DATE: 20050620

DOCKET: C43028

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DIETER DOBROWOLSKI (Appellant)

BEFORE:

WEILER, SIMMONS AND GILLESE JJ.A.

COUNSEL:

Robert B. Howe

for the appellant

Leanne Salel

for the respondent

HEARD:

June 14, 2005

On appeal from the judgment of Justice D. J. Power of the Superior Court of Justice (Summary Conviction Appeal Court) dated October 21, 2004 allowing the appeal from the acquittal entered by Justice N. J. Wilson of the Ontario Court of Justice dated April 29, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant asserts that once a qualified breathalyzer technician submits a breath sample for analysis and an approved instrument produces a result, absent any indication that the approved instrument has malfunctioned, the sample is a sample “necessary to enable proper analysis” within the meaning of s. 254(3) of the Criminal Code and the technician has no discretion to reject it. We do not accept that submission. On a plain reading of s. 254(3) there is no such limitation in the section.

[2] We agree with the summary conviction appeal judge’s conclusion that the trial judge erred by concluding that once the sample in issue was analyzed it was a “sample necessary to enable proper analysis” within the meaning of s. 254(3). Because the trial judge relied on the statutory provision to find that the sample that the technician rejected as unsuitable was in fact a suitable sample, the trial judge’s conclusion was a question of mixed fact and law. In these circumstances, it was open to the summary conviction appeal judge to find, as he did, that the trial judge erred and we agree with his conclusion. See R. v. Perrier (1984), 1984 3518 (ON CA), 15 C.C.C. (3d) 506 (Ont. C.A.).