Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tyler Eden
Before: Justice M. K. Wendl
Heard on: July 17, 2019
Decision released on: September 25, 2019
Counsel
James Damaskinos — counsel for the Crown
Bruce Daley — counsel for the accused Tyler Eden
Decision
Introduction
1Tyler Eden is charged with "over 80". This court needs to determine whether the Crown has laid a sufficient evidentiary foundation to rely on the presumption of accuracy under section 320.31(1) of the Criminal Code. Specifically, whether the Crown has proven the target value of the standard alcohol solution under section 320.31(1)(a).
2This issue is broken up into two sub-issues: (1) what is the standard of proof in relation to the presumption of accuracy (balance of probabilities or beyond a reasonable doubt) and (2) what type of evidence is admissible and persuasive on this issue.
3In the alternative, the Crown argues that if the statutory preconditions for the presumption of accuracy are not met it does not render the breath sample inadmissible, and they can prove the accuracy of the breath test through the common law or I can take judicial notice of the target value of the standard alcohol solution.
Evidence of Constable Ontonovich as it Relates to the Presumption of Accuracy
4Constable Ontonovich is a certified breath technician. He was the officer who took the breath sample from Tyler Eden. He was designated on April 16th, 2015 and gazetted on May 2nd, 2015. He was trained in the operation of the Intoxilyzer 8000c. Mr. Eden was his 58th breath test subject.
5During examination in-chief Constable Ontonovich testified that the target value for the system calibration check is 100 milligrams of alcohol in 100 milliliters of blood. He indicated that he was aware of the target value for the solution as a result of his training.[1]
6When asked by the Crown what was the target value for the system calibration check in this case, he indicated that the target value was 100 milligrams. The target value received during the calibration test on this case was 98 milligrams and he confirmed that 98 milligrams was within 10% of the target value.[2]
7Under cross-examination, Constable Ontonovich admitted receiving an email from the Crown to assist him in articulating the "appropriate new language under the new legislation that I'm required to use".[3] The email indicated as an instruction "Need to elicit that in Ontario the target value of the standard alcohol standard certified by an analyst will always be 100 milligrams of alcohol in 100 milliliters of blood."
8He also agreed with counsel when asked "basically, you're told that you should be telling the court that the target value is always, and a concentration, of 100 milligrams of alcohol per 100 milliliters of blood."[4]
9Constable Ontonovich further admitted that he could not specifically say that he looked at the bottle of standard alcohol solution that evening prior to the test, but in his experience, he's never seen a result other than 100 milligrams of alcohol in 100 milliliters of blood listed on the bottle.[5]
10In the same vein, Constable Ontonovich confirmed under cross-examination that he had no direct knowledge to offer in evidence as to what the concentration of alcohol was in the alcohol standard that he employed that night.[6] He also agreed with the suggestion under cross-examination that without an independent recollection of what the standard alcohol solution was, his conclusion that the solution was 100 milligrams of alcohol in 100 milliliters of solution was an assumption.
Does the Crown Need to Prove the Target Value for the Standard Alcohol Solution on the Balance of Probabilities or Beyond a Reasonable Doubt?
11The Crown correctly conceded that they must prove the presumption of accuracy beyond a reasonable doubt. As the Supreme Court stated in R. v. Egger:
Establishing the facts which trigger a presumption with respect to a vital issue relating to innocence or guilt is a step further advanced than the admissibility of evidence and is only reached after crossing the hurdle of admissibility. The effect of the presumption in this case is to provide conclusive proof of the accused's blood alcohol concentration at the critical time, in the absence of evidence to the contrary. This conclusion respecting the application of the criminal standard is supported by the view which has been taken relating to the presumption which arises by virtue of s. 258(1)(a). In R. v. Appleby, [1972] S.C.R. 303, confirmed in this regard by R. v. Whyte, [1988] 2 S.C.R. 3, per Dickson C.J., at p. 13, it was accepted that "[t]he presumption was included to allow the Crown to prove care or control by proving beyond a reasonable doubt that the accused occupied the driver's seat".[7]
Is the Evidence of Constable Ontonovich Sufficient and Persuasive?
12I agree with Caponecchia J.'s recent comments on this issue in R. v. Paradzayi:
As I did with the Shaikh issue, I will rely on the weight of the authority on this issue. Specifically, Justice Duncan's decision in Yip Chuck[6] at paras. 14-17. Justice Duncan held that the Crown may establish the pre-conditions set out in s. 320.31(1)(a) of the Criminal Code through viva voce evidence, including hearsay. The Crown did so here. I accept Cst. Feasby's evidence. He is a Qualified Breath Technician, qualified to operate the approved instrument used in this case. He clearly explained why he knew the alcohol standard solution he used had a target value of 100mg of alcohol and why the result he obtained when conducting his calibration checks were within 10% of the target value, as required by s. 320.1(1)(a).[8]
13The weight of the authority clearly supports the admission of Constable Ontonovich's evidence that, in his experience and training, the target value of the standard alcohol solution is 100 milligrams of alcohol in 100 milliliters of solution.
14The question now becomes: was that evidence undermined by Mr. Daley's cross-examination? In my view, it was.
15Although Constable Ontonovich testified that in his experience the target of standard alcohol solution was always 100 milligrams of alcohol in 100 milliliters of blood, he agreed with the suggestion put to him by counsel in cross-examination that: "basically, you're told that you should be telling the court that the target value is always, and a concentration, of 100 milligrams of alcohol per 100 milliliters of blood." In addition to that he has no recollection of what the alcohol solution was at the time of this incident.
16Based on this, the court cannot be sure whether Constable Ontonovich's evidence about the target value for the standard alcohol solution is based on his experience and training with the email as a testimonial aid, or whether he was simply parroting his instructions.
17As a result, in these narrow circumstances, while acknowledging Constable Ontonovich's capacity to give admissible evidence on the target value of alcohol solution, the Crown has not proven beyond a reasonable doubt that the system calibration check was within 10% of the target value.
Proving the Accuracy of the Sample Without the Presumption
18The Crown argues that the failure to prove the target value for the standard alcohol solution does not render the breath results inadmissible. I agree. The failure to prove the target value for the standard alcohol solution renders the presumption of accuracy under 320.31(1) inoperable. The Crown argues that they can still prove the accuracy of the instrument through the common law.
19The Crown states the common law test for accuracy is:
- That the instrument was capable of making the measurement in question;
- That it was in good working order; and
- That it was properly used at the time.
20I agree that the loss of the presumption allows the Crown to prove the accuracy of the instrument by other means. Leaving aside whether the common law test advanced by Crown is correct and the exact nature of the evidence required on this issue (i.e whether a qualified expert is needed), in my view, the Crown would still be required to prove, at the very least, the target value of the standard alcohol solution to determine the accuracy of the machine.
21Constable Ontonovich agreed the standard alcohol solution is the benchmark by which he determines what is happening with the Intoxilyzer 8000c.[9] He agreed that the system calibration check will give him information that the Intoxilyzer is working properly if he knows the target value for the standard alcohol solution.[10] He also agreed that his conclusion that the machine was working properly was based on his assumption of the target value of the standard alcohol solution.[11]
22Simply put, without knowing what the target value is for the standard alcohol solution, we cannot know if the machine is properly calibrated and therefore accurate. Based on this evidence, for the Crown to prove by common law that the machine was accurate, they would still need to prove the target value for the standard alcohol solution.
23Therefore, again, leaving aside the exact nature of the evidence required and whether the common law test as posited by the Crown is correct, without being sure what the standard alcohol solution target value is, and considering the evidence as a whole, I am left with a reasonable doubt that Mr. Eden's blood alcohol sample was accurate, hence, I am left in a reasonable doubt as to the charge of "over 80."
Judicial Notice
24Finally, I will not take judicial notice of the target value of the standard alcohol solution. The closer a fact at issue is dispositive of the case, the Courts ought to require strict proof of the matter and should not take judicial notice of it.[12]
Conclusion
25Based on the reasons above, I acquit Mr. Eden of the charge of "over 80".
Released: September 25, 2019
Signed: Justice M. K. Wendl
Footnotes
1R. v. Eden transcripts of trial, July 17th, 2019, Guelph, Ontario page 33 lines 6-14
2Ibid at page 34 lines 19-27
3Ibid at page 40 line 7
4Ibid page 48 line 29-31
5Ibid at page 45 lines 9-14
6Ibid at page 46 lines 10-14
7R. v Egger, [1993] 2 SCR 451
8R. v. Paradzayi, 2019 ONCJ 599
9R v. Eden, supra, at page 41 line 12-14
10Ibid page 44 line 19-22
11Ibid page 48 line 19-21
12R. v. Spence, 2005 SCC 71 , [2005] 3 S.C.R. 458 at 61