ONTARIO
SUPERIOR COURT OF JUSTICE
Editor’s note: Corrigendum released on September 11, 2014. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: SCA 13-7873 (Kitchener)
DATE: 2014-07-17
B E T W E E N:
HER MAJESTY THE QUEEN
S. Marple, for the Respondent
Respondent
- and -
LANCE BENNETT
S. Shikhman, for the Appellant
Appellant
HEARD: July 9, 2014 in Kitchener
PARAYESKI J.
RULING
[1] Mr. Bennett appeals his summary conviction by Justice Carr of the Ontario Court of Justice for the offence of operating a motor vehicle while his blood-alcohol level exceeded the legal limit. Rather than asking that the conviction be set aside, the order being sought is one requiring a new trial, with or without prior disclosure of some technical records relating to the device used to measure the accused’s blood-alcohol level.
[2] The appeal is based upon three separate rulings by Carr, J. with which the Respondent takes issue. Firstly, Mr. Bennett's application alleging that his 10(b) Charter rights were breached was denied. Secondly, his disclosure motion at trial seeking that he be provided with technical data known as "COBRA" was refused. Thirdly, Carr, J. ruled that the failure of the police to send out the relevant approved instrument for maintenance every two years did not constitute operator error and held, therefore, that Mr. Bennett had failed to rebut the statutory presumption that the device was functioning as required.
[3] I shall deal with the three issues in turn.
1. 10(b) Issue
[4] It is not necessary to summarize either the evidence or arguments on this point. It is plain that Carr, J.’s ruling is based upon his having believed the police officer over the accused with respect to what the latter said at the scene relative to communicating with a lawyer. His Honour was of the view that, based upon the officer’s version of the conversation, there was no owed duty which was breached.
[5] A credibility finding is due to deference, unless of course, it is unsupported by the evidence. Here there was such evidence. While of course it would have been preferable had Carr, J. expressly stated in his reasons why he found as he did, the failure to have done so is not fatal. It is clear from a reading of the decision and the transcript of trial evidence that there was a full appreciation of the facts and issues required to make that ruling, and I am not prepared to interfere. Carr, J. saw and heard the witnesses; I did not. The appeal fails on this issue.
2. Disclosure of the COBRA Data
[6] For reasons unknown, the relevant police force did not keep records of maintenance for the approved instrument used to screen Mr. Bennett's breath samples for blood-alcohol content. Obviously, the Crown could not disclose the non-existent maintenance records. The Crown, however, did disclose what technical data it had relative to the device, save and except for data known as "COBRA." Carr, J. heard evidence from two experts, one called by each side. Mr. Bennett's expert, one Dr. Ward, was of the view that, especially in light of the non-existence of maintenance records, the COBRA data was needed and might lead him to a conclusion that the approved instrument was defective. The Crown expert, one Dr. Langille, expressed his opinion that COBRA data goes beyond the scope of what is relevant in assessing instrument reliability. Carr, J. accepted the opinion of Dr. Langille over that of Dr. Ward. I accept the Crown's assertion that there is little consensus in the scientific or legal communities as to the relevance of COBRA data to the issue of an approved instrument’s accuracy and reliability.
[7] It was open to Carr, J. to prefer the evidence of one expert over the other. His ruling on relevance is consistent with the rulings made in similar cases. It is also consistent with a position paper published by the Alcohol Test Committee. Specifically, that body has stated: "...data collected both prior to and after the subject test, or an examination of the approved instrument subsequent to the subject test, do not further assist in determining the reliability and accuracy of [an approved instrument] during a specific breath testing procedure." (Emphasis added. See position paper at Tab 5, page 111 of the appeal book). COBRA data, I was told, is precisely that kind of data. Justice Carr also heard and accepted evidence that the approved instrument in question runs a series of self-tests prior to the sampling, and that no malfunction was determined at that time.
[8] Taking all of this into consideration, I find that Carr, J. did not make a reversible error on this point. The appeal fails in respect of it.
3. Ruling on the Nature of the Error in Failing to Keep Maintenance Records
[9] Section 281(1)(c) of the Criminal Code creates a rebuttable presumption that an approved instrument is accurate. To rebut the presumption, the accused must show that the approved instrument was either malfunctioning or was being improperly operated at the time in question. It is not enough to raise doubt in a general sense.
[10] Carr, J. ruled that the failure to keep maintenance records was not an operational error as contemplated by the Criminal Code section quoted. He heard, and obviously relied upon, evidence that the specific approved instrument used to test Mr. Bennett had been sent out for maintenance some time after his testing, and that it was determined then that no maintenance whatsoever was required. It is not illogical to conclude that an approved instrument that does not require any maintenance was, and is, functioning satisfactorily. His Honour distinguished the Regina v. Picket case cited to him. Carr, J.'s conclusion was supported by both evidence and law, and I am not prepared to overturn him on this point. The appeal fails on this point as well.
[11] I appreciate that in his reasons, Carr, J. did not accurately reflect the evidence heard by him in respect of the specific approved instrument's functioning some time before it was used to test Mr. Bennett's breath sample. That error does not assist Mr. Bennett with respect to this appeal, however, because that factual error was not material to the ruling made. If anything, it was an error in Mr. Bennett's favour at trial, and it was still rejected.”
[12] The test on appeal is not whether I might or could have ruled differently on any given point. I do not agree that Carr, J. ignored any case law binding upon him. I see no proof of a reversible error, and dismiss this appeal.
Parayeski J.
COURT FILE NO.: SCA 13-7873 (Kitchener)
DATE: 2014-07-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
LANCE BENNETT
Appellant
REASONS FOR RULING
MDP;co
Released: July 17, 2014
COURT FILE NO.: SCA 13-7873 (Kitchener)
DATE: 2014-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Marple, for the Respondent
Respondent
- and -
LANCE BENNETT
S. Shikhman, for the Appellant
Appellant
HEARD: July 9, 2014 in Kitchener
PARAYESKI J.
CORRIGENDUM
[1] The changes are reflected in paragraphs 2, 6-7, 9-11 by replacing “screening device” and “device” with “approved instrument”. The paragraphs should now read:
“[2] The appeal is based upon three separate rulings by Carr, J. with which the Respondent takes issue. Firstly, Mr. Bennett's application alleging that his 10(b) Charter rights were breached was denied. Secondly, his disclosure motion at trial seeking that he be provided with technical data known as "COBRA" was refused. Thirdly, Carr, J. ruled that the failure of the police to send out the relevant approved instrument for maintenance every two years did not constitute operator error and held, therefore, that Mr. Bennett had failed to rebut the statutory presumption that the device was functioning as required.
[6] For reasons unknown, the relevant police force did not keep records of maintenance for the approved instrument used to screen Mr. Bennett's breath samples for blood-alcohol content. Obviously, the Crown could not disclose the non-existent maintenance records. The Crown, however, did disclose what technical data it had relative to the device, save and except for data known as "COBRA." Carr, J. heard evidence from two experts, one called by each side. Mr. Bennett's expert, one Dr. Ward, was of the view that, especially in light of the non-existence of maintenance records, the COBRA data was needed and might lead him to a conclusion that the approved instrument was defective. The Crown expert, one Dr. Langille, expressed his opinion that COBRA data goes beyond the scope of what is relevant in assessing instrument reliability. Carr, J. accepted the opinion of Dr. Langille over that of Dr. Ward. I accept the Crown's assertion that there is little consensus in the scientific or legal communities as to the relevance of COBRA data to the issue of an approved instrument’s accuracy and reliability.
[7] It was open to Carr, J. to prefer the evidence of one expert over the other. His ruling on relevance is consistent with the rulings made in similar cases. It is also consistent with a position paper published by the Alcohol Test Committee. Specifically, that body has stated: "...data collected both prior to and after the subject test, or an examination of the approved instrument subsequent to the subject test, do not further assist in determining the reliability and accuracy of [an approved instrument] during a specific breath testing procedure." (Emphasis added. See position paper at Tab 5, page 111 of the appeal book). COBRA data, I was told, is precisely that kind of data. Justice Carr also heard and accepted evidence that the approved instrument in question runs a series of self-tests prior to the sampling, and that no malfunction was determined at that time.
[9] Section 281(1)(c) of the Criminal Code creates a rebuttable presumption that an approved instrument is accurate. To rebut the presumption, the accused must show that the approved instrument was either malfunctioning or was being improperly operated at the time in question. It is not enough to raise doubt in a general sense.
[10] Carr, J. ruled that the failure to keep maintenance records was not an operational error as contemplated by the Criminal Code section quoted. He heard, and obviously relied upon, evidence that the specific approved instrument used to test Mr. Bennett had been sent out for maintenance some time after his testing, and that it was determined then that no maintenance whatsoever was required. It is not illogical to conclude that an approved instrument that does not require any maintenance was, and is, functioning satisfactorily. His Honour distinguished the Regina v. Picket case cited to him. Carr, J.'s conclusion was supported by both evidence and law, and I am not prepared to overturn him on this point. The appeal fails on this point as well.
[11] I appreciate that in his reasons, Carr, J. did not accurately reflect the evidence heard by him in respect of the specific approved instrument's functioning some time before it was used to test Mr. Bennett's breath sample. That error does not assist Mr. Bennett with respect to this appeal, however, because that factual error was not material to the ruling made. If anything, it was an error in Mr. Bennett's favour at trial, and it was still rejected.”
Released: September 11, 2014 ___________________________
Parayeski J.
COURT FILE NO.: SCA 13-7873 (Kitchener)
DATE: 2014-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
LANCE BENNETT
Appellant
CORRIGENDUM
MDP;co
Released: September 11, 2014