Court File and Parties

Court File No.: 2811 998 Date: July 7, 2015

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen

F. Stephens, Counsel for the Crown

- and -

Gregory Green

E. Chan, Counsel for the Defendant

HEARD: June 17 & 18, 2015 JUDGMENT RELEASED: July 7, 2015

Judgment

STONE, J:

Gregory Green is charged with care and control of a motor vehicle after having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams in 100 millilitres of blood on December 1st, 2013. On that date, around 3:00 a.m., the operator of a white Toyota motor vehicle shown to have had Ontario licence plate BSAT 267, crashed his car into two hydro poles on Ritson Road at Eulalie Street in Oshawa.

The crash was seen at a distance by one witness who testified, and an ambulance driver happened onto the scene immediately thereafter, while the first witness was still arriving. That ambulance was carrying a patient to hospital, and so the driver called for and was sent another ambulance. Both ambulance drivers assisted in the extraction of the driver from the Toyota. The Toyota driver was then taken to Lakeridge Health, the Oshawa Hospital, by the second ambulance.

Blood Testing

A patient's blood was drawn in the early morning of December 1, 2013 at Lakeridge Hospital, Oshawa, as directed by medical staff, including or overseen by a doctor. The protocol on that night shift required that a laboratory technician take the blood from the patient, and send the vials of blood in a biohazard bag through a vacuum tube to the hospital on-site lab. There, a laboratory technologist would analyze the contents of the vials to answer the doctor's requisitions. The results would be communicated by entering them in the hospital's computer system, except in some urgent circumstances where they would be phoned to the team caring for the patient. Right away, or much later, if needed, a given patient's records might be required and could be looked up by caregivers, or could be printed off in the way we see presented as Exhibit Two.

According to the covering letter signed by Phil Sheppard of Lakeridge Health, and explained further by his live evidence, Exhibit Two is the complete medical record of 00645098 Gregory Green from that hospital.

Section 30 of the Canada Evidence Act has been complied with in this case and Exhibit Two is admitted as business records of the hospital. What else is required before I can accept those records for the truth of their contents, recognizing they are hearsay?

It seems clear that contents of the documents that were not generated by hospital or medical processes, are at best a repetition of hearsay from other sources gathered by the hospital as it struggled to understand what it was dealing with. So, for example, if one found a recording of a complaint that the patient was the victim of a domestic assault, that does not prove a domestic assault occurred. The complaint might however explain certain medical processes which followed.

For the purposes of this case, I am only interested in records of those hospital processes, whatever gave rise to them. After all, that is the information the hospital was seeking to record in its business records, both to help its practitioners do their work quickly, efficiently and correctly, and to be able to review that work and any developments therefrom for subsequent medical and business purposes. All of those purposes are important to remember.

Each medical sample or specimen in this case followed certain tracks or processes. Each action and each analysis was caused or performed by a human being, sometimes assisted by machinery. At the heart of Mr. Chan's submission is the fact that if all the relevant people can be assembled here in court, and fully questioned, the Court can learn exactly what testing and results occurred, and whether they were done, created or read correctly. The absence of such proof leaves doubts. Machines can make mistakes, as they wear out, are improperly configured, or malfunction. People can make mistakes directly, or by improperly using machines or the wrong machines.

The whole point in using s.30 to admit business records is to permit a short cut to proof of what happened during normal business processes, without calling all the humans involved and wading through reams of computer documents. However, there will always be available questions such as whether the process was done and recorded correctly. The burden to prove it was will be on the proponent. Mr. Stephens is correct that not every piece of proffered evidence requires proof beyond a reasonable doubt, but at the end of the day, the blood alcohol content of the accused at the time of care and control must be proven beyond a reasonable doubt to have exceeded the legal limit, along with identity.

Legal Principles on Blood Alcohol Testing

The high-water mark for Mr. Chan's argument was the majority's position in R. v. Bird (1989), 71 C.R. (3d) 52, 76 Sask. R. 275 (C.A.). The very restrictive view in that case was clearly exiled from the law of Ontario in R. v. Redmond, [1990] O.J. No. 143, 54 C.C.C. (3d) 273 (C.A.). In a thoroughly convincing ruling by Blair, JA., by which I am in any event bound, the Ontario Court of Appeal:

(a) preferred and adopted the dissent in Bird (at O.J. pp.5-6),

(b) explained how the Bird majority might have become misled (at O.J. p.6), and

(c) made it clear that they were not distinguishing Bird on its facts but finding against its enunciated principles (at O.J.p.7).

In Redmond, the experienced hospital personnel who had taken and analyzed the patient's blood on doctor's orders, had testified at the trial. On the facts of that case, the result of the blood analysis at the hospital was admissible, supported the expert evidence, and proved impairment by alcohol. I note in passing that s.8 of the Charter was considered but not found applicable in that case.

R. v. Murray, 2011 ONSC 3735, [2011] O.J. No. 2875, 17 M.V.R. (6th) 29 (O.S.C.J.), appeal dismissed 2013 ONCA 173, [2013] O.J. No. 1267, 42 M.V.R. (6th) 175 (C.A.) was tendered by the Crown. In Murray, the trial court had heard "fewer details provided as to the [blood] test than in R. v. Redmond" (supra.) (C.A. at paragraph 7) The complaint of the appellant was that the hospital lab technician who introduced the blood alcohol content result in court gave no details as to the equipment used or its reliability (C.A. at paragraph 5). At trial, the Crown had called the laboratory technician who had taken the blood from Mr. Murray and the lab technologist who analyzed it. Both testified as to what they had done on that occasion. In that case, extra blood had been drawn at the request and in the presence of a police officer, and that officer was present during analysis.

Referring to the appellant's argument, the Court of Appeal said this at paragraphs 6-7:

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 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 from 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), 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.]"

In the case at bar, Mr. Sheppard, a "Health Information Specialist" at Lakeridge Health, Oshawa, testified to the record-keeping-and-retrieving process, and satisfied me as to the efficacy of the records.

Mark Robb-Keenan, a laboratory technician at Lakeridge Health testified. It appears he was one of two lab technicians on duty on December 1st, 2013 after 3:00 a.m. He would normally deal with 40 to 50 patients per shift. He had no recollection if Gregory Green was one of them. What he could testify to was that he is classified as a blood collection specialist, certified both provincially and nationally. He spoke in terms of the Lakeridge Health operation, about what was required for his job. As a laboratory technician he would draw as many vials of blood as were required by the doctor, receiving his instructions by computer. Using the patient's unique hospital number and name as provided, he prepares labels and stickers. The technicians compare that information to what they find on the patient's wristband. If the patient is unconscious, they speak with nurses in lieu of the patient. Thus they match the requisition to the patient.

Mr. Robb-Keenan's evidence went through the process of taking the blood samples, and how the tubes are put in biological bags and sent by vacuum tube to the lab. There the second lab technician on duty prepares the samples for the tests required. The laboratory technologist performs the analyses using the equipment in the hospital lab. The results are entered in the patient's electronic file, unless extra urgency in a particular case requires more.

In the case at bar it appears there was no police request for a blood-alcohol analysis as in R. v. Murray. The only police officer who was sent to the hospital testified he was told blood had been taken and that the patient, Gregory Green, could not supply a breath sample. Accordingly, when the patient's blood was taken and analyzed it was not by someone effectively acting as a police agent or under police direction. The blood was dealt with for medical purposes. This satisfied me that for Lakeridge Health's purposes, Gregory Green was just another patient who needed care, and was not the subject of a special or police agenda.

In my respectful view, the taking and analyzing of this blood was conducted by a large regional hospital in a large urban area. This is not diminished by the notation on p.1 of the hospital record that the patient was transferred to Sunnybrook with spinal precautions. I have some evidence of the stature of the hospital, and am satisfied that stature is so notorious to anyone in the Durham Region, and many beyond, that I can take judicial notice of that fact.

The evidence before me allows me to conclude that Mr. Green's blood was drawn by a qualified lab technician and analyzed by a lab technologist, twice to confirm the result. That result was phoned to Naomi L. by an employee of Lakeridge Health Oshawa before December 1st, 2013 at 05:12 hours. Use of the stat printer, in light of the evidence of Mr. Robb-Keenan, suggests the utmost urgency. The records specify that a verbal result was given and a read-back of results performed. Again this suggests this was serious business to the hospital, and every care was being taken to get it right.

I recognize what Mr. Chan might argue is the lack-of-evidence corollary: that if the same analyst makes the same mistake twice, he should produce two results with the identical error. Without the analyst's process being subjected to cross-examination, the mistake or its result might not be identified. This in my view is a question of fact and of degree, to be considered on a case-by-case basis. Mr. Robb-Keenan has satisfied me that the analysis of ethanol in a blood sample is a routine exercise of skills expected to be known by every Lakeridge Health lab technician and lab technologist, respectively. As I see it, doing an analysis twice is designed to have a professional re-examine a substance and his processes, to catch any error that might have crept into the first analysis.

The combination of Mr. Robb-Keenan's evidence of the sterilizing substance used on patients at Lakeridge Health, combined with the evidence of Dr. Langille, eliminates any concern that the rubbing alcohol might have been identified as ethanol during the testing procedure. The evidence of Dr. Langille added considerable weight and credit to the processes used at Lakeridge Health, and the available inference of reliability of their results.

The Murray case has made it clear that in Ontario there is no need for the prosecution to call evidence as to the precise scientific workings of modern medical technology. A technologist need not be able to build or repair the machinery she uses. The court does need to be satisfied that on the occasion in question, a trained analyst executed proper procedures properly, on a sample or substance whose provenance is proven. After weighing all the admissible evidence, the Court must determine, remembering what evidence it has and does not have, whether the Crown has proven the accuracy of the result beyond a reasonable doubt.

It is noted that in this case I have no evidence to the contrary to diminish the reliability of the process or result, or to help me identify an area of doubt. See R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paragraphs 36 and 37, as the burden of proof beyond a reasonable doubt.

The interplay of the evidence of Mr. Sheppard, Mr. Robb-Keenan, and the highly credible and relatively independent expert Dr. Langille, has the effect of proving the accuracy of the blood alcohol content analysis of 39 millimoles of alcohol in one litre of blood serum, at approximately 4:16 a.m. on December 1st, 2013.

Dr. Langille translated that blood ethanol analysis into milligrams/100 millilitres of whole blood, and based on human body alcohol elimination rates that the court finds credible, testified that at all material times (when the Court is satisfied someone had care and control of a Toyota motor vehicle on Ritson Road), the donor of the blood sample had a blood alcohol content of at least 155 milligrams of alcohol in 100 milliliters of blood.

It is in my view that the principles clarified by our Court of Appeal in R. v. Murray also permit me to conclude that the hospital records and evidence of the same three witnesses make out continuity of the blood sample from a person identified by the hospital as 00645098 Gregory Green, to the point of analysis by a laboratory technologist at the hospital, beyond a reasonable doubt.

Identity

The final issue is whether the Crown has proved beyond a reasonable doubt that Mr. Green had the care and control of a white Toyota motor vehicle when it crashed on Ritson Road, Oshawa, on the date in question. Has the Crown proved identity?

Only one person who testified before me purported to identify the accused before the Court. That was Constable Gordon, who was dispatched by his Acting Sergeant to the Lakeridge Health Oshawa hospital at 4:27 that morning. It appears he did not have a name, but was to monitor someone who had been in a motor vehicle accident and was now in the trauma unit. He found Gregory Green there, who he says in an in-dock identification is the accused before the Court. He spoke with Dr. Freeman, who is mentioned in Exhibit Two, the hospital report, as at least one of Gregory Green's attending doctors.

If the in-dock identification holds, there is a reasonable basis to conclude the accused before the Court provided the blood sample whose analysis was recorded in Exhibit Two.

The hearsay in Exhibit Two as to an M.V.C., which may well mean "motor vehicle collision," is information that did not result from any action of any medical or admissions staff at the hospital. It was told to the hospital. It is inadmissible hearsay. Accurately determining and recording the origin of Mr. Green's injuries was important to hospital staff, but was not a business process of the hospital as such, and was not even proven to be an admission by Mr. Green; who may well have been unconscious.

Exhibit Two records that Mr. Green arrived at Lakeridge Health at 03:49 hours December 1, 2013. He was triaged at 03:50. He was brought in by an ambulance and there may be an identifier for which one. If there is an identifier, neither of my paramedical witnesses gave me information that would permit a finding of linkage. The information as to the times that the two ambulances containing paramedics Candice Golfetto or Alan Hinan arrived at Lakeridge Health with their two different patients is unclear. Both relied on times given by their dispatcher, but did not supply enough evidence to more precise times beyond hearsay. They could give me general times. Mr. Hinan came closest to firm times, saying he believed they arrived at the hospital at 3:53 or 3:52, "whatever they said." This is a deferral to someone else's timekeeping, and was not pinned down. Mr. Hinan's arrival time is important because he was transporting the black male driver of the crashed Toyota, while Ms. Golfetto was transporting someone else, whose description is unknown. Again, the hospital records Mr. Green's arrival at 03:49. He is a black male.

Neither Ms. Golfetto nor Mr. Hinan could identify the driver of the Toyota. They were totally engaged in cutting the unconscious driver out of his driver's seatbelt, stabilizing him on a back board, and getting him out of the passenger window of the car, with the help of a tow truck, its driver and other first responders.

Mr. Hinan described that his patient had a head injury. Mr. Chan argued that Constable Gordon checked with Dr. Freeman and learned that Gregory Green had abdominal injuries, with no mention of a head injury. Out of the officer's mouth, the doctor's information is hearsay, and I will not apply it. On the other hand, the Crown has not adduced evidence that would allow me to find that Mr. Hinan's patient had distinguishing injuries that were seen by others at the hospital. Some of the hospital records are hard to read.

It may or may not be an inconsistency in the records that Mr. Green was transferred to Sunnybrook at 07:05, (1st page) or discharged home at 10:24 (3rd page). Nothing turns on it for any of the three issues in his case, in my finding.

I conclude that although there are interesting coincidences in this case, the Crown has failed to prove beyond a reasonable doubt that Gregory Green before the Court had anything to do with a white Toyota motor vehicle bearing Ontario licence plate BSAT 267 on the date in question. His blood alcohol content was well over the legal limit at the time they are asserting, but he must be acquitted on the issue of identity.

Delivered dated this 7th day of July, 2015

The Honourable Mr. Justice D.M. Stone