COURT FILE NO.: 345/20-00AP
DATE: 20210421
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: )
HER MAJESTY THE QUEEN
– and –
SIDDHARTHA DULAL
Respondent )
Appellant )
A. Brown and N. Sohail, for the Crown
S. Whitzman, for the Appellant
) HEARD: April 9, 2021
THE HONOURABLE JUSTICE L. WALTERS
REASONS FOR JUDGMENT
OVERVIEW
[1] On November 29, 2019 the appellant was convicted of operating a motor vehicle with a concentration of alcohol in his blood exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code of Canada.
[2] Mr. Dulal was fined $1,400 and prohibited from driving for one year.
[3] He appeals from conviction only.
[4] The notice of appeal raised two grounds of appeal, namely that the trial judge erred in finding that the Crown proved beyond a reasonable doubt that the “presumption of accuracy” in s. 320.31(1) of the Criminal Code applied. The second ground was that the trial judge’s finding that even without the benefit of the said presumption, the Crown proved the appellant’s blood alcohol concentration at the time of the analysis exceeded the legal limit, was unreasonable.
[5] In his written argument, Mr. Whitzman abandoned this second ground of appeal. However, at the time of argument he requested permission to argue this ground of appeal in response to the Crown’s factum.
[6] This situation arose as a result of a contradictory interpretation of the trial judge’s Reasons for Judgment between the appellant and the respondent.
[7] The Crown did not object and the court permitted argument on both grounds of appeal.
BACKGROUND
[8] The appellant concedes that the arrest was lawful and there were reasonable and probable grounds to make a demand for breath samples. The analysis of these samples showed a concentration of alcohol in Mr. Dulal’s blood in excess of the legal limit.
[9] The arresting officer, P.C. Prikken served the appellant with a Notice of Intention to Produce Certificates and true copies of the Certificate of Qualified Technician and the Certificate of Analyst. It is this Certificate of Analyst which raises the core issue of dispute in this appeal. This certificate indicates that the lot number of the alcohol standard was 20795. All other documentation referenced lot number 20800.
[10] The qualified breathalyzer technician, P.C. Mardan Thourson testified that he was the officer who took the appellant’s breath samples, and prior to doing so he conducted diagnostic tests on the approved instrument that included a system calibration check. That check was conducted using an alcohol standard solution certified by an analyst. The test record sheet prepared by P.C. Thourson and the system calibration check printout from the instrument showed the lot number of the alcohol standard used as 20800.
[11] Prior to testifying, P.C. Thourson was not aware that the lot number in the Certificate of Analyst was not the same as the other documents.
[12] He testified that he changed the solution on September 3, 2017, three days before the tests of the appellant. His practice when doing this was to look at the sticker on the bottle containing the solution and to enter that lot number and expiry date into the system. He did a calibration check on the instrument to make sure it was in proper working order. He was satisfied that the calibration check was accurate and that the solution was proper.
[13] On May 14, 2019, in order to comply with the amendments to the Code (s. 320.11 – 320.4) P.C. Thourson prepared a new Certificate of Qualified Technician. This new Certificate of Qualified Technician indicated that he conducted a system calibration check, the result of which was 99 milligrams of alcohol in 100 millilitres of solution which was within 10 percent of the target value of the alcohol standard certified by an analyst, which was 100 milligrams/100 millilitres. It identified the solution as being from lot number 20800. This new certificate was filed as an exhibit at trial.
[14] P.C. Thourson was unable to say how this discrepancy of lot numbers occurred, other than to suggest he picked up the wrong certificate from the office and put it in the Dulal file.
[15] He was unable to say what the target value of the solution was in lot number 20795.
[16] P.C. Thourson did not waiver in his testimony, that his standard practice, which he made sure of every time, was that whenever he changed an alcohol standard solution on an instrument he entered the lot number and expiry date on the sticker into the system. After that he did a calibration check on the instrument to make sure it was in proper working order.
REASONS OF THE TRIAL JUDGE
[17] In his Reasons for Judgment, Wolfe J. identified the discrepancy between the Certificate of Analyst filed at trial which referred to lot number 20795 and the Certificate of Qualified Technician which referenced lot number 20800, which was the same lot number identified on the system calibration check printout.
[18] Wolfe J. correctly stated, “If as a result the court has a reasonable doubt that an appropriate alcohol standard was used, the Crown is denied the benefit of the section 320.31 rule of conclusive proof, however the evidence is still admissible.”
[19] The court found that there was no dispute about the qualifications of Constable Thourson or the manner in which the Intoxilyzer 8000C was operated.
[20] Wolfe J. accepted in its entirety, the evidence of P.C. Thourson that he saw the relevant certificate and that an appropriate alcohol standard was in the machine. Justice Wolfe also found that P.C. Thourson’s evidence was not undermined by cross-examination or contradicted by other evidence.
[21] He went on to say, “In the case before the court, he served and brought with him the wrong certificate. He was, however, the officer that had replaced the alcohol standard in the machine on September 3rd, 2017, three days prior to Mr. Dulal’s test. At the time, he installed the alcohol standard that was used for Mr. Dulal’s test, he compared it to the Certificate of Analyst and noted that it was a proper solution and was not expired and in proper testing order. He had direct knowledge of the alcohol standard in use, that it was certified by an analyst from the Centre of Forensic Science and therefore, the system calibration test performed by the Intoxilyzer were accurate.”
[22] In finding Mr. Dulal guilty, Wolfe J. stated “By all of the evidence, the Crown has established that the instrument was capable of performing the required measurement, was in good working order and was properly used. I further find that the Crown has led sufficient evidence for the presumption to apply.”
ANALYSIS AND THE LAW
[23] There is no dispute as to the appropriate test to be applied by a summary conviction appeal court. In R v Sheahan, 2017 ONCA 159, the Ontario Court of Appeal at para. 12 stated the following:
Absent an error of law or a miscarriage of justice, the test to be applied by a Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute his or her own view of the evidence for that of the trial judge. A trial judge’s factual findings are entitled to deference, absent palpable and overriding error.
[24] Section 320.31(1) of the Criminal Code of Canada reads as follows:
(1) 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.
[25] In order to rely on the presumption of accuracy, the Crown must satisfy all the criteria contained within s.320.31(1). It is also conceded that the Crown must prove the presumption of accuracy beyond a reasonable doubt.
[26] The appellant takes no issue with respects to paragraphs (b) and (c) of s. 320.31(1).
[27] The appellant argues that the appeal should be allowed because the Crown failed to prove beyond a reasonable doubt that P.C. Thourson conducted a system calibration check the result of which was “within 10% of the target value of an alcohol standard that is certified by an analyst.”
[28] The Crown was obliged to prove what the target value of the standard was, otherwise, the system calibration check was meaningless.
[29] The Certificate of Analyst produced at trial does not state the target value of the alcohol standard. The only evidence to support the target value of the alcohol standard was P.C. Thourson’s testimony that he checked the sticker when he changed the solution three days earlier. P.C. Thourson was unable to satisfactorily explain the discrepancy in the lot numbers. This was ignored by the trial judge and he did not turn his mind to what the target value of the alcohol standard was.
[30] His findings of fact that the test was “appropriate” or “proper” are not reasonable in the circumstances.
[31] The Crown was not entitled to the presumption afforded by s. 320.13(1). Further, the totality of the evidence did not prove beyond a reasonable doubt the target value of the standard, and accordingly the conviction should be set aside.
[32] With respect, the able arguments of the appellant must fail.
[33] There is no question that the Certificate of Analyst filed at trial, referenced lot 20795, and this certificate does not pertain to Mr. Dulal. The officer gave a possible explanation as to why he brought the wrong certificate to court. However, in my view, nothing turns on the certificate.
[34] The issue in question is whether or not the Crown has proven beyond a reasonable doubt the target value of an alcohol standard. If it has, then the Crown is entitled to the presumption afforded under s.320.31(1). In addition, on the totality of the evidence, even if the Crown did not have the benefit of the presumption, the court is still entitled to find the accused guilty of the offence charged if the court is satisfied beyond a reasonable doubt of the accused’s guilt. In this circumstance, that meant a finding that the Crown proved beyond a reasonable doubt the target value of an alcohol standard.
[35] I disagree with Mr. Whitzman’s characterization that all the trial judge had was the evidence of P.C. Thourson. Instead, the new Certificate of a Qualified Technician filed as Exhibit 13 at trial does contain the necessary information to support the preconditions necessary in s. 320.31(1) of the Code.
[36] Although prepared some 20 months after the breath samples were originally collected, P.C. Thourson on May 14, 2019 certified that on the 6th of September, 2017 before taking Mr. Dulal’s first breath sample he “conducted a system calibration check, the result of which was 99 which is within 10% of the target value of the alcohol standard that was certified by an analyst.”
[37] He further certified that before taking Mr. Dulal’s second sample he “conducted a system calibration check, the result of which was 100, which is within 10% of the target value of the alcohol standard that was certified by an analyst.”
[38] In addition, the trial judge had the viva voce evidence of P.C. Thourson regarding the solution used in the approved instrument and the target value. There was no dispute as to the officer’s qualifications. He was adamant despite an aggressive cross-examination that “I can attest to that – it was working on that morning and it was a proper solution that was mixed.”
[39] In light of R. v. Lightfoot, 1981 CanLII 47 (SCC), [1981] 1 SCR 566, the Supreme Court of Canada held that:
In short, the Crown may obtain the advantage of the statutory presumption under s. 237(1)(c) by offering proof, by certificate or by oral evidence, of the three elements specified therein. Nothing more is required, in the absence of any evidence to the contrary.
[40] This decision has been relied on in several Ontario cases including R. v. Corbett, [2003] O.J. No. 5898, R. v. Harding, 1994 CanLII 8717 (ON CA), 17 O.R. (3d) 462, R. v. Lilek, [2005] O. J. No. 2044, R. v. Kotlyar, 2013 ONCJ 353.
[41] Although all these decisions predate the coming into force of s.320.31(1), the principle is the same.
[42] I should note that the appellant has relied on the decision of Parry J. in R. v. Flores-Vigil, 2019 CarswellOnt 5202. That decision, however, has been rejected in many subsequent Ontario courts, including R. v. Baboolall, 2019 ONCJ 204 and R. v. Does, 2019 ONCJ 233.
[43] I agree with the appellant’s submissions that the trial judge’s reasons were somewhat confusing with respect to whether or not he was relying on the presumption afforded the Crown in s. 320.31(1) or was relying on the common law route to conviction based on a totality of the evidence.
[44] However, the trial judge clearly set out the two routes to conviction. He properly set out that if the Crown is denied the benefit of the s. 320.31 rule of conclusive proof, the evidence is still admissible and that the court must consider the evidence as a whole regarding the alcohol standard.
[45] The authorities make it clear that in considering the totality of the evidence hearsay evidence is acceptable. The trial judge relied and accepted the evidence of P. C. Thourson. He accepted that Constable Thourson saw the relevant certificate and that an appropriate alcohol standard was in the machine. He determined that the officer’s evidence was not undermined by cross-examination or contradicted by other evidence.
He accepted the officer’s evidence that he had replaced the alcohol standard in the machine three days prior to Mr. Dulal’s test. At that time he compared it to the Certificate of Analyst and noted that it was a proper solution, was not expired, and in proper testing order. The court accepted that he had direct knowledge of the alcohol standard in use.
[46] And of course the trial judge had the benefit of Exhibit Number 13 which contained direct evidence of the target value of an alcohol standard.
[47] A trial judge’s factual findings are entitled to deference absent palpable and overriding error. I see no such error in the reasons of the trial judge. There was sufficient evidence before the court to make the findings that he did. In addition, not only did the judge make findings of fact based on the totality of the evidence, he also determined that the Crown had led sufficient evidence for the presumption to apply. This finding was not unreasonable in all of the circumstances and was supported by the evidence before the court.
[48] The appeal is dismissed.
Walters J.
Released: April 21, 2021
COURT FILE NO.: 345/20-00AP
DATE: 20210421
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SIDDHARTHA DULAL
Appellant
REASONS FOR JUDGMENT
Walters J.
Released: April 21, 2021