Court File and Parties

CITATION: R. v. Bertone, 2007 ONCA 768

DATE: 20071109

DOCKET: C42930

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., SIMMONS AND MACFARLAND JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

TONY BERTONE

Appellant

Counsel: Lawrence Ben-Eliezer for the appellant Colleen Hepburn for the respondent

HEARD & RELEASED ORALLY: November 2, 2007

On appeal from the conviction entered by Justice Norman D. Dyson of the Superior Court of Justice dated September 14, 2004.

ENDORSEMENT

[1] Following a trial before Dyson J., the appellant was acquitted of impaired driving but convicted of driving with a blood alcohol level in excess of the legal limit. In his reasons, the trial judge stated that he had a reasonable doubt concerning whether the appellant was impaired. The trial judge then said the following:

With respect to having consumed a quantity of alcohol which exceeded eighty milligrams of alcohol [in] one hundred millilitres of blood while operating a motor vehicle, I do not have any doubt whatsoever.

Although the accused person, in my view, is an honest man, and he tried to give his testimony as best he could, I find his testimony unreliable and unacceptable with respect to the quantity of alcohol that he had taken prior to driving his motor vehicle from the tavern, whether he had more wine or had more spirit or whatever, but I accept the readings set out by the breathalyzing constable as being accurate, and such readings would indicate that he exceeded the permissible amount of alcohol in his blood, pursuant to s. 253(b), and there will be a conviction with respect to s. 253(b).

[2] The appellant contends that the trial judge’s reasons fail to meet the functional test enunciated in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). We agree.

[3] The trial judge’s decision in this matter was rendered prior to the Supreme Court of Canada’s decision in R. v. Boucher (2005), 2005 SCC 72, 202 C.C.C. (3d) 34, in which Deschamps J. stated that prior authorities which had held that the credibility of an accused could be assessed in light of the results of a breathalyzer test should not be followed. Although the trial judge’s brief reasons do not permit us to determine whether he relied on the breathalyzer results to reject the appellant’s evidence, in light of the acquittal on the impaired driving charge and the timing of this decision (pre-Boucher), it appears likely that he did.

[4] Further, even if the trial judge did not err in law by relying on the breathalyzer results to reject the appellant’s evidence, he did not explain his reasons for acquitting the appellant of impaired driving but convicting him of driving with a blood alcohol level in excess of the legal limit. In these circumstances, and given the facts of this case, we are unable to discern what evidence the trial judge relied on in convicting the appellant of driving with a blood alcohol level in excess of the legal limit. Accordingly, the trial judge’s reasons do not meet the functional test enunciated in Sheppard.

[5] Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered.

“W. Winkler C.J.O.”

“Janet Simmons J.A.”

“J. MacFarland J.A.”