



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sheahan, 2017 ONCA 159

DATE: 20170223

DOCKET: C60415

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

James Sheahan

Respondent

Davin Michael Garg, for the appellant

Eric Granger and Lawrence Greenspon, for the respondent

Heard and released orally:  February 10, 2017

On appeal from the order of Justice Brian W. Abrams of
    the Superior Court of Justice, dated April 7, 2015.

ENDORSEMENT

[1]

The respondent was convicted of operating a motor
    vehicle with a concentration of alcohol in his blood exceeding 80 mg of alcohol
    in 100 ml of blood, contrary to s. 253(1)(b) of the
Criminal Code
.  He was sentenced to 30
    days custody to be served intermittently, in addition to 12 months probation
    and a one-year driving prohibition.

[2]

The respondent appealed, and the Summary Conviction
    Appeal Court Judge (the SCACJ) found that the respondent had pointed to
    evidence that cast a doubt that the instrument utilized to conduct the blood-alcohol
    test was reliable, set his conviction aside, and ordered a new trial.

[3]

The Crown seeks leave to appeal.

[4]

It argues that the SCACJ erred by clearly misapplying the standard of
    appellate review and exceeding his appellate jurisdiction. We agree. It is
    unnecessary for us to address the further ground of appeal argued by the
    appellant.

[5]

For the reasons that follow, leave to appeal is granted, the appeal is
    allowed, the order directing a new trial is set aside, and the conviction
    entered at trial and the sentence imposed are restored.

Background

[6]

Police stopped the respondent after he was
    observed driving at 132 kilometres per hour in an 80 kilometres per hour posted
    zone. He failed a roadside breath test and was arrested, charged and brought to
    the police detachment, where he was transferred to a qualified breath
    technician.

[7]

The breath technician received notice that he would be
    required to take breath samples. He turned an approved instrument (an Intoxilyzer)
    on at 11:14 a.m. and, at 11:20 a.m., he conducted a calibration check. It came
    back low at 85, while the target is 90 to 110. He observed that this may occur
    when the instrument is not sufficiently warmed up. He re-did the calibration
    test at 11:22 a.m., and it came back within an acceptable range.  At 11:26
    a.m., he did a self-test. It correctly indicated that he had zero alcohol in
    his body. The technician testified that he was satisfied that the instrument
    was working properly.

[8]

He took two breath samples from the respondent. The first, taken at
    11:41 a.m., showed a blood-alcohol concentration of 225 mg of alcohol in 100 ml
    of blood. The second, taken 23 minutes later, showed a concentration of 218 mg
    of alcohol in 100 ml of blood.

[9]

The trial judge wrote the following:

When asked whether there was any apparent cause for the
    calibration check to be outside the range, the officer explained that in his
    experience, and based on his training, there is a space of air called headspace
    that can take longer to warm up. This may cause a calibration check to come in
    low. This explanation is also in the manual at pages 7-17.



the manual stipulates that the [alcohol standard solution in
    the instrument] should be changed if the calibration check is outside the
    required range without apparent cause.  In his view, he did know the cause,
    namely the cooler headspace, and following further testing, the calibration
    came within the range, thus obviating the need to change it, in his view.

[10]

The trial judge determined that the respondent
    had not raised a doubt as to the proper functioning or operation of the
    instrument, and therefore had not displaced the presumption under s. 258(1)(c)
    of the
Code
that the
    level of alcohol in the respondents blood at the time when the analyses were
    made and the offence was committed was the lowest of the concentrations
    determined by the analyses.

[11]

On appeal, the SCACJ concluded that the breath
    technician did not know the cause of the low calibration check and that his
    belief as to the role played by the cooler headspace was mere speculation,
    which was not in any way substantiated by the training manual. Accordingly,
    since he did not know the apparent cause why the calibration check was outside
    the normal range, his evidence raised a doubt that the instrument was not
    properly operated.

Analysis

[12]

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
    judges factual findings are entitled to deference, absent palpable and
    overriding error.

[13]

Respectfully, while the SCACJ alluded to the
    standard of review in his reasons, he clearly erred by failing to adhere to
    this standard of review and substituting his own view of the evidence. The
    trial judge committed no legal error. Her finding that the respondent had not
    raised a doubt as to the proper functioning or operation of the instrument was
    entitled to deference, absent palpable and overriding error. In our view, the
    trial judge made no such error. Rather, she correctly concluded that the
    respondent had not raised a doubt as to the proper functioning or operation of
    the instrument.

[14]

The manual instructs that the simulator must be
    operated at a temperature of 34 degrees, plus or minus .2 degrees Celsius, and
    the evidence of the breath technician was that the room temperature was around
    22 degrees when he turned the simulator on.

[15]

Contrary to the SCACJs findings, the manual
    specifically instructs qualified breath technicians that a cause for a low
    calibration result is cold headspace and if the ambient temperature in the
    room where the simulator is being used is cold, multiple calibration checks may
    be required to fully warm the simulator tubing and equilibrate the headspace
    and solution, and that the first calibration check result in these situations
    may be lower than 90 mg/100ml while this process occurs. These portions of the
    manual confirmed that the breath technicians manner of proceeding was based on
    his training, as he had testified.

[16]

The SCACJ failed to consider the technicians acceptance in
    cross-examination of the term speculation in the context of all the evidence
    that qualified that evidence and nullified its effect. That word inaccurately
    describes what  the breath technician clearly explained in his testimony,
    namely that, based on his experience and training, the apparent cause for the
    calibration check registering outside the range was that the headspace had not
    yet warmed up.

[17]

We
    reject the respondents argument that leave to appeal should be denied because
    of delay on the part of the Crown in perfecting its appeal.  As the respondent notes,
    the Crown commenced its application for leave to appeal by notice dated May 5,
    2015, but the respondent was not served with the appellants materials to
    perfect the appeal until August 15, 2016.  While there was delay, the
    respondent was aware of the Crowns intention to proceed and the Crown has
    provided a reasonable explanation for the delay.

[18]

If
    necessary, a warrant for the respondents arrest may be issued.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

B.W. Miller J.A.


