



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. O'Meara, 2012
    ONCA 420

DATE: 20120620

DOCKET: C53830

Laskin and Blair JJ.A. and Brown R.S.J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Terrance OMeara

Respondent

Peter Scrutton, for the appellant

Mark Halfyard, for the respondent

Heard: February 14, 2012

On appeal from the decision of the summary conviction appeal
    court dated May 16, 2011 by Justice C. MacDonald of the Superior Court of
    Justice, allowing the appeal from the conviction entered on October 18, 2010 by
    Justice L. Duchesneau-McLachlan of the Ontario Court of Justice.

Brown R.S.J. (
ad hoc
):

I.

INTRODUCTION

[1]

This is a Crown appeal from a successful defence summary conviction
    appeal.  The respondent was convicted at trial of operating a motor vehicle with
    a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood,
    contrary to s. 253(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46
    (over 80).

[2]

As noted, the respondent successfully appealed his conviction to the summary
    conviction appeal court.  The summary conviction appeal judge reversed the
    trial judge and entered an acquittal.  She held that the trial judge had erred
    in finding that there was circumstantial evidence that the approved instrument
    had analyzed the samples.  Without such evidence, the summary conviction appeal
    judge concluded that the presumption under s. 258(1)(c) of the
Criminal
    Code
was not available on the evidence before the trial judge.

[3]

The Crown seeks leave to appeal, and if leave is granted, appeals
    against the summary conviction appeal court judgment and asks this court to
    restore the conviction.

[4]

For the following reasons, I would grant leave to appeal, allow the
    appeal and restore the conviction.

II.

BACKGROUND

[5]

As the Crown submits, this was the most usual of drinking and driving
    trials.  The prosecution led evidence that the respondent was stopped at a ride
    check, smelled of alcohol, failed an approved screening device test, was
    arrested, and provided two samples of breath into an approved instrument at the
    police station that resulted in readings of more than double the legal limit. 
    The defence did not challenge any of this evidence, raised no
Charter
issues with respect to the stop or right to counsel, and called no evidence. 
    The respondent was convicted pursuant to s. 253(1)(b) of the
Criminal Code
on
    October 18, 2010 of over 80.  He received the minimum $1,000 fine and a 12
    month driving prohibition.

[6]

The respondent successfully appealed his conviction  The summary
    conviction appeal court judge held that the trial judge had erred in finding
    that there was circumstantial evidence that the approved instrument had
    analyzed the samples.

[7]

The Crown argues before this court that this was an error and submits
    that the trial judge correctly determined that the instruments readings are
    themselves circumstantial evidence of analysis.

[8]

It may be helpful to briefly summarize the facts and the decisions in
    the trial court and in the summary conviction appeal court below.

(i)

The Facts

[9]

On November 24, 2009, two O.P.P. officers were conducting RIDE stops on
    a highway near North Bay.  Upon pulling the respondents vehicle over, one of
    the officers smelled alcohol coming from the respondents breath when speaking
    with him.  The respondent said that he had been drinking the previous evening.

[10]

The
    officer gave the respondent an approved screening device demand.  The respondent
    registered a fail on his second attempt at providing a sample.  He was placed
    under arrest for over 80 and given an approved instrument demand.  The respondent
    was then transported to the station.  After the respondent consulted with duty
    counsel, an officer who was a qualified breath technician escorted the
    respondent into the breath room.

[11]

Once
    inside, the officer prepped the approved instrument which was an Intoxilyzer
    8000C.  He watched it perform its quality assurance processes, which involve self-diagnostic
    tests and calibration checks.  He verified that the alcohol standard solution
    was suitable, had been changed in the last 14 days, and that the temperature
    was in the appropriate range.  The officer concluded that the instrument was
    functioning properly and ready to take samples.

[12]

The
    respondent completed the first sample at 5:49 p.m.  He provided the sample
    directly into the instrument.  The officer reported that the first result was
    188 grams percent.  In the 22 minute interim between samples, he observed that
    the respondent had a strong stale odour of alcohol, red, glassy eyes, and a
    pasty, dry mouth.  The respondent provided a second sample directly into the
    instrument.  That sample resulted in a reading of 181 milligrams of alcohol
    per 100 millilitres of blood.  The officer then indicated that he needed to
    correct his earlier testimony and clarified:  The first sample I should have
    indicated was provided, and it registered a 188 milligrams of alcohol per 100
    millilitres of blood.

[13]

The
    officer explained that after the second sample was completed, the instrument
    conducted a final internal test.  That test indicated that both samples were
    suitable samples and that the instrument was functioning properly.

(ii)

The
    Trial Decision

[14]

The
    trial judge was satisfied that the officer had reasonable grounds to make an
    arrest and demand by virtue of the failed approved screening device test.  She
    also reasoned that, given evidence of an approved, duly tested instrument
    capable of conducting the required analysis, and a qualified technician, as
    far as Im concerned each sample of [the respondents] breath went through an
    analysis by means of the approved instrument.  Accordingly, the trial judge convicted
    the respondent.

(iii)

Summary Conviction Appeal Decision

[15]

At
    the summary conviction appeal, the respondent argued that the Crown had failed
    to meet one of the statutory preconditions for reliance on the results of the
    breath samples under s. 258(1)(c)(iv) of the
Criminal Code.
While
    acknowledging that there was evidence that a breath sample was received from
    the accused directly into an approved instrument, counsel for the respondent
    argued that there was no evidence that an analysis of the sample had been made
    by means of an approved instrument.  His point was that the breath technician
    did not testify that the instrument analyzed the samples and that this could
    not be proven by circumstantial evidence because it was a separate statutory
    condition.

[16]

At
    the summary conviction appeal, the Crown argued that, while the officer did not
    explicitly testify that the instrument analyzed the sample, this was not
    required because there was evidence that the process occurred and that the
    instrument provided a result.

[17]

In
    her reasons for decision, the summary conviction appeal judge held that in this
    case there was virtually no evidence to prove beyond a reasonable doubt that
    the samples were, in fact, analyzed as required by s. 258(1)(c)(iv) by the
    instrument.  She therefore allowed the appeal and entered an acquittal.

III.

ISSUES

[18]

The
    Crown advances three arguments on this appeal:

(i)      This is a
    proper case for leave to appeal to this court in summary conviction proceedings
    pursuant to s. 839 of the
Criminal Code
;

(ii)      The
    summary conviction appeal judge erred in law in finding that the statutory
    presumption found in s. 258(1)(c) of the
Criminal Code
was not
    available on the evidence in this case;

(iii)     The
    summary conviction appeal judge erred in law in failing to apply the correct
    standard of appellate review.

IV.

ANALYSIS

Issue 1:  Leave to Appeal

[19]

This
    court established in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    and has repeated numerous times since then, that leave to appeal pursuant to s.
    839 should only be granted in two distinct categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case.

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case.

[20]

Moreover,
    at para. 27 of
R.(R.)
, Doherty J.A. emphasized that access to this
    court for a second appeal should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying a further
    appeal.

[21]

The
    Crown submits that several factors favour leave to appeal in this case.  To
    begin with, the Crown submits that its arguments for error are strong.  As
    well, the Crown submits drinking and driving offences have the highest trial
    rate of offences in the Ontario Court of Justice.  The evidence given by the
    breath technician in this case mirrors the evidence routinely given in over 80
    cases.

[22]

The
    Crown also submits that the effect of the trial judges decision is to impose
    an additional evidentiary burden on the Crown before it can rely on the
    presumption of identity under s. 258(1)(c) of the
Criminal

Code
. 
    The Crown submits that the approach of the summary conviction appeal judge, if
    followed, has the potential to negatively affect many other cases.

[23]

In
    response, the respondent argues that the present case cannot be brought under
    either of the two permissible categories to warrant granting leave to this court. 
    That is, its issues of law are not sufficiently meritorious, nor does it raise
    a significant question for the administration of the justice system.

[24]

I
    am persuaded that the issues raised in this appeal have significance to the
    administration of justice beyond the facts of this case.  For the reasons that
    follow,  I am of the view that the summary conviction appeal judge clearly
    erred in her view that the presumption of identity under s. 258(1)(c) of the
Criminal
    Code
was not available on the evidence before the trial judge. I am
    satisfied that, if left uncorrected, this error would have the potential to
    negatively affect many other over 80 cases.

[25]

As
    well, I think there is some significance to the fact that while this is the
    second appeal of this matter, it is the Crowns first appeal.  Unlike an order
    for a re-trial, the finality of the decision of the summary conviction appeal
    judge in this case meant that a further appeal was the only mechanism available
    to the Crown to review that outcome.

[26]

For
    these reasons I would, as I said previously, grant leave to appeal.

Issue 2:  Did the Summary Conviction
    Appeal Judge Err in Law in Finding that the Presumption in s. 258(1)(c) of the
Criminal
    Code
was not Available?

[27]

Section
    258(1)(c) of the
Criminal Code
creates what is commonly referred to as
    a presumption of identity.  This presumption, if applicable, relieves the
    Crown of the burden of proving that the accuseds blood alcohol level at the
    time of the offence was the same as it was at the time of testing.  Where this
    presumption is not available, the accuseds blood alcohol level at the time of
    the offence is normally proven by evidence from a toxicologist.

[28]

In
    order to rely on the presumption, the Crown must meet the statutory
    preconditions specified in s. 258(1)(c)(ii)-(iv) of the
Criminal Code
. 
    The samples must be taken as soon as practicable, the first sample must be
    taken within two hours of driving, and there must be at least a 15 minute
    interval between samples (s. 258(1)(c)(ii)); the samples must be received from
    the accused directly into an approved container or into an approved instrument
    operated by a qualified technician (s. 258(1)(c)(iii)); and an analysis of
    each sample [must be] made by means of an approved instrument operated by a
    qualified technician (s. 258(1)(c)(iv)).

[29]

This
    court has made it clear that circumstantial evidence can establish the s. 258(1)(c)(ii)-(iv)
    conditions.  In
R. v. Mulroney
, 2009 ONCA 766, 248 C.C.C. (3d) 311, the
    issue was whether there was evidence to satisfy the s. 258(1)(c)(iii) condition
    that the breath sample be received directly into an approved instrument.  The summary
    conviction appeal court had allowed an appeal from conviction and ordered an
    acquittal after reasoning that, in the absence of evidence that the mouthpiece
    was connected to the instrument or that there was no intervening apparatus, it
    could not be inferred that the breath samples were provided directly into the
    approved instrument.  In allowing the Crowns appeal and restoring the
    conviction, Goudge J.A. held at paras. 20-21:

Here there was not just evidence that the breathalyser used was
    an approved instrument and a result was obtained.  Nor did the trial judge
    simply take judicial notice that this must mean that the breath sample was
    received directly into the instrument.  P.C. Fawcett testified that the
    instrument was designed to receive and analyze breath samples, that it appeared
    to be working properly, that the respondent blew into the mouth-piece of the
    instrument as instructed, and that this provided a suitable sample for
    analysis.  None of this evidence was contested by the respondent.

In my view, this was ample circumstantial evidence from which
    the trial judge could properly conclude as he did, namely that the respondents
    breath samples were received directly into the approved instrument in this
    case.

[30]

The
    main thrust of the Crowns argument on appeal to this court is that the trial
    judge was correct to find that there was sufficient evidence before her to
    conclude that the statutory presumption found in s. 258(1)(c) of the
Criminal
    Code
was available in this case.  The Crown submits that the summary
    conviction appeal judge erred in finding that there was no evidence before the
    trial judge to permit the presumption to be used.  Specifically, the Crown
    submits that the summary conviction appeal judge erred in holding that there
    was virtually no evidence to prove beyond a reasonable doubt that the breath
    samples of the respondent were in fact analyzed by the instrument as required
    by s. 258(1)(c)(iv) of the
Criminal Code
.  It is the submission of the
    Crown that the instruments results are themselves circumstantial evidence of
    analysis.

[31]

The
    respondent argues that compliance with the statutory presumptions under s.
    258(1)(c)(ii)-(iv) must be strictly construed where the Crown is relieved of
    the obligation of adducing expert evidence on the subject.  The respondent
    submits that in this case the officer did not provide any evidence on whether
    any analysis of the breath samples was conducted.

[32]

The
    respondent also submits that the Crown could have easily led evidence from the
    officer, who was a qualified breath technician, as to the workings of the
    approved instrument and how it analyzed the breath samples provided.  As well,
    the respondent submits that the Crown could have led evidence of analysis by
    entering the test record as an exhibit which is often done in over 80
    prosecutions.  The respondent argues that despite the ease of adducing this
    evidence, none of it was before the court.

[33]

I
    agree with the Crowns submissions on this issue.  This court held in
R. v.
    Labadie,
2011 ONCA 227, 105 O.R. (3d) 98, that it is an error of law to
    fail to apply an applicable statutory presumption.  In the instant case the
    trial judge relied on circumstantial evidence to infer that the samples were
    analyzed by an approved instrument and found that the presumption was
    applicable.  This inference was available.  The qualified breath technician
    testified that the breath samples were taken by an approved instrument (i.e. an
    Intoxilyzer 8000C); the approved instrument was in proper working order (as
    determined by a number of diagnostic tests); the respondent provided two
    suitable samples of his breath directly into the instrument; and the instrument
    produced results of 188 mg and 181 mg of alcohol in 100 ml of blood.  The
    breath technicians evidence on these points was not challenged at trial.

[34]

As
    explained by Robins J. in
R. v. Lightfoot
(1979),

2 M.V.R.
    113 (Ont. H.C.), at p. 120: an approved instrument is
by definition
.designed
    to perform a chemical analysis   (emphasis added).  In this case there was
    evidence that the breathalyser used was an approved instrument and that results
    were properly obtained.  None of this evidence was contested by the
    respondent.  In my view, there was ample circumstantial evidence from which the
    trial judge could properly conclude, as she did, that the respondents breath
    samples went through an analysis by means of an approved instrument. 
    Admittedly, the breath technician did not specifically testify that the breathalyser
    instrument in question analyzed the accused breath samples.  However, that is a
    reasonable inference the trial judge could draw from the fact that the approved
    instrument provided results of the breath samples.

[35]

In
    my view, the summary conviction appeal judge erred in law in finding that the
    presumption in s. 258(1)(c) of the
Criminal Code
was not available in
    the circumstances of this case.

Issue 3:  Did the Summary
    Conviction Appeal Judge Err in Law in Failing to Apply the Correct Standard of
    Review?

[36]

Under
    s. 686(1)(a)(i) and s. 822(1) of the
Criminal Code,
the jurisdiction
    of the summary conviction appeal judge to review the finding as to sufficiency
    of the evidence is limited.  A summary conviction appeal judge is not entitled
    to retry the case or to substitute his or her own view of the evidence for that
    of the trial judge.  A summary conviction appeal judge has no basis upon which
    to interfere with a trial judges findings unless they are unreasonable or
    unsupported by the evidence:  see
R. v. Grosse
(1996), 29 O.R. (3d)
    785 (C.A.), at pp. 791-92.

[37]

In
    this case, there was ample circumstantial evidence from which the trial judge
    could properly conclude, as she did, that the respondents breath samples were
    analyzed by an approved instrument.

[38]

In
    my view, the summary conviction appeal judge exceeded the ambit of factual
    review permitted under s. 686(1)(a)(i) of the
Criminal Code
and
    thereby erred in law in overturning the findings of fact of the trial judge.

V.

CONCLUSION

[39]

For
    the foregoing reasons, I would grant leave to appeal, allow the appeal and
    restore the conviction and sentence.

Released: June 20, 2012                              M.F.
    Brown R.S.J. (ad hoc)

JL                                                                     I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.


