rejecting an application for the appointment of counsel, noted the trial judge had properly instructed herself that she should not give the police officers’ testimony any more weight than the testimony of the applicant. See also: R. v. Nelson (2004), 1 M.V.R. (2d) 502 (Ont. C.A.)
[34] While I agree the trial judge erred in this area, it was presented as an alternative basis upon which His Honour believed the officer. With this reason eliminated, the trial judge’s first unassailable reason remains. Accordingly, the error occasioned no substantial wrong or miscarriage of justice.
The Charter Issue
[35] Given my findings on the grounds already addressed, whether or not the case should have proceeded on the basis of a Charter application need not definitively be determined. However, given the Court of Appeal judgment in R. v. Charette (2009), 2009 ONCA 310, 94 O.R. (3d) 721 including Moldaver J.A.’s finding that R. v. Rillings 1975 CanLII 159 (SCC), [1976] 2 S.C.R. 183 remains binding authority, it would appear that a Charter application is required. While those cases do not involve an attack on the roadside sample, it is difficult to see how the Charette reasoning does not apply. As occurred in this case, what those accused sought was the exclusion of the Intoxilyzer results.
Conclusion
[36] The appeal is dismissed.
DURNO J.
Released: April 7, 2015
CITATION: R. v. Steenson, 2015 ONSC 2160
COURT FILE NO.: 283/14
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
MURRAY DeVOS, for the Respondent/Crown
- and –
JAKE DONALD STEENSON
STEVEN MENZIES, for the Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable N.S. Douglas, dated March 12, 2014]
Durno J.
Released: April 7,2015