Court Information

Information No.: S13 – 4752

Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

Her Majesty the Queen

• and -

Patrick McNamara

Counsel

Ms. S. Clermont for the Crown

Mr. B. Starkman for Patrick McNamara

Reasons for Judgment

NADEL, J.:

Introduction

[1] Mr. McNamara is charged with care and control while being over 80. The only evidence capable of supporting that charge is the testimony of the qualified technician, (Q.T.,) Officer Tammy Morden. The issue joined is whether the Crown has proved that "each sample was received from the accused directly into an approved instrument" as required by s. 258(1)(c)(iii). Mr. Starkman, relying upon R. v. White, [1994] O.J. No. 804 (Prov. Ct.), submits that judicial notice is not available to assist the Crown and that the evidence adduced is insufficient to permit this fact to be inferred. Ms. Clermont demurred and, relying upon R. v. O'Meara, 2012 ONCA 420 and R. v. Wiebe, [2013] O.J. No. 5377 (OCJ), contended that that fact can be inferred from Morden's evidence. The parties are agreed that if the reception of the accused's breath directly into the approved instrument can be inferred then a conviction follows and if not then Mr. McNamara must be acquitted.

The Law

[2] One of the prerequisites to establishing the presumption of identity provided for by s. 258(1)(c) is that "each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician." This requirement can be established by direct testimony or through inference from other evidence but it is not a matter that may be judicially noticed.

[3] Binding authority to that effect can be found in R. v. White, [1994] O.J. No. 804 at paragraph [12] where J.H. Jenkins J., sitting as a summary conviction appeal court, approved that holding by Misener J., also sitting as a summary conviction appeal court, in R. v. Marghella, [1987] O.J. No. 1368. Misener J. went on to say:

"Nor do I think that judicial notice can be taken of the fact - if indeed it is a fact - that the Borkenstein Model 900-A breathalyzer instrument will not make a chemical analysis without receiving the sample into it. I am mindful of the fact that in Reg. v. Walters (1975), 26 C.C.C. (2d) 56, MacDonald J.A. in obiter suggested the contrary. I cannot bring myself to agree. I certainly do not, from my own general knowledge and experience, know that to be the case, nor do I think that it is a matter of general knowledge either universally or in any given community. Indeed, I would hope that the vast majority of the members of any jury anywhere that might be constituted to try a case involving the Borkenstein Breathalyzer Model 900-A would be totally ignorant of both what it looked like and how it worked."

[4] More currently, J. Shriar J., a Provincial Court Judge in Alberta, came to the same conclusion in R. v. Willier, [2007] A.J. No. 1030 at paragraph [32]. Despite identifying some authorities to the contrary, Shriar J. preferred and followed Marghella, White and R. v. Burns, [2001] O.J. No. 1050 (SCO), (another summary conviction appeal decision where judicial notice was held to be unavailable to provide the finding that an accused's breath was introduced "directly into" an approved instrument.)

[5] Burns is an extreme application of both the unavailability of judicial notice and of the need for compelling evidence before a court can infer that an accused's breath was introduced directly into an approved instrument. In Burns the Q.T. testified that the accused "completed providing the first sample directly into the approved instrument" but on the second test he merely testified that the accused "commenced providing the second sample" which was analyzed. Sheffield J. held the missing words "directly into" could not be supplied by judicial notice nor inferred on this evidence.

[6] On the issue of the availability of judicial notice, our Court of Appeal came to the same conclusion in R. v. Mulroney, [2009] O.J. No. 4581 at paragraph [18] by holding that "the Crown had to establish beyond a reasonable doubt that the breath samples were received into the approved instrument directly from the accused."

[7] In sum, the following conclusions are apposite:

1. "directly into" cannot be inferred merely from the definition of "approved instrument";

2. judicial notice cannot be used to supply the proof that an accused's breath samples were received directly into an approved instrument;

3. the liberty interest of an accused requires a strict interpretation of s. 258(1)(c)(iii).

The Evidence of the Qualified Technician

[8] Officer Tammy Morden was conceded to be a Q.T. She used an Intoxilyzer 8000C, an approved instrument, to conduct the breath testing demanded of the defendant. She prepared the machine appropriately and correctly. She identified the Alcohol Standard Solution that she used in testing the approved instrument, along with its lot number, date of manufacture and expiry date, (the latter being September 30, 2014.) She testified that the Alcohol Standard Solution had been changed on November 17, 2013.

[9] Having noted all of the foregoing, she conducted a diagnostics check at 2:05 a.m. to ensure that the machine was operating properly. It was. At 2:07 a.m. she conducted a calibration check to verify the machine was functioning accurately. It was. Then at 2:09 a.m. she conducted a test on herself to ensure that the approved instrument was capable of "getting" (sic) a breath sample. It could. Her self-test provided a result of zero as she had not been drinking. However, she did not explain or describe the process by which she conducted that self-test.

[10] Between 2:13 a.m. and 2:20 a.m. she received the grounds for the defendant's arrest and at 2:23 a.m. she was presented with the defendant and commenced to conduct his breath tests.

[11] Officer Morden's only evidence with respect to the process that she used to test the defendant was as follows:

A. … I conducted two breath tests. The first one was at 2:23 a.m. He provided a sample of his breath into the instrument, and I received a result of 183 milligrams of alcohol in 100 millilitres of blood. …

A. I conducted the second test, and after the second test I advised him of the results, and he became angry again. The second test was at 2:55 a.m. and the result at that time was 187 milligrams of alcohol in 100 millilitres of blood, which was, satisfied me that the testing, was complete at that point.

Q. … He was able to provide the samples easily? Did it take many tries, if I may ask?

A. I don't have any, any notation that there was any issue with providing the sample. I don't recall that it was, that it was particularly difficult.

Discussion

[12] In R. v. Triantos, [1994] O.J. No. 803 (Gen. Div.) Misener J. sitting as a summary conviction appeal court found that the trial judge clearly erred in holding that evidence of a direct blow into the approved instrument was lacking given that the Q.T. testified that he advised Triantos how to provide a proper sample and that Triantos sealed his lips around the mouthpiece and provided a proper sample. The Q.T. testified that the same procedure was used for the second test.

[13] At paragraph [8] of Mulroney the summary conviction appeal court "held that no evidence was led 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." (emphasis in the original)

[14] The Court of Appeal overturned and reversed this ruling and held, at paragraph [21] that there "was ample circumstantial evidence from which the trial judge could properly conclude … that the respondent's breath samples were received directly into the approved instrument …" The Court of Appeal specifically noted that the trial judge did not take judicial notice that the samples were received directly into an approved instrument simply by virtue of the fact that results were obtained from the use of such an instrument. Rather, on an uncontested basis, the Q.T. had testified, in addition that:

• the tests were administered by a Q.T.;
• the approved instrument was designed to receive and analyze breath samples for blood alcohol concentration;
• the approved instrument appeared to be working properly;
• the accused blew into the mouthpiece of the instrument as instructed; and,
• the blows provided suitable samples for analyses.

[15] In R. v. Wiebe, [2013] O.J. No. 5377 (OCJ) the defence conceded that the Q.T. was a Q.T. and that he was operating an approved instrument. G.F. Hearn J., at paragraph [65], concluded that "[a] logical and reasonable inference from the admission … [was] that [the Q.T.] was a properly qualified individual capable of operating the approved instrument and receiving samples in a proper manner in order that results could be obtained; i.e. by samples being provided directly into the approved instrument."

[16] In arriving at this conclusion, Hearn J. relied upon the fact that the Q.T. conducted a diagnostics check, a calibration check and a self-test which the Q.T. described as "blowing into the machine," and further that he explained the test to Wiebe and how it worked, "how the instrument worked."

[17] Given all of that, Hearn J. concluded that "it is a logical and reasonable inference that a qualified technician when explaining the 'test' would advise the accused as to the manner of providing a sample in order that 'results' would be obtained. The 'results' would be obtained in the same manner as the self-test result undertaken by [the Q.T.], i.e. by 'blowing into the instrument'." Hearn J. went on to observe "[i]ndeed, it is hard to imagine results being obtained in any other fashion other than the samples of breath being provided directly into the instrument."

[18] Regrettably, given the high readings demonstrated by McNamara's test result, I am unable to agree. It seems to me that unless the breath of the detainee can be assuredly introduced into the approved instrument in isolation, that is to say, directly into the approved instrument, the Crown is not entitled to take the benefit of the "presumption of identity" provided for in s. 258(1)(c)(iii). The point of the provision appears to be to guard against the introduction of ambient air into the instrument so as to achieve a reliable result unique to the accused.

[19] In this case there was no evidence of any of the following:

• that the Q.T. instructed the defendant as to how to provide a proper sample;
• that the defendant sealed his lips around the mouthpiece and provided a proper sample;
• that the same procedures were used to obtain the second sample; or,
• that the defendant blew into the mouthpiece of the instrument as instructed.

[20] It is almost a certainty that McNamara's tests were properly conducted but my confidence in that conclusion is a product of impermissible judicial notice or information that I gleaned from evidence called in prior cases. If I was permitted to apply that knowledge I would undoubtedly convict. However, I am not permitted to supplement the evidence adduced by filling in the missing testimony that McNamara blew "directly into" the approved instrument.

[21] That particular fact must be given in evidence or must be inferable to the exclusion of any reasonable doubt. In my view, the evidence called in this case falls short of demonstrating to the exclusion of any reasonable doubt that s. 258(1)(c)(iii) was complied with. In the result, I find the defendant not guilty.

Dated at St. Catharines, this 14th day of November 2014

J.S. Nadel (OCJ)

Footnotes

[1] In O'Meara the qualified technician did testify that the accused provided his samples directly into the instrument. O'Meara dealt with whether the trial judge was correct in finding that the requirements of s. 258(1)(c)(iv) had been proved. The Court of Appeal concluded that she was. Interestingly, while the requirements of s. 258(1)(c)(iii) cannot be proved by resort to the definition of an approved instrument, the Court of Appeal in O'Meara effectively held that the requirements of s. 258(1)(c)(iv) could be inferred to exist by virtue of the definition of an "approved instrument", at least where there was no challenge to the device in question being an "approved instrument":

34 As explained by Robins J. in R. v. Lightfoot (1979), 2 M.V.R. 113 (Ont. H.C.), at p. 120: "an approved instrument is by definition ... designed to perform a chemical analysis" (emphasis added). In this case there was evidence that the breathalyser used was an approved instrument and that results were properly obtained. None of this evidence was contested by the respondent. In my view, there was ample circumstantial evidence from which the trial judge could properly conclude, as she did, that the respondent's breath samples went through an analysis by means of an approved instrument. Admittedly, the breath technician did not specifically testify that the breathalyser instrument in question analyzed the accused breath samples. However, that is a reasonable inference the trial judge could draw from the fact that the approved instrument provided results of the breath samples.

[2] In Wiebe G.F. Hearn J. held that since the qualified technician testified that he blew into the approved instrument to conduct his own self-test, and since he explained to the accused how to provide samples, the accused's results would be obtained in the same manner and hence he inferred that the accused blew directly into the approved instrument.

[3] There was no video evidence of the breath-testing in this trial.

[4] See Mulroney at paragraph [16]. Moreover, R. v. Eggar, [1993] 2 S.C.R. 451 at paragraph [32] provides that facts which trigger presumptions regarding issues critical to determining the guilt of an accused must be proven by the Crown beyond a reasonable doubt.