R. v. Milana, 2016 ONCJ 407

ONTARIO COURT OF JUSTICE DATE: July 5, 2016 COURT FILE No.: OP15045689 CITATION: R. v. Milana , 2016 ONCJ 407 BETWEEN: HER MAJESTY THE QUEEN — AND — CRISTIAN MILANA Before Justice M.S.

Block Evidence Heard on April 6, 2016 Reasons for Judgment released on July 5, 2016 Richard Connolly............................................................. counsel for the Crown Richard Fedorowicz............................ .counsel for the accused Cristian Milana BLOCK, J.: Overview [ 1 ] Just before 8:28 PM on February 14, 2015 Ontario Provincial Police Constable Kevin Cameron was travelling eastbound on Highway 401 when he received a report that a grey Dodge pickup truck had twice nearly struck the guardrail while speeding eastbound on the 401 near Thickson Road.

Shortly thereafter, Constable Cameron encountered a grey Dodge pickup in the right lane of the 401 near Harmony Road. He followed it to the area of Courtice Road where he conducted a traffic stop as a result of the poor driving he observed. The driver of that car was Cristian Milana. The constable made further observations of Mr. Milana in the driver’s seat and as he walked to the back of his pickup truck. He then arrested Mr. Milana for the offense of impaired driving at 8:30 PM and demanded that he provide samples of his breath into an approved instrument. Mr.

Milana later provided two samples at the detachment. The first sample, at 9:50 PM, was 170 mg of alcohol in 100 mL of blood. The second sample, at 10:13 PM, was 160 mg of alcohol in 100 mL of blood. Mr. Milana was consequently charged with the additional offense of exceed 80 mg, contrary to

section 253 of the Criminal Code . [ 2 ] Crown Counsel Mr. Connolly called Constable Cameron and Mr. Matthew Parsons, a civilian witness. Evidence of Mr. Milana’s blood alcohol concentration was provided by way of certificate. The defence called no evidence. Other than inspiring Constable Cameron’s interest in Mr. Milana’s grey Dodge pickup, I have determined for reasons indicated below that Mr. Parsons evidence had little relevance to this judgment. Issues [ 3 ] Defence Counsel Mr. Fedorowicz argues the following:

(1) Constable Cameron did not have reasonable and probable grounds to demand samples of Mr. Milana’s breath. Thus the seizure

of his breath samples was unreasonable and a violation of

section 8 of the Charter. He further argues that the violation of Mr. Milana’s right to be free of unreasonable search and seizure was so profound and the impact on his rights so serious that the evidence of his breath samples must be excluded from the evidence.

(2) The absence of reliable, admissible evidence of impairment failed to meet the standard of proof beyond reasonable doubt and therefore the charge of impaired driving fails. In particular, the observations of Constable Cameron that followed the defendant’s exit from the truck on the officer’s request are only admissible as part of the grounds for arrest and not as evidence of impairment on the trial proper.

(3) The breath tests were not taken as soon as practicable. The crown cannot rely on the presumption of identity contained in section 258 (1) (c). Therefore the readings are not available as proof of Mr. Milana’s blood alcohol concentration at the time of driving and the charge of exceed 80 mg fails. The Evidence [ 4 ] Constable Cameron followed Mr. Milana’s vehicle in the curb lane of Highway 401 east from the area of Harmony Road. The defendant’s speed fluctuated between 80 and 100 km/h over the 2 to 3 km between the initial encounter and the ultimate stop at Courtice Road.

The officer stated the vehicle straddled the white fog line between the curb lane and the shoulder three times. When not straddling the fog line, the vehicle was weaving within the lane. Constable Cameron described the defendant’s driving as “extremely poor” and “horrible” and told the Court it gave him “serious concern”. At approximately 8:28 PM Constable Cameron activated his emergency equipment to signal the defendant to stop. Mr. Milana pulled his truck over to the shoulder appropriately. The roads were dry. The temperature was very cold at minus 18 Celsius.

It was dark outside. [ 5 ] The Constable approached the defendant, who was the driver and sole occupant of the pickup truck. A strong odour of an alcoholic beverage came from the driver’s compartment. The officer asked Mr. Milana for his driver’s license, ownership and insurance. The defendant complied with very slow movements. The officer then noted that the odour of an alcoholic beverage came directly from Mr. Milana’s mouth. The officer described Mr. Milana as being unable to focus on anything, including Constable Cameron’s face.

The defendant did not speak to Constable Cameron until he handed over his documents, though when he did so his speech was apparently normal. [ 6 ] Mr. Milana admitted consuming “a couple of beers”. Constable Cameron then asked him to step out of his motor vehicle and walk to the rear of his pickup truck. The officer testified that his intention was to have a conversation with the driver to determine the reason for the aberrant driving. Mr. Milana was weaving and bumped into his truck as he walked. He was then arrested for impaired driving.

Because of the level of his intoxication he was handcuffed to the front and required assistance walking to the police cruiser. [ 7 ] Mr Milana was given his rights to counsel, cautioned and given the appropriate breath demand as he sat in the rear of the police cruiser. He said he wished to speak to his mother. He was advised by Constable Cameron that he could only speak to counsel. The officer arranged for a qualified Intoxilyzer operator to be present at the OPP detachment located at 1301 Henry Street, Whitby.

The constable and the defendant left the scene at 8:46 PM after the arrival of the requested tow truck. They arrived at the detachment at 8:57 PM. The officer called for duty counsel at 9:03 PM. Duty counsel returned the call at 9:13 PM. Mr. Milana spoke to him in the counsel consultation room from 9:16 PM to 9:20 PM. He was then turned over to OPP Constable Naylor at 9:24 PM for the purpose of providing breath samples after Constable Cameron had supplied his grounds to that officer. [ 8 ] Mr. Milana then supplied he name of his own counsel, who was revealed to be his mother.

Contact was facilitated with counsel and, after a series of complications unimportant to my deliberations, Mr. Milana was returned to the Intoxylizer technician at 9:42 PM and supplied samples which provided the readings described above. Assessment of the Evidence of Constable Cameron [ 9 ] Counsel Mr. Fedorowicz made an inspired attack on the reliability of Constable Cameron’s testimony. He contrasted it with the evidence of Mr. Parsons and the video of Mr. Milana at the OPP detachment.

He contended that the officer’s notes were completely inadequate and lacked necessary detail. [ 10 ] I cannot find that the grey Dodge pickup observed by Mr. Parsons was the same grey Dodge pickup driven by Mr. Milana. Constable Cameron did not factor into his assessment of grounds the information he had received from OPP communications regarding a grey Dodge pickup that had originated with Mr. Parson’s. That was the correct and fair approach. The information he received gave him a reason to look for such a vehicle.

As Constable Cameron had not been provided with a plate number for the vehicle described by dispatch, he had to make his own assessment of Mr. Milana’s driving and could not assume that he was the driver observed earlier by Mr. Parsons.

[ 11 ] If I concluded that the vehicle observed by Mr. Parsons and stopped by Constable Cameron were one and the same, I would not agree that the contrast between the driving observed by Mr. Parsons and that observed by Constable Cameron undermined the reliability of the latter’s observations. Mr. Parsons told the court of a vehicle speeding at approximately 140 km an hour, aggressively passing to the right over three lanes of traffic and nearly colliding on two occasions with the centre median guardrail. This was by no means “normal” driving. It was fast, aberrant and highly dangerous driving.

The driving pattern described by Constable Cameron was slow, aberrant and highly dangerous. Some 22 km, more or less, separate the location of Mr. Parson’s observations and that of Constable Cameron. It would not be reasonable to assume that an inebriated driver would necessarily drive in the same dangerous manner over that distance. [ 12 ] Counsel submits that an absence of detail in Constable Cameron’s notes compromised the reliability of his account.

In particular, counsel focuses on the officer’s description of the defendant’s affect and motion at the roadside, his description of the driving that inspired the traffic stop, the description of Mr. Milana’s movement to the back of his vehicle, the absence of a reference to the question that elicited an admission of alcohol consumption, the absence of the location from which Mr.

Milana retrieved his documentation and finally, the absence of an indication of whether the officer or the defendant opened the driver’s door to the pickup truck. [ 13 ] Counsel suggested to the constable that the language of the notes employed “very broad words” which “could mean anything”. The officer responded that he made his notes at the scene to refresh his memory and that his testimony was based on his refreshed independent recollection. [ 14 ] Attacks on police officer’s testimony based on omissions in their notes are a frequent and appropriate means of testing the reliability of such evidence.

In Her Majesty the Queen v. Zack , a judgment of Mr. Justice Duncan of this court dated May 26, 1999, reported at [1999] O.J.5747 , the Court reviewed the evidence of an arresting officer who claimed that the defendant was unsteady on her feet and confused and that he arrested her for impaired driving as a result. The officer told the court that he did not note these indicia of impairment because he would remember it.

The court held that these omissions were serious and rendered the officer’s evidence unreliable. [ 15 ] As Justice Fergus ODonnell wrote in Her Majesty the Queen v Lawson John , April 28, 2014 at paragraph 14: “Notes are not, and never have been, a transcript of an officer’s actions and interactions. They are an aide-memoir to assist the officer giving his or her testimony.” [ 16 ] In this regard also see Her Majesty the Queen v Sahibjit Gill , 2015 ONSC 7872 , a decision of Mr.

Justice Casey Hill. [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 a 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 in the delivery of oral testimony, and the existence of confirmation for the missing note. [ 17 ] There were no significant omissions in Constable Cameron’s notes that emerged from the evidence.

Constable Cameron’s testimony had no indicia of impairment that had not been referenced in his notes. I did not find the few gaps in his memory of the event significant. He was a cautious, candid and fair witness. [ 18 ] Mr. Milana demonstrated no obvious impairment in the video of his interaction with the breath technician. There is a gap of 1 hour and 12 minutes between Mr. Milana’s arrest and the events recorded on the video. I do not find that this absence of indicia undermines Constable Cameron’s earlier observations.

It might well be different if the video recorded events that immediately followed the driving described. It may be that the passage of time and a resulting diminution of the defendant’s blood alcohol concentration accounts for the differences, but in the absence of expert evidence it would be futile act of speculation to attempt to account for the apparent improvement. There is no expert evidence before me that would suggest that Constable Cameron’s account is incompatible with the video evidence.

The court is required to rule on whether the defendant was impaired by alcohol at the time of his operation of his motor vehicle, not at the time of his appearance in the video.

[19] I accept the evidence of Constable Cameron. His account is adequately referenced in his contemporaneous notes backed up bygenerally good independent recollection. I was impressed by his candour regarding memory lapses on aspects of the narrative that Ifound unimportant. I was particularly impressed that he excluded the initial communication he received from his assessment of grounds.He readily advised the court that the defendant’s speech was apparently normal during their initial contact and agreed with counsel’sassessment that Mr. Milana’s performance on the video was also apparently normal.

It is clear to me that he believed that the defendant’sability to drive was impaired by reason of the consumption of alcohol. Was Constable Cameron’s Belief Reasonable? [20] Reasonable grounds involve credibly based probabilities. The officer’s opinion must be supported by objective facts.

Judicialscrutiny of an officer’s grounds must recognize the context within which the officer operates. “Police must make quick but informeddecisions in impaired driving investigations…based on available information which is often less than exact or complete….The importantfact is not whether the officer’s belief …was accurate, it is whether it was reasonable. That it was drawn from hearsay, incompletesources, or that it contains assumptions will not result in its legal rejection by resort to facts which emerged later.”(R. v. Censoni, [2001]O.J.

No. 5189 (S.C.J.) at paras. 38-41;) [21] The evidence adduced by the Crown to demonstrate reasonable grounds of impairment by alcohol typically consists of variousindicators. It is not unusual for some of those indicators to be to some extent subjective and ambiguous. The challenge is to weighwhether or not those indicators, allowing for any subjectivity and ambiguity, in their totality, reasonably support the officer’s conclusionthat reasonable grounds exist. [22] In R. v.

Bush, 2010 ONCA 554 , [2010] OJ No 3453 at para’s 46-56 the Ontario Court of Appeal discussed principles tobe applied in assessing the presence (or absence) of reasonable grounds in the context of a impaired driving investigation: i. Reasonable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni atpara. 31 and R. v. Shepherd 2009 SCC 35 at para. 23. ii. There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable andprobable grounds to arrest.

Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d (SCC), [1994] 2 S.C.R. 478. iii. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor functionwhether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni atpara. 47. iv.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drivewas even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380(Ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17. v. An assessment of whether the officer objectively had reasonable and probable grounds does not involve theequivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are presentand which are absent as the essential test. vi.

There is no mathematical formula with a certain number of indicia being required before reasonable and probablegrounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does notnecessarily 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. vii. Consideration of the totality of the circumstances includes the existence of an accident.

However, that the accidentcould have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not meanthe officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be consideredalong with all the other indicia in light of the fact there may be another explanation. viii. finally ix. 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. [23] The obviously compromised driving ability, the inability to focus and very slow movement observed during the roadsideinteraction, the evidence by admission and breath odour that the defendant had alcohol in his body and the poor walking displayed on thedefendant’s walk to the rear of his truck point to the overwhelming conclusion that Constable Cameron had reasonable and probablegrounds to arrest Mr. Milana for impaired driving. The Charter application fails.

Has the Crown Proved Impaired Driving Beyond Reasonable Doubt ? [ 24 ] Constable Cameron was cross-examined on the purpose underlying the request for Mr. Milana to step out of the vehicle. He responded that he wanted to walk the defendant to the rear of the vehicle and have a conversation with him regarding the reason for his manner of driving.

He was not shaken from this response. [ 25 ] Counsel contends that the observations of impairment made by the officer during the defendant’s walk to the rear of the truck are admissible only for the purpose of determining the existence of reasonable and probable grounds for the breath demand. Counsel cites Her Majesty the Queen v. Iannotta [2009] O.J. 5181 in support. [ 26 ] I disagree.

In Iannotta the defendant was asked to exit his vehicle, at paragraph 54, “to permit the Constable to see whether the driver was capable of exiting the vehicle and standing without evidencing abnormal physical coordination.” Justice Hill found that the driver was conscripted into a form of sobriety test. These are not the facts before me. The factual context is identical to the one faced by the Court of Appeal in Her Majesty the Queen v.

Brode, [2012] O.J. 985 : 66 In Iannotta, there was clear evidence of conscriptive motive: the investigating officer testified that his request that the accused get out of his vehicle was intended as a sobriety test. 67 The evidence upon which the appellant relies to establish the proposed 'disguised sobriety test' is the testimony of Rutherford, who, in cross-examination stated that "we [he and O'Hearn] proceeded to ask [the appellant] to step out of the vehicle and question him to gather indicators if there were going to be more indicia ", and "Officer Rohrer gave us his indicators and it was Officer O'Hearn and I who would've built more indicators on - upon asking [the appellant] to step out of the vehicle." 68 In my view, this evidence does not support a finding that the officers required the appellant to get out of his car for the purpose of using his actions while exiting the car as a sobriety test.

The evidence is more indicative of the officers' requesting that the appellant get out of the car so that once he was outside they could question him and gather indicators of insobriety. See also Her Majesty the Queen v. Quenneville 2009 ONCA 325 [ 27 ] The observations by Constable Cameron during the defendant’s walk to the rear of his truck are admissible for the proof of determining impairment. The totality of the evidence tendered by the Crown in this case is proof beyond reasonable doubt of profound impairment of Mr.

Milana’s ability to operate a motor vehicle by reason of alcohol consumption at the time of the traffic stop by Constable Cameron. He stands convicted of the charge of impaired driving. Were the Tests Taken as Soon as Practicable? [ 28 ] Counsel has contended that the breath tests were not conducted as soon as practicable. His argument focused on an alleged delay of 27 minutes between the arrest and the departure of Constable Cameron and Mr. Milana for the detachment at 8:57 PM. Counsel’s argument rests on factual error. The time of departure from the scene was 8:46 PM. Q. Okay.

Now, what time was it when I take it you departed the scene of the arrest, what time was it when you left where you effected the vehicle stop? A. If I may? I have 8:46, by my notes 20:46 by a 24 hour clock. I departed the scene and at 20:57, 8:57 PM arrived back at the detachment with the accused. Transcript of the evidence of April 28, 2016 p.36 [ 29 ] The time at the scene between the arrest and the departure for the detachment was 16 minutes, not the 27 minutes contended. During this period of time, Mr.

Milana was handcuffed to the front, cautioned, given his rights to counsel and seated in the back of the police cruiser. Constable Cameron then contacted the Orillia Provincial Communication Centre of the OPP to request the attendance of a qualified Intoxilyzer operator at the detachment. He then called for a tow truck to attend the scene and remove Mr. Milana’s vehicle. There is no evidence of the precise time at which that call was made or the time of the tow truck’s arrival. It is clear that Constable Cameron waited at the scene for the arrival of the tow truck. (Please see transcript pages 76-77).

All said, the activities noted above were not merely an eminently reasonable use of time, they were necessary and inescapable police functions.

[ 30 ] In his argument, Counsel questions “why the testing procedure was delayed for a tow truck?” Mr. Milana’s vehicle was parked at night on the shoulder of the busiest highway in the country. In my view it would have been inexcusable negligence for the officer to have left the vehicle parked in that position while he departed the scene. Constable Cameron was obliged to ensure that this hazard was removed before his departure. [ 31 ] The period between the arrival at the detachment at 8:57 PM and the first breath test asked 9:50 PM was almost entirely spent accommodating Mr.

Milana’s contact with both duty counsel and private counsel. The 20 km trip to the Henry Street detachment took approximately 11 minutes. Mr. Fedorowicz has quite properly not called into question any period other than the time at the roadside. [ 32 ] The Crown has proved beyond reasonable doubt that the tests were taken as soon as practicable. The presumption of identity embedded in section 258(1) (

c) of the Criminal Code applies and the two breath tests stand as evidence of Mr. Milana’s blood alcohol concentration at the time of driving. He stands convicted of the charge of exceed 80 mg. Released: July 5, 2016 Signed: Justice M. Block