R. v. Chow, 2010 ONCA 442

CITATION: R. v. Chow, 2010 ONCA 442

DATE: 20100615

DOCKET: C48802

COURT OF APPEAL FOR ONTARIO

Sharpe, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kai-Tung Chow

Appellant

Peter Lindsay, for the appellant

Grace Choi, for the respondent

Heard: February 26, 2010

On appeal from the judgment of Summary Conviction Appeal Judge Rose Boyko of the Superior Court of Justice dated May 5, 2008, dismissing the appeal from the conviction entered by Justice J. F. Kenkel of the Ontario Court of Justice dated May 1, 2006.

BY THE COURT:

Introduction

[1] Mr. Chow was charged on March 4, 2005 with the offence of "drive over 80" pursuant to s. 253(b) of the Criminal Code; he was convicted on May 1, 2006 and his summary conviction appeal was dismissed on May 5, 2008.

[2] At trial, the Crown called as witnesses, the arresting officer who had stopped Mr. Chow's car, and the Intoxilyzer technician who had made the breath demand and operated the Intoxilyzer machine to obtain two breath samples from Mr. Chow. The Crown also filed the Certificate of a Qualified Technician that had been filled out by the Intoxilyzer technician as an exhibit.

[3] Mr. Chow testified and called two other witnesses in his defence; a friend who was drinking with him on the night in question, and a toxicologist. Mr. Chow and his friend testified that on the evening of the alleged offence, they had been eating dinner at a restaurant together for almost five hours, and Mr. Chow had drunk six bottles of light beer at the restaurant. The defence toxicologist testified and calculated that on the basis of Mr. Chow's version of events — as given at trial — Mr. Chow's blood alcohol would have been between 11 and 68.5 mgs. of alcohol per 100 ml. of blood at the time he was stopped by the police, approximately one hour after he left the restaurant.

[4] The trial judge found that the argument regarding the expiry date of the standard alcohol solution was based on speculation. He found the evidence of Mr. Chow and his friend to be unreliable as to the amount of alcohol consumed by Mr. Chow. Finally, towards the end of his reasons for judgment, the trial judge made a brief, one-sentence reference to a previous judgment of his in a case called R. v. Arrechea [2006] O.J. No. 1562 (C.J.): "In considering the defence 'evidence to the contrary' I take into account the rigorous circumstances of testing as referred to in Arrechea".

[5] On May 5, 2008, Boyko J., in brief reasons, dismissed Mr. Chow's appeal. He now seeks leave to appeal to this court on virtually the same grounds of appeal heard by the summary conviction appeal judge.

The arguments for leave

[6] Mr. Chow advanced several arguments, which he says demonstrate errors of law made by the appeal judge and which have importance beyond this case; namely, the appropriate approach to Carter defences – evidence to the contrary in drinking and driving cases. Specifically, he says the appeal judge erred by not meaningfully dealing with the trial judge's reliance on his previous decision in R. v. Arrechea, supra. He argues that the principles in Arrechea have been subsequently rejected as being inconsistent with the Supreme Court of Canada's decision in Boucher.

[7] Carter defences will normally hinge on the credibility of the accused. If their drinking pattern evidence is credible enough to raise a reasonable doubt, the presumption of accuracy will normally be rebutted. If their evidence is not believed, the toxicology evidence loses all weight and the presumption will remain. As Fish J.A. – as he then was – stated at para. 92 in R. v. Dubois (1990), 1990 CanLII 2776 (QC CA), 62 C.C.C. (3d) 90 (Que. C.A.):

"Evidence to the contrary" that is disbelieved will, of course, fail to neutralize, or to render inoperative, the presumption created by s. 258(1)(c) of the Code.

[8] While subsequent case law has divided on the application of Boucher to different situations, it clearly established that the prohibition against using the results recorded on a certificate of analysis applies to those cases in which the Crown is relying on the presumption of accuracy. We would, on this basis, grant leave to appeal. It is an issue that we accept has some importance beyond this case.

The merits of the appeal

[9] In the instant case, as noted, the trial judge made brief comments towards the end of his reasons: "In considering the defence 'evidence to the contrary' I take into account the rigorous circumstances of testing as referred to in Arrechea". Mr. Chow argues that the trial judge's reliance on his previous decision is illogical, since the "rigorous circumstances of breath testing" mean nothing without relying on the breath test results. He also contends that such reliance is contrary to Boucher. We agree.

[10] Logically we see little difference between relying on the certificate itself on the one hand, and the circumstances of the test on the other. The circumstances of the test could only be relevant with respect to the credibility of Carter evidence in so far as they 'flow through' the test results. While they, as a factual matter, bolster the reliability of the test result, logically, this reasoning still requires consideration of the test results.

[11] In this case, however, the Crown filed the certificate and called as witnesses the arresting officer who had stopped Mr. Chow's car, and the Intoxilyzer technician who had made the breath demand and operated the Intoxilyzer machine to obtain two breath samples from Mr. Chow. It therefore becomes unnecessary to examine the Boucher principle in the context of this case.

[12] Put another way, where the viva voce testimony of the Intoxilyzer technician is presented – instead of or in addition to the filing of the technician's certificate alone to prove the Intoxilyzer results – there is no need to rely on the presumption of accuracy. The Crown can be taken to simply prove the test results in the ordinary course. In these circumstances the trial judge is entitled to view all of the evidence, including the surrounding circumstances and the testimony of the witnesses. It is therefore not an error for the breathalyzer results to be taken into consideration when assessing the credibility of defence evidence because the presumption of accuracy is not being relied on.

[13] Had this been a case of the Crown relying on the presumption of accuracy, the trial judge would have been in error in relying on the circumstances of testing as that would be contrary to Boucher. This case was not about the presumption of accuracy. Thus, the appeal judge, while not fully analyzing this issue, did not err in her result. This ground of appeal is therefore rejected.

Bill C-2

[14] During oral argument, we asked the parties about the effects of Bill C-2 on these issues and the leave application. We would note that the decision of the appeal judge was released before Bill C-2 came into force, and its application was not a matter placed before her for consideration. The parties have since provided brief written submissions. Having regard to these submissions, and on the assumption that the provisions of C-2 are constitutional, we will address it very briefly.

[15] In our view, no analysis of this issue is necessary given the grounds upon which we granted leave to appeal. We acknowledge that this court has held that the provisions of Bill C-2 apply retrospectively: R. v. Dineley, 2009 ONCA 814. Nevertheless, to decide either the question of leave or the merits of the appeal by relying on the provisions of Bill C-2 in all the circumstances of this case would be unfair. We would simply observe that, it seems to us that the Crown's case would likely have succeeded with even more force had Bill C-2 been applied.

The remaining issues

[16] The appeal judge specifically found that "[t]he trial judge did not err in applying the law, or misapprehend the evidence, in making his findings of fact". We see no error of law by the appeal judge and she properly disposed of the issue in connection with the trial judge's alleged misapprehensions of evidence.

[17] In the end, it was for the trial judge to make the findings of fact as to the significance of inconsistencies between the defence witness and the appellant, or as to the degree of reliability of the witnesses' recollection; there was no underlying misapprehension of evidence in this regard.

[18] There was also no misapprehension of evidence by the trial judge when he found that the defence argument regarding the standard alcohol solution was based "entirely on speculation". There was nothing in the evidence of the defence toxicologist to indicate that the standard alcohol solution had, in fact, expired. Without any misapprehension of the evidence, the trial judge was satisfied that the Intoxilyzer was ascertained to be in proper working order, and this was a finding of fact. We fail to see any error.

[19] There was no reversal of the burden of proof. The trial judge simply conducted an analysis of whether Mr. Chow's evidence was consistent with other evidence in the case. The way in which the appeal judge dealt with this ground of appeal was appropriate and did not reflect any error of law.

[20] It is true that the appeal judge did not explicitly discuss the issue of "judicial notice" in her reasons. Nevertheless, she did indicate that the trial judge did not err in applying the law when making his findings of fact. Indeed, the trial judge was not "taking judicial notice" of the defence not having requested a sample alcohol standard from the lot used to test Mr. Chow, and not having requested the Intoxilyzer maintenance logs. There is no merit to this ground of appeal.

[21] Finally, Mr. Chow argues that the trial judge took judicial notice that Mr. Chow's estimate of the driving time between the restaurant where he was drinking, and the location where he was stopped by the police was a "generous estimate". The actual context of that comment was: "even accepting that generous estimate, there is no evidence as to where Mr. Chow was or what he was doing for more than 30 minutes in the hour prior to his being stopped by police". Even if this amounted to judicial notice, which we doubt, Mr. Chow was not prejudiced by the trial judge considering his time estimate to be "generous". This ground of appeal must also be rejected.

Disposition

[22] For the foregoing reasons, the appeal must be dismissed.

RELEASED:

"RJS" "Robert J. Sharpe J.A."

"JUN 15 2010" "H. S. LaForme J.A."

"Paul Rouleau J.A."