



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Murray, 2013 ONCA 173

DATE: 20130321

DOCKET: C54397

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Murray

Appellant

Gregory Lafontaine, for the appellant

Joan Barrett, for the respondent

Heard and released orally: March 18, 2013

On appeal from the conviction entered by Justice Edward
    J. Koke of the Superior Court of Justice, sitting without a jury, on June 22,
    2011, with reasons reported at 2011 ONSC 3735, 17 M.V.R. (6th) 29.

ENDORSEMENT

[1]

The appellant was convicted of impaired driving causing bodily harm,
    over 80 causing bodily harm, and dangerous driving causing bodily harm. He
    was sentenced on the over 80 causing bodily harm count and the other counts
    were stayed pursuant to the
Kienapple
principle.

[2]

The appellant appeals his convictions.

[3]

First, he challenges the validity of the search warrant to obtain the
    result of blood testing at the hospital following the incident giving rise to
    these charges. The appellant submits that there is nothing in the information
    to obtain the warrant to indicate that the hospital would test or had tested
    the appellants blood for blood alcohol content.

[4]

In our view, the details of the incident recited in the information to
    obtain, including evidence that alcohol was present in the vehicle, the
    behaviour of the appellant and the fact that the appellants breath smelled of
    alcohol, when combined with his presence at the emergency department for
    treatment, were sufficient to provide a basis for a reasonable inference that
    the hospital would test the appellants blood for alcohol as a matter of course
    in determining how best to treat him medically.

[5]

The second point raised by the appellant also relates to the blood
    alcohol test at the hospital. The appellant submits that the trial judge erred
    in admitting or giving any weight to the evidence of the result of the lab test
    to determine blood alcohol content because the hospital lab technician called
    to introduce that evidence provided no details as to the equipment used or as
    to its reliability.

[6]

We disagree with that submission. We see no error in the trial judges
    reasons, which were as follows:

In assessing how much weight I am to place on the test results,
    I am compelled to consider not only the fact that the testing was conducted by
    a qualified technologist, but also the fact the laboratory in which the testing
    equipment was located and in which the testing and analysis was performed was
    in a large urban hospital. This laboratory was designed to service doctors and
    other trained medical professionals. It is implicit that these medical
    professionals were prepared to rely on the laboratory results to make their
    decisions, decisions which impact the health, and sometimes the life of
    hospital patients. It is also implicit that a laboratory which is designed and
    operated for these purposes will use reliable and well maintained and
    calibrated equipment.

On these facts, I am prepared to find that the test results are
    acceptable form the standpoint of accuracy and reliability. In making this
    finding, I accept the submission of the defence that I must make this finding
    on the criminal standard of proof and I so find.

[7]

We agree with the appellant that there were fewer details provided as to
    the test than in
R. v. Redmond
(1990), 54 C.C.C. (3d) 273 (Ont. C.A.),
    but in our view the principle relied on in
Redmond
and, in particular
    the law as stated in
Wigmore on Evidence
, vol. 2 (Chadbourn Rev., 1979),
    s. 665(a), at pp. 917-19 was satisfied:

The use of scientific instruments, apparatus, formulas, and
    calculating tables, involves to some extent a dependence on the statements of
    other persons, even of anonymous observers. Yet it is not feasible for the
    professional man to test every instrument himself; furthermore he finds that
    practically the standard methods are sufficiently to be trusted. Thus, the use
    of an X-ray machine may give correct knowledge, though the user may neither
    have seen the object with his own eyes nor have made the calculations and
    adjustments on which the machines trustworthiness depends. The adequacy of
    knowledge thus gained is recognized for a variety of standard instruments. In
    some instances the calculating tables or statistical results are admitted
    directly, under an exception to the hearsay rule. [Citations omitted.]

[8]

Other grounds of appeal raised in the factum were abandoned in oral
    argument.

[9]

Accordingly, the appeal from conviction is dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.


