[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Thompson, 2022 ONSC 2056
COURT FILE NO.: CR 19-85
DATE: 2022/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Brenda Thompson
Defendant/Respondent
Leonard Kim, for the Crown
Geoff Laplante, for the Defendant/Respondent
The Honourable Mr. Justice David J. Nadeau
REASONS ON APPEAL
[1] The Appellant was tried before the Ontario Court of Justice and was convicted of the offence of “drive over 80”, contrary to section 253(1)(b) of the Criminal Code of Canada.
[2] In this appeal of that conviction, Counsel for the Appellant in their Factum essentially submits that the “allegations pre-dated Bill c-46. Breath samples were found to have been taken outside the 2-hour window. Notwithstanding the trial judge’s own ruling that Bill c-46 Section 320.31(4) was not retrospective, the trial judge went on to usurp Parliament’s function. The trial Judge granted himself the power to do read backs pre Bill c-46 and found the accused guilty notwithstanding the requirements of the Criminal Code in particular s. s258 1 c ii.”
[3] For the following reasons, this appeal is dismissed.
[4] On October 28, 2018, the Appellant was operating her motor vehicle on Main St. at John St. southbound through the overpass in North Bay. Cst. Robertson’s attention was drawn to the Appellant’s vehicle because it had no rear taillights while driving on a highway at 1:10 a.m. He caught up to this vehicle at Lakeshore Drive and activated his roof lights as the vehicle continued southbound. Shortly thereafter, the vehicle’s brake lights came on and a traffic stop was conducted at 1:12 a.m. Upon approaching the front of the vehicle, Cst. Robertson noted the headlights were not on. While speaking with the Appellant, he detected an odour of alcohol on her breath, and that her eyes were red and watery. She initially denied consuming any alcohol, but when pressed, readily admitted to having a few drinks.
[5] Cst. Robertson immediately requested for an Approved Screening Device (“ASD”) to be delivered to him and at 1:15 a.m., a fellow officer did so. After the ASD was powered up and self-test completed roadside, a demand was made at 1:20 a.m. After a new mouthpiece was in place, the Appellant made two unsuccessful attempts to blow into the device but, due to insufficient air, a sample did not register. On her third attempt, a suitable sample resulted in a ‘fail’ reading at 1:21 a.m.
[6] The Appellant was placed under arrest at 1:22 a.m. and provided rights to Counsel and a breath demand at 1:25 a.m. The nature of such a demand was explained to the Appellant.
[7] Upon arrival at the OPP detachment, the Appellant exercised her rights to counsel in private and arrangements were made for someone to pick up her dog. She provided two suitable samples into the Intoxilyzer 8000C at approximately 3:04 a.m. [3:08] and 3:25 a.m. [3:29] as noted on the Intoxilyzer test record printout. However, the evidence of the qualified technician, Cst. Wall suggests that the samples were obtained approximately 4 minutes later than what was noted on the Intoxilyzer printout.
[8] Both officers testified to the Appellant being brought into the breath room at 3:06 a.m. However, as to when she had completed her samples and escorted out of the breath room, there was a range of 10 minutes, from 3:22 a.m. (Robertson) to 3:32 a.m. (Wall).
[9] In his reasons, the trial judge accounted for this 10-minute range in the time of the first breath sample obtained, as between 1:52 a.m. and 2:02 a.m., recognizing a possibility the readings were two minutes outside the two-hour window. As a result, the trial judge was not satisfied beyond a reasonable doubt that the first sample was obtained within two hours of operation at 1:12 a.m. Accordingly, he did not apply the ‘presumption of identity’ pursuant to s. 258 (1)(c) in favour of the Crown.
[10] The trial judge therefore conducted his own analysis of a back calculation and identified the science that dictates an addition of 5 mg. per half hour or 10 mg. for ever one hour past the two-hour window. He concluded that since the time beyond two hours was a mere two minutes at most, he did not need to add anything to the Blood Alcohol Concentration (“BAC”) readings of 130 mg. per 100 ml. of blood as provided by the Appellant.
[11] Counsel for the Appellant and Crown Counsel jointly submitted an Agreed Statement of Facts as follows:
The accuracy of the breath samples is not in dispute in this matter.
Exhibits listed below are true copies of the original Trial Exhibits filed at the trial in this matter on October 8, 2019.
In accordance with the Supplementary Appeal Book filed by the Appellant on March 19, 2021, those Trial Exhibits are as follows:
(a) Certificate of Qualified Technician (Exhibit 1 at Trial) – Pg. 11 in Transcript
(b) Intoxilyzer Tests (Exhibit 2 at Trial) – Pg. 25 in Transcript
(c) Intoxilyzer Print out after 2nd Sample (Exhibit 3 at Trial) – Pg. 28 in Transcript
[12] As outlined in the Appellant’s Factum and as articulated during the hearing of this appeal by her Counsel, the Appellant argues that the trial judge’s view on the issue of his back calculation is in error. Her Counsel has submitted a Supreme Court of Canada decision in support, as well as my decision from July 4, 2019, upheld an appeal in 2020. The relief sought is an Order allowing this appeal, a verdict of acquittal or a stay of proceedings, or in the alternative a new trial before another trial judge.
[13] As outlined in the Factum of the Respondent and at the hearing of this appeal, Crown Counsel has essentially submitted that the Appellant alleges errors of law and seeks to have this Court set aside the conviction and enter an acquittal. The appeal is framed as (a) “as soon as practicable” and the presumption of identity and (b) the trial judge’s decision to conduct his own back calculation of BAC without any expert evidence. It is argued that the Appellant has misinterpreted the applicability of s. 258(1)(c) and the reasons of the trial judge. The Respondent submits that the trial judge committed no legal errors, and that the record clearly supports his findings of fact as being reasonable. As a result, it is submitted that there is no merit to this appeal, and it should be dismissed.
[14] With respect to the issue of “as soon as practicable” and the presumption of identity, Crown Counsel submits that “as soon as practicable” only goes to whether the Crown could benefit from an evidentiary shortcut known as the presumption of identity in s. 258(1)(c). The Charter forms no part of this analysis, and therefore, there is no legal mechanism to exclude the breath readings if the presumption of identity is not applied. In other words, even if the pre-requisites to s. 258(1)(c) are not met, the readings are still admissible.
[15] R. v. Millie [2021] S.J. No. 135 (SKQB) is a recent outline of what is the standard of review, as follows:
13 The standard for whether a verdict can be set aside under s. 686(1)(a)(i) of the Criminal Code (that the verdict should be set aside because it is unreasonable and cannot be supported by the evidence) is well established: Is the verdict one that a properly instructed jury, acting judicially, could reasonably have rendered? (R. v. Villaroman, 2016 SCC 33 at para 55, [2016] 1 SCR 1000; R. v. R.P., 2012 SCC 22 at paras 9-10, [2012] 1 SCR 746 [R.P.]; R. v. Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381 [Biniaris]; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168 at 185). In a judge alone trial, the test is whether the trial judge’s reasons can serve as a basis for the verdict: Biniaris at para 37.
14 To decide whether a verdict is unreasonable, an appellate court must determine whether the verdict is one that a properly instructed jury or judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that: (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40 at paras 4, 16 and 19-21 [2011] 3 SCR 3 [Sinclair]; and R. v. Beaudry, 2007 SCC 5 [2007] 1 SCR 190 [Beaudry]).
15 Whereas the question of whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A Court of Appeal that reviews a trial court’s assessment of credibility in order to determine, for example, whether the verdict is reasonable, cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable review of the evidence”: R. P. at para 10.”
[16] From my Reasons for Decision in the cited R. v. Castiglione (SCR unreported) July 4, 2019, upheld on appeal at M50706 OCA September 21, 2020, “on an appeal against conviction by an accused the Summary Conviction Appeal Court may allow the appeal where is of the opinion that: 1) the verdict is unreasonable or cannot be supported by the evidence, or 2) there is a wrong decision on a question of law, or 3) there was a miscarriage of justice. There are three distinct bases for quashing a conviction, they have however the same underlying rationale, which is a miscarriage of justice. Section 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact property instructed could have returned on the evidence adduced at trial. Section 686(1)(a)(ii) read along with section 686(1)(b)(iii) presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty. And section 686(1)(a)(iii) addresses all other miscarriages of justice. In considering the reasonableness of the verdict pursuant to section 686(1)(a) the appeal court must conduct its own, albeit limited, review of the evidence adduced at trial. And from Binaris, the test for an appellate court determining whether the judgement of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows: “The test is ‘whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.’” The Yebes test is expressed in terms of verdict reached by a jury. It is, however, equally applicable to the judgement of a judge sitting at a trial without a jury. The test in Yebes continues to be the binding test and, to the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the Courts, gained through the judicial process the years; not simply his or her own personal experience and insight. It also requires that the reviewing Court articulate as explicitly and as precisely as possible to grounds for its intervention. The basic rule is that the Appeal Court has no right to retry the case.”
[17] In this case, the trial judge found that the breath samples were obtained from the Appellant reasonably promptly and “as soon as practicable”. His analysis and conclusions are reasonable and were open for him to make. I agree that the analysis of “as soon as practicable” is a moot point in this appeal because a finding that the breath samples were not obtained “as soon as practicable” at its highest, would still not amount to a Charter breach. Therefore, no exclusionary order.
[18] The trial judge concluded in his reasons that the Crown did not meet the requirements of s. 258(1)(c) and accordingly, did not permit the Crown to apply the presumption of identity. And I agree that not benefiting from an optional evidentiary shortcut does not result in an automatic exclusion of her breath readings. For breath readings to be excluded, there must first be a finding of a Charter breach and an analysis under s. 24(2) that results in exclusion. However, this trial did not involve any Charter motions and nothing in relation to the Charter was litigated or adjudicated upon. As a result, there was no legal basis for the trial judge to exclude the readings as the Appellant asserts for the first time on this appeal.
[19] Therefore, the issue of “as soon as practicable” has no impact on the outcome of this appeal given the inapplicability of the presumption of identity pursuant to s. 258(1)(c) as clearly indicated by the trial judge.
[20] With respect to the trial judge’s decision to conduct his own back calculation of BAC without any expert evidence, Crown Counsel submits that the ability for a trial judge to conduct a back calculation with the breath readings is firmly established in the jurisprudence and supported by the well-established scientific realities of alcohol and absorption rates in the human body. This approach was formally endorsed by the Court of Appeal many years ago. This common law authority exists totally independently of the legislative amendments in Bill C-46 that statutorily codified this same common law reasoning in the new 320.31(4).
[21] From the extensive authorities outlined in the Respondent’s Book of Authorities, I have been satisfied that the trial judge committed no legal error in permitting himself to conduct a back calculation of the Appellant’s BAC. By carefully considering each of the discrepancies in time provided by the two officers at trial, the trial judge was not persuaded beyond a reasonable doubt that the first breath sample was obtained within two hours of operation. However, he did conclude with certainty that the first sample was obtained within a 10-minute range, namely, between 1 hour 52 minutes to 2 hours and 2 minutes post operation. In doing so, he rightfully gave the benefit of any doubt in favour of the Appellant, given the possibility that the first sample was obtained as late as two hours and two minutes. Accordingly, he did not permit the Crown to benefit from the presumption of identity in s. 258(1)(c).
[22] In this case, the Appellant’s breath samples were both truncated down to 130 mg, no later than two hours and two minutes post operation. In light of R. v. Paszcenko and R. v. Lima 2010 ONCA 615, [2010] O.J. No. 3974 (Ont. C.A.), I take judicial notice that alcohol eliminates at a rate of 10-20 mg per hour, or 5 mg per every full 30 minutes. As indicated by Crown Counsel, “Since we are only two minutes past the two-hour mark, we need not add 5 mg for every 30 minutes beyond the 2-hour mark post operation because we were only two minutes past that point in time. The first breath reading obtained remains unchanged. At a BAC of 130 mg, it would be scientifically impossible for the Applicant to have been under 80 mg at 1:12 a.m., when she was stopped by the officer. The further back in time we go, the higher her BAC. It never goes down.”
[23] The trial judge’s back calculation is accurate in science and supported by the Court of Appeal and all the cases that follow that line of reasoning. Crown counsel at the hearing of this appeal has satisfied me that R. v. Dineley 2012 SCC 58, [2012] SCJ No. 58 and Castiglione are clearly distinguishable from what we have here. Upon my careful review of the trial record and the trial judge’s reasons, the Appellant was afforded a fair trial and given the benefit of a doubt due to the range of time as to when the first sample was obtained and when she was escorted out of the breath room. There is no error of law here. Accordingly, a finding of guilt was entirely appropriate in this case.
Released: April 11, 2022 The Honourable Mr. Justice David J. Nadeau
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Thompson, 2022 ONSC 2056
COURT FILE NO.: CR 19-85
DATE: 2022/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRENDA THOMPSON
REASONS ON APPEAL
Released: April 11, 2022 The Honourable Mr. Justice David J. Nadeau