COURT FILE NO.: SCA (P) 838/15

DATE: 2015 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

A. J. Graham, for the Respondent

Respondent

• and -

SAHIBJIT GILL

E. Taché-Green, for the Appellant

Respondent

HEARD: November 16, 2015

REASONS FOR JUDGMENT

[on appeal from conviction by

Justice N. Kastner on February 2, 2015]

HILL J.

INTRODUCTION

[1] At trial, the Appellant was acquitted of impaired operation of a motor vehicle and convicted of refusing, without reasonable excuse, to provide a breath sample contrary to s.245(5) of the Criminal Code. This conviction is under appeal.

[2] At the outset of trial, experienced counsel for the Appellant made the following admissions:

(1) shortly before the Appellant was arrested, he was operating a motor vehicle

(2) the identity of the Appellant, including as the driver, was not in issue

(3) subsequent to his arrest, the Appellant failed to provide a suitable breath sample in response to a police intoxilyzer demand made by a properly designated and qualified breath technician.

[3] Defence counsel advised the court that the anticipated defences would be as follows:

(1) regarding the impaired operation of a motor vehicle allegation, the Appellant’s observed conduct did not relate to impairment to drive but rather to psychological/psychiatric issues

(2) regarding the failure to provide suitable breath samples, the demand for those samples was unlawful because reasonable and probable grounds did not exist for the arrest of the Appellant for impaired operation of a motor-vehicle.

FACTUAL BACKGROUND

Arrest of the Appellant

[4] On December 11, 2012, in a marked police cruiser, Peel Regional Police Service (PRPS) Constable Gregory Chatura was conducting RIDE program enforcement in Mississauga. It was a cold night. At about 3:00 a.m., the officer was located at Torbram Road and Drew Road. This position was directly in the location of the Million Dollar Saloon which, from the officer’s personal experience, was a facility from which persons emerged impaired to drive.

[5] In giving his testimony, Constable Chatura made reference as required to a PRP 128 which were seven pages of ‘driving offence notes and evidence’. He had attempted to make these notes accurately.

[6] At the outset of trial, counsel for the Appellant told the trial judge that he had no issue with police witnesses refreshing their memory from notes. In cross-examination, Constable Chatura stated that his testimony was based on his memory and his notes. The officer agreed that his notes had several purposes apart from refreshing memory including prosecution preparation, and disclosure to the defence for full answer and defence.

[7] During cross-examination, counsel for the Appellant took issue with the officer not having entries in his notes for all of the evidence provided orally at trial. At one point, the officer gave this explanation:

It doesn’t say that in my notes. It’s a very unique situation and – and this has never happened to me before, so I do remember the foot chase and I do remember what happened.

[8] The Million Dollar Saloon closed at 2:30 a.m. At a point, the constable observed three persons “dodging in and out of buildings across the street from the Million Dollar Saloon”.

[9] The constable testified that he formed the view that he had been spotted by these individuals. They then boarded a taxi which proceeded to drive up and down the street numerous times before parking across the street from the Million Dollar Saloon. The observed behaviour seemed odd. The constable was concerned that the cab may have been hijacked.

[10] There was only one patron’s vehicle, a gray coloured Acura, remaining in the Million Dollar Saloon parking lot. Constable Chatura informed the trial court that he next saw a male person exit the taxi which was parked in the vicinity of 2395 Drew Road and run south across Drew Road, enter the Acura vehicle and start its engine. The car reversed in a very fast motion with squealing tires and then exited the parking lot onto Drew Road pulling into a lot across from the Million Dollar Saloon at 2395 Drew Road. Road conditions were dry and clean.

[11] Deciding to investigate, Constable Chatura followed the Acura into the lot. The car had “bolted” across the road. He next saw that the Acura had turned around and was facing him as he entered the lot. The trip from the Saloon parking lot to the second lot was “very quick…maybe 20 seconds”. The officer testified that at this point a male person exited the Acura sluggishly and looking scared and began to run northbound in the lot, looking back and holding keys in his right hand.

[12] In cross-examination, Constable Chatura testified that while he was suspicious, he did not know whether the Appellant was an impaired driver. The officer testified that the Appellant could have run for any number of reasons – he could have had a gun.

[13] The officer gave chase, yelling at the male to stop. He caught up to the Appellant who stopped after 15 to 20 feet but had a hard time doing so. The Constable had no recall at trial of ordering the Appellant to the ground. When he caught up to the Appellant he asked why he was running. When asked whose car it was, the appellant did not respond. When the Appellant turned to face Constable Chatura, the officer immediately detected the strong odour of an alcoholic beverage on his breath. The smell was “just beaming off of him” – “emanating from his whole body”. In his in-chief evidence, the constable described the Appellant as “unsteady on his feet”, “swaying after running”, with red-rimmed and watery eyes, and slurred speech when spoken to. On the officer’s evidence, the Appellant kept saying, “Sorry”. There was really no further conversation with the Appellant at this time.

[14] It was at this point that Constable Chatura formed the opinion that the Appellant was operating a motor vehicle while impaired by alcohol. He arrested the Appellant at 3:44 a.m., cautioned him and read him his rights to counsel.

[15] At 3:49 a.m., an intoxilyzer demand was read to the Appellant. According to the officer, the Appellant continued to slur his words after arrest.

[16] Testifying on his own behalf, the Appellant informed the court that in December, 2012 he was a 20-year-old university student. In the preceding few months, the Appellant’s long-time girlfriend died of an allergic reaction, his university roommate and friend died, and his dog was struck and killed by a car. His life was a mess and he was seeing a psychiatrist who prescribed anti-anxiety and anti-depressant medication.

[17] The Appellant testified that in the evening of December 10, 2012 he went out with two friends (Aman and Kevin) to Shoeless Joes in Mississauga arriving at about 8:30 p.m. Aman drove there in his mother’s Acura vehicle. On the Appellant’s evidence, before leaving at around 11:30 p.m. he ate a lot of food and drank a “mini pitcher” which he described as the equivalent of two beers. After leaving the restaurant, the parties travelled to the Million Dollar Saloon again with Aman driving. In his in-chief evidence, the Appellant stated:

We were there around midnight, we sat around and had maybe three, probably two beers, I wasn’t drinking, I believe but we just stuck around and drank and played pool, we didn’t really do much.

[18] The Appellant informed the trial court that after leaving the Million Dollar Saloon at the 2:30 a.m. closing, he did not want to go home. He walked down the street with his friends for about 15 minutes to a Burger King where they “hung out” for about an hour. Then, at about 3:30 a.m., they walked back toward the Million Dollar Saloon.

[19] In his testimony, the Appellant gave this description of what next occurred

(1) Aman said he was too drunk to drive – Kevin too was intoxicated and unable to drive

(2) Aman was concerned about leaving his mother’s car in the Million Dollar Saloon parking lot for fear that it might be towed away

(3) as they walked back, Aman called a taxi so that they could be driven home

(4) at the vicinity of the Million Dollar Saloon, they waited for the cab

(5) when the taxi arrived, Aman and Kevin got in – the Appellant did not as he “walked” to the Acura to move the vehicle as a favour to Aman:

Aman was worried about his car so he said he was too drunk to drive at the time, he didn’t feel like it, I felt sober completely, like, I didn’t, I wasn’t drunk or anything so I just decided that I would move the car across the street to a parking lot for him.

Q. When you drove the vehicle, did you feel your ability to operate the vehicle was impaired by alcohol?

A. No.

A. … I told him [Aman], I'm perfectly fine and I’ll move it across the street.

I know that I drank but I was completely sober in my…judgment.

(6) he was in no rush to move the Acura across the street.

[20] In cross-examination, the Appellant stated that he had not taken his medication on December 10 as he planned on consuming alcoholic beverages. He “didn’t feel like getting drunk that night” and he does not like drinking a lot “because of the way it made [him] act” in terms of triggering his emotions. On the Appellant’s evidence, he did not drink as much alcohol as Aman and Kevin. In cross-examination, the witness stated at one point: “…I didn’t feel like drinking that night but I still got a drink with them when they did”. In total, to his recall, he only drank 4 to 5 beers the whole night. He had “no intention to drive a car that night”.

[21] On the Appellant’s in-chief evidence, he spotted a police car when he pulled into the lot across Drew Road:

I saw the lights and I kind of like, I just completely panicked, I just got out of – I opened the car door and I ran.

I was nervous because – I mean, I knew that we all drank – I just wanted to – like, all I was doing was doing someone a favour and parking his car and we already had a cab to go home and didn’t want any trouble at the time in case I would be in trouble.

I knew I drank alcohol that night and like I said, my dad warned me, zero tolerance so that’s why I ran because I knew I had had some drinks in me.

That’s a criminal charge and it’s a DUI, that’s all I knew it was.

I panicked because I knew I was in trouble.

[22] To the Appellant’s recall, he was thrown to the ground and arrested for impaired driving. According to the Appellant, there was not an “outrageous odour” of alcohol on his breath and he was not unsteady on his feet. He asked Constable Chatura to give him “a break” explaining to the officer the tragedies he had had in his life.

Refusal of the Breath Test

[23] The Appellant was taken to PRPS 22 Division. He consulted by phone with Legal Aid Duty Counsel. Constable Chatura described the Appellant’s demeanour in the breathroom as he interacted with the qualified breath technician, Constable Pallett:

He was very difficult with Constable Pallett. He wouldn’t follow simple instructions. He would swear after certain sentences, almost break down. And what I mean by breaking down is, he would almost cry or begin to sob. And he would pretend to blow into the instrument or blow very short breaths at a time.

[24] The trial judge had the DVD depicting the Appellant’s time in the breath room marked as Exhibit 1 after viewing the video.

[25] Constable Pallett testified that he spoke to Constable Chatura at PRPS 22 Division at about 4:37 a.m. In this briefing, he learned of Constable Chatura’s reasonable and probable grounds for the arrest, the communication of the breath demand and the discharge of the rights to counsel. Constable Pallett’s understanding of the arresting constable's grounds included: he ran to a vehicle parked in the lot at the Million Dollar Saloon, squealing the car tires he drove across Drew Road into a private industrial lot, he fled from the vehicle when Constable Chatura arrived on scene, once the Appellant was stopped Constable Chatura detected a strong odour of alcohol on his breath together with observing bloodshot and watery eyes and some staggering.

[26] Constable Pallett testified that he first met the Appellant at 4:50 a.m. in the 22 Division breathroom. The officer detected a strong odour of alcohol emanating from the Appellant’s breath, bloodshot and watery eyes, slurred speech, and an ongoing display of unusual behaviour including being antagonistic as well as crying on and off during the interview.

[27] Constable Pallett, having also formed reasonable grounds to believe that the Appellant’s ability to operate a motor vehicle was impaired by alcohol, based on Chatura’s information and his own observations of the Appellant, repeated the breath demand. The officer testified that despite repeated instructions, the Appellant failed to provide a suitable breath sample. In the course of Crown counsel’s attempt to elicit further detail about the observed circumstances of the refusal, defence counsel interjected to state:

DEFENCE COUNSEL: If it assists, it’s conceded by the defence that he was deliberately not trying to give a sample. That’s not the issue in this case, he was messing around, he was not being compliant the demand that they made of him. Just so my friend understands that, if it assists with the Court.

THE COURT: And that it was willful?

DEFENCE COUNSEL: It was willful.

[28] In testifying as to his thinking when refusing to provide breath samples, the Appellant stated that he knew he was in trouble and provided this evidence in-chief:

A. I mean, I knew I had a drink that night, like, I wasn’t drunk or anything over the legal limit but I just knew that – my dad always tells me when I take his car, he says you know, zero tolerance for people who are under the age of 22 regardless of the fact so I knew that would have happened if I blew – like a criminal record, I didn’t want that to happen. That was my first time ever in jail, I didn’t know what was going on.

…I just knew it was against the law, regardless of how much alcohol you have under the age of 21, it’s zero tolerance.

Q. What was the problem with giving a sample, like, what was going through your mind?

A. I was panicking at the time, like, I was so – I was worried because I had job interviews coming up and knew that a criminal recor[d] would mess those up and go back to school and my mom especially, she always worries about me, all these things.

…I was already charged with impaired driving and I didn’t want to get in trouble any worse than I was already in.

… I knew that if I blew into the machine, an alcohol reading would come up because how much it was, I knew… that would have confirmed I was drinking and driving.

[29] The Appellant acknowledged in cross-examination that he only pretended to provide a breath sample.

ANALYSIS

[30] Before this court, the Appellant raised the following grounds of appeal:

(1) the trial judge erred in concluding that Constable Chatura had reasonable and probable grounds, in an objective sense, to arrest the Appellant for impaired operation of a motor vehicle – an error characterized by:

(a) “wholesale acceptance” of the officer’s testimony “despite significant and unexplained gaps” in his notes

(b) failure to consider the constable’s “poor recollection of the circumstances of the Appellant’s arrest”

(c) misapprehension of the Appellant’s evidence impacting upon the trial court’s finding that reasonable grounds existed

(d) an erroneous conclusion that the grounds articulated by Constable Chatura amounted in fact and law to reasonable grounds for the arrest of the Appellant

(2) the trial judge erred in failing to exclude, pursuant to s.24(2) of the Charter, the evidence of the Appellant’s refusal to provide breath samples obtained by the police through a breach of the Appellant’s s. 9 Charter right.

[31] The Respondent submitted that the trial court made no error in law in arriving at a verdict which was reasonable and supported on the evidence.

[32] The trial in this case, although involving relatively straightforward factual background, was a prolonged proceeding intermittently lasting about 1 ½ years. This overly long process was marked by multiple appearances including for evidence, administrative remands, and submissions.

[33] The nature of the application of the defence at trial to exclude evidence was somewhat of a moving target:

(1) just prior to the August 15, 2013 trial date, a filed application alleged a violation of the Appellant’s s. 10(b) Charter right

(2) that application was then abandoned before the evidence commenced

(3) though no Charter application had been filed submitting any breach of the Appellant’s s. 8 and s. 9 Charter rights, at the outset of trial, defence counsel indicated that there was an issue as to whether reasonable grounds existed for the Appellant’s arrest

(4) during closing submissions, on October 28, 2013, counsel for the Appellant raised his concern that perhaps on account of the possible influence of the case of R. v. Rilling, 1975 159 (SCC), [1976] 2 S.C.R. 183, he might require an adjournment to file a Charter application

(5) over the objection of the trial prosecutor, the trial judge granted an adjournment to allow the defence to file a Charter notice and to permit the Crown to obtain a transcript of the August 15 evidence

(6) it appears that the application filed by the Appellant specifically alleged a breach of s.8 of the Charter, not s. 9, although the pleading raised the issue of a lack of reasonable grounds for the Appellant’s arrest

(7) during continued submissions a year later, on October 28, 2014, the defence made submissions alleging breaches of ss. 8 and 9 of the Charter – claiming a lack of notice, the Crown objected to the argument relating to s.9 of the Charter

(8) following oral submissions, the parties were requested to provide written argument relating to issues which had come up during the oral submissions including:

(a) the impact, if any, of the decision in R. v. Soomal, 2014 ONCJ 220

(b) if the Appellant’s arrest was unlawful, but the breath technician’s demand was not, whether it was open for the court to find that the evidence of failing to comply with the demand in the breath room was nevertheless “obtained in a manner” that violated the Appellant’s Charter rights

(c) whether there existed common law support for the position that a person who fails to comply with a lawful breath demand is excused from liability because his arrest on the underlying charge of impaired operation was unlawful.

[34] After reserving judgment, Justice Kastner, a highly experienced judge, including in the adjudication of drinking/driving cases, released a lengthy and detailed judgment.

[35] The reasons for judgment of the trial court included a number of conclusions:

(1) In the end, the defence did allege breaches of the Appellant’s s. 8 and s. 9 Charter rights (para. 75). On the record here, it is unclear what the foundation for the submitted s. 8 violation was, given that no breath samples were taken.

(2) While it was unnecessary to decide whether Const. Pallett’s demand based on his reliance on Chatura’s information and his own observations amounted to a “fresh start” lawful demand, it could nevertheless be said that both officers, subjectively and objectively, had reasonable grounds for a s. 254(3) breath demand (paras. 92-101, 110).

(3) Insofar as the relationship between reasonable and probable grounds and a charge of refusing to provide breath samples (para. 102), the observation in R. v. Rilling, 1975 159 (SCC), [1976] 2 S.C.R. 183, at p. 198 is relevant:

…while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 of the Code…

See also R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, at p. 287 per Cory J.

(4) In the alternative, had the court found a Charter breach, simply because the Appellant’s words and actions of refusing to provide samples constituted the actus reus of the s. 254(5) offence, would not insulate that evidence from exclusion: R. v. Soomal, 2014 ONCJ 220 (paras. 111-134). The court reached this conclusion despite the trial judge’s apparent recognition (at paras. 124-126) that Soomal was inconsistent with the approach in R. v. Bleta (2012), 2012 ONSC 1235, 285 C.C.C. (3d) 261 (Ont. S.C.J.). In my view, Bleta was directly relevant and, as a summary conviction appeal, was binding on the trial judge: R. v. Smith (1988), 1988 7089 (ON SC), 44 C.C.C. (3d) 385 (Ont. H.C.), at pp. 487-496.

(5) Had the court found that Const. Chatura’s grounds were not objectively reasonable, thereby constituting a breach of s. 9 of the Charter, the evidence of the Appellant’s wilful refusal should, in any event, have been admitted under s. 24(2) of the Charter (paras. 135-164).

[36] This appeal can be determined without revisiting the Soomal issue.

[37] The subject of reasonable grounds to arrest is not relevant to the issue of reasonable excuse for failing to provide a breath sample: R. v. Williams (1992), 1992 7657 (ON CA), 78 C.C.C. (3d) 72 (Ont. C.A.), leave to appeal refused [1993] 2 S.C.R. xii. Having entertained the Appellant’s Charter application at trial, as recognized by the learned trial judge, Const. Chatura required reasonable and probable grounds to arrest the Appellant for impaired operation of a motor vehicle. The trial court applied the correct test of examining the totality of the evidence as to whether such grounds existed in a subjective and objective sense.

[38] As this court observed in R. v. Amare, 2014 ONSC 4119, at para. 83(4) to (11) (affd 2015 ONCA 673):

(4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1

(5) in other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117

(6) the fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, [2013 SCC 49, [2013] 3 S.C.R. 220] at para. 47

(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116

(8) that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47

(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012)

(10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)

(11) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67.

[39] In addition, it is necessary to bear in mind, as did the trial judge, that a police officer engaged in drinking/driving investigations commonly needs to make quick and informed decisions: R. v. Smith (1996), 1996 1074 (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.), at pp. 68, 74-5. In addition, properly possessed of reasonable grounds, a police officer is not obliged to proceed with a s. 254(2) Code approved screening device demand before an arrest: Smith, at pp. 71-2, 74, 76; R. v. Troester, [2000] O.J. No. 2268 (C.A.), at para. 8.

[40] While the issue of the existence of reasonable and probable grounds is “essentially a question of fact” (Bernshaw, at pp. 285-6), the issue as to whether the facts as found by the trial court amount at law to reasonable and probable grounds is a question of law: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[41] In R. v. Bush, 2010 ONCA 554, at paras. 47-48, 55-6, 70 the court stated:

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.

55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539 (C.A.).

56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.

70 The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.

[42] Accordingly, while erratic driving, a smell of alcohol on the motorist’s breath, the presence of red and glassy eyes, and an admission of alcohol consumption has been recognized as within an objective range of reasonable grounds (Bernshaw, at pp. 279, 296-7), neither that menu of factors, nor any other, achieves the status of a prerequisite standard for all cases but simply acts as an example of a range of factors capable of supporting an opinion of the existence of reasonable grounds.

[43] At trial, there was no issue taken with the constable having subjective grounds of belief. At paragraphs 82-91 of her reasons, the trial judge concluded that the officer’s subjective belief was objectively reasonable.

[44] The trial judge held the well-recognized advantage of seeing and hearing the witnesses. On the whole of the evidence, her decision to accept Const. Chatura’s testimony was a conclusion reasonably available to her. The trial judge did not misapprehend the evidence. The issue of the accuracy of the constable’s evidence dominated the trial in terms of defence counsel’s cross-examination of the constable regarding the state of his notes and the repeated references in counsel’s closing submissions, not to Chatura’s credibility but to the officer’s lack of “reliability”.

[45] While the necessity for a police officer to make accurate, comprehensive and contemporaneous notes cannot be understated (Wood v. Shaeffer, 2013 SCC 71), as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer’s notes relating to a particular transaction may, or may not, hold any significance depending on specific factual context. An absent note may impact on the weight to be afforded an officer’s evidence. Automatic rejection of the officer’s evidence as a discipline sanction is inappropriate. The significance of an omitted notational reference will depend upon such factors as the number of gaps, the nature of an omission in terms of the importance of the fact in question, the explanation for the omission, the overall degree of completeness of the notes, the length of the interval between the making of the notes and the delivery of oral testimony, and the existence of confirmation for the missing note.

[46] I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122:

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 (note Mr. Brauti) 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:

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.

[47] Of course, an absent note of a fact or observation does not mean that the observation or fact is not true. A missing note is not necessarily determinative of the reliability of a police witness’ evidence on the relevant subject or at large. Alive to the notes issue (“The officer’s notes were not fulsome”), the trial judge concluded:

Notwithstanding the absence of notes of some of Police Constable Chatura’s observations, he had a remarkable memory of detail. He said it was a unique situation that had not happened to him before, so he remembered the foot chase and what had happened. He omitted making notes of what he believed he would always remember.

I am satisfied that the court’s latter reference to the reason for the constable’s omissions was an available inference as opposed to a recitation of the evidence heard.

[48] Const. Chatura had seven pages of notes in this simple case. He was not obliged to write a novel. Admittedly, some observations were not noted. That said, the trial judge’s conclusion was entirely objectively reasonable even if only those facts are considered about which there was no cross-examination alleging omission from the officer’s notes:

(1) the Million Dollar Saloon closed at 2:30 a.m.

(2) it was about 3:00 a.m.

(3) the Appellant went to the only vehicle still parked in the tavern parking lot

(4) he reversed the vehicle squealing the tires

(5) the car bolted across the road within 20 seconds into an industrial lot and stopped

(6) when the constable’s cruiser approached the Appellant, he fled

(7) on stopping at the end of running, the Appellant staggered

(8) the Appellant’s breath smelled strongly of alcohol

(9) the Appellant’s eyes were red-rimmed and watery

(10) he slurred whatever word(s) he spoke.

[49] At trial, the defence submitted that Const. Chatura executed a precipitous arrest in circumstances of suspicion only, having “barely engaged” with the Appellant. The trial judge considered this submission and rejected it. On the evidence accepted by that court, the conclusion was supported and available to the trial judge. In particular, the evidence of the Appellant’s flight was a powerful factor in the reasonable grounds calculus: see R. v. Williams, 2013 ONCA 772, at para. 25 (“…flight from the police, may give rise to reasonable suspicion on [its] own”); R. v. Cooper (2005), 2005 NSCA 47, 195 C.C.C. (3d) 162 (N.S.C.A.), at paras. 47(1)(b). Indeed, the Appellant’s flight after driving the Acura and then spotting the police, and his reported condition of reeking of alcohol, could well have supported reasonable grounds, without more, to arrest the Appellant: see R. v. Reynolds, [2001] O.J. No. 3252 (S.C.J.).

[50] The Appellant had the onus of establishing the asserted s. 9 Charter breach. Having seen and heard him testify, the trial judge rejected aspects of the Appellant’s evidence including on the basis of the falsehoods he advanced on the date of his arrest. On the record here, this court is in no position to question the reasonableness of the trial court’s credibility determinations.

[51] In the alternative, were it necessary to consider s. 24(2) of the Charter, on account of a breach of the Appellant’s s. 9 Charter breach, the learned trial judge committed no error in terms of articulating the Grant test, carefully applying those guidelines to the relevant evidence, and rendering a reasonable balancing conclusion that the uncontradicted refusal evidence ought to be admitted. In these circumstances, the court’s decision to admit the evidence is entitled to considerable deference: R. v. Foreman, 2015 ONCA 884.

CONCLUSION

[52] The appeal is dismissed.

Hill J.

DATE: December 15, 2015

COURT FILE NO.: SCA (P) 838/15

DATE: 2015 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. SAHIBJIT GILL

COUNSEL: J. Graham, for the Respondent

E. Taché-Green, for the Appellant

HEARD: November 16, 2015

REASONS FOR JUDGMENT

[on appeal from conviction by Justice N. Kastner on February 2, 2015]

Hill J.

DATE: December 15, 2015