R. v. Medwed, 2011 ABQB 231

Court of Queen ’ s Bench of Alberta Citation: R. v. Medwed, 2011 ABQB 231 Date: 20110408 Docket: 091003541S1 Registry: Medicine Hat Between: Her Majesty the Queen Crown/Respondent - and - Kevin James Medwed Accused/Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] Kevin Medwed appeals his convictions on impaired driving and dangerous driving based on the following three grounds: 1.

The trial judge failed to adequately consider the officer’s evidence regarding the pattern of driving and degree of impairment given that “many” of the alleged indicia were testified to by the officer, but not recorded in his notes. 2. The trial judge failed to consider the evidence favourable to the Defendant which would contribute to a reasonable doubt on the impaired and dangerous driving convictions.

3. The trial judge failed to properly apply the “marked departure” test to the evidence of dangerous driving. [ 2 ] I will review the grounds for appeal in the order presented by counsel for Mr. Medwed: Issue 1. Failing to adequately consider the officer’s evidence . [ 3 ] Upon reviewing the authorities it can be safely stated that an officer is required to note “significant observations”, but the officer is permitted a wide degree of discretion in deciding what is “significant” and how detailed the notes must be.

Overall, the coincidence or contradiction of the written notes vis-a-vis the oral testimony is a factor to be taken into account in assessing the officer’s credibility. [ 4 ] In R. v. Dennis , 2006 ABPC 197 , the defence argued that the variations between the officer’s notes, report and testimony made the officer’s testimony unreliable. [ 5 ] Unlike in this appeal, the officer didn’t see the accused driving; he was flagged down by a motorist who expressed concern about a possible impaired driver (the reason the motorist reached this conclusion is not given).

When the officer drove to the indicated location, the accused was merely sitting in the running vehicle, which was stopped. [ 6 ] The officer testified that he formed his opinion of impairment on the basis of a very strong smell of liquor and very slurred speech. The word “very” not being anywhere in the written documentation.

There was nothing more in his notes. [ 7 ] In addition to the lack of the word “very”, the officer had also changed the times in his notes, which made them “unreliable”. [ 8 ] Unlike the officer here, in Dennis , the officer had no independent recollection of the event and relied entirely on his unreliable notes. [ 9 ] Given the officer had no independent recollection of events and was relying solely on his notes, which were found to be unreliable, LeGrandeur, PCJ found the Crown hadn’t established reasonable and probable grounds. [ 10 ] In R. v.

Klick , 2006 ABPC 165 , Lamoureux, PCJ stated that an issue in the impaired/over .08 trial before her was the manner in which the arresting officer made his notes. [ 11 ] The issue with respect to the officer’s notes arose in the matter of whether the accused had been given a proper opportunity to exercise his right to counsel. The officer testified that he gave the accused specified materials such as yellow pages directory when he gave the accused access to a phone, just like he did ‘every time he arrested someone’.

His notes, however, just stated he put the accused in the room. [ 12 ] Lamoureux, PC J stated the absence of details in the officer’s notes is but one factor for the Court to consider in assessing the officer’s testimony. Pertinent aspects of her discussion include the following: 34 It is certainly true that the failure to document relevant material aspects of a police officer’s investigation in police notes may give rise to concerns with respect to the Court’s acceptance of the officer’s later evidence that he recalls undertaking certain activities or actions even though they are not documented in his notes.

It is always risky for an officer to testify that he or she recalls performing certain activities in a particular case even though those are not documented in notes. The reason for this is, of course, that police officers undertake dozens if not hundreds of investigations of the same nature and there may be months and in some cases years between the time

of arrest and the time of giving testimony in court. ... 36 ... the Court notes specifically the decision in R. v. Zack , [1999] O.J. No. 5747 (O.C.J.) ... ... It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. ... [emphasis added] 37 Of course, it is open to the Court in this case to take a number of courses of action and reach a number of potential conclusions in connection with an officer who testifies about certain events occurring which are not recorded in his or her notes.

The first and most obvious is that the Court may conclude that the event did not occur at all. The second is that the Court may accept a recollection not recorded but place little or no weight upon it in satisfying the onus that lies upon the Crown in connection with s.10(

b) compliance. The third is that the Court may conclude that the officer is utilizing his notes as an aid to recollection and that the officer is not “making the evidence up” or attempting to rely on standard practice as proof that the officer undertook certain actions. ... 40 In this case, the Court concludes that while Constable Oberg was a testy and at times fatigued witness - he is nevertheless credible. The Court concludes that Constable Oberg is one of those officers who uses his police notes as an aid to recollection. [ 13 ] In the case of R. v.

Bailey , 2005 ABPC 61 , the officer observed erratic driving and pulled the accused over. She noted all sorts of indicia of impairment, two of which were not in her notes. One was “slurred speech”; she testified she knew his speech was a problem, and didn’t even need her notebook to look at that because she specifically remembered the day because the accused was so violent. The fact the accused had difficulty providing his documents was not in her notes; she said she didn’t document every step.

Overall, she testified that an experienced officer would not necessarily write down every important factor. [ 14 ] Defence argued that the failure of the officer to not disclose all factors of impairment prior to trial amounted to a breach of the Stinchcombe disclosure obligations, and therefore the evidence ought to be excluded. The Zack case, referred to by Lamoureux PCJ in Klick , was referenced, and reviewed in detail by Van de Veen, PCJ, who concluded: Accordingly, in R. v.

Zack , supra, it would appear the additional evidence testified to at trial by the officer who had not made note of this evidence was not excluded as a result of a Charter breach. The additional evidence was found to be suspect, leaving the officer without the necessary reasonable and probable grounds... The Charter breach in that case was not led to arise from incomplete police notes...

Incomplete police notes cause the judge to doubt the evidence omitted from the police notes ... [ 15 ] She then went on to demonstrate how the facts illustrating impairment in the case before her were greater than those in Zack . [ 16 ] Van de Veen, PC J then quoted Zack with respect to how omissions from police notes were a serious problem that should not be accepted, and went on to provide her own comments about the role of police notes. It is important for the notes to be complete and accurate so the officer can have his or her memory properly refreshed in order to give full, accurate evidence in court.

She then reviews the case authorities about the need for an officer to make complete and accurate notes. In this context, with respect to the officer testifying before her, Van de Veen, PCJ stated that while the officer’s notes were brief, they were not so sketchy or deficient on critical aspects of the case as to cause her evidence to be suspect. [ 17 ] Van de Veen, PCJ concluded by finding that while there is a duty on officers to take complete, accurate and comprehensive notes, the failure to do so affected the weight or degree of credibility given to their evidence, and did not result in a Charter breach.

She continued: 43 There is no legal authority that I am aware of which has held incomplete police notes, in themselves, to amount to a Charter breach of the accused’s right to make full answer and defence under

Section 7 and 11(d). So far some cases have merely held that evidence testified to in court, but not confirmed in some fashion in police notes disclosed prior to trial, is not reliable. Such evidence has therefore been held to be suspect and not proven beyond doubt, with the result there has been insufficient objective evidence in such cases upon which the officer is entitled to rely to constitute the reasonable and probable grounds necessary to make the breath demand. Evidence not

found in notes has been found suspect when notes are clearly deficient on key factual issues which an officer would be expected to record. 44 While there is a growing recognition of the additional purposes of police notes, the law has not reached a state where incomplete notes, in themselves, result in a breach of the accused’s Charter right to make full answer and defence pursuant to Sections 7 and 11(

d) of the Charter of Rights and Freedoms . However if it is shown the police deliberately omitted evidence from the notes to avoid their obligation to disclose such evidence to the defence, there is authority which may support that result ...

In addition, police evidence testified to at trial but not found in notes earlier disclosed can be suspect especially if the notes are deficient on a significant factual issue in the case. 45 Having said that however, each case must be judged on its own merits, and in the case before me the officer’s notes are not so sketchy or incomplete as to deprive the defence of the important evidence of impairment.

Essential concepts such as “Repetitive Speech, Uncooperative, Aggressive, Violent” notations support the testimony of the officer given at trial and the accused’s ability to make full answer and defence has not been prejudiced in this case. Of importance is the fact there is no suggestion the officer deliberately made scanty notes so that the full extent of her investigation would not be disclosed to the defence.

The concern on the part of the defence in this case is that indicia of impairment omitted from the officer’s notes ought to be suspect, and I disagree given the totality of the evidence before me. 46 By reason of the fact the majority of the officers’s evidence was recorded in some fashion in her notes, I believe this Court could be involved in the “micro-management” of the officer’s handling of this case if the defence argument on this point were to succeed. In this case it would be unrealistic to expect the officer to record every detail in circumstances where there was violent behaviour.

Accordingly I have no doubt concerning the evidence given by the officer in this case at trial. [ 18 ] In her reasons, the trial judge specifically listed the following observations of the officer which were in the officer’s notes: -the vehicle made a hard turn into the street from the parking lot -the vehicle then accelerated hard -the vehicle reached speeds of up to 28 km/hr over the speed limit -the vehicle made repeated and severe swerving motions, a bit of a fish-tail, and further swerving; the swerving appeared more intentional than not -the driver had alcohol on his breath -the driver had a slow response time -the driver had watery, bloodshot and red-rimmed eyes -the driver appeared to be having a hard time keeping his eyes open There were other observations noted in the evidence supporting impairment and dangerous driving that she didn’t mention in her judgment. [ 19 ] The trial judge then went on to highlight observations the officer testified to, but were not in his notes.

The Respondent Crown states that the trial judge summarized the evidence, acknowledged that some of it was testified to in court but wasn’t in the notes, and then stated that even if the evidence orally given but not in the notes was not given much weight, there was still enough to convict. [ 20 ] Trial judges have a clear duty to give reasons. In this case, the trial judge’s reasons are not insufficient simply because she doesn’t go through her list and state which observations were written down and which were not.

She specifically addressed the argument regarding the paucity of the notes and found, “However, there are considerable circumstances to be considered, so even if there are a few that the Court did not give a great deal of weight to, there would still be considerable left to contribute to a case of impaired driving.” She also found that overall, the officer was not shaken in his evidence.

[21] I therefore find that the trial judge did not err in finding the accused guilty merely because all of the factors the officertestified to were not recorded in his notes. Issue 2. Failing to consider the evidence favourable to the accused [22] The appellant urges upon this court the proposition that numerous pieces of evidence favourable to him were not referred toby the trial judge.

Proper consideration by the trial judge would possibly have led to a reasonable doubt. the left to right motion of the vehicle was not the normal weaving of a potential drunk driver the vehicle performed this motion four or five times over a distance of about four blocks on 20th street - or only about once per block There was no centre line and no oncoming traffic at the time This same driving pattern was observed after the left-hand turn onto 11th Avenue where the vehicle travelled for only about 1 ½ blocks The vehicle pulled over and stopped properly [23] Should the lack of evidence of range of lateral distance involved with the intentional left to right motion and the lack of anyevidence of the vehicle losing control, and the evidence in favour of the appellant lead to a reasonable doubt? [24] The answer to this appears to be a resounding no.

All of this must be placed in context of all of the observations of the officer.The officer did testify that on a hard left-hand turn the appellant’s vehicle fish-tailed slightly.

This is particularly noteworthy as itoccurred after the emergency lights were engaged and the appellant was expected to pull over. [25] Similarly, the appellant argues that because he had no difficulty in locating his wallet or handing his license to the officer andno difficulty leaving his vehicle, walking to the police vehicle and entering and exiting it, this favourable evidence should have beennoted by the trial judge and it could possibly have led to a reasonable doubt. By failing to review this evidence the trial judge erred saysthe appellant. [26] Again, I have difficulty with this proposition.

This evidence must be seen in context of all the evidence. For example, theappellant “struggled with a pinch grip to remove” his license from the wallet. The wallet was sitting in the open on the console.

Further,the examples of the appellant’s walk all post date the driving evidence that led to the stopping and arrest and is therefore irrelevant. [27] With respect to evidence favourable to the accused, that was not listed by the trial judge, I find it difficult to see how thatevidence could be construed as sufficient to raise a reasonable doubt. [28] I find no basis or authority for this ground of appeal to succeed. Issue 3.

The trial judge failed to properly apply the “marked departure” test to the evidence of dangerous driving [29] The appellant concedes that his driving did in fact breach some rules of the road enacted by the Provincial Legislature. Theappellant argues that his driving conduct is however, insufficient to meet the test of “marked departure” from the norm or standard asestablished by the Supreme Court of Canada in R. v. Beatty 2008 SCC 5 , [2008] 1 S.C.R. 49.

[30] The relevant portion of the Criminal Code is

Section 249: 249.

(1) Everyone commits an offence who operates (

a) motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, conditionand use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably beexpected to be at that place. [31] The Supreme Court of Canada in both R. v. Hundal (SCC), [1993 1 S.C.R. 867 and R. v.

Beatty 2008 SCC 5, [2008] 1 S.C.R. 49 make it clear that the requisite elements of the offence can only be found when there is a “markeddeparture” from the standard case expected of a reasonable person in the same circumstances as the accused. It is the “marked departure”that supports the sufficient moral blameworthiness to ground a criminal conviction. [32] The Supreme Court of Canada is clear that in order to convict under

Section 249 of the Criminal Code the trial judge must besatisfied beyond a reasonable doubt that, the accused was, in accordance with the words of the Section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motorvehicle is having operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. In addition, the trier of fact must be satisfied that the objectively dangerous driving was accompanied with the required mens rea.

Inmaking this assessment, the trier of fact should be satisfied on the basis of all of the evidence that the conduct amounted to a markeddeparture from the standard of care that a reasonable person would observe in the circumstances. Included in this assessment, of course isthe actual state of mind of the accused. [33] The trial judge found that the erratic driving pattern of the accused, regardless if it was intentional, displayed a lack ofjudgment in breaching the rules of the road. It also displayed disregard for the safety of others, especially his young son in the back seatof the vehicle.

No other motorists or pedestrians were nearby at the time the appellant drove in this erratic manner. This was not relevantin the trial judge’s mind. It was the type of erratic driving combined with alcohol consumption that made out the necessary elements ofthe offence. [34] The trial judge did not use the term “marked departure”. However, the way she described the Appellant’s driving can beidentified by an objective observer as a “marked departure” from the standard of care of a reasonably prudent driver. This is supported bya recent case of the British Columbia Court of Appeal in R. v.

Settle 2010 BCCA 426 at paragraph 48: Therefore, if evidence of intentional conduct is relevant to determining whether the “marked departure” test has been met, evidence ofreckless or wilfully blind conduct must also be relevant. It is for this purpose that evidence of an accused’s voluntary consumption ofalcohol may be relevant in establishing the mens rea of the offence of dangerous driving.

Where such conduct demonstrates arecklessness in creating a risk or danger to other users of the highway it may, when considered with the evidence of driving conduct,establish a pattern of disregard for the safety of other users of the highway that amounts to a marked departure from the standard of careof a reasonably prudent driver. [35] Accordingly, I am not persuaded that the trial judge erred in convicting the appellant of dangerous driving. [36] In conclusion, I am satisfied that the learned trial judge committed no error in her reasons at trial.

I therefore find that theappellant must fail in his grounds for appeal and the

summary conviction appeal is hereby dismissed. Heard on the 20th day of January, 2011. Dated at the City of Lethbridge, Alberta this 6th day of April, 2011.

D.K. Miller J.C.Q.B.A. Appearances: Kelly A. Payne for the Crown Randall L. Pick, Q.C. for the Defendant