R. v. Nyman

R. v. Nyman Collection Decisions of the Court of Appeal Date 1998-10-14 Docket numbers C26083 Judges McKinlay, Hilda Margaret; Carthy, James Joseph; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 19981014 DOCKET: C26083 COURT OF APPEAL FOR ONTARIO McKINLAY, CARTHY and GOUDGE JJ.A. BETWEEN: ) ) Todd Ducharme, HER MAJESTY THE QUEEN ) for the appellant ) (Respondent) ) ) and ) Riun Shandler, ) for the respondent ERIC JOHN NYMAN ) ) (Appellant) ) ) Heard: September 30, 1998 ) GOUDGE J.A.: [1] Pursuant to s. 253(b) of the Criminal Code, Eric John Nyman was charged with operating a motor vehicle after consuming alcohol in such a quantity that its concentration in his blood exceeded 80 milligrams in 100 millilitres of blood. The Crown proceeded summarily, and the accused pleaded not guilty. The trial judge, Edmondson P.C.J., found that the charge was made out on the basis of the evidence of the police officer who took the breath samples from the accused. He also found that the defence evidence was not sufficient to constitute evidence to the contrary for the purposes of s. 258 of the Code. He convicted the accused and imposed a fine. [2] On appeal, Ferguson J. found that the trial judge had applied the wrong test to the defence evidence and ordered a new trial. He did not address the inadequacy of the breathalyzer evidence, which the accused had argued warranted an acquittal. [3] The appellant now seeks leave to appeal and if leave is granted, appeals from that decision on a question of law alone, namely whether Ferguson J. erred in failing to find that the legal effect of the evidence of the results of the breathalyzer tests is that there was no evidence to support the conviction. The Crown did not contest the assertion that this case raises a question of law alone, and the argument of the leave application and the appeal proceeded as one. [4] At trial, the only evidence offered by the Crown to support the conclusion that the accused had a concentration of alcohol in his blood greater than 80 milligrams in 100 millilitres of blood was that of the officer who conducted the breathalyzer tests. The Crown did not tender a certificate of the results of those tests. [5] The officer, a qualified breath technician, gave evidence as to the results of the first test. The totality of that evidence is as follows: Q. Did that particular sample provide you with a reading on the machine? A. I did a chemical analysis of the reading and I found that the reading was .145 grams percent. THE COURT: One, four…. THE WITNESS: Five, grams percent in 100 millilitres of blood. [6] His evidence of the results of the second test was even shorter: Q. Did that second test lead to a result? A. Yes, sir, it did. I conducted a chemical analysis of that sample and the results were .138 grams percent. [7] The defence did not cross-examine the officer on this evidence but did raise its position about its deficiencies at the opening of argument at trial. The Crown did not seek to recall the officer to clarify or correct his evidence but rather sought and received an adjournment to prepare argument about why this evidence should be taken to establish the charge. [8] The trial judge found that for both tests the officer's evidence should be understood as providing the particular weight of alcohol per 100 millilitres of blood. Secondly, on the basis of R. v. Hanson (1990), 75 C.R. (3d) 110 (Ont. C.A.) he determined that the expression "grams percent" is simply another means of expressing milligrams, so that ".145 grams percent" is another means of expressing "145 milligrams". He therefore concluded that on the basis of the evidence of the two test results the charge had been made out. [9] The appellant argues first that the officer's evidence does not specify that the weight measurement is of alcohol and that this is a fatal omission. I do not agree. In my view, there was an ample basis to conclude that the substance in the blood that was being measured was alcohol. The officer gave evidence of the machine used, that it had an alcohol pointer, that an alcohol test sample was used to ensure that it was operational, and that the objective of an individual blow was to obtain deep long air with alcohol in it. This argument must fail. [10] Secondly, the appellant argues that the officer's evidence provides no evidence of the milligrams of alcohol in 100 millilitres of the appellant's blood. [11] I agree with this submission. The evidence given by the officer did not conform, for either test, to the language of s. 253(b) of the Code. It did not set out the milligrams of alcohol per 100 millilitres of the appellant's blood. While such evidence need not parrot the language of the section, it must make clear beyond a reasonable doubt that the test results measure this ratio. [12] In my view, that cannot be said of this evidence. The language used by the officer to describe the results of the first test – ".145 grams percent in 100 millilitres of blood" – is nonsensical. [13] While it may be that the officer just made a mistake, and meant to say simply ".145 grams in 100 millilitres of blood", the Crown did not choose to view his evidence in this way and recall him to correct his evidence. Rather, it argues that the court should accomplish this task by using judicial notice or simply by inferring the correct meaning. I disagree. Judicial notice cannot be used to correct this evidence. It is not a notorious fact that this officer, when he uses the phrase ".145 grams percent in 100 millilitres of blood" means ".145 grams in 100 millilitres of blood". Nor can the court simply infer with the required confidence that what the witness meant was not what he said but something different. There is simply no basis for doing so. [14] The Crown looks for support, as did the trial judge, to R. v. Hanson, supra. In my respectful opinion, this case provides no help to the Crown. It does not decide that the phrase ".145 grams percent" when given in evidence is another way of expressing "145 milligrams". [15] The issue in that case was the appropriateness of rounding down breathalyzer readings to the second digit in the preparation of the certificate by a qualified technician. In the course of his reasons, Lacourcière J.A. speaking for the court had occasion to describe the breathalyzer machine. In that context, at p. 114 of his reasons, he said this: The scale on the breathalyzer is divided into units of .01 grams per cent, or the equivalent of ten mg of alcohol per 100 ml of blood. This is simply part of his description of the labelling on the machine. He concludes that when the scale on the machine sets out units of .01 grams percent, that is the equivalent not of 10 milligrams as Edmondson P.C.J. took it, but of ten milligrams per 100 millilitres of blood. More importantly, this statement is not his view about the conclusion that can safely be drawn from a witness who gives test result evidence in terms of "grams percent". Rather, it was simply part of his description of the breathalyzer machine. [16] I therefore conclude that the officer's evidence of the first test result cannot be effectively rewritten. Rather, it is unintelligible and can provide no evidence of the core element of the offence charged. [17] His evidence of the second test result is equally unhelpful. He simply said that the results were ".138 grams percent". In R. v. Adams (1986), 30 C.C.C. (3d) 469, the Saskatchewan Court of Appeal concluded that evidence given in identical terms to this does not disclose a weight to volume ratio of alcohol to blood and constitutes no evidence to support a charge under what is now s. 253(b). In concurring reasons, Bayda C.J.S. described the evidence as "meaningless". This case has been referred to with approval at the trial level in this province: see R. v. Wilson (1989), 19 M.V.R. (2d) 258 and R. v. Huard (1992), 40 M.V.R. (2d) 118. I agree with the reasons in Adams. There must be something more than the bald statement of test results as "grams percent" for the court to be able to make the factual finding on the weight to volume ratio of alcohol to blood contemplated by s. 253(b) of the Code. [18] I would therefore conclude that there was no evidence before the trial judge of the appellant's alcohol level in 100 millilitres of blood. Without this there can be no conviction. I would grant leave, allow the appeal, and direct an acquittal. RELEASED: October 14, 1998