COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Meara, 2012 ONCA 420

DATE: 20120620

DOCKET: C53830

Laskin and Blair JJ.A. and Brown R.S.J. (Ad Hoc)

BETWEEN

Her Majesty the Queen

Appellant

and

Terrance O’Meara

Respondent

Peter Scrutton, for the appellant

Mark Halfyard, for the respondent

Heard: February 14, 2012

On appeal from the decision of the summary conviction appeal court dated May 16, 2011 by Justice C. MacDonald of the Superior Court of Justice, allowing the appeal from the conviction entered on October 18, 2010 by Justice L. Duchesneau-McLachlan of the Ontario Court of Justice.

Brown R.S.J. (ad hoc):

I. INTRODUCTION

[1] This is a Crown appeal from a successful defence summary conviction appeal. The respondent was convicted at trial of operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“over 80”).

[2] As noted, the respondent successfully appealed his conviction to the summary conviction appeal court. The summary conviction appeal judge reversed the trial judge and entered an acquittal. She held that the trial judge had erred in finding that there was circumstantial evidence that the approved instrument had analyzed the samples. Without such evidence, the summary conviction appeal judge concluded that the presumption under s. 258(1)(c) of the Criminal Code was not available on the evidence before the trial judge.

[3] The Crown seeks leave to appeal, and if leave is granted, appeals against the summary conviction appeal court judgment and asks this court to restore the conviction.

[4] For the following reasons, I would grant leave to appeal, allow the appeal and restore the conviction.

II. BACKGROUND

[5] As the Crown submits, this was the most usual of drinking and driving trials. The prosecution led evidence that the respondent was stopped at a ride check, smelled of alcohol, failed an approved screening device test, was arrested, and provided two samples of breath into an approved instrument at the police station that resulted in readings of more than double the legal limit. The defence did not challenge any of this evidence, raised no Charter issues with respect to the stop or right to counsel, and called no evidence. The respondent was convicted pursuant to s. 253(1)(b) of the Criminal Code on October 18, 2010 of “over 80”. He received the minimum $1,000 fine and a 12 month driving prohibition.

[6] The respondent successfully appealed his conviction The summary conviction appeal court judge held that the trial judge had erred in finding that there was circumstantial evidence that the approved instrument had analyzed the samples.

[7] The Crown argues before this court that this was an error and submits that the trial judge correctly determined that the instrument’s readings are themselves circumstantial evidence of analysis.

[8] It may be helpful to briefly summarize the facts and the decisions in the trial court and in the summary conviction appeal court below.

(i) The Facts

[9] On November 24, 2009, two O.P.P. officers were conducting RIDE stops on a highway near North Bay. Upon pulling the respondent’s vehicle over, one of the officers smelled alcohol coming from the respondent’s breath when speaking with him. The respondent said that he had been drinking the previous evening.

[10] The officer gave the respondent an approved screening device demand. The respondent registered a “fail” on his second attempt at providing a sample. He was placed under arrest for “over 80” and given an approved instrument demand. The respondent was then transported to the station. After the respondent consulted with duty counsel, an officer who was a qualified breath technician escorted the respondent into the breath room.

[11] Once inside, the officer prepped the approved instrument which was an Intoxilyzer 8000C. He watched it perform its quality assurance processes, which involve self-diagnostic tests and calibration checks. He verified that the alcohol standard solution was suitable, had been changed in the last 14 days, and that the temperature was in the appropriate range. The officer concluded that the instrument was functioning properly and ready to take samples.

[12] The respondent completed the first sample at 5:49 p.m. He provided the sample directly into the instrument. The officer reported that “the first result was 188 grams percent”. In the 22 minute interim between samples, he observed that the respondent had a strong stale odour of alcohol, red, glassy eyes, and a pasty, dry mouth. The respondent provided a second sample directly into the instrument. That sample resulted in a reading of “181 milligrams of alcohol per 100 millilitres of blood.” The officer then indicated that he needed to correct his earlier testimony and clarified: “The first sample I should have indicated was provided, and it registered a 188 milligrams of alcohol per 100 millilitres of blood.”

[13] The officer explained that after the second sample was completed, the instrument conducted a final internal test. That test indicated that both samples were suitable samples and that the instrument was functioning properly.

(ii) The Trial Decision

[14] The trial judge was satisfied that the officer had reasonable grounds to make an arrest and demand by virtue of the failed approved screening device test. She also reasoned that, given evidence of an approved, duly tested instrument capable of conducting the required analysis, and a qualified technician, “as far as I’m concerned each sample of [the respondent’s] breath went through an analysis by means of the approved instrument”. Accordingly, the trial judge convicted the respondent.

(iii) Summary Conviction Appeal Decision

[15] At the summary conviction appeal, the respondent argued that the Crown had failed to meet one of the statutory preconditions for reliance on the results of the breath samples under s. 258(1)(c)(iv) of the Criminal Code. While acknowledging that there was evidence that a breath sample was received from the accused directly into an approved instrument, counsel for the respondent argued that there was no evidence that an analysis of the sample had been made by means of an approved instrument. His point was that the breath technician did not testify that the instrument analyzed the samples and that this could not be proven by circumstantial evidence because it was a separate statutory condition.

[16] At the summary conviction appeal, the Crown argued that, while the officer did not explicitly testify that the instrument “analyzed” the sample, this was not required because there was evidence that the process occurred and that the instrument provided a result.

[17] In her reasons for decision, the summary conviction appeal judge held that in this case “there was virtually no evidence to prove beyond a reasonable doubt that the samples were, in fact, analyzed as required by s. 258(1)(c)(iv) by the instrument.” She therefore allowed the appeal and entered an acquittal.

III. ISSUES

[18] The Crown advances three arguments on this appeal:

(i) This is a proper case for leave to appeal to this court in summary conviction proceedings pursuant to s. 839 of the Criminal Code;

(ii) The summary conviction appeal judge erred in law in finding that the statutory presumption found in s. 258(1)(c) of the Criminal Code was not available on the evidence in this case;

(iii) The summary conviction appeal judge erred in law in failing to apply the correct standard of appellate review.

IV. ANALYSIS

Issue 1: Leave to Appeal

[19] This court established in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, and has repeated numerous times since then, that leave to appeal pursuant to s. 839 should only be granted in two distinct categories of cases:

(i) Where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice that goes beyond the particular case.

(ii) Where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the particular case.

[20] Moreover, at para. 27 of R.(R.), Doherty J.A. emphasized that access to this court for a second appeal “should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal.”

[21] The Crown submits that several factors favour leave to appeal in this case. To begin with, the Crown submits that its arguments for error are strong. As well, the Crown submits drinking and driving offences have the highest trial rate of offences in the Ontario Court of Justice. The evidence given by the breath technician in this case mirrors the evidence routinely given in “over 80” cases.

[22] The Crown also submits that the effect of the trial judge’s decision is to impose an additional evidentiary burden on the Crown before it can rely on the presumption of identity under s. 258(1)(c) of the Criminal Code. The Crown submits that the approach of the summary conviction appeal judge, if followed, has the potential to negatively affect many other cases.

[23] In response, the respondent argues that the present case cannot be brought under either of the two permissible categories to warrant granting leave to this court. That is, its issues of law are not sufficiently meritorious, nor does it raise a significant question for the administration of the justice system.

[24] I am persuaded that the issues raised in this appeal have significance to the administration of justice beyond the facts of this case. For the reasons that follow, I am of the view that the summary conviction appeal judge clearly erred in her view that the presumption of identity under s. 258(1)(c) of the Criminal Code was not available on the evidence before the trial judge. I am satisfied that, if left uncorrected, this error would have the potential to negatively affect many other “over 80” cases.

[25] As well, I think there is some significance to the fact that while this is the second appeal of this matter, it is the Crown’s first appeal. Unlike an order for a re-trial, the finality of the decision of the summary conviction appeal judge in this case meant that a further appeal was the only mechanism available to the Crown to review that outcome.

[26] For these reasons I would, as I said previously, grant leave to appeal.

Issue 2: Did the Summary Conviction Appeal Judge Err in Law in Finding that the Presumption in s. 258(1)(c) of the Criminal Code was not Available?

[27] Section 258(1)(c) of the Criminal Code creates what is commonly referred to as a “presumption of identity”. This presumption, if applicable, relieves the Crown of the burden of proving that the accused’s blood alcohol level at the time of the offence was the same as it was at the time of testing. Where this presumption is not available, the accused’s blood alcohol level at the time of the offence is normally proven by evidence from a toxicologist.

[28] In order to rely on the presumption, the Crown must meet the statutory preconditions specified in s. 258(1)(c)(ii)-(iv) of the Criminal Code. The samples must be taken as soon as practicable, the first sample must be taken within two hours of driving, and there must be at least a 15 minute interval between samples (s. 258(1)(c)(ii)); the samples must be received from the accused directly into an approved container or into an approved instrument operated by a qualified technician (s. 258(1)(c)(iii)); and “an analysis of each sample [must be] made by means of an approved instrument operated by a qualified technician” (s. 258(1)(c)(iv)).

[29] This court has made it clear that circumstantial evidence can establish the s. 258(1)(c)(ii)-(iv) conditions. In R. v. Mulroney, 2009 ONCA 766, 248 C.C.C. (3d) 311, the issue was whether there was evidence to satisfy the s. 258(1)(c)(iii) condition that the breath sample be received directly into an approved instrument. The summary conviction appeal court had allowed an appeal from conviction and ordered an acquittal after reasoning that, in the absence of evidence that the mouthpiece was connected to the instrument or that there was no intervening apparatus, it could not be inferred that the breath samples were provided directly into the approved instrument. In allowing the Crown’s appeal and restoring the conviction, Goudge J.A. held at paras. 20-21:

Here there was not just evidence that the breathalyser used was an approved instrument and a result was obtained. Nor did the trial judge simply take judicial notice that this must mean that the breath sample was received directly into the instrument. P.C. Fawcett testified that the instrument was designed to receive and analyze breath samples, that it appeared to be working properly, that the respondent blew into the mouth-piece of the instrument as instructed, and that this provided a suitable sample for analysis. None of this evidence was contested by the respondent.

In my view, this was ample circumstantial evidence from which the trial judge could properly conclude as he did, namely that the respondent’s breath samples were received directly into the approved instrument in this case.

[30] The main thrust of the Crown’s argument on appeal to this court is that the trial judge was correct to find that there was sufficient evidence before her to conclude that the statutory presumption found in s. 258(1)(c) of the Criminal Code was available in this case. The Crown submits that the summary conviction appeal judge erred in finding that there was no evidence before the trial judge to permit the presumption to be used. Specifically, the Crown submits that the summary conviction appeal judge erred in holding that there was virtually no evidence to prove beyond a reasonable doubt that the breath samples of the respondent were in fact analyzed by the instrument as required by s. 258(1)(c)(iv) of the Criminal Code. It is the submission of the Crown that the instrument’s results are themselves circumstantial evidence of analysis.

[31] The respondent argues that compliance with the statutory presumptions under s. 258(1)(c)(ii)-(iv) must be strictly construed where the Crown is relieved of the obligation of adducing expert evidence on the subject. The respondent submits that in this case the officer did not provide any evidence on whether any analysis of the breath samples was conducted.

[32] The respondent also submits that the Crown could have easily led evidence from the officer, who was a qualified breath technician, as to the workings of the approved instrument and how it analyzed the breath samples provided. As well, the respondent submits that the Crown could have led evidence of analysis by entering the test record as an exhibit which is often done in “over 80” prosecutions. The respondent argues that despite the ease of adducing this evidence, none of it was before the court.

[33] I agree with the Crown’s submissions on this issue. This court held in R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, that it is an error of law to fail to apply an applicable statutory presumption. In the instant case the trial judge relied on circumstantial evidence to infer that the samples were analyzed by an approved instrument and found that the presumption was applicable. This inference was available. The qualified breath technician testified that the breath samples were taken by an approved instrument (i.e. an Intoxilyzer 8000C); the approved instrument was in proper working order (as determined by a number of diagnostic tests); the respondent provided two suitable samples of his breath directly into the instrument; and the instrument produced results of 188 mg and 181 mg of alcohol in 100 ml of blood. The breath technician’s evidence on these points was not challenged at trial.

[34] As explained by Robins J. in R. v. Lightfoot (1979), 2 M.V.R. 113 (Ont. H.C.), at p. 120: “an approved instrument is by definition….designed to perform a chemical analysis” (emphasis added). In this case there was evidence that the breathalyser used was an approved instrument and that results were properly obtained. None of this evidence was contested by the respondent. In my view, there was ample circumstantial evidence from which the trial judge could properly conclude, as she did, that the respondent’s breath samples went through an analysis by means of an approved instrument. Admittedly, the breath technician did not specifically testify that the breathalyser instrument in question analyzed the accused breath samples. However, that is a reasonable inference the trial judge could draw from the fact that the approved instrument provided results of the breath samples.

[35] In my view, the summary conviction appeal judge erred in law in finding that the presumption in s. 258(1)(c) of the Criminal Code was not available in the circumstances of this case.

Issue 3: Did the Summary Conviction Appeal Judge Err in Law in Failing to Apply the Correct Standard of Review?

[36] Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pp. 791-92.

[37] In this case, there was ample circumstantial evidence from which the trial judge could properly conclude, as she did, that the respondent’s breath samples were analyzed by an approved instrument.

[38] In my view, the summary conviction appeal judge exceeded the ambit of factual review permitted under s. 686(1)(a)(i) of the Criminal Code and thereby erred in law in overturning the findings of fact of the trial judge.

V. CONCLUSION

[39] For the foregoing reasons, I would grant leave to appeal, allow the appeal and restore the conviction and sentence.

Released: June 20, 2012 “M.F. Brown R.S.J. (ad hoc)”

“JL” “I agree John Laskin J.A.”

“I agree R.A. Blair J.A.”