HER MAJESTY THE QUEEN - v. -, 2012 NBPC 8

R. v. Michael L. Beaulieu 2012 NBPC 8 Case 02762808 CANADA PROVINCIAL COURT OF NEW BRUNSWICK BETWEEN: HER MAJESTY THE QUEEN - and - MICHAEL L. BEAULIEU Judgment rendered by the Honorable Paul E. Duffie, Judge of the Provincial Court, in the matter of charges under paragraph 253(1) (b), paragraph 253(1)(

a) and paragraph 129 (

e) of the Criminal Code of Canada . DATE OF HEARING: October 26 th , 2011 PLACE OF HEARING: Grand Falls, New Brunswick DATE OF DECISION: March 5 th , 2012 APPEARANCES: Mr. Charles Couturier, on behalf of the crown Mr. Wendell Maxwell, Q.C., on behalf of the defense DUFFIE, Prov. Ct. J. INTRODUCTION [ 1 ] Mr.

Beaulieu is charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood and driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, all arising from an incident which occurred on December 19 th , 2010, in the Town of Grand Falls, in the Province of New Brunswick. ISSUES [ 2 ] Mr. Beaulieu’s lawyer has raised several trial issues: • Demand made forthwith First, he submits that evidence was absent or, at the very least, confusing in regards as to what time Mr. Beaulieu’s vehicle was intercepted by police.

He argues that this fact is important as to whether there was a lawful demand made to Mr. Beaulieu to take the Approved Screening Device (ASD) forthwith. The device is commonly called the roadside screening device.

• Reasonable and probable grounds Secondly, he submits that on the evidence the court should accept, such evidence is lacking to allow Constable Grimmer to form a reasonable suspicion required to make a lawful demand for the ASD pursuant to section 254 (2) of the Criminal Code . As always the court must decide: • On the evidence that I accept, has the crown proven the guilt of Mr. Beaulieu beyond a reasonable doubt on both charges?

FACTS [ 3 ] Constable Colby Grimmer, a peace officer for the Town of Grand Falls, testified that, at approximately 2:45 a.m. on December 19 th , 2010, he and his fellow officer, Constable Gillespie, were patrolling in a marked police vehicle and traveling along Victoria Street when they arrived at the intersection of Victoria and Sheriff, which is a four way stop, and he observed Mr. Beaulieu’s vehicle fail to make the required stop at the same intersection while Mr. Beaulieu was proceeding along Sheriff Street. He pursued and intercepted Mr. Beaulieu’s vehicle a short distance thereafter. [ 4 ] He approached Mr.

Beaulieu’s vehicle and asked him if he knew why he was being stopped and Mr. Beaulieu admitted going through the stop sign. The constable also asked Mr. Beaulieu in what language he wanted to be dealt with and his response was English. [ 5 ] Constable Grimmer said that, while speaking with Mr. Beaulieu, he could detect a smell of alcohol and proceeded to request the usual motor vehicle documents which were not produced easily by Mr. Beaulieu. He initially gave a lighter to the constable and all the while appeared very nervous.

Once he did locate his vehicle registration and insurance, he fumbled with the documents and dropped the vehicle registration between his vehicle door and his seat. Mr. Beaulieu immediately opened the door of his vehicle to retrieve the registration and Constable Grimmer said that the smell of alcohol emanating from Mr. Beaulieu’s breath was stronger outside the vehicle than what he had detected when Mr. Beaulieu was in his vehicle. The constable also added that, along with the smell of alcohol, Mr. Beaulieu’s eyes were bloodshot, his speech was slurred and his face was flushed.

At this time, Constable Grimmer concluded that he had the required suspicion to request that Mr. Beaulieu provide a breath sample in an ASD which was located in his police vehicle. [ 6 ] Mr. Beaulieu was then taken to the police vehicle and at 2:55 a.m. was read the demand to provide a breath sample in the ASD. Mr. Beaulieu agreed, took the test and registered a fail. Constable Grimmer testified that this indicated to him that Mr. Beaulieu was driving his motor vehicle when his blood alcohol level was over the legal limit.

Consequently, he concluded that he had the reasonable and probable grounds to make a formal breathalyzer demand to Mr. Beaulieu to provide further breath samples at the police station. [ 7 ] As a result, at 3:08 a.m., Mr. Beaulieu is advised of his constitutional rights, is read the breathalyzer demand, which he accepted, and is transported to the police station to provide samples of his breath. Sergeant Bernard Albert, the breathalyzer technician, met them at the station and conducted the test.

The first test was taken at 3:38 a.m. and the second at 3:58 a.m. and the results of the tests were recorded in a Certificate of Qualified Technician which has been submitted by crown as an exhibit to prove the alcohol level of Mr. Beaulieu. [ 8 ] On cross-examination, Constable Grimmer admitted that in his written notes he did not write down the time when he first observed Mr. Beaulieu’s vehicle go through the stop sign as his notes start at 2:55 a.m. when he is in the police vehicle making the ASD demand. Furthermore, he admits that there are inconsistencies as to the time when he first observed Mr.

Beaulieu’s vehicle. During his verbal testimony, he says it was at 2:45 a.m., while the Prosecutor’s Information Sheet which he prepared later that evening says 2:40 a.m. and the general occurrence report he prepared says 2:55 a.m. [ 9 ] Constable Grimmer also admitted on cross-examination that when he prepared the Notice of Suspension of Mr. Beaulieu’s driver’s license, he failed to indicate on that form any of the indicia of impairment he testified to such as the odor of alcohol, flushed face and slurred speech.

There was also an investigative guide form completed which also lacked any of the above indicia of impairment. He also admitted he failed to enter into his notes that he did read the police caution to Mr. Beaulieu when he made the formal demand for the breathalyzer test.

POSITION OF THE PARTIES Crown [ 10 ] Mr. Couturier, representing the crown, submits that it has proven all of the elements of the charge under s. 253 (1) (

b) of the Criminal Code beyond a reasonable doubt. He adds that Constable Grimmer firstly had grounds to stop Mr. Beaulieu’s vehicle since he had driven through a stop sign and secondly was able to observe and obtain enough evidence to justify his suspicions that Mr. Beaulieu may have alcohol in his body. Thirdly, Mr. Beaulieu failed the ASD test which provided the proper grounds to request a formal breathalyzer demand. Consequently, Mr. Couturier submits that the Certificate of Qualified Technician should be accepted as an exhibit and Mr. Beaulieu should be found guilty of the charge under s. 253 (1) (

b) of the Criminal Code . However, the crown concedes that the evidence is lacking to sustain the charge under s. 253 (1) (

a) of the Criminal Code. Defense [ 11 ] Mr. Maxwell, counsel for Mr. Beaulieu, argues that the issue of whether the demand was made forthwith is not clear because there are discrepancies as to when Mr. Beaulieu’s vehicle was first observed and intercepted and the demand for the ASD test was actually made. He submits this misgiving goes to reliability and not the credibility of Constable Grimmer’s testimony. He says that since Constable Grimmer’s first notation in his notebook is 02:55 when he made the formal breathalyzer test, the court is left with only the approximate time when Mr.

Beaulieu’s vehicle was first intercepted. That is to say the court must rely on the testimony of Constable Grimmer which is not corroborated by his notes. He adds the fact situation makes it difficult for the court to know the relevant times that should be taken into account in considering whether the demand for the ASD was made forthwith. In support of his position, he referred the court to the case of R. v. Zack

(1999) OJ no. 5747 . He advised the court that the Zack case, supra, indicated that if the officer gave evidence of something that wasn’t in his notes, then the court should not believe it to be true. I found the citation of the Zack case in other Ontario cases I reviewed; however, I could not retrieve the Zack case itself.

Nevertheless, the Zack case was referred to in other cases which I deal with in my analysis. [ 12 ] Furthermore, he submits that the omissions in the notes of Constable Grimmer and on the various forms he completed thereafter in which he failed to identify the various indicia of impairment that he testified to are fatal and as such would not provide the constable with the reasonable suspicion required to make the ASD. [ 13 ] As a consequence, he further argues that the evidence is weak or, at the very least, lacking in regards to Constable Grimmer being able to form a reasonable suspicion that would allow him to make the ASD demand and thus every other demand thereafter is therefore unlawful.

He also points out that the law requires the court to consider whether the suspicion was subjectively believed by the constable and whether that belief can be objectively confirmed. He submits that there may have been a subjective belief by Constable Grimmer, but it cannot be objectively sustained. ANALYSIS [ 14 ] Since the basis of the issues raised by Mr.

Beaulieu take direct aim at the notes or lack thereof taken by Constable Grimmer the evening in question, I will deal with that matter at the outset. [ 15 ] While it is true that the case law submitted by the defense counsel did provide support for his position on the issue of notes, the court has to consider that there are other cases where the decisions are to the contrary. With respect to the requirement for material facts to be in the officer’s notes, I also considered the following cases: In R. v. Machado,

(2010) ONSC 277 CanLII, Justice Durno, of the Superior Court of Justice, had this to say about this issue at page 22, paragraphs 120, 121, 122 and 123: 120 Third, is whether the absence of more fulsome notes from the scene and throughout the preparation of the report diminished the weight to be attached to his opinion. Included in that question is another issue, whether the notes are intended to be disclosure or whether the notes are only to be prepared to assist the officer in refreshing his or her memory and happen to be

disclosed to defence counsel. 121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must recordeverything 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 orobservation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authoritieswhere events or observations that are not noted have been accepted: R. v.

Thompson (ON CA), (2000), 151C.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 routinelytell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have anindependent recollection of the events.

To elevate the absence of a notation to a mandatory finding that the event did not occurwould 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'stestimony, must be determined by the trier of fact on a case-by-case basis. 123 The question is whether the absence of more fulsome notes impacted on P.C. Wright's evidence. [16] In R. v.

Bennett, 2005 ON SC 30329 CanLII, Justice Ferguson had this to say at page 8, paragraph 114: 114 The defence also relied on R. v. Zack, [1999] O.J. No. 5747 for the proposition that if what is at issue is not in the officer'snotes then the court should infer that it did not occur. I do not accept that proposition and don't think Zack says that. Also, thecase before me is not a case where the officer wrote nothing indicating that an event occurred. He noted that he had read therights to counsel and that the accused understood and declined. What was missing was a note of the exact words spoken.

I acceptthe officer's evidence that these events occurred. [17] There are obviously two schools of thought and two different types of rulings on the issue of whether the officer’s notes mustinclude every possible relevant detail. I am not convinced that the court should infer that if something isn’t in the officer’s notes, it didnot happen. In the case before this court, I had to look at the totality of Constable Grimmer’s evidence to determine whether or not Icould rely on the evidence he gave from his independent recollection of facts that were not contained in his notes.

He clearly admitted tothe inconsistencies as pointed out by defense counsel. There is no doubt as a best practice and for the sake of full disclosure, relevant andsignificant details would be best included in an officer’s notes. [18] Having said that, I did consider the evidence of Constable Grimmer and he clearly had some independent memory of the events hewas relating to the court aside from his notes. His memory and his notes were tested in cross-examination and he did not waver on themost important details. I did not get the impression that he was in doubt whatsoever as to the times Mr.

Beaulieu’s vehicle was firstobserved and intercepted, or the ASD demand and the formal breathalyzer demand were made. In my view, the court does not have tomake a guess as to all these important times as was suggested by the defense. As a result, I find that the evidence of Constable Grimmercan be relied on despite the fact that some relevant information was not included in his notes. [19] As a result, I am satisfied that Constable Grimmer had the required suspicion of the presence of alcohol in Mr. Beaulieu’s body tomake the ASD demand for breath samples pursuant to s. 254(2) of the Criminal Code.

The question now becomes whether or not thesubjective belief held by Constable Grimmer that he had the required suspicion grounds to make the ASD demand for a breath sample isjustifiable on an objective basis. [20] In this case, I am satisfied that the subjective belief of Constable Grimmer is also supportable on an objective basis. I accept thefollowing evidence given by Constable Grimmer:

• That at 2:45 a.m. he did observe Mr. Beaulieu’s vehicle fail to make the required stop at the intersection of Sheriff and VictoriaStreets in the Town of Grand Falls; • That once he approached Mr. Beaulieu’s vehicle, he detected a smell of alcohol and found Mr. Beaulieu to be very nervous; • That once Mr.

Beaulieu was requested to produce the normal motor vehicle documents, he unexplainably passed over his lighter;once he did locate his vehicle registration, he dropped it between the door and his car seat and immediately opened his vehicle door toretrieve same; at this time Constable Grimmer detected a stronger smell of alcohol along with bloodshot eyes, slurred speech and aflushed face. [21] I appreciate that there are some inconsistencies and lack of information in Constable Grimmer’s notes and subsequent reports, butthey are not so egregious as to convince the court to set aside the clear and uncontradicted testimony of Constable Grimmer in regards tothe impairment indicia he observed.

The court is of the opinion that Constable Grimmer’s evidence is clear on the timelines. I acceptthat Constable Grimmer observed Mr. Beaulieu’s vehicle go through the stop sign at 2:45 a.m., that he was intercepted shortly thereafterand was read the ASD demand at 2:55 a.m. which, under the circumstances, was a lawful demand made forthwith as required under s.254 (2) of the Criminal Code. [22] The evidence establishes that Mr.

Beaulieu, the driver of a motor vehicle the evening in question, failed the ASD test and the courtaccepts Constable Grimmer’s reasoning that, along with the failed test and the other indicia of impairment, he had the reasonable andprobable grounds to make the breathalyzer demand. [23] The court is satisfied that Constable Grimmer had the necessary subjective belief that he had the reasonable and probable groundsto make the breathalyzer demand for breath samples pursuant to s. 254(3) of the Criminal Code.

The question now becomes whether ornot the subjective belief held by Constable Grimmer that he had the necessary grounds to make a demand for breath samples isjustifiable on an objective basis. (see R. v. Bernshaw SCC and R. v. Sheppard 2009 SCC 35 , 2009 S.C.C.35). [24] For the reasons and findings set out above, I am satisfied that the subjective belief of Constable Grimmer is also supportable on anobjective basis. CONCLUSION [25] The court accepts the crown’s motion to introduce into evidence the Certificate of Qualified Technician as exhibit C-1 whichconfirms that Mr.

Beaulieu’s blood alcohol level was well over the legal limits. Consequently, Mr. Beaulieu is found guilty underparagraph 253(1) (

b) of the Criminal Code. [26] Based on the crown’s concession and the evidence, which the court accepts, the court concludes that the crown has not met the testfor proof of alcohol impairment as set out by the Supreme Court of Canada in R. v. Stellato (SCC) and find Mr.Beaulieu not guilty under paragraph 253(1) (

a) of the Criminal Code. DATED at Grand Falls, New Brunswick, this 5th day of March, 2012. ____________________________________ Paul E. Duffie Judge of the Provincial Court of New Brunswick