Ontario Superior Court of Justice

Court File No.: CR-13-086

Date: 2013-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

IAN MONTGOMERY

Respondent

S. Tarcza, for the Crown

M. Eisen, for the Respondent

Heard: December 16, 2013

On appeal from the Judgment of Mr. Justice G. Beatty dated March 7, 2013

HEALEY J.

[1] This is an appeal against acquittal on a charge of operation of a motor vehicle while having a blood alcohol concentration level exceeding 80 milligrams, contrary to s. 253(1)(b) of the Criminal Code of Canada.

[2] The Crown appeals on the ground that the trial judge erred by misapprehending and ignoring the Intoxilyzer technician’s evidence regarding the testing carried out by him, as set out in the Certificate.

[3] The Certificate was marked as Exhibit 1 at the trial. However, the trial judge excluded Exhibit 1 from consideration in his deliberations because he found that there was no evidence that a true copy of the Certificate was served on the respondent as required by s. 258(7).

[4] The Crown does not contest this finding. However, counsel for the Crown argues that the trial judge made a substantial, material misapprehension of the evidence that affected his reasoning process, and which led to an acquittal. Ms. Tarcza submits that the error, being of this nature and magnitude, is sufficient to justify appellate intervention by satisfying the test set out in R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) at para. 93 and R. v. Lohrer, 2004 SCC 80, [2004] S.C.J. 76 (S.C.C.) at para. 2. Crown counsel submits that even if the trial judge concluded that the Certificate could not be considered as evidence, he was still entitled to accept the testimony of the breathalyzer technician, Police Constable Barkley. The Crown relies on R. v. Pereira, [2011] O.J. No. 2225 (S.C.J.) at para. 11 and R. v. Lightfoot, 1981 47 (SCC), [1981] 1 S.C.R. 566 at p. 10 to argue that it was not necessary for the Crown to rely on the Certificate, and that the evidence of blood alcohol concentration was capable of proof through Constable Barkley.

[5] Mr. Eisen agrees that the Crown is entitled to rely on the Certificate or viva voce testimony or both, but submits that shortcomings in the oral testimony cannot be filled in by reference to the Certificate once it had been excluded from the evidence under consideration. I accept that submission, and note that the exclusion of the Certificate distinguishes this case from R. v. Lightfoot and R. v. Pereira. Constable Barkley gave evidence of the diagnostic check process that he underwent prior to operating the instrument, but he was never asked to provide evidence regarding the results of his testing. The only question asked by Crown counsel in this regard referenced the impugned Certificate, as follows:

Q: And does it (the Certificate) reflect the testing procedures that you did with Mr. Montgomery on that night – or that morning?

The question was answered in the affirmative, but no further evidence was provided. The question is inadequate in two respects: First, it references and is grounded in the very evidence that was ultimately found to be unreliable, and second, it provides no evidence about the results of the blood alcohol readings. The information in the Certificate could not be relied upon by the court, and it would be illogical to determine that the trial judge committed an error by disregarding evidence of its contents in the circumstances of this case. Without referencing the Certificate, evidence might otherwise have been provided through P.C. Barkley’s handwritten notes, which his testimony confirmed that he kept, had he chosen to record the test results in those notes. No questions of this nature were asked. Accordingly, there was no misapprehension of the evidence by the trial judge; the evidence was not available to ground a conviction.

[6] For the foregoing reasons the appeal is dismissed.

HEALEY J.

Released: December 16, 2013