R v. Lynch, 2010 ONSC 6742

CITATION : R v. Lynch, 2010 ONSC 6742 LINDSAY COURT FILE NO.: 1863/08 DATE: 20101210 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) Rebecca Griffin, for the Respondent ) Respondent ) ) - and - ) ) ) GREGORY LYNCH ) ) ) Leo Adler, for the Appellant ) Appellant ) ) ) ) HEARD: December 6, 2010 ) ) GUNSOLUS, J. JUDGMENT

PART 1 [ 1 ] This is an appeal of a conviction dated October 26, 2009 whereby the appellant was found guilty of both impaired driving and “over 80”. A conviction was entered on the charge of impaired driving, and a conditional stay was entered on the “over 80” charge. The appellant appeals against this conviction to this court. [ 2 ] The trial judge made the following findings: Observations of Constable Kaldeway He first spotted the accused driving at 1:32 a.m. and stopped him at 12:36 a.m., approximately four minutes to make his observations, although that is not noted in his notebook. He made observations of bad driving that are set out in paragraph nine of his affidavit,

specifically, he observed the accused do the following: He remained at the intersection of Elm Tree Road and Highway 7 for an unusually long period of time, approximately 10 seconds, even though there was no traffic approaching from either direction on Highway 7, and there did not appear to be any other reason for the vehicle not to proceed; He then noted that the vehicle turned left from the intersection onto Highway 7 eastbound without signalling; He observed the vehicle was then operated such that it swerved over the white line (fog line) at the right side of the highway; and then Further observed the vehicle was then operated such that it swerved over the centre yellow line.

He stopped Mr. Lynch because of the numerous driving errors in a relatively short period of time. He testified at trial that even without the information from the dispatcher, he would have stopped the vehicle for suspicion of impaired driving. When asked why he stopped the truck when he did, he replied that he had done so because he had seen enough and did not want anyone on the highway to be hurt. There are also the observations of Constable Kaldeway set out in paragraph 11 of his affidavit. He was driving without a wallet. There was a strong odour of alcohol on his breath. He had glossy eyes and slurred speech.

He went on to describe that at trial. He said it was slow, heavily slurred; the “s’s” were slurred. In his notes he had noted just slurred speech. There was the admission of consumption of a couple of beers prior to operation. He came to the conclusion he was impaired by alcohol while operating a motor vehicle. It was his believe that the effects of alcohol on Mr. Lynch were “very obvious”.

He admitted that there was no issue with respect to his dexterity – pulling out the registration and insurance; that he came to a stop at the stop sign; he pulled over when he was required to do so, and that there was no problem getting out of his vehicle. There was no swaying, stumbling or staggering.

Although there was some differences in his evidence, and with his notebook, and what Constable Bridle wrote down as to what he told him at the detachment, and his synopsis and his affidavit filed at the voir dire , I am satisfied that he is a reliable witness as to what he observed and what he heard, and that his conclusion was reasonable, that is to say, that “very obvious” is a reasonable conclusion. Any differences were minor, and just because it is not noted in his notebook but only noted in his synopsis two weeks later does not mean that he did not make those observations.

Observations of Constable Bridle: He was with the accused for just under one half an hour. He observed the strong odour of alcohol on his breath; his eyes were bloodshot; he had difficulty taking the plastic from the end of the mouthpiece; he had some slurred speech, and when asked to specify what he meant by that, he said he was not precise and it was “clipped”. He noted that his balance was fair, and that he had no dexterity problems and that his face was flushed. He also observed that Mr. Lynch was polite and cooperative, and there was no Alcohol Influence Report to rely on or any physical tests.

He had also concluded or observed that he was able to communicate properly, but in his opinion his ability to operate a motor vehicle was impaired by alcohol. It was his conclusion that the effects of alcohol were “obvious”. Observations of Constable Stewart: He found two bottles of beer in the vehicle, one empty bottle of beer on the floor behind the driver’s seat and one half full bottle of beer at the back end of the centre console within reach. That is the final piece of the puzzle.

Accordingly, I am satisfied on the evidence of Constable Kaldeway and Constable Bridle and the evidence of the open beer in the console that the Crown has met the test in Stellato beyond a reasonable doubt. This is not a situation where the signs are slight, but the signs of impairment are actually obvious. GROUNDS FOR APPEAL [ 3 ] I summarize the appellant’s grounds for appeal as follows:

(1) The learned trial judge erred in reaching an unreasonable conclusion based on the evidence heard such that he accepted what amounted to evidence that supported a “mere suspicion” but did not support a finding on “reasonable and probably grounds”.

(2) The trial judge erred in failing to give inconsistencies, omissions and embellishments due consideration in assessing the arresting officer’s reliability and credibility.

(3) The learned trial judge accepted evidence from the arresting officer that had not been recorded in the officer’s notebook.

(4) The trial judge erred in taking into consideration the evidence of the officer who administered breath tests to the appellant with regards to the determination of guilt, when such evidence was based upon observations made by that officer approximately one and one-half hours after the appellant’s arrest.

(5) That the learned trial judge erred in relying on the evidence of an open beer bottle as being confirmatory for part of his reasoning in finding the appellant guilty of impaired driving.

(6) The learned trial judge erred in his findings of fact that were not supportable by his findings of fact to the alleged impaired driving. [ 4 ] In response to this appeal, the Crown submits that it is nothing more than an attempt to have this appeal court replace the trial judge’s findings of fact with its own. The Crown further provided substantial case law in support of the trial judge’s approach to the evidence and findings of fact.

THE LAW AS IT APPLIES TO THE SCOPE OF REVIEW ON APPEAL AND DEFERENCE [ 5 ] The Supreme Court of Canada has articulated the task and level of review of this court to be, amongst other things: (

a) Whether the judge could reasonably have reached the conclusion that they did, on the evidence; (

b) Review and re-weigh evidence but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; (

c) Unless the record reveals an error of law or a clear manifest error in the appreciation of the evidence, credibility must be left to the trial judge; (

d) Factual findings made by the trial judge are owed great deference and a conviction should not be considered unreasonable, except as a matter of law, in which case it must be overturned; (

e) The reviewing court may not substitute it’s view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial; (

f) The appellant court may not set aside the verdict if, on the evidence, there is a reasonable basis for the verdict and legal rules have been observed at the trial. (

g) The appellant court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge, who has all the advantages so often conceded to belong to the trier of fact. (

h) If the appellant court finds an error of law, with the result that the legal rules have not been observed during the trial, the accused is then entitled to an acquittal or a new trial. (

i) A

summary conviction appeal judge is not entitled to retry the case in absence of error on the part of a trial judge.

The question of appeal is, did the trial judge apply the correct test and take the proper factors into account? [1] [ 6 ] Absent a determination that no reasonable trier of fact, properly instructed and acting judicially, could have made the same findings, a verdict should not be disturbed on appeal. [2] [ 7 ] It is an error in law for an appeal court judge to re-weigh the evidence, rather than to determine whether there was evidence upon which a trier of fact could reasonably find that objective reasonable grounds existed. [3] REASONABLE AND PROBABLE GROUNDS [ 8 ] Reasonable and probable grounds have both a subjective and objective component.

The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer’s belief must then be supported by objective facts. The objective component is satisfied when a reasonable person, placed in the position of a police officer, would be able to conclude that there were indeed reasonable and probable grounds for the arrest. [4] [ 9 ] It is to be noted that often the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford.

The officer often must make their decision based on the available information, which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer, in deciding whether or not to make an arrest that it demands of a justice faced with an application for a search warrant. [5] [ 10 ] The reasonable and probable grounds standard, is not an onerous test, and does not require the defendant to be in a state of extreme intoxication.

The test is whether, reasonably, there was reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol. [6] [ 11 ] In assessing whether reasonable and probable grounds exist, 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. [7] That assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver’s scorecard.

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. [8] [ 12 ] 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 is often 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. [9] [ 13 ] Where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances and that test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the

officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol. The appellate court must show deference to the trial judge’s finding of fact, but the trial judge’s ultimate ruling is a question of law, reviewable on a standard of correctness. [10] [ 14 ] I now review each ground of appeal as raised by the appellant.

ISSUES Did Constable Kaldeway have reasonable and probable grounds to arrest the appellant on the charge of impaired driving? [ 15 ] The trial judge conducted a full and careful analysis of all the evidence and concluded the evidence provided a proper basis for reasonable and probable grounds. For instance, he found: (

i) Driving that included turning without signalling, swerving over the white fog line at the right side of the highway and then swerving over the centre yellow line; (ii) An odour of alcohol; (iii) Glossy eyes and slurred speech; (iv) The admission of consumption of a “couple of beers”. [ 16 ] The trial judge accepted the arresting officer’s belief that the effects of alcohol on Mr. Lynch were “very obvious”. He found him to be a credible, if not perfect witness. [ 17 ] The trial judge also reviewed facts that were favourable to the appellant including but not limited to: (

i) Having no problem with his dexterity; (ii) Stopping at the stop sign; (iii) Pulling over when required to do so; (iv) Having no problem getting out of his vehicle; (

v) No indication of swaying, stumbling or staggering. [ 18 ] The trial judge acknowledged that Constable Kaldeway’s evidence was far from perfect, and in fact found it to be troubling in several ways including: (

i) He failed to note important significant observations in his notebook; (ii) He drew a conclusion that he could not have made with the information he received from his dispatch; (iii) The grounds that he conveyed to Constable Bridle (the breath technician) were substantially less than what he included in his affidavit and during his evidence. [ 19 ] The trial judge, as already stated, made a very detailed and thorough review of the evidence given by Constable Kaldeway.

He found that there was indeed “a constellation of objectively discernable facts” that permitted the arresting officer to develop the requisite reasonable and probable grounds to make the arrest and demand. As the trial judge observed: (

i) Although there were some omissions in his notebook as to his observation, he did note information from dispatch about a possible impaired, a description of a black pick up with “G.MAG CONST.” on its side. When he followed it, he noted that it stopped for a long period of time, 10 seconds, at the intersection; turned left and, swerving in its own lane and once over the yellow line. Upon stopping the vehicle he noted not just an odour of alcohol, but a strong odour on the driver’s breath.

The driver had glossy eyes, slurred speech, and acknowledged having consumed at least a couple of beers. (ii) In his synopsis, prepared November 11, 2008, he expanded on the observations that he had set out in his notebook. For instance, he explained that the stop of 10 seconds at the intersection was unusually long, as there was no traffic and further that the driver pulled out without signalling.

He expanded on the swerving by including “observed the pickup swerve over the right side of the line on the highway and then over the yellow centre line”. (iii) In his affidavit, which was filed as an exhibit, he summarized with detail all of his observations noted in his own notebook and in his synopsis. (iv) He confirmed all of the foregoing in his evidence on both the voir dire and at trial.

(

v) Although he did not provide the breathalyser technician, Constable Bridle, with every detail to support reasonable and probable grounds to arrest and make a demand, what he did provide to Constable Bridle was sufficient to support reasonable and probable grounds and not a mere suspicion. (vi) He was able to testify that the effects of alcohol were obvious. (vii) The breath technician observed many of the same factors as the investigating officer. [ 20 ] The trial judge quite correctly noted that these observations did not assist him to objectively assess the reasonableness of Constable Kaldeway’s grounds at the time of the arrest, but were confirmatory that, even over an hour later, the appellant was still exhibiting many of the same signs. [ 21 ] Based on all the foregoing, the trial judge found that the Crown had met the onus on the balance of probabilities and had demonstrated objective reasonable grounds upon which Constable Kaldeway formed the belief that the appellant’s ability to drive a vehicle was impaired by alcohol consumption.

He found Constable Kaldeway’s subjective belief that the effects of alcohol were obvious, to be supported by the facts and information available to him at the time of the arrest. The subjective belief formed by Constable Kaldeway was supported by the evidence and therefore a breach of

section 7 or 8 of the Charter did not occur. Did the trial judge err in his assessment of the reliability and credibility of the arresting officer? [ 22 ] After carefully reviewing differences in the arresting officer’s evidence with information set out in his notebook; what the breath technician wrote down at the detachment as to what he was told by the arresting officer; his synopsis and his affidavit; the trial judge was satisfied: ...that he is a reliable witness as to what he observed and what he heard, and that his conclusion was reasonable, that is to say, that “very obvious” is a reasonable conclusion.

Any differences were minor, and just because it is not noted in his notebook but only noted in his synopsis two weeks later does not mean that he did not make those observations. [ 23 ] Such findings are supported by the case law as already reviewed and there is no reason to not grant deference to the trial judge’s findings of fact in this regard. He had the opportunity to see and hear the witness and was satisfied, warts and all, that he was a credible witness. [ 24 ] The trial judge went on to review the evidence of Constable Bridle (the breath technician), who observed, amongst other things: (

i) Strong odour of alcohol; (ii) Bloodshot eyes; (iii) Difficulty taking the plastic from the end of the mouthpiece; (iv) Some slurred speech; (

v) Fair balance; (vi) No dexterity problems; (vii) Flushed face; (viii) Ability to communicate properly. [ 25 ] His conclusion was that the effects of alcohol were “obvious” and the trial judge, who had the opportunity to observe Constable Bridle giving his evidence, accepted that evidence. Again, there is no reason to not defer to the trial judge’s findings of fact in this regard. Did the trial judge err in relying upon the evidence of an open beer bottle as being confirmatory for part of his reasoning in finding the appellant guilty of impaired driving, when there had been no evidence that the appellant had either drunk from the beer bottle or reached back for it?

[ 26 ] The trial judge accepted the evidence that two bottles of beer were found in the appellant’s vehicle, one empty bottle of beer on the floor behind the driver’s seat and one half-full bottle of beer at the back end of the centre console, within reach. [ 27 ] The trial judge referred to this as “the final piece of the puzzle”.

I find that this was nothing more than evidence that circumstantially contributed to the reasonableness of the trial court’s findings of the appellant’s guilt. [11] [ 28 ] Evidence of an open beer bottle can be and was used in this case appropriately by the trial judge, as circumstantial evidence contributing to the court’s findings of guilt. [12] [ 29 ] The trial judge was therefore satisfied on the evidence of Constables Kaldeway and Bridle, and the open beer in the console, that the Crown had met the test in Stellato [13] , beyond a reasonable doubt.

The trial judge went on to make a finding that this was not a situation where the signs of impairment were slight, but were “actually obvious”. [ 30 ] After a careful review of the evidence and the trial judge’s reasons, I find that there was no erroneous or palpable error in relation to his findings of fact. To the contrary, the trial judge undertook a very painstaking and thorough review of all of the evidence both culpatory and exculpatory. Did the learned trial judge err in refusing to follow the decisions in R. v. Zach [14] and R. v.

Markandu [15] , with respect to his assessment of the officer’s credibility vis a vis his notebook? [ 31 ] An officer’s notes are not evidence, but merely a testimonial aid. The absence of a notation just like the significance of an inconsistency in a witness’ testimony must be determined by the trier of fact on a case by case basis. [16] [ 32 ] A number of decisions have confirmed that neither the Zach nor Markandu cases stand for the proposition that if an officer has not recorded a matter in his notebook that the court should infer that the matters at issue did not occur.

Rather, these cases relate to a failure to disclose evidence.

The significance of an omission in an officer’s notebook, just like the inconsistency in a witness’ testimony must be determined by the trial judge on a case-by-case basis and a determination of that significance is, as in the case before me, entitled to deference on appeal. [17] [ 33 ] The law does not require that an officer must record everything they did or saw in their notebook in order to comply with the Crown’s disclosure obligation. [18] [ 34 ] The trial judge noted that the investigating officer did not record all of the indicia of impairment in his notebook but he did record them in his synopsis, which was prepared within 2 weeks of the incident, in his affidavit, and provided such evidence in his testimony.

As was found in R. v. Malton, [19] the trial judge, as finder of fact, was not precluded from considering all of the evidence regardless of whether or not it was all recorded in the notebook of Constable Kaldeway. [ 35 ] A trial judge is entitled to consider all of the evidence in order to make findings of fact. A trial judge is under no obligation under law or otherwise to disregard evidence of an investigating officer as a result of his failure to make notes on such evidence in his memo book.

Rather, a trial judge is to consider all of the evidence, including the testimony of the witnesses and to make such findings of credibility as they see fit. [20] [ 36 ] In my view, the trial judge was entitled to consider all of the evidence as provided by Constable Kaldeway and then make findings of fact as he did.

He was under no legal obligation to disregard the evidence of Constable Kaldeway as a result of his failure to make notes on all the evidence in his memo book. [21] Did the learned trial judge err in taking into consideration the evidence of Constable Bridle in regards to determination of guilt, considering that the evidence of Constable Bridle pertained to observations made approximately one and one half hours after the appellant’s arrest? [ 37 ] The reasons of Judge Chester in this matter show that he treated the evidence of Constable Bridle as nothing more than confirmatory evidence. [ 38 ] Considering such confirmatory evidence is acceptable as circumstantial evidence of impairment.

The evidence of impairment after driving is highly relevant and the inference that the same condition existed at the time of driving can be, and is, routinely drawn. [22] [23] [ 39 ] In considering the reasonableness of the verdict in this matter, the appellate court may consider the appellant’s failure to testify.

In doing so, that silence cannot be used as evidence, but rather factors the absence of any innocent explanation into its consideration of whether a conviction based on the existing evidentiary record was reasonable. [24] RESULT [ 40 ] Having reviewed the evidence and the trial judge’s careful analysis and findings of fact, I see no grounds upon which this court can establish an error in law or in the factual basis as found by the trial judge. [ 41 ] The appeal is dismissed. The stay of the driving prohibition expires with the release of this judgment. Signed: “Mr. Justice D. S. GUNSOLUS” DATE RELEASED: December 10, 2010