Court File and Parties

COURT FILE NO.: CR 21-10000028-00AP; SCA 28/21 DATE: 20220419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – YEWON KIM Appellant

Counsel: Matthew Shumka and Matthew Morley, for the Crown Respondent Adam Little, Counsel for the Appellant

HEARD: February 10, 2022

AMENDED RULING - SUMMARY CONVICTION APPEAL

BOUCHER J.:

Introduction

[1] The appellant was convicted by the Honourable Justice Mocha on March 25, 2021, of s.320.14(1)(b), operating a motor vehicle with excess blood alcohol. This is the summary conviction appeal decision in the matter.

[2] The appellant argues two issues. The first relates to s.24(2) of the Charter, and the trial judge’s decision to admit the breath test evidence. The appellant argues three errors with respect to s.24(2).

a. First, that the judge failed to adequately assess the seriousness of the breaches by not referring to an additional breach of s.10(a), by not considering the combined effect of multiple breaches, by not adequately recognizing the constitutional consequences of breaches of those rights, and by missing elements that would have made the breach more serious.

b. Second, that the judge erred in assessing the impact of the breach by focusing on the evidence of impact on the accused without specifically considering the rights compromised for the accused, by ignoring the psychological impact of such breaches as recognized by caselaw, by not considering the extenuating impact of multiple breaches, and by under weighing the timing issues and significance of the breach with respect to the right to counsel.

c. Third, that the judge erred in not properly balancing the factors, which balancing should have resulted in exclusion.

[3] The second issue relates to the certificate of the qualified technician that was admitted under s.320.32 of the Code. The appellant argues, for the first time on appeal, that the trial judge erred in incorrectly receiving and using hearsay evidence regarding the certification status of an alcohol standard solution used in calibrating the approved instrument that analyzed the appellant’s breath samples.

Overview of facts found at trial

[4] At trial, the appellant brought an application alleging breaches of s.8, 9, and 10(b) of the Charter.

[5] The facts were that on January 1, 2020, at 5:15 a.m., the appellant collided with a salt truck on Highway 401 East, hitting it from behind after the truck had merged onto the highway. The salt truck suffered some damage, however, the appellant’s vehicle suffered extensive damage: the front bumper was stuck to the rear of the salt truck and the front of the car was “crunched up”. The appellant was the sole occupant of the car. The salt truck driver called for paramedics, and the appellant waited in the driver’s truck.

[6] The police arrived 20 minutes after the collision. The police directed the salt truck driver and the appellant to the collision reporting centre at the Keele Street police detachment so they could report the accident in a safe location, rather than a live line of traffic on the 401. The truck driver took his own vehicle and arrived at the station 10 minutes later. The appellant rode in the tow truck carrying her car. The officer left the scene at 5:27 a.m. and arrived at the detachment at 5:45 a.m. The truck driver asked to fill out the collision report in his truck, which he did.

[7] The appellant rode to the detachment in the tow truck. According to the trial judge’s factual findings, the officer formed his grounds to make the breath demand for the approved screening device at 5:48 a.m. when he encountered the appellant at the truck, smelled alcohol on her breath, observed that she had a flushed red face and had difficulty standing, and learned that she had been consuming alcohol with friends in North York prior to the accident. The judge found that the appellant was then brought to an interview room, and the officer went to retrieve an ASD device. The officer then read the demand and did the test at 6:03 a.m., which was about 15 minutes after the officer had initially formed his suspicion.

[8] The officer believed the appellant understood the demand, but not the gravity of the situation. The appellant registered a fail reading at 6:05 a.m., after a first attempt that failed because of a breath interruption error. After the fail reading, the officer arrested the appellant (for the offence before the court), then read her rights to counsel and caution, and then read the demand for breath samples for an approved instrument at 6:08 a.m.

[9] The appellant requested to consult duty counsel. The officer called duty counsel for her at 6:17 a.m., after she was booked into the detachment. Duty counsel called back shortly after, and the appellant consulted with counsel between 6:28 a.m. and 6:39 a.m. The appellant then completed the breath tests into the approved instrument, which at 7:20 a.m. then registered readings of 160 and 150 mg of alcohol in 100 ml of blood.

[10] At trial, the appellant argued that her s.8, 9, and 10(b) rights were infringed because the officer did not comply with the “immediacy” requirement for making the ASD demand. The trial judge determined that the appellant’s detention commenced when the officer began questioning her about her alcohol consumption, between the time when she had been in the tow truck and before entering the detachment. The trial judge found that the demand was not read until 15 minutes after the officer had formed his reasonable suspicion, not accepting the officer’s estimation of time when the demand was read and found that 5 minutes would have been a reasonable delay to obtain the approved device and make the demand. The trial judge concluded that the remaining 10-minute delay in making the demand was unreasonable in accordance with R. v. Quansah, 2012 ONCA 123, because there was no explanation for the 10-minute delay. The trial judge concluded that this delay caused a breach of all the Charter rights in issue.

[11] In considering the first branch of the s.24(2) test, the trial judge found no evidence of institutional issues contributing to the delay, but concluded the breach was serious because there was not due consideration of the appellant’s rights. On the second branch, the trial judge recognized a presumed impact on the appellant’s rights but found there was no evidence of specific impact on the appellant apart from noting that she could have spoken to a lawyer 10 minutes earlier. The judge found that the breaches were minimally intrusive, that there was effectively no psychological impact and that the delay was brief, concluding that there was no serious impact on the appellant’s rights. For the third branch, the trial judge found that although the Charter violations could have an impact on the truth-seeking function of the trial, the breath samples were reliable and crucial evidence. The trial judge concluded that the latter two branches of the test favoured of admission, then weighed the considerations, and then ultimately ruled the evidence admissible.

1) Issue #1 – S.24(2)

[12] The appellant argues that the trial judge erred in assessing the second branch of the Grant analysis by failing to adequately consider the impact on the accused of the multiple breaches of Charter rights, and in focusing only on the impact of the s.8 breach, as well as arguing that the trial judge underappreciated the seriousness of the conduct for the first branch, and that the judge failed to adequately balance the factors in deciding not to exclude the evidence. The appellant also seeks to argue, for the first time on appeal, that the appellant’s s.10(a) rights were also violated and that this would have made more serious the Charter infringing conduct and changed the impact of the breach, such that the balancing exercise would require exclusion of the evidence.

[13] At trial, the appellant argued breaches of s.8, s.9, and 10(b). The trial judge agreed with the defence submission, finding that the investigating officer did not comply with the immediacy requirement of the sample demand provisions.

Nevertheless, I find that the immediacy requirement for the reasons that I stated, and that is specifically that there was no legitimate or reasonable explanation for the 10 minute delay, that the immediacy requirement was not complied with, and I find that the applicant’s Charter rights were violated.

[14] With respect to the first branch of the Grant framework for analyzing s.24(2), the trial judge found the breach to be serious because the officer breached the immediacy requirement through either careless or lack of appropriate attention to the appellant’s Charter rights. In turning to the second branch of the Grant framework, the judge found that the breaches did not have a serious impact on the appellant’s Charter protected interests.

The second factor is the impact of the violations on the Charter protected interests of the applicant. There was no evidence presented about any specific impact upon the applicant. Although there is presumed impact on the applicant given the seriousness of the violations, the obtaining of the breath samples is minimally intrusive. The relatively brief delay before the ASD demand was given did not appear to have a serious impact on Ms. Kim who, according to Officer Noh, did not seem to understand the seriousness of the situation even once the demand was read. She may have been able to speak to counsel 10 minutes earlier but, again, this did not result in any serious impact to the applicant. I find the second factor to militate in favour of admission.

[15] In analyzing the appellant’s argument, I start by noting two generally applicable points.

[16] First, the reasons were delivered orally at the conclusion of trial, in a busy provincial court, on a type of case regularly handled in that court. Judges in such circumstances are presumed to know the law with which they regularly work, and impugned passages from the judge’s reasons for decision must be considered in light of the whole decision, in the context of the evidence heard and the submissions of the parties. R. v. R.D.S., [1997] 3 SCR 484; R. v. R.E.M., [2008] 3 SCR 3; R. v. H.S.B., [2008] 3 SCR 32.

[17] Second, the trial judge’s conclusions on s.24(2) are entitled to considerable deference on appeal unless the record reveals an error of law or principle, or an unreasonable or palpable and overriding factual error with respect to the evidence. R. v. Côté, 2011 SCC 46, at para. 44; R. v. Grant, 2009 SCC 32, at para. 86.

[18] Given those principles, considering the trial record filed and the reasons for decision, for the reasons set out below, I conclude that the trial judge’s reasons demonstrate having considered the applicable Charter issues regarding the impact on the appellant’s Charter protected interests as required by the Grant analysis for s.24(2).

a) Seriousness of the conduct

[19] In terms of the seriousness of the conduct, the appellant argues that the trial judge failed to recognize the added seriousness of multiple Charter breaches in assessing the seriousness of the conduct. However, reading the decision as a whole, it is apparent that the trial judge recognized that multiple Charter breaches were in issue and that each of these issues had bearing on the s.24(2) analysis. The trial judge mentioned factors specific to each Charter throughout the s.24(2) analysis. In the circumstances of this case, there was not separate misconduct or error forming the basis for each Charter breach. Rather, the delay in making the demand while the appellant was detained resulted in the breach of multiple Charter rights. The trial judge’s summary fashion of assessing the seriousness in these circumstances reveals no error of failing to appreciate the seriousness of all the conduct. In any event, the trial judge found the breach to be serious, assessing that the officer’s conduct was careless at best, having not demonstrated appropriate attention to the appellant’s Charter rights, and the trial judge did not minimize or undervalue the seriousness of the breaches in assessing this factor.

[20] The appellant also suggested that the factual record and findings support a conclusion that the officer gave misleading evidence, and that giving misleading evidence should have made the breach more serious. I do not accept this suggested interpretation of the decision. While the trial judge did not accept the timing evidence given by the officer, this was based on the cross-examination that linked the forming of suspicion around the discussions outside the detachment and the timing of giving paperwork. This appears to have been an evidence reliability issue, although not a finding that the officer was trying to mislead the court. The trial judge accepted the remainder of the officer’s evidence, including that he read the demand just prior to the time that the ASD was administered. The timing issue ultimately was the reason for the trial judge finding the Charter breaches, and so the issues related to timing were adequately incorporated into this branch of the Grant analysis.

b) Impact on the appellant’s Charter-protected interests

[21] In terms of the impact on the appellant’s Charter-protected interests, the trial judge considered factors specific to each Charter right in issue.

[22] The trial judge was entitled to conclude from the facts found at trial and the governing caselaw that the search and seizure was minimally intrusive: R. v. Jennings, 2018 ONCA 260 at paras.29-32. The Ontario Superior Court had also ruled in several cases prior to this trial decision that, in line with Jennings, breaches of s.9 in this context similarly could be considered minimally intrusive: R. v. Ferose at paras.47-52 and 55; R. v. Merko, 2018 ONSC 7336 at paras.41-45; R. v. Barr, 2018 ONSC 2417 at paras.56-58. Accordingly, that the breaches were a minimal intrusion was the conclusion open to the trial judge, both legally, and factually, given the judge’s relevant evidentiary findings, the brief nature of the detention and the lack of psychological concerns.

[23] Regarding the s.10(b) breach, the appellant argues there should have been more focus on s.10(b)’s purpose as a “lifeline for detained persons” to “obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained”, R. v. Rover, 2018 ONCA 745 at para.45. The trial judge referred to the appellant’s psychological state during the detention period, a factor referenced in Rover, in determining that the appellant had not suffered a major impact. That factual finding is entitled to deference and is not unreasonable given the absence of contrary evidence. The appellant had the burden on the voir dire and did not testify.

[24] The appellant argues the trial judge mischaracterized the impact of the deprivation of counsel, describing it as a relatively brief delay when it was not, during a period when the applicant was confused and waiting in an interview room, deprived of the ability to make an informed choice about complying with screening device demand.

[25] Viewing the appellant’s arguments against the evidence at trial and the trial judge’s findings, the trial judge was entitled to consider the period of delay as short. There was no evidence that the appellant was uncomfortable or under duress. There was no evidence that the appellant was confused, rather, the evidence was that she understood everything, but that she did not seem to appreciate the gravity of the circumstances. The actual number of minutes more than what was reasonable for retrieving the device was 10 minutes, which the trial judge was entitled to find as relatively short in those circumstances.

[26] The appellant argues that the trial judge should have also considered that the appellant could have decided not to provide self-incriminatory evidence if she had been provided her s.10(b) rights earlier. However, there was no specific evidence that the appellant might have made different choices if counsel advice had been given earlier, and no evidence that the appellant suffered impact apart from the presumed impact recognized by the trial judge. While it was not necessary for the appellant to call such evidence, in its absence, it was open for the trial judge to conclude on the evidence that the breach of s.10(b) had a minimal impact on the appellant’s right to counsel, particularly because of the short delay. This was not a situation like in R. v. Kubacsek, 2021 ONSC 5081, where the delay issues were clearer in terms of waiting for a device to be brought from another location and where the judge on appeal posited that different advice might have been given. Here, it would have been speculative that her counsel’s advice might have been to not comply with the screening demand because the delay was too long, in the circumstances where the appellant was in a detachment with a device nearby, with the delay not being fully realized during such a hypothetical call in that 10-minute window.

[27] In any event, the trial judge’s analysis recognized that had there been no s.10(b) breach, the appellant could have accessed counsel 10 minutes earlier. However, the trial judge balanced that consideration against the fact that the appellant consulted counsel for 22 minutes before she completed the approved instrument test. The trial judge’s conclusion that the s.10(b) breach was of minimal impact aligns with those factual findings since there was not a complete deprivation of counsel and that it happened before the next phase of testing.

[28] The trial judge was entitled to conclude that the impact of the s.10(b) breach did not cause a major impact in the context of a relatively short delay, related to an investigative procedural step. In terms of s.10(a), see the discussion below. Even if the issue were to have been considered by the trial judge, the additional issue would not have made a difference in any event given the trial judge’s findings of the appellant’s understanding of the situation before and after more information was given and given the evidentiary gap about the appellant’s understanding while waiting for the screening device for the short period.

c) Society’s interest in an adjudication on the merits

[29] For the third branch, the trial judge recognized the negative impact of Charter violations on the truth-seeking function but concluded that the reliability of the breath sample evidence, and its importance to the case, rendered the factor in favour of admission. The consideration of this factor and the weighing process took into account relevant factors identified in Grant and was without error.

[30] The trial judge’s ultimate balancing of the s.24(2) factors was in line with the Grant framework. The trial judge recognized that the s.24(2) analysis should not be a mere mathematical calculation, but rather, that she was required to weigh all the factors. The judge then ultimately concluded that exclusion was not the appropriate remedy. That statement, along with the trial judge’s factual findings, the immediately preceding analysis of the relevant considerations, and the assessment of whether each factor weighed in favour of exclusion, constituted a sufficiently meaningful balancing exercise to decide the issue of exclusion. The trial judge’s finding that exclusion was not appropriate was an available conclusion in the trial judge’s discretion, because there was no error evident in the considerations for each factor or the balancing of the factors.

S.10(a): raised for the first time on appeal

[31] The appellant argues that in addition to the other breaches found by the trial judge, the police also violated s.10(a) of the Charter by not immediately informing the appellant of the reasons for her detention. The appellant argues that she was deprived of a meaningful opportunity to decide whether to submit to her detention and how to conduct herself, and that this had a serious impact on the appellant’s Charter-protected interests for s.24(2). The Crown respondent objects to the appellant raising the s.10(a) issue for the first time on appeal in support of his argument related to s.24(2). They argue that the Crown would have led additional evidence relevant to the s.10(a) issue had it been raised at trial, and they do not agree that a s.10(a) violation is established on the evidentiary record.

[32] Generally, appellate courts “will not entertain grounds that were not raised at trial” for both “constitutional and non-constitutional” arguments. R. v. Reid, 2016 ONCA 524 at para.44.

[33] There are four reasons generally cited for this general rule. First, there is the potential for prejudice to the other side from the “lack of opportunity to respond and adduce evidence at trial”. Second, there are concerns related to the absence of a sufficient record to make findings of fact to properly determine the issues. Third is the societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at the first instance. Fourth is the responsibility of defence counsel to make decisions in the client’s best interests and advance all appropriate arguments through the trial process.

[34] The decision to allow an appellant to advance an argument for the first time on appeal is a discretionary decision informed by a balancing of the interests of justice as they affect all parties. R. v. Reid, 2016 ONCA 524 at para.44. The Court of Appeal in Reid at para.43 noted three preconditions to be satisfied before a court would allow an argument to be raised for the first time on appeal.

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

(ii) the failure to raise the issue at trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

[35] In cases where the new issue is related to an evidence exclusionary rule, for example with hearsay evidence, the appellant must establish that the evidence was inadmissible. If the appellant establishes only a mere possibility that the evidence may have been excluded, an appellate court will not find there to have been an error of law or miscarriage of justice requiring a new trial. R. v. Bero, 2000 ONCA 16956 at paras.11-13.

(i) Sufficiency of Evidentiary record

[36] At trial, the focus of the defence Charter application (a copy of which was filed on appeal) was on the issue of whether the demand was made “immediately” and the consequential breaches of s.8, s.9 and s.10(b) that resulted from the delay. There was no argument or evidence about whether there was a sufficient informational basis for the detention provided to the appellant.

[37] In terms of the factual record, the officer testified he formed his suspicion, made the demand, and placed the appellant in the interview room while he got the screening device. The trial judge, however, rejected the officer’s estimation of when he communicated the demand and when he formed his suspicion, finding instead that the officer first formed his suspicion, then placed the appellant in the interview room, then retrieved the device, then made the demand. The trial judge did not make any factual findings about what the appellant was told about the basis for her detention at the time of the officer’s suspicion, or when she was placed in the interview room. Because of the factual findings about the timing of the demand, and the lack of findings about any communication around the time of detention, there is an insufficient evidentiary basis for this appellate court to fully, effectively and fairly determine the s.10(a) issue for the first time on appeal. This court could not make a finding about s.10(a) based on the trial record as to whether there was enough information given to the appellant to meet the appellant’s needs for s.10(a), given the trial judge’s factual findings.

(ii) Strategic / Tactical reasons

[38] The record provides limited insight into whether the omission of the s.10(a) argument was for a strategic reason, or because the evidence would not have supported the argument. There is no suggestion of negligence or incompetence. However, as I describe below, the addition of a s.10(a) argument into the mix would not have significantly increased the seriousness of the overall Charter-infringing conduct, so it is possible that the defence left out the less strong or less serious claims of misconduct to focus on the more significant issues.

(iii) Miscarriage of Justice?

[39] In any event, no miscarriage of justice would result from the appellant not being allowed to raise this on appeal. The evidence at trial was that the appellant was immediately informed of the reason for her detention, and the trial judge disagreed only with the timing aspect of the demand. On any view of the evidence, the appellant would have been advised of the reasons for her detention shortly after any breach would have occurred, so the period of not being adequately informed would have been brief, and the judge found that the appellant did not suffer any negative psychological impacts in the detention period. Further, the evidence that was obtained following any breach was objective, reliable evidence of breath samples. In the circumstances, it is unlikely that the 10-to-15-minute delay in question regarding s.10(a) would have had a significant impact on the trial judge’s weighing of the Grant factors because of her other factual findings in terms of the brevity and circumstances of the detention prior to the police fulfilling the s.10(a) right.

[40] Given all the factors, the court would not allow this s.10(a) issue to be raised for the first time on appeal. Even if the factor were raised, as discussed above, the issue would not add significantly more seriousness or impact to have changed the result in the s.24(2) analysis, for the same considerations relevant to the other Charter breaches, as the issues are not sufficiently distinct in this context from those at play in s.9 or s.10(b).

2) Issue #2: S.320.32 / hearsay issue

Issue raised for the first time on appeal

[41] The Crown objects to the appellant raising the s.320.32/hearsay objection for the first time on appeal. As I noted in the s.10(a) section above, appellate courts “will not entertain grounds that were not raised at trial” for both “constitutional and non-constitutional” arguments (R. v. Reid, 2016 ONCA 524), and the factors to balance in the discretionary decision to allow an argument to be raised for the first time on appeal are those set out in R. v. Reid, 2016 ONCA 524 at para.43.

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

(ii) the failure to raise the issue at trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

[42] I restate as well that where the new issue relates to the exclusion of evidence, for example hearsay evidence, the appellant must establish that the evidence was inadmissible. If the appellant establishes only a mere possibility that the evidence may have been excluded, an appellate court will not find there to have been an error of law or miscarriage of justice requiring a new trial. R. v. Bero, 2000 ONCA 16956 at paras.11-13.

(i) Fair and effective determination of the issue

[43] The appellant argues that the qualified technician’s certificate dated January 1, 2020, filed at trial under s.320.32 of the Code, contained inadmissible hearsay information that should not have been used for the truth of its contents at his trial.

[44] The qualified technician’s certificate filed at trial sets out the results of the analysis done on the appellant’s breath samples taken following the arrest, and the process the technician used in taking the samples. The disputed part of the certificate is the reference to the technician’s use of a “certified” alcohol standard solution to calibrate the Intoxilyzer 8000C machine before the machine received the appellant’s breath samples. The disputed line reads: “That the alcohol standard had a target value of 100 mg of alcohol in 100ml of blood, was certified by an analyst, and was identified as: Manufacturer Laboratoire Atlas Inc - Alcohol Standard Lot Number 68LG.”

[45] Citing the Alberta Court of Appeal’s decision in R. v. Goldson, 2021 ABCA 193, (leave dismissed February 17, 2022, SCC), the appellant says that the fact that the standard solution was certified by an analyst is a hearsay statement, and that for the fact to be properly admissible, the Crown should have either called direct evidence or filed a separate certificate from the analyst about the alcohol standard solution. The appellant argues the trial judge erred in relying on the QT’s certificate for that fact because the assertion in the QT’s statement was inadmissible hearsay, and that a new trial is required because the certification of the alcohol standard is a separate element of proof that required non-hearsay evidence to establish the evidentiary validity of the breath samples.

[46] At trial, the appellant did not object to the admissibility of the QT’s certificate, or to the proposed use of the evidence for the truth of its contents even after being asked whether he objected to the introduction of the certificate for the truth of its contents. Transcript p.54. Consequently, the Crown called no evidence other than the QT’s certificate about the alcohol standard used to calibrate the machine, and there was no cross-examination on the issue. Indeed, the calibration of the machine was not an issue at all in the trial.

[47] Had the defence objected at trial, the Crown would have had the option to lead direct evidence about the alcohol standard, or to file a separate certificate. It is also possible that the statement may not have been ruled to be inadmissible hearsay. Most courts in Ontario thus far have not accepted the argument that the statements about the alcohol standard solution in the QT’s certificate are hearsay and have accepted that they were bound by prior appellate jurisprudence concluding the admissibility of similar statements from the QT about the calibration solution, though those cases were decided prior to Goldson. Goldson is not, of course, binding in Ontario, although it might be persuasive.

[48] Even if the appellant were able to rely on Goldson, the evidentiary record is not sufficient to determine the issue on appeal. Because the appellant did not object to the certificate being led for the truth of its contents, and did not object to admissibility of the certificate, there was no evidence led that would enable this court to determine whether the impugned statement is in fact hearsay or inadmissible. Moreover, had the appellant objected at trial, and the evidence were ruled to be hearsay and inadmissible, the Crown could have led either direct or certificate evidence on the point, if necessary. Allowing the argument to be raised for the first time on appeal, in these circumstances, would not be fair to the Crown.

ii) Tactical reasons

[49] Given the lack of application to pursue the issues related to the certificate, or to explore the calibration of the machine, the court would presume that the choice not to pursue the hearsay issue was tactical, a decision not to focus on an issue of limited importance. The court normally presumes such decisions to be tactical in the absence of evidence of negligence or incompetence. The appellant in fact acknowledged that the trial counsel was experienced in such cases, suggesting maybe that the lack of argument related to the predominant approach in the courts of treating the statements as non-hearsay or otherwise admissible according to the governing caselaw. There is no indication that was the line of thinking in this case, as it was not directly mentioned, and there is no evidence of general practice. The court accordingly presumes this was a tactical choice.

iii) Miscarriage of Justice

[50] This is not a case where a miscarriage of justice would result from the inability to argue this ground on appeal.

[51] What is a miscarriage of justice, for the purpose of this factor? A situation that would result in the conviction of an innocent person is always considered to be a miscarriage of justice. Apart from that example, miscarriages of justice may arise in two categories of circumstances. First are circumstances that would result in an unfair trial. Second are circumstances of a serious interference with the integrity of the administration of justice, including the appearance of unfairness, such that would shake public confidence in the administration of justice. R. v. Ross, 2005 NSCA 2 at para.89.

[52] Here, there is no direct suggestion of a “wrongful conviction”. There was no evidence of any problem with the calibration standard solution used, or any problem with the calibration of the machine, and there were otherwise reliable breathalyzer tests that demonstrated significantly over the legal limit blood alcohol concentration relative to the time of driving, and evidence of an accident on a highway. To the extent that there was an issue with the calibration solution used, at worst, the problem is that “hearsay” evidence was used about the percentage of alcohol in the calibration solution, rather than direct evidence on the point.

[53] Regarding fairness, the appellant did not apply at trial to cross-examine the QT on the certificate as entitled to under s.320.32. There was no indication in the trial or appellate record that the appellant did not receive disclosure of the background information or certification status of alcohol standard solution used in calibration, and there was no motion made for disclosure of that information. There was no indication that the appellant’s trial counsel was negligent or incompetent or that the prosecutor was abusive or that any other participant treated the appellant unfairly about the evidence in question. There are no issues raised about the integrity of the administration of justice. That the appellant did not have the opportunity to argue a new perspective on the hearsay issue does not rise to the level of unfairness constituting a miscarriage of justice, given that the calibration solution and the calibration of the machine were not issues in the trial, and that there is not yet consensus in Ontario that Goldson is correctly decided.

Conclusion on the hearsay issue

[54] On balance, the factors here do not merit permitting the appellant to raise the hearsay argument for the first time on appeal. The evidentiary record is insufficient to adequately resolve the issue, the court presumes the issue was tactically omitted, and there would be no unfairness or miscarriage of justice associated with denying the request to raise the issue.

Overall Conclusion

[55] The appeal is dismissed for all the reasons stated above.

Justice S. Boucher

Released: April 19, 2022

CORRECTION NOTICE

Corrected ruling: the text of the original ruling was corrected on April 20, 2022, and the description of the correction is as follows:

In the style of cause, the Crown was identified as the Appellant – on this appeal, the Crown was the Respondent. Mr. Little was identified as counsel for the Respondent, when he was counsel for the Appellant. “Matthew Shumka and Matthew Morley, Crown Counsel” has been changed to “Matthew Shumka and Matthew Morley, for the Crown Respondent”.

At paragraph 26, there is a citation error in “R. v. Kubacek 202 ONSC 5081”. The name “Kubacek” has been changed to “Kubacsek” and “202” has been changed to “2021”.

At paragraph 17, first line, the word “defence” has been changed to “deference”.

At paragraph 23, second last sentence, the word “defence” has been changed to “deference”.

At paragraph 30, line 4, the word “not” has been added: The judge then ultimately concluded that exclusion was not the appropriate remedy”.

COURT FILE NO.: CR 21-10000028-00AP; SCA 28/21 DATE: 20220419 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN, Respondent – and – YEWON KIM, Appellant amended RULING – SUMMARY CONVICTION APPEAL Boucher J. Released: April 19, 2022