R. v. Markovitch, 2013 ONCJ 323

Information No. 12-10321 Citation: R. v. Markovitch , 2013 ONCJ 323 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. Danny M. Markovitch JUDGMENT June 11, 2013 Mr. B. Lee-Shanock Counsel for the Crown Mr. S. May Counsel for Mr. Markovitch RENAUD, J. – June 11, 2013 Introduction [ 1 ] Mr. Markovitch pleaded not guilty to an accusation alleging that he breached s. 263(1) of the Criminal Code on April 17, 2012, in the City of Ottawa. For present purposes, all of the essential elements of the offence, colloquially expressed as an “over 80” charge, are admitted by Mr.

Markovitch’s very experienced counsel, with one exception: it is submitted that there is no satisfactory evidence that the samples of breath were received directly into the approved instrument. I note that an accusation of impaired operation is being dismissed by means of a separate judgment released concurrently. Discussion [ 2 ] It will be useful to summarize the submissions of Mr.

May as follows: In effect, that the prosecutor has failed to establish beyond a reasonable doubt that the breath samples provided by his client were received ‘directly into an approved instrument’, as required by s. 258(1)(c)(iii) of the Criminal Code . In the result, what may be described as an evidentiary shortfall deprives the prosecutor of the presumption of identity in s. 258(1)(c). Accordingly, in the absence of evidence of the blood-alcohol concentration of Mr. Markovitch when he was apprehended and operating his motor vehicle, the Court cannot be satisfied that the “over .08” offence is made out.

To be plain, that a condition precedent to the operation of the presumption of identity has not been satisfied and I, as the trial judge, have no evidence of the blood-alcohol concentration of the defendant at the time he was operating his motor vehicle. [ 3 ] No other issue addressing the presumption, such as satisfactory proof that an approved instrument was employed, arises in light of the record. [ 4 ] I propose to review firstly the factual background to this controversy, to then draw attention to the relevant legal backdrop.

The factual background to the issue whether the samples of breath were received directly into an approved instrument [ 5 ] The prosecution called Cst. Martin Lachance of the Ottawa Police Services whose qualifications as a qualified breath technician were not contested. Officer Lachance described initially a “test record and report”, together with some notes of his interaction with Mr. Markovitch. The officer’s use of a prescribed form constitutes the first strand of the circumstantial tapestry of information that might

undergird the Crown’s submission to the effect that full compliance with s. 258(1)(

c) has been demonstrated beyond a reasonable doubt in this instance. In other words, if there is a printed check list, why would the officer fail to ensure that all necessary steps are in fact undertaken as prescribed in the course of his testing? In effect, that the officer was trained is not contested and it may thus be asserted by the prosecution that he most likely conformed to his training and check list that evening. [ 6 ] After obtaining grounds for the arrest from the investigating officer, P.C. Froats, Officer Lachance met with Mr.

May’s client and read out a breath demand amongst other information that was imparted. I wish to emphasize that the officer was quite diligent in ensuring that the detainee understood fully his situation and was not waiving his right to counsel without a full understanding of his jeopardy. Indeed, the defendant then spoke to a lawyer as a result. This evident professionalism was quite impressive, and constitutes the second strand of the circumstantial tapestry that might be said to demonstrate compliance with the statutory scheme.

Briefly put, is it not open to the Court to find rather easily that a fully-trained individual is not going to commit a colossal blunder in the nature of having a detainee introduce breath samples before him indirectly into the approved instrument, assuming such a feat is possible…? [ 7 ] The third factual element that I wish to underscore involves the officer’s references to a mouthpiece, starting at page 48 of the transcript. Officer Lachance describes in a detailed fashion how this mouthpiece is to be employed and I emphasize the comment that air will go through that device unobstructed.

This testimony leads to the clear inference that the detainee is to blow into that small device, and that obviously the device will be attached to some other device, and the references to each person’s mouthpiece must support the inference that for sanitary reasons each person must possess an individual device of this nature. [ 8 ] Fourthly, and most importantly, Officer Lachance stated at page 48, line 20, that he was operating an Intoxilyzer 8000C. And I quote: “It’s the instrument that Mr.

Markovitch blows into his mouthpiece, that goes through the tube into the instrument.” Further, Officer Lachance then testified that Mr Markovitch did so, though not in so many words, as made plain at line 25: “Q. And does he do that? A. He does.” [ 9 ] The next and fifth factual element of this circumstantial tapestry involves the testimony of Officer Lachance starting at page 49 to the effect that Mr. Markovitch had provided samples on two occasions, in the same fashion on each occasion, without stating that they were breath samples.

The officer did state that he received readings expressed in milligrams of alcohol in millilitres of blood and one wonders how any such readings might be obtained through the indirect introduction of breath into an approved instrument. [ 10 ] The next to last element involved the video recording the involvement of Cst Lachance with Mr. Markovitch that was played, but only in part, as Mr. May conceded voluntariness after a few minutes. I note that the video would have disclosed what precisely took place and the defence concession obviated for any need to further play the video.

The defence is not in any at fault but it seems obvious that the fact that the prosecution did not seek to introduce the best evidence of the compliance by the officer with the scheme arose through oversight as a result of some legal sparring. In the final analysis, this element is given quite limited weight. [ 11 ] Finally, the Court received an expert’s report, from Ms Teri Martin of the Centre of Forensic Sciences, which did not in any sense question how the technician received the samples in question.

One wonders how an expert could be satisfied with the results if they were produced by an indirect introduction of breath into an approved instrument. The legal background to the issue whether the samples of breath were received directly into an approved instrument [ 12 ] It will be useful to begin by making direct reference to para. 13 of R. v.

Labadie , 105 O.R. (3d) 98 , 2011 ONCA 227 , as this illustrates a correct and uncontroversial means by which a police officer my demonstrate compliance with the statutory scheme as it addresses the issue whether the breath sample was received directly into the approved instrument. [ 13 ] The judgment of the Court of Appeal in Labadie was delivered by Watt J.A. who wrote the following under the rubric “Proof of blood-alcohol concentration”: [11] To prove the respondent's blood-alcohol concentration at the time of his apprehension and driving, the prosecutor relied upon the presumption of identity in s. 258(1) (

c) of the Criminal Code , R.S.C. 1985, c. C-46. [12] The respondent challenged the applicability of the presumption. Trial counsel for the respondent submitted that the evidence of the qualified technician, Prov. Cst. Keller, failed to satisfy the condition precedent of s. 258(1) (c)(iii) because it did not demonstrate that the sample was provided directly into an approved instrument. Thus, counsel said, it was not a "proper sample" of the respondent's breath. [13] Trial counsel for the respondent was mistaken about the evidence of the qualified technician. Prov. Cst.

Keller testified: … and then he provided a proper sample, directly into the mouth piece which goes in, directly into the external breath tube of the instrument . [Emphasis added] [ 14 ] Of note, as set out at para. 15, “The trial judge held that the prosecutor had failed to establish beyond a reasonable doubt that the breath samples provided by the respondent had been received ‘directly into an approved instrument’, as required by s. 258(1) (c)(iii) of the Criminal Code [and …] the trial judge dismissed the charge on the basis of this ‘very small technicality’.”

[ 15 ] As we read at para. 20: [20] The

summary conviction appeal judge found that the trial judge had misapprehended the evidence of the qualified technician. Contrary to the trial judge's finding, there was evidence that the respondent provided a proper breath sample directly into the approved instrument. The

summary conviction appeal judge concluded: The trial judge's finding to the contrary, his finding that Constable Keller had not used the word "directly," is plainly wrong, and constituted a palpable error in his assessment of the facts.

To the extent that the trial judge's verdict rests upon this erroneous finding, it is unreasonable, and cannot be permitted to stand. [ 16 ] Lest there be any doubt about the importance of this type of information, Watt J.A. remarked at para. 2 that it is a “… condition precedent to the admissibility of other evidence crucial to the prosecution's case.” [ 17 ] Further, para. 20 makes plain how a single word may result in a finding that the statutory scheme which benefits the Crown has not been complied with.

Hence: “[20] The trial judge's finding to the contrary, his finding that Constable Keller had not used the word ‘directly’ is plainly wrong, and constituted a palpable error in his assessment of the facts.

To the extent that the trial judge's verdict rests upon this erroneous finding, it is unreasonable, and cannot be permitted to stand.” [ 18 ] Prior to leaving this case, I wish to repeat the remarks consigned at para. 64: [64] In my view, a more apt characterization of the nature of the trial judge's error is that he erred in law in failing to apply the presumption of identity to the uncontroverted evidence of Prov. Cst. Keller.

His misapprehension of her evidence led the trial judge to conclude that the condition precedent to the operation of the presumption contained in s. 258(1) (c)(iii) had not been satisfied. The evidence of Prov. Cst. Keller satisfied this requirement. She was not cross-examined on this issue.

The presumption of identity was engaged, and the blood-alcohol concentration was established as exceeding 80 mg of alcohol in 100 ml of blood. [ 19 ] I wish to point out that the Court of Appeal did not purport to state that only direct testimony of this nature will suffice, but rather, that such direct evidence necessarily suffices, especially in the absence of any challenge. [ 20 ] Subsequently, in R. v. O’Meara , 2012 ONCA 420 , the Court of Appeal provided further valuable instruction on this point. As we read beginning at para. 27, under the heading: “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 accused's 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 accused's 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)). [ 21 ] I have emphasized the above noted passage in order to make plain what is at issue in this instance. [ 22 ] The following paragraphs are also germane to the controversy at Bar, especially the first sentence below, that I have underlined as well: [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 , 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 Crown's appeal and restoring the conviction, Goudge J.A. held at paras. 20-21: [20] 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. [21] In my view, this was ample circumstantial evidence from which the trial judge could properly conclude as he did, namely that the respondent's breath samples were received directly into the approved instrument in this case. [ 23 ] Paragraph 33 is also highly germane. It reads: [33] I agree with the Crown's submissions on this issue. This court held in R. v. Labadie , 2011 ONCA 227 , that it is an error of law to fail to apply an applicable statutory presumption.

I n 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 technician's evidence on these points was not challenged at trial. [Emphasis added] [ 24 ] Further guidance on the potentially sufficient circumstantial nature of the evidence as to the work performed by the technician in the case of Mr. Markovitch is found at para. 34: [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 respondent's 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 .

Conclusion [ 25 ] In my view, based on the foregoing, including the last passage I have underlined immediately above, it is open to me to conclude that in this case, the state of the record admits of no other reasonable conclusion but that the statutory scheme was complied with fully and that this finding is available to be made on the criminal standard, that of proof beyond a reasonable doubt. Indeed, the circumstantial evidence demonstrates clearly and convincingly that Mr.

Markovitch did, in fact, introduce samples of his breath on two occasions directly into the approved instrument and that the resulting analysis conducted by a qualified technician demonstrated a breach of s. 253(1) (

b) of the Criminal Code . My finding would have been available only with the information found at para. 8 but the whole of the record also supports this finding and Mr. Markovitch is found guilty of this offence. ____________ Renaud J.