CITATION: R. v. Almeida, 2009 ONCA 237

DATE: 20090317

DOCKET: C49028

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Manuel Almeida

Respondent

Robert Gattrell, for the appellant

R.J. Reynolds, for the respondent

Heard and orally released: March 12, 2009

On appeal from the acquittal entered by Justice J.P. Coulson of the Ontario Court of Justice dated May 30, 2008.

ENDORSEMENT

[1] The respondent was charged with blowing over .08. He registered readings of .102 and .92. The respondent testified that he had had three beers shortly before getting behind the wheel. An associate of the respondent’s supported this evidence. On the expert evidence, if the respondent’s testimony as to how much he had had to drink was accurate, his breathalyzer readings should have been .50, well below the legal limit.

[2] In his reasons, the trial judge addressed the “evidence to the contrary” offered by the respondent. The trial judge indicated he had “serious concerns” as to the respondent’s credibility and gave reasons justifying that “serious concern”. As we read the reasons, the trial judge did not make an ultimate determination as to whether the evidence of the respondent left him with a reasonable doubt as to the truth of the respondent’s evidence concerning the amount he had had to drink.

[3] The trial judge went on to address the indicia of impairment. He made findings which were, generally speaking, supportive of the respondent’s position on this issue, although as Crown counsel argues, this evidence did not address the ultimate issue on a “blowing over” charge.

[4] The trial judge then said:

He blew 12 milligrams over the limit of 80. I’ve changed my mind at least twice about how I’m going to deal with this case and I have a rule about that. I change my mind a couple of times then I think there’s a reasonable doubt left that I may rely on the 92 as being over 80 because it’s so close to the line. I too was raised in an age where lawyers didn’t like the idea of people being convicted by machines. And we used to cut a lot – cut people a lot more slack than 12 milligrams percent. This man’s friend says he’s a terrible driver. I don’t think he even remembers how badly he drove for he drives that way all the time. At great risk to getting it wrong, the charge is dismissed. [Emphasis added.]

[5] The Crown submits, and we agree, that the trial judge did not acquit the respondent because he had a reasonable doubt based on the “evidence to the contrary” offered by the appellant, but instead acquitted the respondent because, as he said, the readings were “so close to the line”. The trial judge’s reasonable doubt seems based on an assumption of a margin of error in readings provided by breathalyzer machines. We note that in dialogue with counsel in the course of the trial, the trial judge had referred to expert evidence from other cases which indicated a 10 milligram margin of error. In our view, the trial judge acquitted essentially because he was not prepared to accept, as a basis for a conviction, a reading that was within, or very close to, what the trial judge perceived to be the machine’s margin of error. The trial judge was wrong in law in presuming a margin of error and acquitting on this basis.

[6] As the trial judge did not ultimately determine whether the appellant’s evidence to the contrary raised a reasonable doubt, the appropriate order is to quash the acquittal and order a new trial on the charge of blowing over.

“Doherty J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”