)) HER MAJESTY THE QUEEN Appellant – v. –, 2013 ONSC 3057

CITATION : R. v. Penavic, 2013 ONSC 3057 COURT FILE NO.: 118/12 DATE: 20130531 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Appellant – and – FRANO PENAVIC Respondent )) )) )) )) ) ) ) ) ) ) R. Nathanson, for the Crown R. Posner, for the Respondent HEARD: May 16, 2013 TROTTER J. introduction [ 1 ] In this “over 80” case, the trial judge (the Honourable Justice M. Zuker of the Ontario Court of Justice) was not convinced beyond a reasonable doubt that Mr. Penavic’s breath samples were received into an “approved instrument” pursuant to regulations passed under s. 254(1) of the Criminal Code .

He acquitted Mr. Penavic on this basis. [ 2 ] The Crown appeals, arguing that the trial judge’s ultimate conclusion was unreasonable and that he made legal errors along the way. The Crown also seeks to introduce fresh evidence on appeal to prove that the instrument was indeed an “approved instrument.” [ 3 ] For the reasons that follow, the appeal is dismissed. BACKGROUND [ 4 ] At trial, a qualified breath technician testified that he used an “Intoxilyzer 8000C” when taking breath samples from Mr. Penavic.

This is an “approved instrument.” The Certificate of a Qualified Technician (CQT) was entered into evidence and it stated that the samples were received into an “Intoxilyzer 8000C.” A CQT is admissible as evidence of the facts alleged in the document: ss. 258(1) (

e) and (

g) of the Criminal Code . During this officer’s testimony, a “Calibration Certificate” prepared by the American Manufacturer of the equipment was entered into evidence. The document had been disclosed to defence counsel by the Crown. It was made an exhibit without objection from the Crown. The Certificate identified the instrument as an “Intoxilyzer 8000.” This is not an “approved instrument.” [ 5 ] Defence counsel relied upon this documentary evidence to argue that there was a reasonable doubt on the issue of whether the breath samples were received into an “approved instrument.” Crown counsel at trial (not Mr.

Nathanson) did not apply to call any evidence in reply on this issue, preferring to argue on the evidence that he had proved that the samples were received into an “approved instrument.” This was not an unreasonable course of action. However, the trial judge disagreed with the Crown and gave the following judgment (which I reproduce in its entirety): I mean this raises a practical problem certainly. Of course most of these cases turn on the facts anyway.

I mean we can see from Exhibit One, Certificate of a Qualified Technician, that this is, I guess it’s still being used but I’m looking at, I’m not even sure – well, first of all, it is a 1999 form, the 8000 is crossed out and an 8000C is written in. There is a reference to s. 258(7) of the Code which I don’t even think that is the right

section anymore.

Of course we all agree that Exhibit Two, Certificate of Calibration, Intoxilyzer 8000 is not an approved instrument. It may be thatanother court is going to have to sort this out to the extent that there may be conflicting judgments at the provincial level, but I have toconcur with Justice Rady and I think in the circumstances there is a reasonable doubt. I am going to dismiss the charge. It is from this finding that the Crown appeals. ANALYSIS [6] The issue in this case has arisen on a number of other occasions. The trial judge relied on the trial decision of Ready J. in R.v.

Thanapalan, (January 5, 2012) (O.C.J.) [unreported], who also entertained a reasonable doubt on this issue, based on very similarevidence. But there are other cases pointing in the opposite direction. [7] In R. v. Almeida, [2012] O.J. No. 2150 (O.C.J.), the same argument was considered and rejected by Duncan J. In reachinghis conclusion, he said the following at paras. 11 to 13: The evidence from the QT both viva voce and certificate was that he used an Intoxilizer 8000C, an approved instrument.

The defendant'sargument is based solely on the description of the instrument as an "Intoxilizer 8000" in the American manufacturer's certificate ofcalibration that presumably was shipped with the machine. I would not give effect to this argument. In my view the evidence relied upon is far too vague to cast any doubt on the unchallengedevidence of the technician that the machine he used was an Intoxilizer 8000C.

Further, if it was necessary to do so, I would take notice ofthe well known fact that the "C" stands for Canada and represents the specific software employed in the machine that corresponds withCanadian legal requirements, for example ensuring that at least 15 minutes elapses between tests: R v. Powichrowski (2009) 2009 ONCJ490 , 70 C.R. (6th) 376 at para 41. Counsel has provided me with an unreported judgment of Ready J. R v. Thanapalan (Jan 5 2012) where this point was raised and foundsufficient to raise a doubt in the court's mind as to whether an approved instrument was used in that case.

It is not clear to me that thecourt had the evidence that I have in this case identifying the instrument used as an 8000C. It suffices to say that the argument and itsthin evidentiary foundation do not raise any doubt in my mind in this case. [8] The issue was addressed again by Brewer J. in R. v. Chupryna, [2012] O.J. No. 6370 (O.C.J.), this time on the basis of amore robust record than the one before Duncan J. in R. v. Almeida and the trial judge in this case. Indeed in that case, the Crown calledin reply the evidence of Dr. Daryl Mayers on a related issue.

During his evidence, he addressed the issue that is at the heart of this case. Brewer J. had no problem concluding that the sample was received into an “approved instrument.” This is captured in her judgment, atparas. 15 to 17: Constable McKeon, a qualified technician, testified that during the breath tests performed on the defendant, he used a properly workingIntoxilyzer 8000C to take the breath samples. The certificate of a qualified technician and the test records from the device confirm that itis an Intoxilyzer model 8000C that the qualified technician used.

The Intoxilyzer 8000C is an approved instrument under the CriminalCode. … Constable McKeon was shown a certificate of calibration for an Intoxilyzer 8000, with serial number 80-005159, which wasmanufactured by CMI Inc., a subsidiary of MPD Inc., of Owensboro, Kentucky, which was tested and found to be compliant withAmerican standards. Mr. Moftah and Dr. Mayers both confirmed that the Intoxilyzer 8000 is not an approved instrument, but that the model 8000C isapproved in Canada. According to Dr. Mayers, the difference between an Intoxilyzer 8000 and an 8000C is software. Dr.

Mayer's reportstates that there is no analytical difference between an Intoxilyzer 8000 and an 8000C, and that the calibration done by the manufactureris identical. Further, the calibration of an approved instrument in Canada is objectively tested every time a breath test procedure isperformed by way of the external alcohol standard. In this case the results showed that the instrument used by Constable McKeon wasaccurate and reliable. Like Duncan J. in R. v. Almeida, [2012] O.J.

No. 2510 (C.J.), I am satisfied by the evidence tendered in this case that the instrument usedto test the defendant's breath at the police station was an approved instrument. The unchallenged evidence of the test records and thecertificate of the qualified technician, as well as the testimony of Constable McKeon, establish that the device used in this case was anapproved instrument. I do not find the description of the instrument as an Intoxilyzer 8000 in the American manufacturer's certificate ofcalibration to be significant, particularly given the evidence of Dr.

Mayers that the calibration done by the manufacturer is the same inCanada and the United States. [9] With respect, I agree with Justice Duncan and Justice Brewer. Both provide convincing reasons why the Certificate ofCalibration did not, in those cases, raise a reasonable doubt. Had I been the trial judge in this case, I would have reached the exact sameconclusion. However, the issue on appeal is whether Zuker J. erred in entertaining a reasonable doubt, based on the evidence that wasbefore him.

I cannot say that he did. [10] I cannot review the learned trial judge’s decision to acquit in the same way as a decision to convict. With the latter, appellatecourts may consider the reasonableness of the verdict: see R. v. Biniaris (2000), 2000 SCC 15 , 143 C.C.C. (3d) 1 (S.C.C.) andR. v. R.P., 2012 SCC 22 , [2012] 1 S.C.R. 746. Based on the operation of the presumption of innocence, the same principles areinapplicable when reviewing a judge’s decision to acquit based on the presence of a reasonable doubt. As Arbour J. said in R. v.

Biniaris,supra, at p. 19: Further, and more importantly, as a matter of law, the concept of “unreasonable acquittal” is incompatible with the presumption ofinnocence and the burden that rests on the prosecution to prove its case beyond a reasonable doubt.

This passage was recently endorsed by the unanimous Court in R v. H. (J.M.) (2011), 2011 SCC 45 , 276 C.C.C. (3d) 197(S.C.C.), at p. 206. See also R. v. Lampard, (SCC), [1969] 3 C.C.C. 249 and R. v. Schuldt (1985), (SCC), 23 C.C.C. (3d) 225 (S.C.C.), at p. 10. Consequently, the Crown’s assertion that the acquittal was unreasonable is not a validground of appeal. [11] Furthermore, it cannot be said that the trial judge misapprehended the evidence in any significant way. Mr.

Nathanson for theCrown argues that there is a serious inaccuracy in the manner in which the trial judge dealt with a correction that was written into theCQT by one of the police officers. The trial judge said that the letters “8000” were crossed out and “8000C” was written in. In fact,“5000C” had been crossed out and then replaced with “8000C.” [12] I am not persuaded that the misapprehension was significant. As Doherty J.A. said in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont.

C.A.), at p. 221: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and isnot a "true" verdict. [emphasis added] [13] In R. v.

Loher (2005), 2004 SCC 80 , 193 C.C.C. (3d) 1 (S.C.C.), Binnie J., at p. 25 described that this is meant to bea "stringent standard" and that the misapprehension must be "material rather than peripheral to the reasoning of the trial judge." Furthercommenting on Morrissey, Binnie J. explained at p. 26: Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errorsthus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in aconviction." See also R. v.

Cloutier (2011), 2011 ONCA 484 , 272 C.C.C. (3d) 291 (Ont. C.A.), at p. 305. [14] Although there was a slight factual inaccuracy in the trial judge’s reasons concerning the CQT, it was the CalibrationCertificate that caused the trial judge to have a reasonable doubt on the “approved instrument” issue. Consequently, I would dismiss thisground of appeal. [15] Moreover, I am not convinced that the Calibration Certificate was inadmissible hearsay. While the business records noticerequirement in s. 30(7) of the Canada Evidence Act (R.S.C. 1985, c.

C-5) was not complied with, the document did originate from theCrown brief and was disclosed to the defence. The argument that is advanced now on appeal concerning the hearsay features of thisdocument was not raised before the trial judge. Lastly, I observe that in neither R. v. Almeida nor R. v. Chupryna were those veryexperienced trial judges concerned by the hearsay nature of the Calibration Certificate. Indeed, the document proved that the instrumenthad been properly calibrated, thereby suiting the Crown’s purposes. [16] This leaves the question of fresh evidence.

The proposed fresh evidence is an affidavit of Ms. Teri Martin, a toxicologist withthe Centre of Forensic Sciences, Ministry of Community Safety and Correctional Services (Ontario). Appended to the affidavit is Ms.Martin’s curriculum vitae, setting out her impressive qualifications. She has been qualified as an expert witness on many occasions. Also appended to her affidavit is a report that clarifies the confusion over the “Intoxilyzer 8000C” vs. the “Intoxilyzer 8000” issue.

Theessence of her report is captured in the following passage: All Intoxilyzer instruments (e.g., Intoxilyzer 8000, Intoxilyzer 8000C) manufactured by CMI In., are sold with the same stock Certificateof Calibration. On the instrument itself, it should be noted that the “C” (in “Intoxilyzer 8000C”) is added by the manufacturer to denotethat the instrument is intended for sale in Canada. There is no CMI Inc.

Certificate of Calibration that is specific to the Intoxilyzer8000C as the difference between the Intoxilyzer 8000 and Intoxilyzer 8000C is limited to software….An instrument can be clearlyidentified as an Intoxilyzer 8000C as this designation is printed on the test record cards produced by the instrument, is labelled on thefront face plate of the instrument, and labelled on the back of the instrument along with the serial number and manufacturing date. [17] This report confirms the conclusions of Duncan J. and Brewer J. and establishes beyond all doubt that the equipment that wasused in those cases and in this case are “approved instruments.” Indeed, counsel for Mr.

Penavic, Mr. Posner, quite reasonably agreedthat the decision of Zuker J. was based upon a “mistake” that has now been corrected by this report. [18] The question then becomes whether the report is actually admissible as fresh evidence on appeal. The test for the admissionof fresh evidence is well-known and set out in the decisions of Palmer v. The Queen (1980), (SCC), 50 C.C.C. (2d) 193(S.C.C.), R. v. Warsing (1998), (SCC), 130 C.C.C. (3d) 259 (S.C.C.) and many others.

I agree that the evidence is: (1)relevant and bears on a decisive issue at trial; (2) credible and reasonably capable of belief; and (3) when taken with the other evidence,would have affected the result reached at trial. The problem in this case is with the due diligence requirement. [19] The courts have said on many occasions that the due diligence requirement will not be applied as strictly in criminal cases as itis in civil cases: see Palmer v. The Queen, supra, at p. 204. But this does not mean that it has no role to play. Indeed, in R. v.

Angelillo(2007), 2006 SCC 55 , 214 C.C.C. (3d) 309 (S.C.C.), Charron J. said at p. 318: “The fact remains that this criterion is animportant one whose specific purpose is to protect the interests and the administration of justice and to preserve the role of the appellatecourt…” The reason why the evidence was not tendered at trial must be examined before dispensing with the due diligence requirement(see R. v.

B. (G.D.) (2000), 2000 SCC 22 , 143 C.C.C. (3d) 289 (S.C.C.), at pp. 296-297), especially on a Crown appeal whenthe evidence is tendered in to prove afresh a pre-condition for liability.[1] [20] I find that the Crown has not met the due diligence requirement. Indeed, there is no evidence whatsoever tendered as part ofthe fresh evidence application to explain why the type of information contained in Ms. Martin’s report could not have been tendered attrial. The Crown at trial could have brought a motion for an adjournment to look into the matter and then a further motion to call replyevidence.

Because the Crown at trial was caught by surprise, on a matter that was very likely unanticipated, these requests would havebeen eminently reasonable. However, experienced Crown Counsel at trial chose not to follow that course, hoping to persuade the trial

judge that the Calibration Certificate could not raise a reasonable doubt. I am not saying that this was unreasonable, but it was a tactical decision nevertheless. It would not be fair to the Respondent to allow the Crown to have another chance to prove its case now, on appeal. [ 21 ] For this reason, the tendered affidavit and report cannot be admitted as fresh evidence. However, as I have already noted above, the report (especially the portion quoted above) confirms the conclusions reached in R. v. Almeida and R. v. Chupryna. This may assist in avoiding confusion in future cases.

CONCLUSION [ 22 ] Accordingly, the application to adduce fresh evidence is dismissed, as is the Crown’s appeal from acquittal. TROTTER J. Released: May 31, 2013 CITATION : R. v. Penavic, 2013 ONSC 3057 COURT FILE NO.: 118/12 DATE: 20130531 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – FRANO PENAVIC Respondent REASONS FOR JUDGMENT TROTTER J.

Released: May 31, 2013