R. v. McNamara, 2014 ONCJ 616

Information No. S13 – 4752 Citation: R. v. McNamara, 2014 ONCJ 616 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - PATRICK McNAMARA Ms. S. Clermont for the Crown Mr. B. Starkman for Patrick McNamara Reasons for Judgment NADEL, J.: Introduction [1] Mr. McNamara is charged with care and control while being over 80. The only evidence capable of supporting that charge is thetestimony of the qualified technician, (Q.T.,) Officer Tammy Morden.

The issue joined is whether the Crown has proved that “eachsample was received from the accused directly into an approved instrument” as required by s. 258(1)(c)(iii). Mr. Starkman, relying uponR. v. White, [1994] O.J. No. 804 (Prov. Ct.), submits that judicial notice is not available to assist the Crown and that the evidenceadduced is insufficient to permit this fact to be inferred. Ms. Clermont demurred and, relying upon R. v. O’Meara, 2012 ONCA 420, [2012] O.J. No. 2752 (C.A.)[1] and R. v. Wiebe, [2013] O.J. No. 5377 (OCJ)[2], contended that that fact can be inferred fromMorden’s evidence.

The parties are agreed that if the reception of the accused’s breath directly into the approved instrument can beinferred then a conviction follows and if not then Mr. McNamara must be acquitted. The Law [2] One of the prerequisites to establishing the presumption of identity provided for by s. 258(1)(

c) is that “each sample was receivedfrom the accused directly into an approved container or into an approved instrument operated by a qualified technician.” Thisrequirement can be established by direct testimony or through inference from other evidence[3] but it is not a matter that may bejudicially noticed. [3] Binding authority to that effect can be found in R. v. White, [1994] O.J. No. 804 at paragraph [12] where J.H. Jenkins J., sitting asa

summary conviction appeal court, approved that holding by Misener J., also sitting as a

summary conviction appeal court, in R. v.Marghella, [1987] O.J. No. 1368. Misener J. went on to say: “Nor do I think that judicial notice can be taken of the fact - if indeed it is a fact - that the Borkenstein Model 900-A breathalyzerinstrument will not make a chemical analysis without receiving the sample into it. I am mindful of the fact that in Reg. v. Walters (1975), (NS CA), 26 C.C.C. (2d) 56, MacDonald J.A. in obiter suggested the contrary. I cannot bring myself to agree.

Icertainly do not, from my own general knowledge and experience, know that to be the case, nor do I think that it is a matter of generalknowledge either universally or in any given community. Indeed, I would hope that the vast majority of the members of any juryanywhere that might be constituted to try a case involving the Borkenstein Breathalyzer Model 900-A would be totally ignorant of bothwhat it looked like and how it worked.” [4] More currently, J. Shriar J., a Provincial Court Judge in Alberta, came to the same conclusion in R. v. Willier, [2007] A.J. No.1030 at paragraph [32].

Despite identifying some authorities to the contrary, Shriar J. preferred and followed Marghella, White and R. v.Burns, [2001] O.J. No. 1050 (SCO), (another

summary conviction appeal decision where judicial notice was held to be unavailable toprovide the finding that an accused’s breath was introduced “directly into” an approved instrument.) [5] Burns is an extreme application of both the unavailability of judicial notice and of the need for compelling evidence before acourt can infer that an accused’s breath was introduced directly into an approved instrument.

In Burns the Q.T. testified that the accused“completed providing the first sample directly into the approved instrument” but on the second test he merely testified that the accused“commenced providing the second sample” which was analyzed. Sheffield J. held the missing words “directly into” could not besupplied by judicial notice nor inferred on this evidence. [6] On the issue of the availability of judicial notice, our Court of Appeal came to the same conclusion in R. v.

Mulroney, [2009] O.J.No. 4581 at paragraph [18] by holding that “the Crown had to establish beyond a reasonable doubt that the breath samples were received

into the approved instrument directly from the accused.” [ 7 ] In sum, the following conclusions are apposite: [1] “directly into” cannot be inferred merely from the definition of “approved instrument”; [2] judicial notice cannot be used to supply the proof that an accused’s breath samples were received directly into an approved instrument; [3] the liberty interest of an accused requires a strict

interpretation of s. 258(1)(c)(iii). [4] The Evidence of the Qualified Technician [ 8 ] Officer Tammy Morden was conceded to be a Q.T. She used an Intoxilyzer 8000C, an approved instrument, to conduct the breath testing demanded of the defendant. She prepared the machine appropriately and correctly.

She identified the Alcohol Standard Solution that she used in testing the approved instrument, along with its lot number, date of manufacture and expiry date, (the latter being September 30, 2014.) She testified that the Alcohol Standard Solution had been changed on November 17, 2013. [ 9 ] Having noted all of the foregoing, she conducted a diagnostics check at 2:05 a.m. to ensure that the machine was operating properly. It was. At 2:07 a.m. she conducted a calibration check to verify the machine was functioning accurately. It was.

Then at 2:09 a.m. she conducted a test on herself to ensure that the approved instrument was capable of “getting” (sic) a breath sample. It could. Her self-test provided a result of zero as she had not been drinking.

However, she did not explain or describe the process by which she conducted that self-test. [ 10 ] Between 2:13 a.m. and 2:20 a.m. she received the grounds for the defendant’s arrest and at 2:23 a.m. she was presented with the defendant and commenced to conduct his breath tests. [ 11 ] Officer Morden’s only evidence with respect to the process that she used to test the defendant was as follows: A. … I conducted two breath tests. The first one was at 2:23 a.m.

He provided a sample of his breath into the instrument , and I received a result of 183 milligrams of alcohol in 100 millilitres of blood. … (emphases added) … A. I conducted the second test, and after the second test I advised him of the results, and he became angry again. The second test was at 2:55 a.m. and the result at that time was 187 milligrams of alcohol in 100 millilitres of blood, which was, satisfied me that the testing, was complete at that point. … Q. … He was able to provide the samples easily? Did it take many tries, if I may ask? A.

I don’t have any, any notation that there was any issue with providing the sample. I don’t recall that it was, that it was particularly difficult. Discussion [ 12 ] In R. v. Triantos , [1994] O.J. No. 803 (Gen. Div.) Misener J. sitting as a

summary conviction appeal court found that the trial judge clearly erred in holding that evidence of a direct blow into the approved instrument was lacking given that the Q.T. testified that he advised Triantos how to provide a proper sample and that Triantos sealed his lips around the mouthpiece and provided a proper sample. The Q.T. testified that the same procedure was used for the second test. [ 13 ] At paragraph [8] of Mulroney the

summary conviction appeal court “held that no evidence was led that the mouth-piece was connected to the Intoxilyzer or, even if it was, that there was no intervening apparatus between the two. Consequently, he concluded that there was no evidence that could properly lead to a reasonable inference that the breath samples were provided by the respondent directly into the approved instrument, and that the trial judge erred in not allowing the application for a non-suit.

He allowed the appeal, set aside the conviction, and entered an acquittal.” (emphasis in the original) [ 14 ] The Court of Appeal overturned and reversed this ruling and held, at paragraph [21] that there “was ample circumstantial evidence from which the trial judge could properly conclude … that the respondent’s breath samples were received directly into the approved instrument …” The Court of Appeal specifically noted that the trial judge did not take judicial notice that the samples were received directly into an approved instrument simply by virtue of the fact that results were obtained from the use of such an instrument.

Rather, on an uncontested basis, the Q.T. had, testified, in addition that • the tests were administered by a Q.T.; • the approved instrument was designed to receive and analyze breath samples for blood alcohol concentration; • the approved instrument appeared to be working properly; • the accused blew into the mouthpiece of the instrument as instructed ; and, • the blows provided suitable samples for analyses . [ 15 ] In R. v. Wiebe , [2013] O.J. No. 5377 (OCJ) the defence conceded that the Q.T. was a Q.T. and that he was operating an approved

instrument. G.F.

Hearn J., at paragraph [65], concluded that “[a] logical and reasonable inference from the admission … [was] that [the Q.T.] was a properly qualified individual capable of operating the approved instrument and receiving samples in a proper manner in order that results could be obtained; i.e. by samples being provided directly into the approved instrument.” [ 16 ] In arriving at this conclusion, Hearn J. relied upon the fact that the Q.T. conducted a diagnostics check, a calibration check and a self-test which the Q.T. described as “blowing into the machine,” and further that he explained the test to Wiebe and how it worked, “how the instrument worked.” 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.