CITATION: R. v. DeCastro, 2016 ONSC 8114
COURT FILE NO.: 49/16
DATE: 20161223
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
MELISSA DECASTRO
Appellant
Darren Hogan for the Crown
Paul Calarco for the Appellant
HEARD: December 14, 2016
THEN J.:
OVERVIEW
[1] The appellant was convicted of driving with excess of blood alcohol. At trial the Crown tendered a certificate of a qualified technician which indicated her first sample contained 150 milligrams of alcohol in 100 millilitres of blood pursuant to s.258(1)(c)(ii) of the Criminal Code. The appellant challenges the admissibility of the certificate as she submits that there is no evidence that the sample was taken within the requisite two hours and accordingly there is no evidence to support the conviction.
the facts
[2] Officer Meyer of the Ontario Provincial Police received a dispatch at 12:34 a.m. on Sunday, September 14, 2014, to attend a personal injury accident on the collector lanes of Highway 401 near Avenue Road, Toronto. He testified that he had not seen the accident and did not know what time it occurred, but guessed it happened close to 12:34 a.m. based on the volume of traffic. He arrived on scene at 12:45 and observed ambulance personnel taking the appellant to their vehicle to check her condition. The fire personnel were also already present. At 12:46 he identified the appellant from her driver’s licence.
[3] The appellant’s vehicle was located on the shoulder of the highway perpendicular to the lanes of traffic with the rear of the vehicle wedged into the guardrail with the front touching the roadway but protruding in the nearest lane of traffic. The vehicle could not be driven as there was damage to the rear and front as well as the front passenger side.
[4] The officer testified that the traffic was busy at that location as a function of normal Saturday night to Sunday morning traffic and because the express lanes were closed for construction causing traffic to be diverted into the collector lanes.
[5] Once the appellant was released by the ambulance personnel at 12:53 Officer Meyer placed her in his cruiser while he checked her vehicle for documentation. On his return he noted the odour of an alcohol beverage and also noted her eyes were slightly bloodshot. At 12:58 he made a demand that the appellant provide a breath sample into a roadside screening device. The sample was provided at 1:02 a.m. and registered a fail whereupon the appellant was arrested for over 80.
[6] The appellant was transported to the station, spoke to counsel and provided a sample of breath at 2:06 a.m. which was analyzed and indicated a reading of 150 mg. of alcohol in 100 millilitres of blood. A second sample at 2:28 registered the same result.
[7] The trial judge considered the evidence and determined that an inference could be drawn that the appellant had been operating her vehicle and that the accident occurred within two hours of the taking of the first sample. In convicting the appellant of the offence of over 80 the trial judge stated the following:
On that basis, the final defences argument, now on the merits, for not entering a finding of guilt is that the presumption of identity allowing for a reading back of the certificate results to the time of the driving is here precluded by virtue of the Crown failing to satisfy me that the last driving occurred within a three-hour window that preceded the taking of the first test at 2:06 a.m.
In my view, given the location where the events occurred and the surrounding circumstances - that is to say: the 401, around midnight on a latesummer Saturday night with quite heavy traffic, coupled with the conspicuous nature of the accident involving not just a car on the shoulder of the road but, rather, facing perpendicularly out into the traffic with its rear abutted into the guardrail and visible damage to front and rear - are that combination of circumstances that leads me to inexorably infer that there would have been a very prompt response of passersby to 911 or some other reporting agency. Given the location of the accident, I also reasonably infer that the dispatch of an officer would quickly have followed, and certainly within the 25 or 26 minutes preceding Officer Meyers' attendance at the scene of the accident at 12:34 a.m. and perhaps even much sooner than the outer limits of that window sufficient to permit the application of the presumption of identity.
MS. KIREC: Your Honour, the officer actually arrives ....
THE COURT: Oh, I'm sorry.
MS. KIREC: Yes.
THE COURT: Thank you. He arrives ...
MS. KIREC: The radio call is 12:34.
THE COURT: ...at 12:46, sorry.
MS. KIREC: Okay.
THE COURT: The time I was referring to was the time he received the dispatch call. I meant to refer to the 12:34. So, end of the day (it now being 4:30 pm), I find Miss DeCastro guilty of the charge of having an excessive blood alcohol concentration …
analysis
[8] Section 258(1)(c)(ii) states:
- (1) Proceedings under section 255 - In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentrations determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things -- that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
(emphasis added)
[9] The appellant submits that the trial judge essentially held that given the nature of the accident and location of the accident as occurring on the 401 and given the number of potential witnesses there must have been a prompt response by someone calling 911 and thus inferring that the actual driving must have occurred before 12:06 a.m. or within the 28 minutes before the OPP officer was directed to respond. The appellant submits the reasoning is flawed and constitutes speculation and guesswork. The appellant submits that Officer Meyer, the only witness called, did not know when the accident occurred but could only surmise that it was probably at the time he received the call because of the volume of traffic. The appellant contends that the presence of the fire truck and ambulance upon the arrival of the police is consistent with the accident being reported to them before being reported to the OPP. The appellant submits there is no evidence of who made the call either to the paramedics, fire or the OPP, when the call was made and in respect of the call to the OPP how long it would take to process the call and what priority the call had.
[10] The respondent submits that given the constellation of factors such as the nature of the accident and location of the accident as well as the volume of traffic it was a reasonable inference that the accident would be promptly reported within the 28 minute window in which the appellant’s operation of the motor vehicle was required to be established by the Crown in order that the certificate of the qualified technician could be admitted into evidence, pursuant to s.2.258(1)(c)(ii) of the Criminal Code.
[11] The authorities draw a distinction between rational conclusions on the one hand and speculation or conjecture on the other hand. In R. v. Morrissey (1995), 1995 CanLII 110 (SCC), 99 C.C.C. (3d) 193 (Ont. C.A.) Doherty J.A. stated the following at p.209:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put in R. v. White (1994) 1994 NSCA 77, 89 C.C.C. (3d) 336 at p. 351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. The failure to observe the distinction involves an error on a question of law.
[12] Similarly, in R. v. Kyd (1957), 120 C.C.C. 172 (Alta S.C.A.D.) the court sounded a similar caution at p.183:
One must be most careful in drawing an inference in a criminal case. It must not be a mere guess or suspicion. A man is not to be convicted on a guess, however shrewd that guess may be. It must be an inference which the mind naturally and logically draws from other proven facts.
There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. If there are no other positive facts from which the inference can be made, the method of inference fails and what is left is mere speculation.
[13] In my view, while the respondent submits that the findings of the trial judge based on the nature of and location of the accident and the volume of traffic allowed him to draw two inferences based on reasonable expectations: (1) that the accident would have been promptly reported; and (ii) and that the dispatch of an officer would also have quickly followed; such inferences based on reasonable expectations or assumptions rise only to the level of probability and do not establish that the two hour requirement of s.258(1)(c)(ii) was satisfied.
[14] I agree with the appellant that in enacting s.258(1)(c)(ii) of the Criminal Code Parliament has created statutory authorization for proof of elements of the offence by means of a certificate (See: R. v. Dillon, 2005 CanLii 22212 (ONSC) at paragraph 7). Under s.258(1)(c)(ii) the certificate of the qualified technician is conclusive proof of the blood alcohol content of the accused, where the first sample was taken no later than two hours after the offence is alleged to have occurred. Proof of the time of the offence is a condition precedent if the Crown is to rely on the certificate as conclusive proof of its contents. That obligation is not in my view satisfied by proof of the probable time of the offence even if based on reasonable expectations or assumptions when proof of a specific time of the offence is required. A guess is still a guess no matter how reasonably based. Probabilities are not sufficient to establish the condition precedent under s. 258(1)(c)(ii) of the Criminal Code. The certificate of the qualified technician should not have been admitted.
[15] For these reasons the appeal is allowed and an acquittal entered.
THEN J.
RELEASED: December 23, 2016
CITATION: R. v. DeCastro, 2016 ONSC 8114
COURT FILE NO.: 49/16
DATE: 20161223
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
MELISSA DECASTRO
Appellant
REASONS FOR JUDGMENT
THEN J.
RELEASED: December 23, 2016