Court File and Parties

Citation: R. v. Melville, 2007 ONCA 520

Date: 2007-07-09

Docket: C44466

Court of Appeal for Ontario

Before: Doherty, Feldman and MacPherson JJ.A.

Between:

Her Majesty the Queen Respondent

and

Peter Melville Appellant

Counsel: R. Steven Baldwin for the appellant Michelle Campbell for the respondent

Heard and orally released: July 4, 2007

On appeal from the conviction entered by Justice S. Hunter of the Ontario Court of Justice dated October 20, 2005.

Endorsement

[1] There are two grounds of appeal. The first is overtaken by this court’s decision in R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355, decided after this appeal was launched. Counsel for the appellant accepts that in light of Torsney, the officer’s failure to use the word “forthwith” in the roadside demand did not invalidate that demand.

[2] The second ground of appeal arises out of the conduct of the intoxilyzer test. After a proper demand, the appellant provided a sample of his breath which registered a reading of .93. The technician then, following the established practice, waited fifteen minutes and demanded the second sample contemplated by the statutory scheme. The appellant provided a breath sample and the machine began to analyze that sample. The readings that appeared on the machine as it analyzed the sample initially increased in small amounts, but then dropped precipitously causing the technician to abort the analysis, determine that the sample was unsuitable and demand a further sample. That sample yielded a reading of .103.

[3] Counsel for the appellant forcefully argues that the failure to keep a printout or other record of the aborted second analysis contravenes the appellant’s rights under s. 7 of the Charter and invalidates the analysis of the other two samples upon which the conviction was based.

[4] We disagree. The language of s. 254(3) of the Criminal Code as interpreted in R. v. Dobrowski, [2005] O.J. No. 2576 contemplates that a qualified technician may in the course of administering a test, determine that a sample is unsuitable in which case a demand for a further sample may be made under the scheme. In this case, the qualified technician made the assessment based on her training that the second sample provided by the appellant was not suitable for analysis. Whether she was ultimately, as a matter of science, right or wrong in that assessment is irrelevant. Under the statutory scheme, she was entitled to make that assessment in good faith. Her good faith was not challenged in this proceeding.

[5] Once it is accepted, as it must be on the authorities, that the qualified technician was entitled to reject the second sample as inadequate, the results of the partial or aborted analysis of that inadequate sample could not have potentially assisted the appellant in any way in his defence on the “blowing over” charge.

[6] The appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”