Court Information

Court File No.: [Not provided]

Date: 2015-04-24

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Won Suk Ha

Before: Justice Heather McArthur

Reasons for Judgment released: April 24, 2015

Counsel:

• M. Bloch, for the Crown
• A. Little, for the Defendant

McArthur, J.:

A. Introduction

[1] Mr. Won Suk Ha is facing one count of driving with a blood alcohol concentration in excess of 80 milligrams of alcohol per 100 millilitres of blood contrary to s.253(1)(b) of the Criminal Code.

[2] Defence counsel argues that the Crown has failed to establish beyond a reasonable doubt that Mr. Ha's samples of breath were received directly into an approved instrument. As a result, he submits, the Crown cannot rely on the presumption of identity set out in s.258(1)(c). The Crown counters that the document printed out from the approved instrument and signed by the qualified technician who certified it to be the printout produced by the approved instrument when it made the analysis of a sample of Mr. Ha's breath (the Breathalyzer Printout) establishes that Mr. Ha blew directly into an approved instrument. Moreover, he submits that there is sufficient circumstantial evidence to prove beyond a reasonable doubt that Mr. Ha blew directly into an approved instrument.

[3] Both sides agree that if the Crown has failed to establish that Mr. Ha provided his samples directly into an approved instrument, then he must be acquitted.

[4] I propose to briefly outline the relevant facts, before turning to my analysis of the legal issue.

B. The Facts

[5] Given the sole legal issue to be determined, in my view it is unnecessary to go through a detailed recitation of all of the evidence called. Suffice to say, that on January 26, 2014, at approximately 1:00 a.m., Mr. Ha was driving southbound on Yonge Street, when he crossed into the northbound lane of traffic and hit another car.

[6] Officer David McCullough arrived on scene at 1:42 a.m. and spoke with Mr. Ha. He detected a smell of alcohol, although he did not notice any other indicia of impairment. Given that it was a cold night, McCullough had Mr. Ha sit in the back of his cruiser while he continued his investigation. When McCullough returned to the cruiser, he noticed that the smell of alcohol was more distinct, which confirmed for the officer that the smell was coming from Mr. Ha's breath. At that point, McCullough felt he had the reasonable suspicion required to make an Approved Screening Device demand. Mr. Ha complied with the demand and registered a Fail. Based on that, McCullough believed that he had reasonable and probable grounds to arrest Mr. Ha for over 80 and to read the breath demand. He then turned Mr. Ha over to other officers to take him to 32 Division to provide breath samples.

[7] Officer Andrici, a qualified breath technician[^1], testified that after he was informed that Mr. Ha was being brought in for breath testing, he prepared the instrument and conducted diagnostic and calibration checks. He did a self-test by "providing his own breath into the instrument". He was satisfied that the machine was in good working order. Mr. Ha then provided two breath samples.

[8] A transcript of this portion of his evidence was provided by counsel, and the exact testimony of Andrici on this point is as follows:

Q. Did Mr. Ha provide a sample of his breath?

A. Yes he did. His first suitable sample was at 2:55 a.m. the result of which was 171 milligrams of alcohol in 100 millilitres of blood. Umm, later on at 3:18 he provided his second suitable sample and the result of that was 169 milligrams of alcohol in 100 millilitres of blood.

[9] The Crown then filed the Breathalyzer Printout as an exhibit. The Certificate of a Qualified Technician (CQT) was not filed as an exhibit, since the Crown was not in a position to establish that Mr. Ha had been given notice as required by s.258(7) of the Criminal Code. The Crown then closed its case.

[10] At that, Defence counsel gave notice of his intention to argue that the Crown could not rely on the presumption of identity, because he had failed to establish that Mr. Ha provided samples of his breath directly into the machine. The Crown then applied to re-open his case. In oral reasons, I dismissed the application.

[11] I turn now to the legal issue to be determined.

C. Has the Crown Proven Beyond a Reasonable Doubt That Samples of Mr. Ha's Breath Were Received Directly Into an Approved Instrument, So as to Enable the Crown to Rely on the Presumption of Identity Set Out in s.258(1)(c) of the Criminal Code?

[12] Section 258(1)(c) of the Criminal Code arms the prosecution with an evidentiary shortcut. As long as certain preconditions are met, the section provides that the results of the tests on an approved instrument constitute conclusive proof of the concentration of alcohol in the defendant's blood, both at the time of the test and at the time the offence is alleged to have occurred. One of the preconditions is set out in s.258(1)(c)(iii) which requires that each sample "be received from the accused directly into an approved container or into an approved instrument operated by a qualified technician".

[13] As noted by Goudge J.A. in R. v. Mulroney, 2009 ONCA 766, at para. 16, because the section provides the prosecution with proof that is deemed conclusive of the concentration of alcohol in a defendant's body at the relevant time, the liberty interest of a defendant requires a strict interpretation of the section. The Crown must establish the conditions precedent to triggering the presumption of identity beyond a reasonable doubt. (See R. v. Mulroney, supra, at para. 18; R. v. Egger, at para. 32)

[14] The evidence triggering the presumption can be direct or circumstantial evidence, but it is not something that can be the subject of judicial notice. (See R. v. McNamara, 2014 ONCJ 5593, at para. 2-6; R. v. Burns, [2001] O.J. No. 1050 (S.C.J), aff'd on other grounds [2002] O.J. No. 413 (C.A.); R. v. White, [1994] O.J. No. 804 (Ont.Ct.Gen.Div.), at para. 17; R. v. Marghella, [1987] O.J. No. 1368 (Ont.Dist.Ct.); Impaired Driving in Canada, 2012-2103 Edition, Justice Joseph Kenkel, LexisNexis, at p. 23)

[15] There is no direct evidence that Mr. Ha blew directly into an approved instrument. The Crown, however, argues that he has established that this occurred in two ways. First, he says that the Breathalyzer Printout proves that Mr. Ha blew directly into an approved instrument. Second, he argues that there is sufficient circumstantial evidence to establish this point beyond a reasonable doubt. I will address each submission in turn.

[16] Pursuant to s.258(1)(f.1), the Breathalyzer Printout is evidence of the facts alleged in the document. Looking at the document, it is clear that it can serve to prove a number of things. For example, in this case, there was no viva voce evidence that an approved instrument was used. The Breathalyzer Printout, however, establishes that an Intoxilyzer Model 8000C was used to gather Mr. Ha's breath samples. The document also establishes that Mr. Ha was the test subject, the times that he provided breath samples and the readings. The document, however, does not say anything about how the samples were provided.

[17] The Crown argues that it was Parliament's intention in enacting the section to provide for easier proof in over 80 cases, and thus I can use the document to find that Mr. Ha provided his samples directly into the approved instrument. An examination of the history of the section, however, fails to reveal Parliament's intention with respect to the section at issue. The Tackling Violent Crime Act, S.C. 2008, c. 6 (the TVCA) amended the Criminal Code provisions dealing with over 80. Amongst other changes, the TVCA introduced s.258(1)(f.1). This section was the same as a proposed provision in an earlier act, An Act to Amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts (Bill C-32). That act was not passed into law. A review of the debates in the House of Commons and Senate, as well as committee meetings for each act, shows that s.258(1)(f.1) was never specifically considered.

[18] Despite that, I think it is reasonable to say that Parliament enacted s.258(1)(f.1) to allow the prosecution an easier path to establish certain facts. But it does not follow from that, that the section was intended to allow the Crown to establish the conditions precedent to the presumption of identity from that document alone. Again, the section provides that the facts contained within the document are evidence. But on its face, the document does not say that Mr. Ha's samples were received directly into the approved instrument.

[19] This can be contrasted to the information contained in a CQT, which specifically states that a sample was received directly from the accused into an approved instrument. Pursuant to s.258(1)(g)(c), the information contained in the CQT is evidence of that fact. In my view, it is noteworthy that pursuant to s.258(7) the CQT is not admissible in the absence of proper notice. There are no such notice requirements for s.258(1)(f.1). This suggests to me that Parliament did not intend the Breathalyzer Printout to prove the conditions precedent to the presumption in the same way that the CQT can.

[20] The Crown points out that the Breathalyzer Printout establishes that Mr. Ha provided two samples. He argues that I can thus infer that Mr. Ha must have done so by providing them directly into the approved instrument. In my view, this submission is, at its core, an invitation to take judicial notice of the fact that the only way to provide the samples is by providing them directly into the machine. As the weight of authority I have cited above establishes, that would be inappropriate.

[21] The Crown also argues that there is sufficient circumstantial evidence to establish that Mr. Ha provided his sample directly into an approved instrument. In my view, however, the evidence falls short of establishing this fact beyond a reasonable doubt. Andrici did describe his self-test as "providing his own breath into the instrument". But at no time did he testify as to how it was that he provided his breath. Again, I cannot take judicial notice of the fact that the only way to provide his breath would be directly into the machine. In my view this evidence is not akin to that found in R. v. Weibe, 2013 ONCJ 629, where the qualified technician said that he did a self-test by "blowing into the machine".

[22] Moreover, other than Andrici's evidence regarding the self-test, there is little evidence with respect to how Mr. Ha came to provide his samples. The facts in the present case fall short of the evidence in other cases to which I was referred. Unlike the facts in R. v. Weibe, supra, I heard no evidence that Andrici explained how the test worked to Mr. Ha. In contrast to the case of R. v. Triantos, [1994] O.J. No. 803 (Ont.Ct.Gen.Div.), I heard no evidence that the mouthpiece was inserted into the instrument and that the defendant sealed his lips around the mouthpiece. By way of further example, in R. v. Mulroney, supra, there was evidence that the approved instrument was designed to receive and analyze breath samples for blood alcohol concentration and that the defendant blew into the mouthpiece as instructed. There is no such evidence in the present case.

[23] In my view this case is similar to R. v. McNamara, supra, where the absence of evidence left the trial judge with a reasonable doubt as to whether the samples were provided directly into the approved instrument. Here, as in that case, there is no evidence of any of the following:

• that Andrici instructed Mr. Ha as to how to provide a sample;
• that Mr. Ha sealed his lips around the mouthpiece to provide his samples;
• that Mr. Ha blew into the mouthpiece as instructed.

[24] At the end of the day, based on the evidence I have heard, I am satisfied that Mr. Ha probably did provide his breath directly into the approved instrument. But I cannot find that it has been established beyond a reasonable doubt.

D. Conclusion

[25] In conclusion, I find that the Crown has failed to establish beyond a reasonable doubt that Mr. Ha provided his breath samples directly into an approved instrument. As a result, the Crown is not entitled to rely on the presumption of identity and has failed to establish that at the time of driving Mr. Ha's blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. As a result, I find him not guilty.

Date: April 24, 2015

Signed: Justice Heather McArthur

[^1]: Defence counsel conceded that Andrici was a qualified breath technician.