R. v. Mulroney, 2009 ONCA 766

CITATION: R. v. Mulroney, 2009 ONCA 766

DATE: 20091104

DOCKET: C49505

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Frank Mulroney

Respondent

Deborah Krick, for the appellant

Ian Smith, appearing as duty counsel

Frank Mulroney, respondent appearing in person

Heard: August 17, 2009

On appeal from the judgment of Justice Fred Graham of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 15, 2008, allowing the appeal from conviction by Justice Robert P. Main of the Ontario Court of Justice, dated July 16, 2007.

Goudge J.A.:

A. INTRODUCTION

[1] The Criminal Code provides that if certain conditions are met, the results of a breathalyser test constitute conclusive proof of the concentration of alcohol in an accused person’s blood, both at the time of the test and at the time when the offence was alleged to have been committed. One of these conditions is set by s. 258(1)(c)(iii). It requires that each sample be “received from the accused directly into an approved container or into an approved instrument operated by a qualified technician”. The meaning of this requirement, particularly the meaning of “directly”, and the evidence needed to satisfy it are at the heart of this appeal.

B. BACKGROUND

[2] At about 2:30 a.m. on October 16, 2005, Frank Mulroney, the respondent in this appeal, was observed by the police driving his vehicle erratically, weaving from side to side. The police stopped him and administered a roadside breath test which he failed. He was then arrested, charged with impaired driving and driving with more than 80 mg of alcohol in 100 ml of blood, and taken to the police station for a breathalyser test.

[3] P.C. Fawcett administered the test. He gave evidence at trial that he has been a qualified breath technician since 1991, that the instrument he used that night was the Intoxilyzer 5000C, that is designed to receive and analyze breath samples for blood alcohol concentration, that it appeared to be working properly, that the respondent blew into the mouth-piece of the instrument as instructed, and that this provided a suitable sample for analysis for both the first and second tests that he administered. He was not cross-examined on these parts of his evidence.

[4] At the conclusion of the Crown’s case, the respondent moved successfully to dismiss the charge of impaired driving. The respondent then moved to have the “over 80” charge dismissed for want of evidence, arguing that there was no evidence that his breath sample went directly into the breathalyser and that s. 258(1)(c)(iii) was therefore not complied with.

[5] The trial judge dismissed this motion, finding that there was evidence sufficient for a trier of fact to conclude that the breath sample indeed went directly into the instrument.

[6] The defence then called evidence that went only to the respondent’s consumption of alcohol and the effect this consumption would have on the concentration of alcohol in his blood.

[7] The trial judge convicted the respondent. He concluded that, since there was nothing to suggest that there was anything wrong in the preparation or use of the approved breathalyser instrument, and since he could not accept the respondent’s evidence of what alcohol he had consumed that night, the Crown had proved the charge beyond a reasonable doubt. He imposed a fine of $800 and a 12-month driving prohibition on the respondent.

[8] The respondent appealed. The summary conviction appeal court judge held that there was no evidence that the mouth-piece was connected to the Intoxilyzer or, even if it was, that there was no intervening apparatus between the two. Consequently, he concluded that there was no evidence that could properly lead to a reasonable inference that the breath samples were provided by the respondent directly into the approved instrument, and that the trial judge erred in not allowing the application for a non-suit. He allowed the appeal, set aside the conviction, and entered an acquittal.

[9] The Crown now seeks leave to appeal, and to appeal, if leave is granted.

C. ANALYSIS

[10] The Crown makes two arguments in this court. First, it says that as a matter of statutory interpretation, s. 258(1)(c)(iii) does not require that a breath sample be received from an accused directly into an approved instrument in order to make the evidence of the results of the analysis conclusive proof of the concentration of alcohol in the accused’s blood. That section is as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician …

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed[.]

[11] The definition of “approved container” in respect of breath samples is found at s. 254(1) of the Code. It requires that the container be of a kind that is approved as suitable for the purposes of s. 258 by order of the Attorney General of Canada. Counsel advises that there have been no such orders made, and therefore, there are at present no approved containers. The same section also defines “approved instrument”. There is no dispute that the breathalyser used in this case meets that definition.

[12] The Crown submits that the summary conviction appeal court judge erred in reading s. 258(1)(c)(iii) to require evidence of the breath sample being received directly into the approved instrument. Its argument is simply that on the wording of the legislation, “directly” applies only if the breath sample is being received into an approved container, but when it is being received into an approved instrument there is no such constraint. Indeed, the Crown says that the section provides no constraint at all on how the breath sample gets into an approved instrument.

[13] The Crown looks for support to R. v. Thomas (1981), 10 M.V.R. 182 (Ont. H.C.), where at p. 186 Steele J. states this about what is now s. 258(1)(c)(iii):

It is my opinion that the word directly relates only to an approved container and does not refer or relate to an approved instrument.

[14] On the other hand, in R. v. Alatyppo, (1983), 1983 CanLII 3581 (ON CA), 4 C.C.C. (3d) 514, this court found the opposite. While the meaning of “directly” was not the contested issue in that case, Martin J.A. writing for the court stated this at p. 518:

In order to have the benefit of the presumption that the proportion of alcohol in the accused’s blood at the time when the offence is alleged to have been committed is the proportion determined by the chemical analysis of the samples of breath taken, the Crown must establish that the breath samples were received from the accused directly into an approved instrument.

[15] In my view, there are several reasons to reject the Crown’s position that s. 258(1)(c)(iii) provides no constraints at all on the way a breath sample must be received into an approved instrument, and to instead apply the words of Martin J.A. to the circumstances of this case.

[16] Because the section provides the Crown with proof that is deemed conclusive of the concentration of alcohol in an accused’s blood, I think that the liberty interest of the accused requires a strict interpretation of the section. The same strict approach also serves the objective of preserving the integrity of the breath sample in order to ensure accurate results. On the other hand, implicit in the section is the contemplation that a breath sample could properly be received into an approved instrument not directly from an accused, but from an approved container, if there were any.

[17] With these considerations in mind, I think the proper interpretation of s. 258(1)(c)(iii) is that the breath sample from the accused must be received into an approved instrument either from an approved container if one is used, or, if not, directly into the approved instrument itself.

[18] The latter circumstance exists here as it did in R. v. Alatyppo. Thus, here I think the Crown had to establish beyond a reasonable doubt that the breath samples were received into the approved instrument directly from the accused. The Crown’s first argument therefore fails.

[19] The Crown’s second argument is that the trial judge was correct to find that there was evidence sufficient for a trier of fact to conclude that the appellant’s breath sample was received directly into the approved instrument, and then to go on to do so in convicting him. The Crown submits that the summary conviction appeal court judge erred in finding that there was no evidence that could properly lead to that inference.

[20] I agree with these submissions. Here there was not just evidence that the breathalyser used was an approved instrument and a result was obtained. Nor did the trial judge simply take judicial notice that this must mean that the breath sample was received directly into the instrument. P.C. Fawcett testified that the instrument was designed to receive and analyse breath samples, that it appeared to be working properly, that the respondent blew into the mouth-piece of the instrument as instructed, and that this provided a suitable sample for analysis. None of this evidence was contested by the respondent.

[21] In my view, this was ample circumstantial evidence from which the trial judge could properly conclude as he did, namely that the respondent’s breath samples were received directly into the approved instrument in this case.

[22] I would therefore grant leave, allow the appeal and restore the order of the trial judge.

RELEASED: November 4, 2009 (“STG”)

“S.T. Goudge J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree R.A. Blair J.A.”