Court Information
Ontario Court of Justice
Parties
Between:
His Majesty the King
— And —
Peter Gyory
Judicial Officer and Counsel
Before: Justice Peter D. Tetley
Heard on: September 2 and 22, 2025
Reasons for Judgment released on: October 10, 2025
Counsel:
- Naime Sayde, counsel for the Crown
- The defendant Peter Gyory, on his own behalf
TETLEY J.:
Background
1Peter Gyory, a self-represented defendant, is charged with the offence of operating a motor vehicle with more than the lawfully permissible amount of alcohol in his blood, contrary to s. 320.14(1)(b) of the Criminal Code, the "80+" offence.
2The charge arises from a York Regional Police Service Investigation on November 19, 2024. On that day, the defendant was stopped by Constable Ryan Knight, shortly after 12:18 p.m., while operating a commercial vehicle northbound on Highway 27 in the Township of King.
3The officer's attention was initially attracted by the fact the vehicle did not have a front licence plate. On speaking to the defendant, Constable Knight testified that an odour of alcohol could be detected on the defendant's breath. This prompted an Approved Screening Device or ASD demand at 12:20, with the defendant registering a "fail" at 12:23 p.m. The failed roadside test confirmed that the concentration of alcohol in the defendant's blood (his Blood Alcohol Concentration or B.A.C.) was at least "100 milligrams or higher" according to the investigating officer. Constable Knight then proceeded to arrest the defendant at 12:30 p.m. for the offence of "over 80" or having "more than 80 milligrams of alcohol in the blood."
4After the arrest, right to counsel, and caution, the defendant was taken to 1 District Headquarters in Newmarket where subsequent breath tests confirmed the concentration of alcohol in the defendant's blood to be 109 milligrams of alcohol in 100 millilitres of blood at the time of the completion of the initial breath test and 95 milligrams of alcohol at the time of the completion of the second breath test.
5The samples of the defendant's breath were secured pursuant to a roadside demand by the arresting officer. The demand was issued at 12:31 p.m. and was confirmed as being understood by the defendant. The demand was repeated by the qualified technician, Police Constable Alexandra Positano, prior to the defendant's provision of further breath samples at the police station with the arresting officer advising that he had no further dealings with the matter once the defendant had been placed in the control of Officer Positano.
The Issues
6At the conclusion of the presentation of evidence by the prosecution, the defendant elected to call no evidence. Two issues were identified as having arisen in the prosecution's case as follows:
(i) the admissibility of the Certificate of Qualified Technician in the absence of any direct evidence that the certificate had been served on the defendant in advance of trial; and
(ii) whether the Crown was able to rely on the testimony of the qualified technician, as to the defendant's blood alcohol concentration readings, were the certificate to be deemed inadmissible.
The Law
7I am indebted to Ms. Sayde for her industry in addressing these concerns in a comprehensive and objective fashion. In circumstances involving an unrepresented defendant, it falls to both the Court and the Crown to ensure all available defences are identified and addressed. The Crown in such circumstances acts as a quasi-Minister of Justice in ensuring that the fair trial interests of the unrepresented defendant are protected. Ms. Sayde has discharged that obligation with distinction.
Analysis
A. Proof of Service of the Certificate
8Leaving aside the arresting officer's incomplete description of the results of the failed approved screening device test (confirmation of a blood/alcohol concentration of more than 100 milligrams of alcohol in 100 millilitres of blood), I am satisfied that a lawful basis existed for the breath demand that ensued. The initial consideration here is whether the Crown has proven service of the qualified technician's certificate in the absence of direct evidence in relation to that issue and the seemingly erroneous factual assertion by the arresting officer that his involvement in the investigation ended once he turned the defendant over to the qualified technician.
9The Crown references an Alberta Court of Appeal decision, R. v. Sirman, 2020 ABCA 174, in support of the contention that proof of service can be established by both direct evidence or circumstantial evidence, or both. On the trial record here, the Crown asserts that confirmation of service of the certificate of qualified technician is established by the arresting officer's signature attesting to service of the certificate on the defendant, who acknowledged service by his own endorsement on the certificate itself.
10Even in the face of conflicting testimony on this point by the arresting officer, the signatures on the face of the certificate itself are submitted to establish proof of service on the balance of probabilities standard required by what was then s. 258(7) (now s. 320.32(2)). Service of the certificate in advance is a pre-requisite to admissibility when the Crown relies on certificate evidence to prove a 80+ offence. As noted in Sirman, at para. 2"No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate." See also R. v. Redford, 2014 ABCA 336, at para. 10.
11The issue was explored in greater detail, much "closer to home", by B.P. O'Marra J. of the Ontario Superior Court of Justice, in R. v. Zorlescu, 2015 ONSC 3458, with extensive reference being made to paragraphs 31-36 of R. v. Oslowski, 2006 ONCJ 488, a decision of Justice B. Duncan of the Ontario Court of Justice. The jurisprudence relating to the requirement for reasonable notice under s. 258 of the Code was summarized in "Oslowski" as follows:
31 Reasonable notice is a concept, not a document: R. v. Spreen, 1987 ABCA 189, 40 CCC (3d) 190 Alta CA. As a concept, it is capable of evolution and must be considered in the existing legal context. That context includes the advent of full pre-trial disclosure of all relevant evidence to the defence. Such disclosure substantially if not wholly fulfills the purposes that this provision, rooted in the pre-disclosure era, was designed to serve: see R. v. Balen (2003), 30 M.V.R. (4th) 1 aff'd 39 M.V.R. (4th) 94. A further legal development is the decision of the Court Appeal in R. v. MacKinnon, clarifying that reasonable notice is a question to be determined on the balance of probabilities, and not proven beyond a reasonable doubt. It seems to me that these two developments render much of the earlier case law obsolete and certainly warrant a departure from the punctiliousness of former days.
32 Having said that, there are a number of relevant principles from the decided cases under this and similar provisions in other statutes: Notice need not be in writing: R. v. Bowles (1974), 16 C.C.C. (2d) 425 (Ont CA). Notice need not be formal in any way: R. v. Penno (1977), 35 C.C.C. (2d) 266 (BCCA). Notice may be given to counsel or counsel's representative: R. v. Meyer (1976), 29 C.C.C. (2d) 165 (BCCA). Notice is directed to alerting the other party as to the possibility, not the certainty, that a certificate will be used - it is notice that the certificate may be used in evidence; R. v. Good et al (1983), 1983 ABCA 141, 6 C.C.C. (3d) 105 (Alta CA).
33 Further, there is a consistent line of authority holding that, where no notice at all has been given, the tendering of a certificate at a preliminary inquiry provides sufficient compliance with the notice requirement: R. v. Kwok (2002), 2002 BCCA 177, 164 C.C.C. (3d) 182 (BCCA); R. v. Chang (1996), 106 C.C.C. (3d) 87 (BCCA); R. v. Norris, [1993] B.C.J. No. 1900, 57 W.A.C. 133 (BCCA); R. v. Penno supra; R. v. Cordes (1978), 1978 ALTASCAD 94, 40 C.C.C. (2d) 442 (Alta CA) and most recently R. v. Dillon, [2005] O.J. No. 2516 Hill J. Since no notice per se was given in any of those cases, it is apparent that those cases have interpreted the section as meaning "put on notice". In other words, nothing, written or verbal has to be specifically "given".
34 Finally, whether reasonable notice has been given is a question of fact: R. v. Morrison (1982), 70 C.C.C. (2d) 193 (NBCA per LaForest J.A.). This is important because, as a question of fact, its resolution is a matter of reason, logic, common sense and experience applied to evidence, and not a matter of precedent. Further, like all facts, it can be established by direct evidence or inference.
35 Accordingly, the issue becomes whether the court is satisfied on a balance of probabilities by direct evidence or by inference that, one way or another, the defendant or his counsel was reasonably put on notice that a certificate might be used at his trial. The short resolution of that issue in this case is that I am satisfied that, on the night of the breath testing, the arresting officer did provide notice of intention to the defendant at the same time that he served the certificate of analysis itself. While his notes were not specific, it is my view that it is more likely than not that the notice of intent given at that time was in relation to the concurrently served certificate and not in relation to the breach of probation charge.
36 Further, quite apart of the above, it is my view that the service of the certificate itself on a defendant represented by counsel satisfies the test as set out above. After all, in any other case where a defendant represented by counsel receives a package of disclosure, it goes without saying that it is understood that the material may be presented in evidence. Why should the understanding be any different here? Add to this understanding the fact that proof by certificate is a routine procedure and the certificate's admissibility as evidence is clearly set out in a well-known statutory provision, and the conclusion is inescapable that the test for notice has been satisfied.
12Justice O'Marra similarly concluded that proof of notice could be established on the balance of probability standard as previously concluded by the Alberta Court of Appeal in Redford and re-affirmed later in Sirman.
B. Admissibility of the Breath Test Results in the Absence of the Certificate of the Qualified Technician
13On this issue, Ms. Sayde makes reference to another decision of the Ontario Superior Court of Justice, R. v. Yi Wu, [2019] O.J. No. 5000, a decision of Justice G. Roberts, in support of the contention that the Crown can rely on the "viva voce" or oral testimony offered by the breath technician to establish the breath test results and for those results to be admissible in evidence at common law. Preconditions for admissibility require that the court is satisfied that the instrument was capable of making the measurement in issue, was in good working order and was properly used at the material time. See also R. v. McCarthy, 2013 ONSC 599, at paragraphs 21-23.
14When the prosecution relies on the evidentiary shortcut in s. 320.31(1) of the Code, the results of the breath tests are conclusive proof of the defendant's blood alcohol concentration level at the time the analysis was made, if the referenced criteria are met. Section 320.31(1) provides as follows:
Breath samples
320.31 (1) If samples of a person's breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person's blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.
15The testimony offered by the qualified technician confirms that an approved instrument was employed (an Intoxilyzer 8000C), that the qualified technician was appropriately designated, that the breath samples were secured from the defendant directly into an approved instrument that was found to be in proper working order following a series of quality assurance checks. The defendant's breath samples were concluded to be "good" or "suitable", with the analysis of the first breath sample revealing a truncated blood alcohol concentration of 100 milligrams of alcohol in 100 millilitres of blood and the second breath test disclosing a truncated blood alcohol concentration reading of 90 milligrams in 100 millilitres of blood.
Conclusion
16Based on the foregoing considerations, I conclude the prosecution has established proof of the offence alleged on the basis of proof beyond a reasonable doubt, the standard of proof that applies in a criminal case.
17In reaching this conclusion the following findings of fact are warranted:
(i) the defendant is concluded to have been operating a motor vehicle, on November 19, 2024, at the time of the traffic stop conducted by Officer Knight;
(ii) a failed approved screening device, or roadside breath test, provided a lawful basis for the ensuing demand for further samples of the defendant's breath for analysis by a qualified technician by means of an approved instrument, an Intoxilyzer 8000C;
(iii) analysis of the subsequently obtained samples of the defendant's breath confirms that the defendant's B.A.C. exceeded the legal limit, contrary to s. 320.14(1)(b) of the Criminal Code; and
(iv) the prosecution may rely, at common law, on the trial testimony of the qualified technician to establish the defendant's B.A.C. readings without reliance on the evidentiary shortcut referenced in s. 320.31(1). The point of the evidentiary shortcut, as discussed by Justice Roberts at page 3 of R. v. Yi Wu, is to avoid the need to call the qualified technician to give evidence in relation to the breath test process employed and the resulting analysis of the samples of breath provided by the defendant. That testimony is concluded to establish the breath test results as admissible and reliable.
(v) Alternatively, the prosecution can rely on the certificate evidence confirming the breath test results, with the confirmation of service of the certificate being concluded as established, on a balance of probabilities standard, by the signatures on the certificate of both the arresting officer and the defendant. The trial record is concluded to confirm that the defendant received a copy of the certificate of qualified technician before he left the police station. That certificate references the results of the breath test procedure and confirms that the concentration of alcohol in the defendant's blood exceeded the legal limit within two hours after the defendant had ceased to operate a commercial vehicle.
Verdict
18Based on the foregoing analysis, the defendant shall be found guilty of the s. 320.14(1)(b) offence.
Released: October 10, 2025
Signed: Justice Peter D. Tetley