R. v. Sypher, 2021 NSCA 21

Nova Scotia Court of Appeal Citation: R. v. Sypher , 2021 NSCA 21 Date: 20210225 Docket: CAC 487640 Registry: Halifax Between: Nick Scott Sypher Appellant v. Her Majesty the Queen Respondent Judges: The Honourable Justices Duncan R. Beveridge, J. Edward Scanlan and Anne S. Derrick Appeal Heard: November 23, 2020, in Halifax, Nova Scotia Subject: Criminal Law: Duty of the

summary conviction appeal court; allegation of an improper operation of an approved instrument under s. 258(1) (

c) of the Criminal Code

Summary: A trial judge convicted the appellant of care or control of a motor vehicle while he had a blood alcohol level in excess of 80 mg of alcohol in 100 ml of blood. He appealed as of right to the

Summary Conviction Appeal Court (SCAC). The appellant produced the trial transcript but did not include the trial judge’s oral reasons that were delivered on a different day. The SCAC judge nonetheless heard the appeal simply based on his review of the trial evidence. He found nothing that would have precluded the trial judge from convicting, and so dismissed the

Summary Conviction appeal. The appellant seeks leave to appeal. Issues:

(1) Should leave to appeal be granted?

(2) Did the SCAC err in law, and if so, what are the consequences?

(3) Did the trial judge err with respect to her analysis whether there was “improper operation” of the approved instrument? Result: The application for leave to appeal is granted but the appeal is dismissed. The SCAC judge erred in law. He was required to review the trial decision to determine if the verdict was marred by misapprehension of evidence, consequential legal error or if important findings were unreasonable or unsupported by the evidence. The absence of the trial judge’s decision, in these circumstances, should have halted the SCAC process.

Instead, the SCAC judge carried out his own review of the evidence and concluded there was nothing to preclude the trial judge from convicting the appellant. Since the trial decision was produced after the SCAC process, the Court can carry out the function of the SCAC. The trial judge made clear factual findings there was no improper operation of the approved instrument. The findings are reasonable and supported by the evidence and are untainted by legal error. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 15 pages. Nova Scotia Court of Appeal Citation: R. v. Sypher , 2021 NSCA 21 Date: 20210225

Docket: CAC 487640 Registry: Halifax Between: Nick Scott Sypher Appellant v. Her Majesty the Queen Respondent Judges: Beveridge, Scanlan, and Derrick, JJ.A. Appeal Heard: November 23, 2020, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of the Court Counsel: Nick Sypher, appellant in person Timothy O’Leary, for the respondent Reasons for judgment (by the Court): INTRODUCTION [ 1 ] A Provincial Court judge convicted Mr. Sypher of having care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] The

Summary Conviction Appeal Court (SCAC) dismissed Mr. Sypher’s as of right appeal to that Court. He now applies for leave to appeal to this Court. [ 3 ] Given the unusual circumstances surrounding Mr. Sypher’s SCAC appeal, we grant leave to appeal; but, we must nonetheless dismiss the appeal. [ 4 ] To understand this outcome, we need to set out a brief overview of the trial and SCAC proceedings before turning to the appeal to this Court. OVERVIEW The trial evidence [ 5 ] The trial was held on August 27, 2018. The Crown called six witnesses.

The appellant did not testify or call evidence. [ 6 ] A bartender from a Bedford bar testified that the appellant had consumed some number of beers. Patrons expressed concern to him when it appeared to them the appellant was going to drive. The bartender called 911 and reported what he knew about the appellant’s condition. [ 7 ] The police stopped the appellant’s vehicle. The appellant registered a fail on a roadside screening device.

Arrest for impaired driving and a demand to provide breath samples followed. [ 8 ] The focus at trial was on the recommended protocol and duration of the observation period between the breath tests.

The instrument’s manual calls for a minimum 15-minute continuous observation period before and between tests to ensure no consumption of substances, burping or vomiting. [ 9 ] In addition, the Criminal Code provisions, then in force, required each sample to be taken as soon as practical after the time the offence was alleged to have been committed, and, for the first sample, within two hours of that time, and with an interval of at least 15 minutes between samples ( s. 258(1) (c)(ii)).

If these and other requirements are met, the Crown can rely on the twin presumptions that the lowest of the results is proof, in the absence of evidence to the contrary, that the result is accurate and is identical to the accused’s blood alcohol concentration at the time of care or control. [ 10 ] After the appellant had consulted counsel, Cst. Stevens observed the appellant for 20 minutes before the first breath test. He testified he saw no gum, burps, vomit, or anything in the appellant’s mouth. [ 11 ] Cst. Wetzell was the qualified technician.

He produced his certificate and printout from the approved instrument, Intox EC/IR II. The instrument produced a reading of 110 mg of alcohol in 100 ml of blood at 21:53. [ 12 ] Cst. Stevens then observed the appellant from 21:54 until the commencement of the second breath sample attempts at 22:13.

He testified he saw nothing untoward during the second observation period. [ 13 ] Eventually, after multiple attempts, the appellant provided a proper sample into the instrument at 22:18 with a result of 90 mg in 100 ml of blood. [ 14 ] The controversy at trial came from Cst. Wetzell’s notes. He had recorded in his notes that the second observation period must have ended before 22:08 because that is when he noted the second sample occurred. He had used his watch to make that notation.

This created the theoretical possibility that the observation period was less than 15 minutes, contrary to the instrument’s protocol. [ 15 ] However, Cst. Wetzell also testified that the instrument will not commence the second sample sequence until at least 15 minutes has elapsed from the completion of the first sample process.

This is borne out by the document produced by the approved instrument as part of the certificate that showed: the instrument did its second internal diagnostic check at 22:09; a test with the Standard Alcohol Solution at 22:11; a blank check at 22:12; the first attempt by the appellant at 22:15; and a result of 90 mg/100 ml at 22:18. [ 16 ] The appellant did not testify or call evidence at trial. Submissions followed immediately. Appellant’s trial counsel urged the trial judge to acquit based on the suggestion a reasonable doubt had been raised as to the proper operation of the approved instrument.

The parties then filed written submissions. [ 17 ] On November 7, 2018, for reasons that we will refer to later, the trial judge, the Honourable Amy Sakalauskas, J.P.C., in an oral decision, acquitted the appellant of impaired care or control of a motor vehicle but convicted him on the charge of having the care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood. The SCAC proceedings [ 18 ] For the SCAC proceedings, the appellant was self-represented throughout. His Notice of Appeal was out of time by a few days.

After that initial misstep, matters proceeded at near record pace. [ 19 ] On January 15, 2019, Mr. Sypher successfully applied to get an extension of time to file his Notice of Appeal and for a stay of the driving prohibition Order.

The sole ground of appeal advanced was: The Learned Trial Judge committed a reversible error of law in concluding that the Crown was entitled to the benefit of the presumption of identity as set out in s. 258 of the Criminal Code , notwithstanding discrepancies in the evidence concerning the length of the observation period which ought to have raised a reasonable doubt with respect to the proper operation of the Intox EC IR II breathalyzer device. [ 20 ] The appellant wanted an early hearing. Filing dates for the appeal materials were set, with the appeal to be heard on March 20, 2019. [ 21 ] Mr.

Sypher duly filed the trial transcript from August 27, 2018 on February 19, 2019. Unfortunately, and which has become the source of a great deal of the difficulty, there was no transcript of the trial judge’s oral decision of November 7, 2018. [ 22 ] The appellant also filed affidavits with the SCAC on February 19, 2019 and what should have been simply reply materials on March 15, 2019. No brief or written submissions materialized. [ 23 ] The Crown filed its brief on March 6, 2019. It interpreted the appellant’s affidavits as a request to admit fresh evidence. It suggested the issues on appeal were: 1.

Did the trial judge make a palpable and overriding error of fact regarding the length of the observation period? 2. If the Appellant is able to demonstrate the interval between samples was less than 15 minutes, did the trial judge make an error of law, or an error of mixed fact and law, in her

interpretation and application of the presumptions afforded by section 258(1) (

c) of the Criminal Code ? 3. Should an [ sic ] appeal be allowed on the basis of fresh evidence? [ 24 ] The Crown pointed out the absence of the trial judge’s decision, but suggested that because she had convicted the appellant, she must have made a finding, express or implied, that the length and conduct of the observation period had been appropriate.

Counsel suggested that even if the trial judge had erred in law, an outright acquittal on all of the charges would not follow because it was unclear if the appellant had been acquitted of impaired driving or if that charge had been stayed by virtue of the Kienapple principle (the rule against multiple convictions for the same wrong). [ 25 ] The Honourable Justice Kevin Coady heard the appeal on March 20, 2019. At the outset of the hearing, the SCAC judge addressed the issue of what appeared to be the appellant’s attempt to adduce fresh evidence.

When the frailties of his materials were pointed out, the appellant requested more time to remedy their shortcomings. Without calling on the Crown for its view, the judge rejected the request and the appellant’s attempt to adduce fresh evidence. [ 26 ] The appeal was reduced to argument solely based on the trial transcript. The appellant advised the SCAC judge that he had not yet read the transcript and was not prepared to proceed. Again, without calling on the Crown for its view, the judge denied any adjournment despite the fact the expedited appeal

schedule had been at the appellant’s own request. [ 27 ] The judge told the appellant that if he did not proceed his appeal would be dismissed.

[ 28 ] The appellant made submissions. There were numerous exchanges between the SCAC judge and the appellant. The judge asked the appellant “…where in the transcript did the judge err?” He responded that her error was in accepting the certificate. The SCAC judge was adamant that he could not substitute his factual findings for hers. He added “after all the time I’ve been doing this I didn’t see a real mistake anywhere in that transcript for the purpose of what I’m here to do today, which is to determine whether there was error”. [ 29 ] Near the end of the one-hour hearing was this exchange: MR.

SYPHER: So if … she makes a decision can I use what the police officer said as evidence to counter whether her decision should have been made? THE COURT: No, you’re … again, and I’ll only say this once more. A judge’s job is to listen to different versions of events and decide which one they accept, and that’s a finding of fact and it’s entitled to complete deference. [ 30 ] The appellant then asked for more time. Again, without calling on the Crown, the request was rejected.

The appellant eventually told the SCAC judge that he felt the judge was being condescending and not according him his right to a fair appeal. The respondent acknowledges before us that the SCAC judge lost patience. [ 31 ] The SCAC judge reserved his decision. He returned and delivered oral reasons to dismiss the appeal. The judge accurately set out the appellant’s complaints and then quoted from Cst. Wetzell’s evidence. The SCAC judge’s reasons are captured in these few paragraphs: Yes, I agree there were some discrepancies surrounding the 15-minute observation periods.

However, the trial judge considered that evidence and made her call, and that is what trial judges do: find the facts from disputed evidence. Obviously, Mr. Sypher has a different view of these periods of time. I have reviewed the transcript and cannot find any palpable or overriding error when deciding the facts when reviewing the facts as found by the learned trial judge . … … I have carefully reviewed the timeline that was before the trial judge from the first roadside test at 20:22 hours to the final test at 22:18 hours, and I see nothing untoward arising from the timeline .

I cannot find an error in the trial judge’s decision. Consequently, this appeal is denied … [Emphasis added] THE APPEAL TO THIS COURT [ 32 ] The appeal to this Court has proceeded slowly. The appellant started his application for leave to appeal self-represented. His appeal book included a certified transcript of the trial judge’s November 7, 2018 decision. [ 33 ] Delays in the appeal process aggregated as the appellant obtained and then lost counsel. With the assistance of counsel, the appellant filed an Amended Notice of Appeal that advanced three grounds of appeal. They are: 1. The

summary conviction appeal Judge erred in law by dismissing the appeal without having received or reviewed a transcript of the trial judge’s reasons for judgment; 2. The

summary conviction appeal Judge erred in law by hearing the appeal without having received a transcript of the trial judge’s reasons for judgment; and 3. The

summary conviction appeal Judge erred in law with respect to the meaning of “operated improperly” within section 258(1) (

c) of the Criminal Code . [ 34 ] Appellant’s counsel withdrew. The appellant filed his own factum and represented himself at the appeal hearing. Unfortunately, his written and oral submissions were not sharply focused on these grounds, nor whether we should grant leave to appeal. [ 35 ] The respondent argues we should not grant leave, but if leave is granted, the appeal be dismissed because the SCAC arrived at the correct result.

Leave to appeal [ 36 ] An appeal to this Court is available on leave, pursuant to s. 839 of the Criminal Code , and is restricted to questions of law alone. [ 37 ] There is no one test that resolves all potential scenarios where leave to appeal is sought. Some of the key principles are the significance of the legal issues, the apparent merits of the grounds of appeal, and the consequences for the appellant (see: R. v. R.R. , 2008 ONCA 497 ; R. v. MacNeil , 2009 NSCA 46 ). [ 38 ] Here, the consequences for the appellant are not objectively serious.

In these circumstances, leave to appeal is not usually granted to an unsuccessful party from the SCAC unless: there are arguable legal questions that are of significance to the general administration of justice; or, it seems that the SCAC made a clear error of law (see: R. v. Pottie , 2013 NSCA 68 ; R. v. R.E.M. , 2011 NSCA 8 ; R. v. McIntosh , 2018 NSCA 39 ; R. v. Anand , 2020 NSCA 12 ).

[39] We grant leave—not because of the significance of the issue or the seriousness of the consequences, but because we aresatisfied the SCAC judge erred in law in how he conducted the proceedings. The merits [40] There are two standards of review that must be kept in mind: one for the SCAC and one we apply on an appeal to this Courtfrom the SCAC. [41] A further appeal to this Court is not a new appeal from the trial court’s decision. We must determine whether the SCAC erredin law in the articulation and application of the governing principles of an appeal to that Court.

Fichaud J.A., for the Court, in R. v.C.S.M., 2004 NSCA 60 described the first step of our role: [26] Under s. 839(1), the issue is whether the SCAC has erred in "law alone". The Court of Appeal is considering an appeal from theSCAC, not a de novo appeal from the trial court. This Court must determine whether the SCAC erred in law in the statement orapplication of the principles governing the review by the SCAC of the trial verdict. R. v. Travers, 2001 NSCA 71, at para. 21; R. v.Cunningham (1995), 1995 NSCA 153 , 143 N.S.R. (2d) 149 (C.A.), at paras.12, 21; R. v. G.W., (ON CA),[1996] O.J.

No. 3075, (O.C.A.) at para. 20; R. v. Emery (1981), (BC CA), 61 C.C.C. (2d) 84 (B.C.C.A.). See also: R. v. Francis, 2011 NSCA 113; R. v. Pottie, supra. [42] Our conclusion that the SCAC erred is tied to an appreciation of the responsibility assigned to it. The principles areuncontroversial. The SCAC is required to determine if the verdict appealed is marred by misapprehension of evidence, consequentiallegal error or findings that are unreasonable or unsupported by the evidence.

The SCAC, like this Court on indictable appeals is entitledto review the trial evidence, re-examine it and reweigh it to determine if it is reasonably capable of supporting the trial judge’sconclusions. As Cromwell J.A., as he then was, summarized in R. v. Nickerson, 1999 NSCA 168: [6] … In short, a

summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there wassome evidence to support the trial judge's conclusions nor a new trial on the transcript. [Emphasis in original] [43] This approach was later echoed in R. v. Farrell, 2009 NSCA 3, by Roscoe J.A.: [18] The SCAC judge's role was to review the evidence, re-examine and re-weigh it, but only for the purpose of determining whetherit was reasonably capable of supporting the trial judge's conclusion.

The SCAC judge did not determine whether the evidence reasonablysupported the trial judge's conclusions with respect to the police officer's reasonable grounds of belief at the time the demand was made.Instead, he in effect, retried the case on the transcript of evidence, as is clear from the passages quoted above. He assessed the evidenceand made his own findings of fact.

He erred by substituting his views concerning the credibility and weight of the evidence andinferences that could be drawn from the evidence, for those of the trial judge. [44] This begs a number of questions: What were the trial judge’s findings?; What were the principles she applied and how did shearrive at those findings?; and lastly, were they unreasonable or unsupported by the evidence? [45] The appeal to the SCAC was on the record, pursuant to s. 813 of the Criminal Code. It was not an appeal by way of a trial denovo (see s. 822(4)).

Section 821(3) of the Criminal Code required the appellant to provide a certified transcript of the evidence. [46] In addition, Civil Procedure Rule 63.03(2)(b), made pursuant to ss. 482(1) and (3) of the Criminal Code, required one of thefollowing to be included in the SCAC appeal book: a copy of the decision; a written signed version of the trial judge’s oral decision; or acertified transcript of the decision. [47] If an appellant fails to follow these directives, there can be consequences.

Pursuant to Rule 91.03 (adopted via Rule 63.03),non-compliance can be excused or the appeal could even be dismissed. [48] Although the appellant ordered and produced the trial transcript from August 27, 2018, it did not include the trial judge’s oraldecision delivered on November 7, 2018. When this lacuna was pointed out by the Crown in its written submissions to the SCAC, itshould have brought an end to the appeal process until such time as the appellant produced the trial judge’s oral decision. [49] This would have caused some delay, but it was unavoidable.

No one has suggested the appellant’s failure was anything otherthan inadvertent. Section 821(3) of the Code required him to produce a certified transcript of the trial evidence. He did so andprosecuted his appeal in what was, by any standard, remarkable speed.

Confident in the righteousness of his cause, it was the appellantwho insisted on an early hearing date, even though he had successfully overturned the Registrar’s automatic licence suspension andobtained a stay of the driving prohibition pending the outcome of his appeal. [50] Not all gaps in an appeal record preclude an appeal court from adjudicating the merits of an appeal (see for example: R. v.Hayes, (SCC), [1989] 1 S.C.R. 44; R. v. Schneider, 2004 NSCA 99). But this was not just a gap. The whole of the trialjudge’s decision was not before the SCAC. [51] The British Columbia Court of Appeal in R. v.

Srochenski (1997), (BC CA), 91 B.C.A.C. 315, addressed asimilar problem. A trial judge acquitted the appellant of driving with a blood alcohol over the legal limit, but convicted him of impaireddriving causing bodily harm. The recording device captured the judge’s reasons to acquit, but malfunctioned when he turned to thecharge of impaired driving causing bodily harm. There were no reasons available.

Both Crown and appellant’s counsel invited theCourt of Appeal to review the record, evaluate the evidence and decide the outcome. [52] The Court declined the invitation; to do so would require it to take on the role of trier of fact, assessing the evidence without

the advantage of the trial judge’s assessment, including his credibility findings. The Court quashed the conviction and ordered a newtrial. [53] In this case, the trial judge repeatedly expressed her concern during the Crown’s submissions that given the conflict in theevidence, how could she be satisfied beyond a reasonable doubt and rely on the certificate to convict the appellant. The SCAC, insteadof obtaining the trial judge’s decision, reviewed the evidence, particularly that of Cst. Wetzell, and found no problem with the trialjudge’s decision to convict.

For convenience, we repeat his analysis: Obviously, Mr. Sypher has a different view of these periods of time. I have reviewed the transcript and cannot find any palpable oroverriding error when deciding the facts when reviewing the facts as found by the learned trial judge. … … I have carefully reviewed the timeline that was before the trial judge from the first roadside test at 20:22 hours to the final test at 22:18hours, and I see nothing untoward arising from the timeline.

I cannot find an error in the trial judge’s decision. [54] There has been no suggestion that the SCAC had access to the trial judge’s decision, which would have demonstrated how sheresolved the conflicts in the evidence, and what facts she found. It appears that the SCAC judge reviewed the transcript of the evidence,made his own assessment, and concluded there was nothing to preclude the trial judge from convicting the appellant. With respect, thatwas not the SCAC’s function. [55] This creates the issue of the consequences of the SCAC error.

When a SCAC errs in how it carries out its function, there aretwo choices: remit the appeal back to the

Summary Conviction Appeal Court for another judge of that Court to address the appellant’sgrounds of appeal; or, this Court, now armed with the trial judge’s oral decision, can carry out the function of the SCAC and determine ifthe trial judge committed legal error, misapprehended the evidence or arrived at an unreasonable verdict or one that was unsupported bythe evidence. [56] In these circumstances, the latter is the appropriate course. In R. v. Farrell, supra, this was the approach followed. It was alsothe option selected by the Ontario Court of Appeal in R. v.

Minuskin (2003), (ON CA), 180 O.A.C. 255, where theSCAC issued a three-sentence decision to dismiss a conviction appeal. The reasons were inadequate. Rosenberg J.A., for the Court,stepped into the shoes of the SCAC, addressed the appellant’s grounds of appeal, allowed the appeal, and ordered a new trial. The appeal from conviction [57] The appellant argues that the instrument was not operated properly because Cst. Wetzell’s notes show only a 14-minuteobservation period between the samples and there were deficiencies in how that observation period was conducted.

This, he contends,denies the Crown from legitimate reliance on the twin presumptions that the results are accurate and reflect the blood alcohol level at thetime of the alleged offence. [58] There are two obstacles that preclude success for the appellant—the factual findings that were made by the trial judge and thelaw. [59] The trial judge quickly disposed of the impaired care or control charge. She then turned to the issue of whether the Crowncould rely on the twin presumptions to prove the appellant’s blood alcohol level exceeded the legal limit at the time of care or control.

Ifthe statutory preconditions are met, the presumptions are engaged and establish a necessary element of the offence unless the accusedraises a reasonable doubt about the reliability of the results due to improper operation or malfunction of the instrument. [60] The trial judge accurately set out what she had to decide: Evidence to the contrary that would rebut that presumption is evidence tending to show that the approved instrument was malfunctioningor operated improperly. That’s the key in this one, the operated improperly. “Tending to show” means that Mr.

Sypher has to raise areasonable doubt about the reliability of the results, and this case is arguing that’s present because of what he says was an improperoperation. The other issues with the presumption aren’t in contest. … They point to two issues. Whether the second observation period was 15 minutes – which the defence says is required – and second,whether the police properly conducted the observation period. [61] The trial judge then reviewed Cst. Stevens’ evidence about the observation periods, the first from 21:30 to 21:50, and thesecond from 21:54 to 22:13.

He testified there was nothing in those periods that would impact the taking of samples. The trial judgeconcluded: …I don’t find his [Cst. Stevens’] notes deficit [sic] or causing [sic] me to question his testimony or have reasonable doubt about whatoccurred.

Both he and Officer Wetzell, who were communicating during [sic] time, noted no concerns with the observations. [62] As for the timing issue, the trial judge correctly noted that the defence had agreed there had been at least 15 minutes betweenthe samples: So at this stage I’m concerned simply about the timing, whether the minimum 15-minute requirement, a prerequisite for the presumptionhas been met, and the defence agreed that there was 15 minutes between tests. So the presumption is in play. So the real issue iswhether Mr.

Sypher has raised a reasonable doubt to show that the approved instrument raised evidence tending to show the approvedinstrument was operated improperly.

[ 63 ] It was an appropriate concession by appellant’s trial counsel given the uncontradicted evidence that the instrument would not permit a second sample process to even begin until 15 minutes had elapsed. [ 64 ] Instead, at trial and on appeal, the appellant focussed on Cst. Wetzell’s notes that the second sample attempt was at 22:08, but Cst. Stevens had testified that the second observation period did not not end until 22:13. If Cst.

Wetzell’s notes were correct, then there could not have been a 15-minute observation period. [ 65 ] The trial judge found that no testing had occurred at 22:08, simply the start of the instrument’s internal diagnostics, which would have been 15 minutes after the first sample at 21:53. The uncontradicted evidence was that the observation period tries to ensure the absence of mouth alcohol which could skew the test results.

The judge addressed the issue head-on: The testing sequence for the second sample started at 10:08 p.m. according to the printout and the observation period started … had started at 9:54 p.m., 14 minutes in between. Cst. Stevens testified that he was with Mr. Sypher the whole time, observing him attempt four blows before providing a suitable sample 20 minutes after the first one and 19 minutes after the second observation period started. This was ample time for any mouth alcohol to dissipate. It wasn’t the testing that took place at 10:08. It was the diagnostic.

The defence notes that the test could not have been started while Stevens was still in a different room than the accused. It was the diagnostics that started before Mr. Sypher blew, and indeed, this could have started while Cst. Stevens and Mr. Sypher were in a different room…. [ 66 ] The final key finding by the trial judge was that there was no failure to follow the recommended protocol of a minimum 15- minute observation period, nor any evidence of improper operation: The evidence establishes that Mr. Sypher was continuously observed by Cst. Stevens for at least 15 minutes before each test.

There is no evidence that the machine did not function properly, and Mr. Sypher has not raised a reasonable doubt as to the proper operation of the instrument. The Crown is entitled to rely on the presumptions, and I find Mr. Sypher guilty of the over-80 offence under s. 253(1) (b). [ 67 ] The trial judge’s findings are reasonable and supported by the evidence. The appellant does not suggest any misapprehension of evidence or that the conviction is tainted by an error in law or principle.

We cannot accede to this ground of appeal. [ 68 ] Even if there were evidence that demonstrated improper instrument operation, the law requires it raise a reasonable doubt about the reliability of the results ( R. v. St-Onge Lamoureux , 2012 SCC 57 ). [ 69 ] The issue of a failure to conduct a continuous 15-minute observation period was addressed by the Supreme Court of Canada in R. v. Cyr-Langlois , 2018 SCC 54 , approximately one month after the trial decision in this case. The trial judge in that case acquitted. The SCAC ordered a new trial. A majority of the Quebec Court of Appeal restored the acquittal.

The Supreme Court of Canada reversed and upheld the SCAC’s new trial order. [ 70 ] Wagner C.J., acknowledged that improper operation alone may be so serious that it can raise a reasonable doubt about the reliability of the results: [16] I do not rule out the possibility that improper operation may be so serious or so closely connected with reliability that it will be sufficient in itself to raise a reasonable doubt about the reliability of the results obtained.

In short, it does not matter whether the possible impact on reliability is inferred from the actual nature of the defect, from the extent of the defect or from other external circumstances. What is essential is that the possibility that the defect affected the reliability of the results is serious enough to raise a reasonable doubt. … [ 71 ] But the respondent in that case had failed to raise a reasonable doubt about the reliability of the results. Chief Justice Wagner’s analysis demonstrates why the appellant here cannot succeed: [4] The accused's burden is discharged if the following conditions are met: (

i) the accused adduces evidence relating directly to the malfunctioning or improper operation of the instrument, and (ii) the accused establishes that this defect tends to cast doubt on the reliability of the results. Each of these conditions has a theoretical element and a practical element. Therefore, for the improper operation of the instrument to be established, it must first be found that a specific procedure is generally required (theoretical element), and it must then be shown that the procedure was not in fact followed (practical element).

The evidence from which it can be inferred that the defect tends to cast doubt on the reliability of the results must be looked at in the same manner. The theoretical element is satisfied where it is proved that the purpose of the procedure in question is to ensure the reliability of the results. On the practical element, the evidence must establish that, in the particular case, the defect could have affected the reliability of the results. [5] In the instant case, there is no need to deal with the first condition.

Even if we assume, without deciding, that improper operation of the instrument was established here based on failure to complete the 15- or 20-minute observation period, there was clearly no evidence that this improper operation tended to cast doubt on the reliability of the results. The Court of Appeal's judgment must be reversed. The Superior Court's judgment setting aside the verdict of acquittal by the Court of Québec and ordering a new trial must be restored. [Emphasis added] [ 72 ] In this case, the trial judge found no improper operation.

Even if there were improper operation, there was no evidence capable of raising a doubt on the reliability of the results. [ 73 ] It is somewhat ironic that we arrive at the same conclusion as the SCAC judge. However, a proper outcome does not justify a flawed process. [ 74 ] We grant leave to appeal given the SCAC error, but dismiss the appeal.

Beveridge, J.A. Scanlan, J.A. Derrick, J.A.