Court of Appeal for Ontario

Citation: R. v. Murray, 2013 ONCA 173

Date: 20130321

Docket: C54397

Before: Sharpe, Watt and Hoy JJ.A.

Between:

Her Majesty the Queen Respondent

and

David Murray Appellant

Counsel: Gregory Lafontaine, for the appellant Joan Barrett, for the respondent

Heard and released orally: March 18, 2013

On appeal from the conviction entered by Justice Edward J. Koke of the Superior Court of Justice, sitting without a jury, on June 22, 2011, with reasons reported at 2011 ONSC 3735, 17 M.V.R. (6th) 29.

ENDORSEMENT

[1] The appellant was convicted of impaired driving causing bodily harm, "over 80" causing bodily harm, and dangerous driving causing bodily harm. He was sentenced on the "over 80" causing bodily harm count and the other counts were stayed pursuant to the Kienapple principle.

[2] The appellant appeals his convictions.

[3] First, he challenges the validity of the search warrant to obtain the result of blood testing at the hospital following the incident giving rise to these charges. The appellant submits that there is nothing in the information to obtain the warrant to indicate that the hospital would test or had tested the appellant's blood for blood alcohol content.

[4] In our view, the details of the incident recited in the information to obtain, including evidence that alcohol was present in the vehicle, the behaviour of the appellant and the fact that the appellant's breath smelled of alcohol, when combined with his presence at the emergency department for treatment, were sufficient to provide a basis for a reasonable inference that the hospital would test the appellant's blood for alcohol as a matter of course in determining how best to treat him medically.

[5] The second point raised by the appellant also relates to the blood alcohol test at the hospital. The appellant submits that the trial judge erred in admitting or giving any weight to the evidence of the result of the lab test to determine blood alcohol content because the hospital lab technician called to introduce that evidence provided no details as to the equipment used or as to its reliability.

[6] We disagree with that submission. We see no error in the trial judge's reasons, which were as follows:

In assessing how much weight I am to place on the test results, I am compelled to consider not only the fact that the testing was conducted by a qualified technologist, but also the fact the laboratory in which the testing equipment was located and in which the testing and analysis was performed was in a large urban hospital. This laboratory was designed to service doctors and other trained medical professionals. It is implicit that these medical professionals were prepared to rely on the laboratory results to make their decisions, decisions which impact the health, and sometimes the life of hospital patients. It is also implicit that a laboratory which is designed and operated for these purposes will use reliable and well maintained and calibrated equipment.

On these facts, I am prepared to find that the test results are acceptable form the standpoint of accuracy and reliability. In making this finding, I accept the submission of the defence that I must make this finding on the criminal standard of proof and I so find.

[7] We agree with the appellant that there were fewer details provided as to the test than in R. v. Redmond (1990), 1990 10971 (ON CA), 54 C.C.C. (3d) 273 (Ont. C.A.), but in our view the principle relied on in Redmond and, in particular the law as stated in Wigmore on Evidence, vol. 2 (Chadbourn Rev., 1979), s. 665(a), at pp. 917-19 was satisfied:

The use of scientific instruments, apparatus, formulas, and calculating tables, involves to some extent a dependence on the statements of other persons, even of anonymous observers. Yet it is not feasible for the professional man to test every instrument himself; furthermore he finds that practically the standard methods are sufficiently to be trusted. Thus, the use of an X-ray machine may give correct knowledge, though the user may neither have seen the object with his own eyes nor have made the calculations and adjustments on which the machine's trustworthiness depends. The adequacy of knowledge thus gained is recognized for a variety of standard instruments. In some instances the calculating tables or statistical results are admitted directly, under an exception to the hearsay rule. [Citations omitted.]

[8] Other grounds of appeal raised in the factum were abandoned in oral argument.

[9] Accordingly, the appeal from conviction is dismissed.

"Robert J. Sharpe J.A."

"David Watt J.A."

"Alexandra Hoy J.A."