Court of Appeal for Ontario
Date: 2017-02-23 Docket: C60415
Judges: Hoy A.C.J.O., Doherty and Miller JJ.A.
Between
Her Majesty the Queen Applicant (Appellant)
and
James Sheahan Respondent
Counsel
Davin Michael Garg, for the appellant
Eric Granger and Lawrence Greenspon, for the respondent
Heard and released orally: February 10, 2017
On appeal from the order of Justice Brian W. Abrams of the Superior Court of Justice, dated April 7, 2015.
Endorsement
[1] Conviction and Sentence
The respondent was convicted of operating a motor vehicle with a concentration of alcohol in his blood exceeding 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code. He was sentenced to 30 days' custody to be served intermittently, in addition to 12 months' probation and a one-year driving prohibition.
[2] Summary Conviction Appeal
The respondent appealed, and the Summary Conviction Appeal Court Judge (the "SCACJ") found that the respondent had pointed to evidence that cast a doubt that the instrument utilized to conduct the blood-alcohol test was reliable, set his conviction aside, and ordered a new trial.
[3] Crown's Application
The Crown seeks leave to appeal.
[4] Crown's Argument
It argues that the SCACJ erred by clearly misapplying the standard of appellate review and exceeding his appellate jurisdiction. We agree. It is unnecessary for us to address the further ground of appeal argued by the appellant.
[5] Decision
For the reasons that follow, leave to appeal is granted, the appeal is allowed, the order directing a new trial is set aside, and the conviction entered at trial and the sentence imposed are restored.
Background
[6] Police Stop and Arrest
Police stopped the respondent after he was observed driving at 132 kilometres per hour in an 80 kilometres per hour posted zone. He failed a roadside breath test and was arrested, charged and brought to the police detachment, where he was transferred to a qualified breath technician.
[7] Breath Technician's Procedures
The breath technician received notice that he would be required to take breath samples. He turned an approved instrument (an Intoxilyzer) on at 11:14 a.m. and, at 11:20 a.m., he conducted a calibration check. It came back low at 85, while the target is 90 to 110. He observed that this may occur when the instrument is not sufficiently warmed up. He re-did the calibration test at 11:22 a.m., and it came back within an acceptable range. At 11:26 a.m., he did a self-test. It correctly indicated that he had zero alcohol in his body. The technician testified that he was satisfied that the instrument was working properly.
[8] Breath Samples
He took two breath samples from the respondent. The first, taken at 11:41 a.m., showed a blood-alcohol concentration of 225 mg of alcohol in 100 ml of blood. The second, taken 23 minutes later, showed a concentration of 218 mg of alcohol in 100 ml of blood.
[9] Trial Judge's Findings
The trial judge wrote the following:
When asked whether there was any apparent cause for the calibration check to be outside the range, the officer explained that in his experience, and based on his training, there is a space of air called headspace that can take longer to warm up. This may cause a calibration check to come in low. This explanation is also in the manual at pages 7-17.
… the manual stipulates that the [alcohol standard solution in the instrument] "should" be changed if the calibration check is outside the required range without apparent cause. In his view, he did know the cause, namely the cooler headspace, and following further testing, the calibration came within the range, thus obviating the need to change it, in his view.
[10] Presumption Under Criminal Code
The trial judge determined that the respondent had not raised a doubt as to the proper functioning or operation of the instrument, and therefore had not displaced the presumption under s. 258(1)(c) of the Code that the level of alcohol in the respondent's blood at the time when the analyses were made and the offence was committed was the lowest of the concentrations determined by the analyses.
[11] Summary Conviction Appeal Court Decision
On appeal, the SCACJ concluded that the breath technician did not know the cause of the low calibration check and that his belief as to the role played by the cooler headspace was mere speculation, which was not in any way substantiated by the training manual. Accordingly, since he did not know the apparent cause why the calibration check was outside the normal range, his evidence raised a doubt that the instrument was not properly operated.
Analysis
[12] Standard of Appellate Review
Absent an error of law or a miscarriage of justice, the test to be applied by a Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute his or her own view of the evidence for that of the trial judge. A trial judge's factual findings are entitled to deference, absent palpable and overriding error.
[13] SCACJ's Error
Respectfully, while the SCACJ alluded to the standard of review in his reasons, he clearly erred by failing to adhere to this standard of review and substituting his own view of the evidence. The trial judge committed no legal error. Her finding that the respondent had not raised a doubt as to the proper functioning or operation of the instrument was entitled to deference, absent palpable and overriding error. In our view, the trial judge made no such error. Rather, she correctly concluded that the respondent had not raised a doubt as to the proper functioning or operation of the instrument.
[14] Simulator Temperature Requirements
The manual instructs that the simulator must be operated at a temperature of 34 degrees, plus or minus .2 degrees Celsius, and the evidence of the breath technician was that the room temperature was around 22 degrees when he turned the simulator on.
[15] Manual's Instructions on Cold Headspace
Contrary to the SCACJ's findings, the manual specifically instructs qualified breath technicians that "a 'cause' for a low calibration result is 'cold headspace'" and "if the ambient temperature in the room where the simulator is being used is cold, multiple calibration checks may be required to fully warm the simulator tubing and equilibrate the headspace and solution", and that "the first calibration check result in these situations may be lower than 90 mg/100ml" while this process occurs. These portions of the manual confirmed that the breath technician's manner of proceeding was based on his training, as he had testified.
[16] Technician's Evidence Not Speculation
The SCACJ failed to consider the technician's acceptance in cross-examination of the term "speculation" in the context of all the evidence that qualified that evidence and nullified its effect. That word inaccurately describes what the breath technician clearly explained in his testimony, namely that, based on his experience and training, the apparent cause for the calibration check registering outside the range was that the headspace had not yet warmed up.
[17] Delay in Perfecting Appeal
We reject the respondent's argument that leave to appeal should be denied because of delay on the part of the Crown in perfecting its appeal. As the respondent notes, the Crown commenced its application for leave to appeal by notice dated May 5, 2015, but the respondent was not served with the appellant's materials to perfect the appeal until August 15, 2016. While there was delay, the respondent was aware of the Crown's intention to proceed and the Crown has provided a reasonable explanation for the delay.
[18] Warrant for Arrest
If necessary, a warrant for the respondent's arrest may be issued.
"Alexandra Hoy A.C.J.O."
"Doherty J.A."
"B.W. Miller J.A."
