R. v. Kernighan, 2010 ONCA 465

CITATION: R. v. Kernighan, 2010 ONCA 465

DATE: 20100622

DOCKET: C47402

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lynn Robert Kernighan

Appellant

COUNSEL:

Bruce Daley, for the appellant

Alexandra Campbell, for the respondent

Heard: June 4, 2010

On appeal from the judgment of Justice Peter B. Hockin of the Superior Court of Justice dated June 15, 2007, with reasons reported at 49 M.V.R. (5th) 317, dismissing an appeal from the conviction entered by Justice Eleanor M. Schnall of the Ontario Court of Justice on May 17, 2006, with reasons reported at [2006] O.J. No. 5565.

GILLESE J.A.:

[1] Mr. Kernighan was convicted of driving “over 80”, contrary to s. 253(b) of the Criminal Code. At trial, the Crown relied on the testimony of the blood technician to establish that Mr. Kernighan’s two breathalyzer readings were 140 milligrams and 130 milligrams of alcohol per 100 mL of blood. The readings were taken within two hours of the alleged offence.

[2] Mr. Kernighan did not challenge the accuracy of the readings. Instead, he argued that the readings did not reflect his blood alcohol content at 9:38 p.m., the time at which he was driving.

[3] Raising the “Carter defence”, as it was at that time, Mr. Kernighan testified that on the night in question he consumed only five beers and that he had stopped drinking just before 9:00 p.m. Based on Mr. Kernighan’s account of events, the expert toxicologist called by the defence opined that Mr. Kernighan’s blood alcohol concentration would have been between 0 and 41 milligrams of alcohol per 100 mL of blood when he was pulled over by the police.

[4] After considering the defence evidence in light of the breathalyzer readings and the evidence as a whole, the trial judge found that Mr. Kernighan’s “evidence to the contrary” was not reasonably capable of belief and convicted him.

[5] Mr. Kernighan appealed. The summary conviction appeal court found that the trial judge had not erred in taking the breathalyzer readings into consideration in assessing the evidence to the contrary and the appellant’s credibility. Accordingly, by judgment dated June 15, 2007 (the “Judgment”), the appeal was dismissed.

[6] The appellant seeks leave to appeal the Judgment. If leave is granted, he asks this court to find that the trial judge erred in using the breathalyzer readings when assessing his credibility and the evidence to the contrary.

[7] The Crown submits that leave to appeal should be refused. If leave is granted, it submits that the appeal should be dismissed.

[8] Both parties rely on the Supreme Court of Canada decision in R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499.

THE MOTION FOR LEAVE TO APPEAL

[9] At the oral hearing of the appeal, the Crown advised that this court has heard, and reserved its decision in, R. v. Chow, 2010 ONCA 422. The court was advised that submissions based on Boucher had been made in Chow. In light of this information, the court declined to decide the leave motion at that time and invited the parties to make submissions on the merits of the appeal.[^1]

THE PARTIES’ POSITIONS ON THE MERITS

[10] The appellant submits that the majority decision in Boucher establishes that under no circumstances can breathalyzer readings be used to assess the credibility of any evidence to the contrary. In making this argument, he relies on para. 43 of the reasons of Deschamps J., writing for the majority, in which she says:

The judge also erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyser tests before applying the presumption. … Breathalyzer results cannot be used to assess the credibility of a witness. As I explained earlier, it would be circular to rely on the test results to determine whether there is evidence that could raise a doubt regarding those very results.

[11] Accordingly, the appellant submits, the trial judge erred because she took the breathalyzer results into account in assessing the evidence to the contrary and in assessing the appellant’s credibility.

[12] The Crown maintains that Boucher establishes that the prohibition against using breathalyzer readings in assessing credibility applies only to those cases in which the accused challenges the presumption of accuracy because, in such circumstances, it would be circular to use the readings as proof of their own accuracy. In the present case, the Crown did not rely on the presumption of accuracy but, rather, on the oral evidence of the breath technician to establish the accuracy of the readings. Defence counsel at trial took no issue with respect to the accuracy of the breathalyser. As defence counsel challenged only the presumption of identity, the trial judge was entitled to consider the appellant’s breathalyzer readings.

THE MERITS OF THE APPEAL

[13] I accept the Crown’s submission.

[14] The presumption of accuracy relates to the accused’s blood alcohol concentration at the time the breath sample was taken. Challenging this presumption requires adducing some evidence that the certificate does not in fact correctly reflect the accused’s blood alcohol level at the time of the breathalyzer test: see Boucher, at para. 21. The presumption of identity, on the other hand, relates to the accused’s blood alcohol concentration at the time of the offence. Challenging the presumption of identity requires adducing some evidence to suggest that the accused’s blood alcohol concentration at the time of the offence was not the same as it was at the time that the breath samples were taken: see Boucher, at para. 19.

[15] The presumption of accuracy allows the Crown to file the certificate of the breath technician as proof of the appellant’s breath sample readings without having to call the breath technician as a witness in the trial (s. 258(1)(g)). In the present case, the Crown chose to call the breath technician as a witness and, therefore, did not rely on the presumption of accuracy. It relied only on the presumption of identity, contained in ss. 258(1)(c) and (d.1), to establish the blood alcohol content at the time of driving.

[16] In my view, Boucher and subsequent case law make clear that the prohibition against using breathalyzer readings to assess the accused’s evidence to the contrary applies only to situations in which the Crown is relying on the presumption of accuracy and the accused is challenging that presumption.

[17] In Boucher, the court was dealing with a situation in which the Crown was relying on the presumption of accuracy and the accused challenged the presumption with evidence to the contrary. This is clear from para. 1 of the reasons of Deschamps J., in which she states the issue to be:

what evidence may be used to rebut the presumption of accuracy set out in s. 258(1)(g) of the Criminal Code, according to which the reading received on a breathalyzer test provides, in the absence of evidence to the contrary, an accurate determination of the blood alcohol level at the time of the test? [citation omitted]

[18] In her reasons in Boucher, dissenting in part but not on this issue, Charron J. emphasized that the majority reasons applied exclusively to those cases in which the Crown relies on the presumption of accuracy, rather than the presumption of identity. At para. 65, Charron J. states:

It is important to note, however, that the situation is not the same when it is clear that the defence is challenging only the presumption of identity, for example where an accused testifies that he consumed eight ounces of alcohol between the time he was arrested and the time the breath samples were taken. In such a case, the trier of fact can properly consider the breathalyzer result in assessing the evidence to the contrary adduced by the accused, since what is disputed is not the accuracy of that result but only the fact that it reflects the accused's blood alcohol level at the time the offence was committed. In this way, even if the trier of fact accepts the accused's testimony that he drank alcohol between the time he was arrested and the time he took the breathalyzer test, the trier can take into account an especially high breathalyzer result, among other factors, to find that, notwithstanding the alcohol consumed subsequently, the accused's blood alcohol level already exceeded the legal limit when he was arrested, and accordingly to reject the accused's evidence to the contrary. [emphasis added]

[19] Boucher has been interpreted in this way in a number of Ontario decisions. For example, in the present case, both the trial judge and the summary conviction appeal judge relied on R. v. Lilek, 2006 CanLII 9155 (ON S.C.). In Lilek, as in this case, the Crown at trial had relied on the presumption of identity but not the presumption of accuracy. Justice Trafford found that the trial judge had not erred in considering the appellant’s breathalyzer readings when assessing his evidence to the contrary. He wrote:

This principle of law, that the credibility of a defendant is to be assessed in the context of the evidence as a whole, is a long-standing one. Thus, I respectfully decline to interpret the remarks of Deschamps J. in para. 43 of R. v. Boucher, supra, as an authoritative statement overruling them. Rather I limit it to a case where the issue of “evidence to the contrary” under s. 258(1)(g) of the Code [the presumption of accuracy] is being determined by a Court. Thus, the learned trial judge did not err in law when he considered the breathalyzer readings in this case and rejected the appellant’s testimony.

For a similar analysis, see R. v. Snider, 2006 ONCJ 65, [2006] O.J. No. 879 (Ont. Ct. J.) where MacDonnell J. arrived at the same conclusion, as to the impact of R. v. Boucher, supra, at paras. 39-45 and as to the use of the breathalyzer results in assessing a defendant’s credibility where the Crown is not relying upon the presumption of accuracy at paras. 46-49. See also R. v. Brown, [2005] O.J. No. 5283 at paras. 28 and 29 (S.C.J.).

[20] Where defence counsel challenges the presumption of identity but not the presumption of accuracy, a consideration of the breathalyzer readings does not raise the spectre of circular reasoning. They are part of the body of evidence presented at trial and thus part of what the trial judge must consider in determining whether the defence evidence is capable of raising a reasonable doubt.

[21] I would make a final point in relation to the merits of the appeal. The appellant had originally raised a second ground of appeal, namely, that the trial judge erred by misapprehending the evidence of his mother, who testified at trial. He did not pursue this ground at the oral hearing of the appeal. To the extent that it remains a live issue, I see nothing in it.

DISPOSITION

[22] Accordingly, while I would grant leave to appeal, I would dismiss the appeal.

RELEASED: June 22, 2010 (“E.E.G.”)

“E. E. Gillese J.A.”

“I agree. Dennis O’Connor A.C.J.O.”

“I agree. John I. Laskin J.A.”

[^1]: In Chow, while this court refers to the Boucher principle, it found it unnecessary to examine that principle because the Crown did not rely on the presumption of accuracy: see para. 12.