COURT FILE NO.: SCA(P) 1615/19
DATE: 2020 02 03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty, counsel for the Appellant
Appellant
- and -
MOHAMMED BAHMAN
S. Whitzman, Counsel for the Respondent
Respondent
HEARD: January 17, 2020
REASONS FOR JUDGMENT
André J.
[1] The Crown appeals the acquittal of Mohammed Bahman by Mcleod J. of a charge of excess blood alcohol. The Crown submits that the learned trial judge erred in law by ruling that he could not rely on the readings of the approved instrument because he was not satisfied that the alcohol standard solution in the instrument was accurate. Mr. Bahman’s counsel submits that the trial judge was correct in his application of the law.
PART II- SUMMARY OF THE FACTS
THE EVIDENCE AT TRIAL
[2] Mr. Bahman was operating a motor vehicle when he was stopped at a RIDE check. After failing an approved screening device, he was arrested and brought back to the police station to provide samples of his breath into an approved instrument.
[3] The qualified technician testified that he performed three quality assurance checks on the approved instrument and was satisfied that it was in proper working order. He also testified that he operated the instrument in accordance with his training and the manufacturer’s instructions.
[4] Mr. Bahman provided two suitable samples of his breath into the approved instrument, 22 minutes apart, resulting in readings of 137 and 134 milligrams of alcohol in 100 millilitres of blood. Prior to each sample a system blank test was conducted, both of which resulted in readings of 0.
[5] The officer also did a calibrated check before Mr. Bahman provided samples of his breath into it. The results of these calibration checks were 98 and 96.
[6] The qualified technician testified that the calibration checks were done with an alcohol standard solution that was tested by the Centre for Forensic Sciences (CFS) and that he viewed the certificate issued by CFS confirming that the solution was proper and could be used. He testified that the target value for the calibration check was 100 milligrams of alcohol in 100 millilitres of blood, plus or minus 10, and that the check done produced a reading of .98 mgs.
[7] Mr. Bahman did not object to the admissibility of the qualified technician’s evidence on the basis that it was hearsay. He did not cross-examine the qualified technician on anything related to his understanding or operation of the approved instrument or the alcohol standard solution. Nor did he call any evidence with respect to the approved instrument or the alcohol standard solution.
[8] Defence counsel conceded that all of the other prerequisites for the admissibility of the breath results had been proven. The qualified technician testified that a system calibration check was conducted before each sample, the result of which was within 10% of the target value of an alcohol standard solution that had been certified by the Centre for Forensic Sciences. Thus, the only issue in this appeal is whether that evidence was hearsay or whether the trial judge should have relied on it and found that the Crown had proven its case against the Respondent beyond a reasonable doubt.
DEFENCE COUNSEL’S SUBMISSIONS
[9] Apart from the Charter application, defence counsel made only one argument as to why the Crown had not proven its case. He argued that without the Certificate of Analyst being filed, the Crown could not prove that the alcohol standard solution had not expired when it was used. He conceded that the Crown had otherwise proven the new presumption of accuracy.
THE TRIAL JUDGE’S REASONS
[10] The trial judge acknowledged that the qualified technician provided viva voce evidence that the alcohol standard solution was certified. However, he found that this evidence was hearsay since no Certificate of Analyst was ever filed. Without the certificate, the trial judge could not be satisfied that the alcohol standard solution was accurate. He therefore concluded at paras. 44-48 of the judgment that:
[44] This being a transition case, identity is no longer an issue to be grappled with to the same degree it was prior to September 2018. However, even in transition cases, the presumption of accuracy does need to be addressed as per s. 320.31(1).
[45] Although much of the analysis was introduced by the Crown in examination in-chief and submissions made, there is still an issue that remains outstanding. PC Kosher gave evidence with respect to the certification of the standard lot solution as per the new requirements, however, there was no evidence proffered outside of the officer’s viva voce evidence, which makes his evidence this point hearsay. (emphasis added)
[46] The certificate was commented on but never supported by an actual document.
[47] In this scenario the court is not satisfied that the analysis of the officer is correct without the certificate from an analyst that would attest to the accuracy of that standard solution.
[48] This may be seen as a minor mis-step, but it is fatal with respect to reasonable doubt because I cannot rely on the analysis of the breath sample by the approved instrument without some certainty that the instrument was properly calibrated outside the viva voce evidence of PC Kosher.
ANALYSIS
[11] This appeal raises the following issue:
(1) Did the learned trial judge err in law in concluding that PC Kosher’s viva voce evidence concerning the certification of the standard alcohol solution of the intoxilizer machine was hearsay and therefore inadmissible?
THE LAW
[12] Section 320.31(1) of the Criminal Code, R.S.C. 1985, c. C-46, states the following:
If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.
[13] There are conflicting decisions on this issue. The decision in R. v. Flores-Vigil, 2019 ONCJ 192, stands for the proposition that a qualified technician’s viva voce evidence, absent the certificate of the analyst, was hearsay and therefore not proof of the alcohol standard solution pursuant to s. 320.31(1)(a) of the Code: see also R. v. Kettles, 2019 ABPC 140. However, a significant number of cases have refused to follow Flores-Vigil: see R. v. Taylor, 2019 ABPC 165; R. v. Hanna, 2019 ABPC 157; R. v. Phee, 2019 ABPC 174; R. v. Baboolall, 2019 ONCJ 204, [2019] O.J. No. 1760; R. v. Does, 2019 ONCJ 233; R. v. Porchetta, 2019 ONCJ 244; R. v. Chuck, 2019 ONCJ 367; R. v. Brar, 2019 ONCJ 399.
[14] While the cases that have not followed Flores-Vigil are not binding on this court, I accept the reasoning in them that the presumption of accuracy does not depend solely on the certificate of an analyst but could also be proven by viva voce evidence of an intoxilizer technician: R. v. Does, R. c. Patoine, 2019 QCCM 193, at paras. 72-73.
[15] This interpretation accords with prior appellate court decisions on the predecessor section to s. 320.31(1)(a), which, in my view, provides guidance for the determination of the issue in this appeal.
[16] For example, in R. v. Ware, [1975] O.J. No. 705 (C.A.), at paras. 24-25, the Court of Appeal for Ontario held that the viva voce evidence of the qualified technician concerning the suitability of the alcohol standard solution was sufficient to prove the requirement of s. 258(1)(g)(ii); see also R. v. Harding (1994), 1994 CanLII 8717 (ON CA), 17 O.R. (3d) 462 (C.A.). In R. v. Kroeger (1992), 97 SASK Review 263 (C.A.), at para. 27, the Court stated that evidence from the qualified technician that the breathalyzer machine was in working condition by means of the alcohol standard solution was admissible evidence that the machine was working properly.
[17] Additionally, the Alberta Court of Queen’s Bench in R. v. Goldson, 2019 ABQB 609, sitting as a summary conviction appeal court, dealt with an identical issue. In that case, the Court held, at para. 45, that evidence for the purpose of s. 320.31 may be satisfied by evidence of the qualified technician either by viva voce evidence or by tendering a certificate of a qualified technician. Ho J. concluded that “this interpretation is consistent with Parliament’s intention to simplify or streamline prosecutions.”
[18] The Court in Goldson further noted, at para. 50:
In light of the object and scheme of the new provisions, Parliament did not intend to place further evidentiary burdens on the Crown and section 320.3(1)(a) of the Code should not be interpreted to require the Crown to tender the certificate of analyst. Evidence from a qualified technician in the form of either viva voce evidence or a certificate of a qualified technician is sufficient, provided the evidence identifies whether the alcohol standard was certified by an analyst, as it was not the intention of Parliament to add a requirement on the Crown to tender additional evidence beyond that of the qualified technician.
[19] The learned trial judge in this case based his decision on a clear finding that absent a certificate of analyst, the breathalyzer technician’s evidence regarding the alcohol standard solution of the machine was hearsay. Indeed, he concluded that “the court is not satisfied that the analysis of the officer is correct without the certificate from an analyst that would attest to the accuracy of that alcohol standard solution.”
[20] To the extent that McLeod J. concluded that documentary evidence was required as proof of the accuracy of the alcohol standard solution, he erred in law in concluding that the technician’s evidence was hearsay. This is not an error of mixed fact and law, as Mr. Bahman’s counsel contends, since it is based on an error of law regarding the legal requirements for proving the alcohol standard solution. Given that the three preconditions in s. 320.31(1) were met, the trial judge should have accepted the viva voce evidence regarding the alcohol standard solution of the machine.
[21] To that extent, the appeal is allowed and the acquittal is set aside.
APPROPRIATE REMEDY
[22] Mr. Whitzman urges the Court to set the matter down for a new trial to enable Mr. Bahman to call evidence to the contrary rather than enter a finding of guilty.
[23] In my view, this would not be appropriate in this case. The defence chose to call no evidence after the Crown closed its case. The defence did not bring a motion for non-suit which, if successful, would have entitled them to a new trial, following a successful Crown appeal.
[24] The appropriate remedy in the appeal is a finding of guilty. I therefore find Mr. Bahman guilty of excess blood alcohol.
[25] Section 686(4)(b)(ii) gives me the authority, as a summary appeal judge, to impose sentence. The sentence will be a $1,000 fine payable in four months. There will be a driving prohibition for one year, effective the date of this decision.
André J.
Released: February 3, 2020
COURT FILE NO.: SCA(P) 1615/19
DATE: 2020 02 03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
MOHAMMED BAHMAN
Respondent
REASONS FOR JUDGMENT
André J.
Released: February 3, 2020