ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P)3340-09
DATE: 2012 08 22

B E T W E E N:

HER MAJESTY THE QUEEN

Sean Doyle, for the Respondent

Respondent

• and -

ANTHONY SMITH

A. Little, for the Appellant

Appellant

HEARD: April 3, 2012

REASONS FOR JUDGMENT

[On appeal from the Judgment of Harris J.
dated March 10, 2009]

Wein J.

[ 1 ] The statutory offence of driving with more than 80 milligrams of alcohol in 100 millilitres of blood was designed to create an objective standard of criminal responsibility for drivers who decide to drive after drinking alcohol. In theory, the legislation should make the assessment of the facts clear and objective, without the subjectivity inherent in the assessment of the concept of “impairment”. In reality, proof of the offence has sometimes become mired in technicalities.

[ 2 ] Mr. Smith was convicted of “driving over 80” following a trial in the Provincial Court. He originally appealed against conviction on two questions:

1. When a breathalyzer machine registers that the sample given is invalid, does the officer have to wait for 17 minutes before retesting the subject?

2. Where the Crown files the certificate and also calls the qualified technician to give viva voce evidence, is it an error in law for the trial judge to rely upon the presumption of accuracy in s.258(1)(g)?

[ 3 ] The final hearing of the second question was delayed on agreement of counsel pending the release of decisions that had been under reserve in the Ontario Court of Appeal.

Question 1: Re-testing After Invalid Sample

When a breathalyzer machine registers that the sample given is invalid, does the officer have to wait for 17 minutes before retesting the subject?

[ 4 ] In this case, Mr. Smith was arrested for “over 80” after he failed a roadside breath test. He was taken to the station so that breathalyzer samples could be taken. After he had gone to the washroom he entered the breath room. The following is a chronology of events:

• 3:02 a.m.: Appellant entered breath room after going to the washroom.

• Breath technician explained operation and operability of the Intoxilyzer and explained checks performed, indicating it was in good working order.

• 3:15 a.m.: Appellant registered an invalid sample.

• 3:21 a.m.: Appellant provided a suitable sample measuring 107 mgs.

• 3:41 a.m.: Appellant registered invalid sample. Similarly to the first invalid sample, this sample was not long enough for the slope detector to plateau.

• 3:44 a.m.: Appellant provided second suitable sample measuring 101 mgs.

[ 5 ] The issue that arises in this case is whether the six minute and three minute intervals between the invalid samples and the suitable samples were too short to validate the sample.

[ 6 ] Constable Deroulet, the qualified breath technician, testified that the Appellant entered the breath room at 3:02 a.m., after he had gone to the washroom. She then discussed the operation and operability of the Approved Instrument, and described the self testing procedures of the Intoxilyzer, as well as the diagnostic and calibration checks that she performed on it, which led her to believe that the Intoxilyzer was in good working order.

[ 7 ] The videotape of the taking of the breath sample was entered as an exhibit. As is apparent from the videotaped evidence, at 3:15 a.m. the Appellant registered an “invalid sample” on the Intoxilyzer. When asked about the “invalid sample” the breath technician stated: “ it was ultimately not accepted by the [Intoxilyzer] because not all of the conditions were met that need to be met”.

[ 8 ] For a sample to be suitable, it has to meet three conditions: time, pressure, and slope. In elaborating on the “slope” aspect, the technician indicated that “when one first begins providing a sample, the alcohol level will increase noticeably and ultimately, it will reach a plateau level, and … the [Intoxilyzer] will accept it as a suitable sample. But if it detects that the alcohol is still increasing at a high rate … it is not deemed acceptable until it has reached a plateau level.”

[ 9 ] At 3:21 a.m. the Appellant provided a suitable sample measuring 107 mgs.

[ 10 ] After the standard twenty minute wait, at 3:41 a.m. the Appellant registered another “invalid sample” on the Intoxilyzer. When asked about this second “invalid sample”, Constable Deroulet responded that it was “similar to the first” as the three conditions have to be met and that it was not long enough for the slope detector to plateau.

[ 11 ] Then at 3:44 a.m. the Appellant provided a second suitable sample at 101 mgs.

[ 12 ] Training on the breathalyzer is provided by the Centre of Forensic Sciences. The training manual for the A1 Intoxilyzer used in this case provides:

Invalid sample. Reason: residual mouth alcohol is detected (usually) or there is a sudden decrease in the force of providing the sample (rarely). Corrective action: Although the ‘RE-TEST’ option is available immediately, the subject should not be tested again until after a waiting period of 17 minutes has expired.

[ 13 ] It is apparent that the summary in the manual makes no distinction between invalid samples caused by residual mouth alcohol as opposed to a decrease in force, meaning the physical manner in which the breathing samples are provided.

[ 14 ] In this case, the breathalyzer technician indicated that in her view, based on her training and experience, there did not need to be a waiting time in cases where there was no residual mouth alcohol. She knew from the timing and circumstances of the arrest that in this case residual mouth alcohol was not a problem. She was not aware of any hiccups or burps that could have caused residual mouth alcohol, and it was her view that the problem was that the force had not been sufficient to register a sample.

[ 15 ] During cross-examination, the technician agreed that she was not an expert on the Intoxilyzer, but indicated that she was familiar with the Intoxilyzer 5000C Training Aid and that she had been trained on it. She then reviewed the Training Aid instructions about the corrective action for an “invalid sample”:

Invalid sample. Reason, residual mouth alcohol is detected (usually) or there is a sudden decrease in the force of providing the sample. Corrective action: Although the 'RETEST' option is available immediately, the subject should not be tested again until after a waiting period of 17 minutes has expired…..

[ 16 ] When asked about her failure to wait for 17 minutes she stated: “there doesn’t need to be a waiting time. The first sentence I read said, residual mouth alcohol or … and the corrective action is indicating what to do if there is residual mouth alcohol. There is no residual mouth alcohol here, therefore there is no need to wait 17 minutes.” After confirming that she was trained on the Training Aid, she agreed that the corrective action prescribed in the Training Aid does not speak specifically of mouth alcohol. When it was suggested that the corrective action applied to either mouth alcohol or the sudden decrease in the force of providing the sample she responded that corrective action is simply for residual mouth alcohol, not for the second possibility”. She agreed that that interpretation is not specifically indicated in the Training Aid.

[ 17 ] In re-examination, she stated that in her:

belief and experience, 17 minutes is waited to ensure that there is no mouth alcohol present in the person’s breath or blood that was more than allowed for.

[ 18 ] Since she knew the Appellant had not consumed alcohol from 2:13 a.m., she was certain there was no new alcohol introduced into his body. She then confirmed that her opinion of when it’s necessary to wait the 17 minutes was based on her training.

[ 19 ] When asked to explain what causes mouth alcohol, she stated that:

if someone has very recently consumed alcohol, even if they’ve just had one sip … if they were to blow …five minutes, ten minutes after that, it will show them as having a very high alcohol concentration in the blood ... after 17 minutes to 20 minutes, it dissipates to, to next to nothing…

[ 20 ] She also agreed with the defence that a hiccup or burp can cause alcohol to be present in the mouth, and that it was possible when one hiccups or has a minor vomit that things would come from your stomach into your mouth. She had not seen the Appellant hiccup or belch, although she agreed that she had not examined him.

[ 21 ] It is apparent that the officer’s evidence, distinguishing the corrective action required for force decrease issues, was consistent with training known to be given by the Centre of Forensic Sciences. In a case referred to by the trial judge in his reasons, R. v. Martin , [2008] O.J. No. 3903 (O.C.J.) ., an expert witness, Ms. Martin from the Centre of Forensic Sciences, testified concerning the teaching provided on this point. In Martin the officer had also testified that according to his oral instructions and training from the C.F.S. personnel, the ‘degree of force’ cause of an invalid sample message does not require the technician to wait before attempting to receive a subsequent breath sample from the subject. The Court held:

The distinction between the two possible causes of an invalid sample message, either mouth alcohol or the manner in which the sample is provided (i.e. a decrease in force in providing the sample), is important in this case given that Officer Dasilva testified that according to his oral instructions from Centre of Forensic Sciences personnel, the latter cause of an invalid sample message does not require the technician to wait before attempting to receive a subsequent breath sample from the same subject. I would point out that no such distinction is made in the written contents of the manual as just quoted, so this is taught by the Centre of Forensic Sciences despite the fact that it is clearly contrary to the instructions contained in their own training manual. That an invalid sample message may result from one of the two causes identified above and that the need to wait a certain amount of time before re-testing only arises if the suspected cause is mouth alcohol as opposed to the physical manner in which the breath samples are provided, is what the Centre of Forensic Sciences taught to the officers when training them to be qualified technicians. This teaching was confirmed by the Crown's toxicologist who herself trains officers in this regard. Ms. Martin agreed that such a distinction is not made in the Intoxilyzer 5000C manufacturer's manual. She further stated that the contents of the Centre of Forensic Sciences training manual are the product of a single individual in the toxicology department of the Centre and that she does not necessarily agree with all of the statements therein. She surmised that some of her colleagues from the Centre might not either. It is for this reason that she teaches that in spite of the training manual's instruction to wait 17 minutes before retesting once an invalid sample message is obtained no matter what the cause, the subject can be immediately re-tested if mouth alcohol is not a concern. She went even further by stating that it is her opinion that contrary to her Centre's training manual, an invalid sample message is not usually the result of mouth alcohol, but a variation in the way in which a person exhales into the instrument.(at para. 22)

[ 22 ] Obviously, the manual and the training should be made consistent. However, Martin does provide support for the trial judge’s acceptance of the officer’s testimony that the results were accurate and that the failure to follow the manual did not, in effect, constitute evidence to the contrary. He was entitled to make the finding on the evidence before him, even though that evidence was more streamlined than that given in Martin .

[ 23 ] I would leave aside the issue of whether or not normally this type of evidence from another case should be given judicial notice, or any weight on appeal, since in this case the Appellant’s factum suggests that based on R. v. Koh, [1988] O.J. No. 5425 (C.A.) and R. v. Bernshaw , 1995 150 (SCC) , [1995] 1 S.C.R. 254, a trier of fact can take judicial notice about the cause and effect of mouth alcohol without the need for expert evidence.

[ 24 ] Unlike the situation in R. v. Nadesapillai, [2006] O.J. No. 3124 (O.C.J.) and the other cases referred to by the Appellant on this point, the trial judge here was entitled to find that strict compliance with the manual was not required since the officer’s training belief and experience expanded upon those directions.

[ 25 ] The Crown is requested to convey to the authors of the training manual and the trainers at the Centre of Forensic Sciences that the manual and the training should be made consistent, so that confusion on this point and unnecessary appeals could be avoided.

[ 26 ] The trial judge did not err in holding, on the evidence before him, that the breath technician was correct and did not need to wait after an “invalid sample” unless mouth alcohol was involved.

[ 27 ] A review of the videotape makes it abundantly clear that the ‘invalid samples’ resulted from the failure of the Appellant to blow long or hard enough, as instructed.

[ 28 ] The Appellant also relies on three cases from the Ontario Court of Justice involving the failure to wait 17 minutes after an “invalid sample”, where acquittals were entered on a charge of “over 80 mgs.”. R. v. Nadesapillai , [2006] O.J. No. 3124 (O.C.J.) , R. v. Asim , [2008] O.J. No. 3075 (O.C.J.) and R. v. Kirby , [2009] O.J. No. 5796 (O.C.J.) .

[ 29 ] However, in none of these cases was there evidence as given by the technician here, that there was no need to wait if the invalid sample resulted from an inadequate blow.

Question 2: Reliance on Presumption of Accuracy

Where the Crown files the certificate and also calls the qualified technician to give viva voce evidence, is it an error in law for the trial judge to rely upon the presumption of accuracy in s.258(1)(g)?

[ 30 ] Counsel requested a further hearing after the release by the Court of Appeal of the decisions in R. v. Chow, 2010 ONCA 442 and R. v. Kernighan, 2010 ONCA 465 .

[ 31 ] In addition to the viva voce evidence of the breath technician, the Crown also tendered into evidence the certificate of a qualified technician (“certificate”), which indicated two samples of breath were taken at 3:21 a.m. and 3:44 a.m., both 100 mgs. of alcohol in 100 mL of blood (“mgs.”).

[ 32 ] The context in which the certificate was tendered is important to the decision in this particular case. During the course of evidence, the trial judge disallowed a question as framed by the Crown, ruling that it was leading.

[ 33 ] The Crown was forced to rely on the presumption of accuracy because it was unable to rely on the presumption of identity prove the accuracy of the breath tests after the trial judge refused to allow a question that he ruled leading to be rephrased. The crown asked a question relating to the provision of the second sample directly into the instrument and the judge ruled that the qualified technician could not answer the question arising from a leading question:

Trial judge: Well, the question was an inappropriate question, I would agree. The witness will not be answering the question that was asked. Don’t be leading. […] Because the question that was asked will have already provided the answer, and that makes it a very leading question. The witness can come back. There will be no answer given to that question.

[ 34 ] However, he dismissed the defence motion for a mistrial. Subsequently, in the absence of this evidence, the Crown had to resort to introducing the certificate and relying on the presumption of accuracy.

[ 35 ] In convicting the Appellant, the trial judge relied heavily on the certificate and the presumption of accuracy in s. 258(1) (g) of the Criminal Code :

A Certificate of a Qualified Technician was introduced into evidence as Exhibit 11. It showed truncated readings of 100 milligrams of alcohol in 100 millilitres of blood as a result of tests conducted at 3:21 and 3:44. No evidence was given to explain why these readings were different from those indicated on the test record cards. The presumption of accuracy provided for in s. 258.1 (g) of The Criminal Code provides that the certificate is evidence of the facts contained therein in the absence of evidence to the contrary. Counsel for Mr. Smith argued that such evidence to the contrary can be found in the following: During cross-examination of Constable Deroulet, counsel for Mr. Smith showed Constable Deroulet a copy of the manual for the Intoxilyzer 5000C.

The Certificate of a Qualified Technician says here that two samples of Mr. Smith's breath were analyzed by means of an approved instrument which was operated by a qualified technician. The result of the analysis of both samples exceeded 100 milligrams of alcohol per 100 millilitres of blood. As I stated earlier, the presumption of accuracy provided for in s. 258.1 (g) of The Criminal Code applies in the absence of evidence to the contrary. I find that there was no such evidence to the contrary here. In that regard, I am still bound by the reasons of the Supreme Court of Canada in R. v. Crosthwait 1980 182 (SCC) , [1980] 1 S.C.R. 1089 where the court said:

Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyser or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable minimum.

There is no evidence before me which would show an error in the operation of the Intoxilyzer 5000C of such a degree in nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of Mr. Smith being over 80 milligrams of alcohol per 100 millilitres of blood. There is, at most, the mere possibility of an inaccuracy in the manner of Constable Deroulet’s operation of the Intoxilyzer 5000C. The Certificate of a Qualified Technician, therefore, stands as evidence of its contents. …

[ 36 ] The Appellant argues that the trial judge erred in law in relying upon the presumption of accuracy in s. 258(1) (g), based on the certificate, in circumstances where the Crown chose to call the breath technician as a witness to provide viva voce evidence to establish the manner in which the breath test were conducted and the results that were obtained. It is argued that it is clear that the decision to convict was based on the finding that there was no “evidence to the contrary” to rebut the presumption of accuracy.

[ 37 ] The Appellant argues the ultimate decision of whether the Crown had proven beyond a reasonable doubt that the Appellant’s blood alcohol concentration exceeded the legal limit at the time of the offence, without any reliance on the presumption of accuracy, was thereby called into question.

[ 38 ] The Appellant’s position is based on a line of authority commencing with R. v. Snider (infra) . In that case, the Court disagreed with the submissions of counsel that the decision of the Supreme Court of Canada in R. v. Boucher , 2005 SCC 72 () , [2005] S.C.J. No. 73 (S.C.C.) prevented him from considering the Intoxilyzer readings in assessing the credibility and reliability of the defence evidence to determine whether there was evidence to the contrary. In doing so, he relied upon the fact that the Crown used a “double barrelled” approach to prove the results of the accused breath tests, by filing the certificate, as well as calling the breath technician to provide viva voce evidence to establish the manner in which the breath tests were conducted and the results that were obtained.

… If this were a case in which the Crown required a certificate of a qualified technician in order to establish the accuracy of the analyses of Mr. Snider's breath, the position taken by the parties would be well-founded. On this trial, however, the Crown not only filed a certificate, it called viva voce evidence to establish the manner in which the breath tests were conducted and the results that were obtained. For reasons that will become clear, I am prepared to assume that the Crown is not entitled to rely on the certificate in order to prove the results of the breath tests. That is not the end of the matter, however. The question that remains is whether, on the basis of the admissible evidence before the court, the Crown has proved Mr. Snider's guilt beyond a reasonable doubt. …

R. v. Snider , 2006 ONCJ 65 () , [2006] O.J. No. 879 (O.C.J.) at para. 25

[ 39 ] The history of the law surrounding the presumption of identity in s.258(1)(c) and the presumption of accuracy in s. 258(1)(g) was reviewed. Relying upon the distinction between the different presumptions as explained by the majority of the Supreme Court of Canada in R. v. St. Pierre , 1995 135 (SCC) , [1995] 1 S.C.R. 791 (S.C.C.), the Court in Snider held that the Crown could not rely upon the presumption of accuracy in s. 258(1) (g) to prove what the accused’s blood alcohol concentration was at the time of the tests:

In R. v. St. Pierre , 1995 135 (SCC) , [1995] 1 S.C.R. 791 , the Supreme Court of Canada considered at length the nature of the two presumptions created by s. 258. The majority of the court stressed the importance of recognizing the distinction between the presumptions because "they arise from two entirely different subsections, they help the Crown over two entirely different evidentiary hurdles, and consequently the evidence necessary to rebut them is different." More to the point, for present purposes, the majority held that "there is nothing in s. 258(1) (c) establishing a presumption of accuracy".

The majority's conclusion that there is no presumption of accuracy in s. 258(1)(c) is important because it makes it clear that the presumption of accuracy only arises for consideration in relation to certificate evidence. Where the Crown seeks to establish accuracy by viva voce evidence, there is no presumption that that evidence is accurate. Its accuracy is to be determined in the manner in which all disputed issues of fact are determined, by a consideration of all the evidence bearing on the issue. In that context, evidence such as the defence evidence in the case at bar is, of course, relevant. …

At first blush, the distinction drawn by the majority of the Supreme Court of Canada between the two presumptions and between the operation of s. 258(1) (c) and 258(1) (g) would seem to lead to the conclusion that an accused who is able to show that the Intoxilyzer instrument was malfunctioning would nonetheless be convicted. This startling result might be thought to flow from the fact that s. 258(1) (c) provides that where the statutory preconditions have been satisfied, "evidence of the results of the analyses [of the breath samples] ... is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was ... the concentration determined by the analyses ..." [emphasis added]. If evidence of inaccuracy is not 'evidence to the contrary', it might be thought, this provision could convict an accused in the face of evidence raising a reasonable doubt as to guilt.

It may be that the Supreme Court did not address this issue in St. Pierre because it assumed that in most over 80 cases the Crown would proceed by way of certificate evidence, and thus that evidence of inaccuracy would be taken into account in considering whether there was evidence to the contrary under s. 258(1) (g). However, it has become increasingly common for the Crown to call the qualified technician, particularly where a 'Carter' defence 3 is being presented. As I have explained, where the qualified technician testifies, there is no presumption of accuracy. Clearly the Supreme Court did not mean to suggest that s. 258(1) (c) should be read in a manner that would permit the conviction of individuals who were able to raise a reasonable doubt as to their guilt. In light of the Supreme Court's conclusion that s. 258(1) (c) does not contain a presumption of accuracy, and therefore that evidence of inaccuracy is not evidence to the contrary, the only logical reading of this provision is that if there is a reasonable doubt as to the accuracy of the results of the analyses, that doubt attaches to the results and flows through to the time of driving, leading to a verdict of acquittal .

Snider , at paras. 29-30 and 32-33

[ 40 ] This holding that “the Crown is not entitled to rely on the certificate and thus that the Crown cannot avail itself of the presumption of accuracy” figured prominently in the Court’s other holding that the breath readings could be used to assess the credibility and reliability of the defence evidence, thereby overcoming the problem created by the decision in Boucher . The reasoning in Snider was adopted by the Superior Court in R. v. Lilek, [2006] O.J. No. 1158 (S.C.J.) . Since then, the summary conviction appeal Courts of Ontario have adopted the Snider/Lilek line of reasoning, restricting the Boucher prohibition against considering the Intoxilyzer results to cases where the Crown relies exclusively on the certificate.

[ 41 ] The Appellant argues that it must also be legally and logically true that part of the central basis for this line of reasoning, i.e.: “the Crown is not entitled to rely on the certificate and thus that the Crown cannot avail itself of the presumption of accuracy”, must also be accepted as correct and a fundamental part of the law. To reason otherwise would call into question the entire body of jurisprudence that has followed the Snider/Lilek line of reasoning, which, it is argued, has now been adopted by the Court of Appeal in R. v. Chow , and R. v. Kernighan .

[ 42 ] In Chow , the Court of Appeal considered whether the trial judge had erred in taking into account the circumstances of the breath testing to assess the credibility of the accused. The Court dismissed the appeal, finding that the trial judge did not err because that case was “not about the presumption of accuracy” since the Crown had both filed the certificate and called the breath technician to give viva voce evidence to establish the manner in which the breath tests were conducted and the results that were obtained.

[ 43 ] The Court of Appeal held:

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.

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.

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.

R. v. Chow , [2010] O.J. No. 2527 (O.C.A.) at paras. 11-13

[ 44 ] Subsequently, in Kernighan the Court of Appeal again considered whether the trial judge had erred when he took the breath results into account in assessing the evidence to the contrary and in assessing the Appellant’s credibility. The Court of Appeal held that the Crown did not rely upon the presumption of accuracy, as Gillese J.A. explained:

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.

R. v. Kernighan , [2010] O.J. No. 2671 (O.C.A.) at para. 15

[ 45 ] These cases from the Court of Appeal essentially adopted the Snider/Lilek line of reasoning, restricting the Boucher prohibition against considering the test results in assessing the credibility of the accused to cases where the Crown relies exclusively on the certificate.

[ 46 ] The Appellant extracts from this line of reasoning the expanded conclusion that the Court of Appeal implicitly also accepted as correct that the Crown is not entitled to rely on the certificate for the presumption of accuracy when the Crown chooses to call the qualified technician to give viva voce evidence to establish the manner in which the breath tests were conducted and the results that were obtained, even if the issue of “evidence to the contrary” is not raised, whether by the Crown evidence or the defence evidence.

[ 47 ] I do not agree. The Boucher issue simply did not arise in this case. Nor did the issue that arose in Snider or R. v. Dalton, [2006] O.J. No. 4670 (O.C.J.) arise here. There was no need for the trial judge to consider the viva voce evidence of the breath technician, since there was no evidence to the contrary requiring an assessment. As was stated in R. v. Dalton,

... The presumption of accuracy only comes into play when the Crown has the advantage of relying on a certificate which invokes a type of evidence to the contrary issue and where the accused is placed in the position of having to tender evidence to the contrary. Where there is no certificate, no presumption arises. Where the Crown calls the qualified technician, the technician is available for cross-examination. Evidence raising a reasonable doubt may be obtained during cross-examination. The operation, and operability of the approved instrument, are in issue as well as the training and expertise of the technician, as well as any other factors that go to the issue of whether or not the instrument, at the time the tests were taken, measured accurately the blood alcohol concentration of the accused. Where the Crown calls the qualified technician, the certificate should be deemed to be overridden so that the Crown is not in the position of indirectly using the breath readings to rebut the presumption of accuracy. As in R. v. Snider , and R. v. Lilek , where the breath technician testifies, the breath results are but one piece of evidence to be considered in determining whether the instrument correctly measured the blood alcohol concentration of the accused at the time of testing. If so, the question then becomes whether there is evidence to the contrary such that the presumption of identity is rebutted. In some instances, the court may not be satisfied that the Intoxilyzer accurately measured the blood alcohol concentration of the accused, at the time of testing. In those situations, the need to specifically address the presumption of identity may not arise. To reason otherwise is to ignore the difference between the presumption of accuracy in certificate cases and the presumption of identity as articulated in R. v. St. Pierre . Where there is no certificate, there is no presumption. …

R. v. Dalton, [2006] O.J. No. 4670 (O.C.J.) at para. 100

[ 48 ] Accordingly, the trial judge did not err in finding that the presumption of accuracy applied, and that the reasons of the Supreme Court of Canada in R. v. Crosthwait , 1980 182 (SCC) , [1980] 1 S.C.R. 1089 (S.C.C.) also applied.

[ 49 ] As noted above, the “invalid samples” were fully explained by the technician.

[ 50 ] Snider, supra , Dalton, supra , Chow, supra , and Kernighan, supra , do not stand for the proposition that the Crown is never able to rely upon the presumption of accuracy, where the Crown calls the breath technician as a witness. Comments made in the context of cases assessing for example a defendant’s evidence, or warning against the arbitrary acceptance of readings from a breathalyzer without evidence of reliability, do not extend to the situation here where there was no evidence to the contrary called by the defence and no issue of reliability raised.

[ 51 ] The situation in this case, where the Crown was as a practical matter required to call the breath technician as a witness to provide viva voce evidence to establish the manner in which the breath tests were conducted and the results that were obtained, because reliance on the presumption of accuracy to that extent was in effect prevented as a result of the ruling on the leading question, is not directly addressed.

[ 52 ] In my view, Chow and Kernighan were concerned not with prohibiting the Crown from the reliance on the presumption of accuracy, but rather the use that could be made of the breath readings in assessing the credibility of an “evidence to the contrary” defence post-Boucher.

[ 53 ] The Appellant also argues that the restriction of Chow and Kernighan, and by extension Snider, to cases where the defence did not call any evidence and there is evidence to the contrary, defence would in essence create two different rules depending on whether the accused called evidence.

[ 54 ] This is not so. Cases such as R. v. Martin, [2008] O.J. No. 3903 (O.C.J.) are distinguishable because there was additional evidence concerning the invalid samples.

[ 55 ] In the alternative that reliance on the viva voce evidence were deemed necessary, it is clear, through circumstantial evidence and inferences as the Appellant has acknowledged, that there was adequate evidence that the breath samples were provided directly into the approved instrument: see R. v. Mulroney , [2009] O.J. No. 4581 (O.C.A.) , R. v. Metz , [2011] O.J. No. 1202 (S.C.J.) , R. v. Donut , [2009] O.J. No. 2519 (S.C.J.) .

[ 56 ] The decision of the Court of Appeal in R. v. Staples , [1997] O.J. No. 4565 (O.C.A.) , albeit a brief decision given by way of endorsement without extensive reasons, is directly on point. At the trial level, the accused was convicted in circumstances where the Crown filed the certificate and called the breath technician to give viva voce evidence. The Summary Conviction Appeal Court held that the Crown had elected to prove its case by way of the viva voce evidence as opposed to the certificate, and a new trial was ordered because the viva voce evidence of the breath technician did not indicate the time of the first breath test and as such there was a variance between the certificate and the viva voce evidence. On further appeal, the Court of Appeal restored the conviction:

THE COURT (endorsement):-- The summary conviction appeal court erred in law in holding that by calling the breathalyser technician the Crown "elected" to prove its case by viva voce evidence in preference to the evidence contained in the breathalyser certificate. Both the viva voce evidence and the certificate were properly admissible and could be considered in determining whether the Crown had proved its case.

[ 57 ] The Appellant finally argued that the position taken by the Crown in this case is contrary to the position taken by the Crown in R. v. Dineley , [2010] S.C.C.A. No. 121. Dineley addresses whether the amendments to section 258(1) of the Criminal Code (i.e. Bill C-2) apply retrospectively.

[ 58 ] The Crown position in Dineley is as follows: “As discussed in paragraph 14 supra, the presumption of accuracy only applied to cases where the prosecution relied exclusively on a QT certificate”. However, there is no conflict in the positions taken when the particular issue in this case is considered.

Result

[ 59 ] Accordingly, the appeal is dismissed.

Wein J.

DATE: August 22, 2012

COURT FILE NO.: SCA(P)3340-09
DATE: 2012 08 22

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – ANTHONY SMITH Appellant REASONS FOR JUDGMENT Wein J.

Released: August 22, 2012