R. v. Hillman, 2015 ONCJ 807

COURT FILE No.: DATE: 2015·December·04 CITATION: R. v. Hillman , 2015 ONCJ 807 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — HELEN HILLMAN Before Justice J. M. Grossman Heard on June 23 and November 2, 2015 Judgment released on December 4, 2015 A. Linds........................................................................................................... Counsel for the Crown S. Nichols......................................................................................................

Counsel for the Accused Grossman, J.: [ 1 ] Helen Hillman is charged that on or about the 8 th day of September in the year 2012, in the City of Toronto, in the Toronto Region having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, contrary to the Criminal Code . [ 2 ] She is further charged on or about the 8 th day of September in the year 2012 in the City of Toronto, in the Toronto Region while her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle, contrary to the Criminal Code . [ 3 ] After hearing about twenty minutes of evidence and completing the luncheon recess, Crown counsel invited dismissal of count number 1, the Over 80 mgm. charge.

Accordingly, this charge was dismissed. [ 4 ] Sergeant Robert Jason Crane testified. On September 8, 2012, he was called to investigate a property damage accident on Yorkdale Road just east of Dufferin Street. Once on scene, he observed a motor vehicle westbound on Yorkdale Road wedged between a steel link fence and several posts which had been taken out. Ms. Hillman was observed sitting in the driver’s seat talking to several tow truck drivers. [ 5 ] Sergeant Crane spoke with Ms. Hillman finding her to be well dressed, very pleasant and articulate.

She handed him her insurance documents before searching a messy purse for her driver’s licence and vehicle permit. He observed her eyes to be glossy. She had no explanation for her vehicle going off the roadway. [ 6 ] Sergeant Crane was asked: “Q: Was there anything further that provided you with grounds for a demand? A: I don’t – I don’t really recall anything and nothing comes to mind. I don’t – at the time, as I said, she presented very well to me.” (See Transcript of Evidence, June 23, 2015, p. 40, l. 14-18) [ 7 ] He went on to say he “did have a scent of alcohol from her breath”.

He stated there was nothing wrong with her walking and her conversation was very professional. He had no concerns for his safety or her safety. [ 8 ] He stated he “formed the grounds that she had been drinking in the evening and while driving the motor vehicle”. (See Transcript of Evidence, June 23, 2015, p. 40, l. 1-2) [ 9 ] He made a demand of her for a breath sample into an approved screening device. She provided a suitable sample resulting in a “Fail”. Sergeant Crane arrested Ms. Hillman and gave her right to counsel before leaving the scene at 1:09 a.m.

He testified they arrived at 32 Division at 1:18 a.m. and Ms. Hillman was paraded before the staff-sergeant at 1:20 a.m. [ 10 ] Sergeant Crane related that Ms. Hillman changed into a different person in the scout car and at the station becoming rude,

sarcastic, uttering profanities and making derogatory comments. He remembered them but did not record any in his notes. [11] At the station, he stated he noticed “she was more wheezy on her feet”. (See Transcript of Evidence, p. 44, l. 8-9) Hesaid the smell of alcohol was stronger and “she was feeling the effects of whether it was alcohol or something else”. (See Transcript ofEvidence, June 23, 2015, p. 45, l. 23-24) [12] Ms.

Hillman spoke with Duty Counsel at 1:46 a.m. and was then escorted to the breath room where she provided samplesof her breath at 2:21 a.m. and 2:46 a.m. respectively. [13] Sergeant Crane testified that because of the way she acted in the report room (which included rude and insulting personalremarks to the officer), the way she talked, the smell of alcohol on her, and the two readings, he decided to charge her with ImpairedDriving. [14] Ms.

Hillman was given copies of all appropriate documents and released at 4:15 a.m. and sent home in a cab. [15] Entered as an Exhibit at trial was the video taping in the sallyport on arrival, booking hall, breath room and release in thebooking hall. I had occasion to observe and listen to Ms. Hillman throughout. [16] It is quite apparent both from the evidence of Sergeant Crane and my observations of the video that Ms. Hillmanexperiences no difficulty in walking. She was well-dressed and articulate. She was responsive to questions.

Sergeant Crane summarizedit in his evidence when he stated: “She presented herself very well to me. She was well-dressed. She was very pleasant. She’s – to me, she seemed like a professional,employment wise, and she was articulate. Again, a very pleasant lady at the time and because of those signs that I articulated, I formedthe grounds that she had been drinking in the evening and while driving the motor vehicle.” (See Transcript of Evidence, June 23, 2015, p. 38, l. 28 to p. 40, l. 2) [17] I have difficulty with this evidence.

The only indicia of impairment mentioned by Sergeant Crane is noticing her eyeswere glossy and a scent of alcohol. [18] The collision with the fence is evidence of an accident which may have happened because of the consumption of alcoholor may have happened otherwise. Not all bad driving reasonably gives rise to an inference of impairment. [19] The officer’s belief and formed opinion was not that her ability to operate a motor vehicle was impaired because of theconsumption of alcohol but rather that she was drinking “while driving the motor vehicle”.

There is no foundation for this formed belief. [20] The odour of alcohol indicates consumption of alcohol but is not conclusive of impairment. (See R. v. Gray, [2005] O.J.No. 1010, O.C.J., Gorewich J.) [21] Of particular concern is that other than glossy eyes, the other indicia relate to the scent of alcohol and Intoxylyzerreadings. In respect of the scent of alcohol, no mention of this observation is recorded in Sergeant Crane’s notes. He did not see fit toarrest Ms. Hillman for Impaired Driving at the scene.

Rather, after her reversal of character which included personal insults to theofficer’s appearance, profanities, sarcasm and derogatory remarks, she was then arrested for Impaired Driving. [22] Sergeant Crane stated: “… she called me bald and fat and then there was a comment about being uneducated, how any woman could stand me, just commentslike that were just throughout the whole time that I dealt with her and then having to sit in the same room with her throughout that wholetime and it was obvious to me that the smell of alcohol was just so much more stronger and that – and it was. It was just like a cycle.

She went up and down and you could tell that the effects, there was definitely, she was feeling the effects of whether it was alcohol orsomething else.” (See Transcript of Evidence, June 23, 2015, p. 45, l. 15-24) [23] Ms. Hillman was arrested September 8, 2012. Sergeant Crane testified June 23, 2015, a little over two years and ninemonths later. He agreed he had no notation of smelling alcohol on Ms. Hillman that evening. He had no note of the time he wasdispatched nor did he have a note of the time he arrived on scene. He referred to Ms. Hillman’s several derogatory remarks, yet he hadno notes in that regard.

He did not note the time he entered the breath room with Ms. Hillman. [24] I am mindful of the comments of J. Wright J. in R. v. Burrows, 2004 ONCJ 357 , [2004] O.J. No. 5377 O.C.J.wherein he stated at para. 32 as follows: “

(1) Memory is, by its very nature, the faculty that forgets and therefore it is important to note down significantdetails so that they can be recalled at a later point in time.

(2) Specific times, events, utterances, have particular importance in police investigation and court work. The ability of an officer tomake contemporaneous notes confirmatory of the events, gives comfort to the author and to the court that the information is accurate andreliable.” [25] In R. v. Zack, [1999] O.J. No. 5747 (Ont.

C.J.), Duncan J. considered the issue of the importance of proper note takingand at page 2 of that judgment stated: “In this day of full disclosure, it cannot be an acceptable explanation for an officer to say ‘I did not note it because I would remember it.’ it is necessary for the officer to at least somewhere … Put the significant observations he made. The absence of questioned observations

in his notebook lead to the conclusions that those observations were not, in fact made at the time, but are perhaps something that over thecourse of time the officer has come to believe that he saw.” [26] In R. v. Lozanovski, [2005] O.C.J. 112 at page 3, Feldman J. stated: “It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to thewhim of memory.” [27] In R. v. Makhota, [2004] O.J. No. 5415, P.J.

Wright J. found that the absence of notations of the information upon whichthe breath demand was made was fatal to the Crown’s case and dismissed the charge of failure to comply with a demand for a breathsample. [28] In R. v. Khan (2006), O.J. 2713, Gorewich J., the officer testified he had an independent recollection of the events ofalmost two years prior. Justice Gorewich commented at para. 17: “I must ask myself how does this lack of note taking on key issues impact on the reliability of his evidence.

It is not difficult to concludethat the reliability of this evidence is diminished.” At para. 18, Justice Gorewich continues: “The failure to make a note of these observations is serious. It is simply not acceptable for the officer to say that I did not note thesethings because I knew I would remember them. It bears on the credibility of the officer, as well as the reliability of his evidence.” [29] I have already referenced the failure to note any observation of the smell of alcohol. That leaves only glossy eyesobserved on the accused late in the evening. The remaining evidence relates that Ms.

Hillman had no difficulty walking. She stoodstraight and was not unsteady on her feet. She spoke clearly with no slurred speech. She was responsive to questions. Her motor skillsseemed normal. She appeared very pleasant, well-dressed and articulate. Her behaviour changed to rudeness and profanity which mayhave been a consequence of her being arrested. Certainly at the scene, in the scout car to the station and in the booking hall, no otherindicia of impairment were observed or noted. Sergeant Crane was asked: “Q: Was there anything further that provided you with grounds for a demand?

A: I don’t – I don’t really recall anything and nothing comes to mind.” (See Transcript of Evidence, June 23, 2015, p. 40, l. 14-17) [30] There is nothing in his notes to indicate otherwise. Indeed, Sergeant Crane does not enhance the Crown’s position bytestifying: “… she was feeling the effects of whether it was alcohol or something else.” (See Transcript of Evidence, June 23, 2015, p. 45, l. 23-24) [31] With respect to the Intoxilyzyer readings, I am mindful of R. v. Letford, (ON CA), [2000] O.J. No.4841; 51 O.R. (3d) 737, Ont.

C.A. which found that the results of the breath test could not be used in support of a finding of the degree ofimpairment, absent expert evidence relating the results to that issue. [32] However, in R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) Justice Himel concluded that blood alcohol tests could beconsidered as a factor going to the impairment of the accused but they must be supported by additional evidence of impairment. She alsostated the reading was only evidence of consumption of alcohol and not of what impact the amount of alcohol would have had on aperson’s driving ability.

While Nandlall is a trial ruling, it was followed on a

summary conviction appeal in R. v. Haas, [2011] ONSC4529. [33] There was no qualified expert evidence relating the BAC readings to Ms. Hillman’s ability to drive and there is noadditional reliable evidence of impairment. Accordingly, I do not consider the readings. [34] While I may have my suspicions, more is required than proof that the accused is probably guilty. As Cory J. stated in R.v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1 p. 13: “… A jury which concludes only that the accused is probably guilty, must acquit.” [35] I am not satisfied beyond a reasonable doubt on the evidence before me of the guilt of the accused. The charge isdismissed. Released: December 4, 2015 _________________________________ Signed: “Justice J. M. Grossman”