R. v. Landry

R. v. Landry Court Supreme Court Date 2006-02-16 Citation 2006 NSSC 47 Docket CRSK 254967 Judge/Registrar/Adjudicator Warner, Gregory M. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Landry - 2006 NSSC 47 - 2006-02-16 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Landry, 2006 NSSC 47 Date: 20060216 Docket: CRSK No. 254967 Registry: Kentville Between: Her Majesty the Queen Appellant v. Scott Andrew Landry Respondent Judge: The Honourable Justice Gregory M. Warner. Heard: February 7, 2006, in Chambers at Kentville, Nova Scotia Counsel: Darrell I. Carmichael, Esq., counsel for the Crown Curtis C. Palmer, Esq., counsel for the defendant By the Court: BACKGROUND [1] At about 11:15 p.m. on August 6, 2003, Scott Landry, after spending an evening driving, and playing in the mud, on his four-wheel bike, and socializing and drinking at a campsite in the woods, left with two friends to drive their bikes out of the woods along a fire road. At about 11:40 p.m. Landry drove his bike off the fire road, and was seriously injured. He was taken by ambulance to hospital, arriving at about 2:20 a.m., where, at 2:39 a.m., blood was purportedly drawn from him, and tested in the hospital lab, resulting in an ethanol reading of 49 millimols of alcohol per litre of blood. [2] Opinion evidence of a forensic toxicologist stated that the equivalent reading in milligrams of alcohol per 100 millilitres of blood was 225. The opinion was tendered using several variations and scenarios, including whether the test was of serum (the evidence was to that effect), and as to body weight, and as to whether alcohol was or was not consumed after 11:15 p.m. She testified that the range of readings in any of the scenarios exceeded 80 milligrams per 100 millilitres of blood by a wide margin. If blood was tested and no alcohol was consumed after 11:15 p.m., the reading was between 180 and 214 at the time of testing, and 222 to 254 at the time of the accident. If blood serum was tested, the range was between 210 and 276 at the time of the accident. [3] On August 18, 2003, the RCMP had obtained a search warrant and seized and tested one of the blood samples obtaining a reading of 192 milligrams of alcohol per 100 millilitres of blood. This result was consistent with the range of results obtained by the hospital test. The expert toxicologist further testified that if a beer was consumed after 11:15 p.m., it would only affect the reading slightly (between 6 and 8 milligrams); if the accused only weighed 130 pounds as opposed to 230 pounds (assumed for the purposes of her opinion), this would only reduce his blood alcohol reading by about 12 milligrams. [4] The trial judge found all of the elements of the s. 253(b) charge to have been established, with the exception of evidence that the blood sample was drawn from the accused (and consequently the continuity of the blood sample tested). [5] The Crown appeals the learned trial judge's finding that it failed to prove the blood sample came from the accused. Its position is that the viva voce evidence established that the blood sample tested by the hospital came from the accused, and, alternatively, that the principle recognized in Ares v. Venner, respecting the common law exception to the hearsay rule for business records, established the identity of the blood as being that of the accused on a prima facie basis. ISSUES [6] (1) Did the Crown establish the blood came from the accused by direct viva voce evidence? (2) Alternatively, does the admission of the business records; that is, the Hospital Lab Report (Exhibit 4) and the labels on the vials of blood (Exhibit 2) establish prima facie that the blood came from the accused? STANDARD OF REVIEW [7] The standard of review on a summary conviction appeal was described by Cromwell, J.A., in R. v. Nickerson [1999] N.S.J. 210 (NSCA) at paragraph 6. It has been affirmed, since R. v. Biniaris [2000] 1 S.C.R. 381 in R. v. Andrea, 2004 NSCA 130, at paragraph 13, as: . . .Absent an error of law or a miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns (R.H.), [1994] 1 S.C.R. 656 . . . at page 657, the Appeal Court is entitled to review the evidence at trial, re-examine and re-weigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusion. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, a summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript. TRIAL DECISION [8] The evidence in this trial was heard on November 30, 2004, and June 16, 2005. The key evidence with regards to the issue under appeal was given on November 30, 2004 by Christina Andrews. The learned trial judge, in a decision given seven months after Andrews’ evidence, said this with respect to the evidence of Ms. Andrews and the drawing of the blood: [6] . . . her (Ms. Andrews) then basically related to performing an analysis of a blood sample . . . . She did not testify that she had taken the blood sample from Mr. Landry, rather, she conducted the, did the analysis of a blood sample and the blood sample analysis was contained in the exhibit . . . but I just want to make it clear although she did the analysis she was not the person who actually drew the blood or there was no evidence that she was the person who in fact took any blood sample from Mr. Landry . . . . [11] . . . where there is the gap, and I find it is indeed a significant gap, is the taking of the blood from Mr. Landry. There was no evidence that, from anybody, that they took blood from Mr. Landry. [12] The person who took the blood was not called as a witness, so that person wasn't here to give any evidence, and that is the only gap that there is, that I find in this particular case, but I do find it to be a significant gap. [13] . . . . I realize that the clinical laboratory report has a name on it - it has a date of birth on it, an age on it, . . . But even so there is no evidence from anybody that they were the person that they came and they took this blood sample from an individual either identified to them as being Mr. Landry or somebody that they could identify as being Mr. Landry . . . There is no evidence from a person who actually took any blood sample or samples from Mr. Landry, or how they did that - what was the procedure. What happened to that sample after they took it? What did they do with that sample? How was that sample kept from the time they take it until the time it goes to the lab to be tested? THE EVIDENCE [9] The key evidence with respect to how and by whom blood was drawn came from Christine Andrews, the Hospital's medical lab technologist on duty on the night of August 6, 2003. She testified that she prepared Exhibit 4, the Clinical Lab Report (called Report). The format of her evidence consisted primarily of explaining the three parts of the Report. The Report is made and kept on the Hospital's computer and the testing carried out in an instrument called an “R-Excel” and is transmitted from that instrument to the computer. Exhibit 4 is a print-out that she ran off the Hospital's computer on November 29, 2004, for the purposes of the trial. [10] With respect to the first or top part of the Report, there is recorded : (a) The number “511557” which was explained by Ms. Andrews as being the accession number given to her when she types in the patient's health card number; (b) The name, HCN (Health Card Number), DOB (date of birth), unit #, age, and sex, which information is not filled in by Ms. Andrews but by the Admitting Office when the patient is admitted; (c) The name of the doctor (Gunn) and the department (ER), which was entered by Ms. Andrews. [11] The second part of the Report is the listing of the procedures or tests which are requested by the doctor involved, and the results of those tests on the patient. In describing the test results set out in the second part of the Report, she stated that they were run on a machine with the results coming out on a ticker tape which she types up. She inserts in the machine the patient's blood sample, which is “bar coded with the label”; the label identifies the patient by name, accession number and bar code, and is printed up by the instrument or machine that tests the sample. Her role is to check the results. [12] The bottom or third part of the Report was explained by Andrews as containing entries she made under the respective headings of ordered, collected, received, completed and reported. The fifth entry, “Reported” reads “29 Nov 04, 9:19", which was the time that she printed off the Report from the computer for the purposes of the trial. The first four entries were made on August 7, 2003. The key to the issue under appeal is her evidence with respect to those four entries. With respect to the entry under “Ordered”, which reads “7 Aug 03, 2:38” she said on page 72 of the transcript, lines 9 - 12: That's the time that I went up and got the requisition and when I came down and typed it in the computer, date it was ordered, that would be the date that I put; all those tests in [13] With respect to the category “Collected” which reads “2:39” she said at page 72, lines 16 and 17: That would be the time that, it's, I would have collected the specimen. [14] With respect to the category “Received”, which reads “2:38”, she said at lines 19 - 21: That would probably be just when I'm typing it in and that's what the computer puts it in, the time that it actually is. there's three places where the time comes up. [15] With respect to the category “Completed”, which reads “3:06”, she said at page 72, lines 23 and 24: That would mean the time that I actually printed out that report to the ER department. [16] When asked about spinning the blood sample down to produce a serum to put into the machine for analysis she said at page 74, lines 13 - 18: . . . you label it when you draw the patient. You actually identify the patient by their arm band and then you write your name of your patient and health care number on your tube and then when you go down you type in that, your health card number into your demographic ‘cause you have a requisition from the doctor. [17] On cross-examination with respect to the Report and the vials of blood, the following exchange occurred between defence counsel and Ms. Andrews at page 79, line 13 - page 80, line 5: Q. . . . I'm looking at the bottom section here under comments and I take it that the vial that you received, there was -? A. I drew, I drew it. (My emphasis) Q. You drew it, right. And it had a blue top? A. We drew, often in emergency department they won't order, different tubes are required for different tests and for coagulation a blue top is often ordered. Sometimes what they'll do to us is they'll request a test after we come down so normally a lot of us will draw extra tops and keep them on hand so if in an hour the doctor says I would like to have a coagulation done on that patient I don't have to go up and re-draw. I already have my sample. Q. Okay, and the results that were obtained in the lab, the clinical laboratory report were from the analysis of the blue top sample? A. No, it's from the SST2 (?) which is a chemistry top tube. ANALYSIS - FIRST ISSUE [18] The evidence of Ms. Andrews clearly shows that she personally carried out all of the steps listed at the bottom of the Report. She received the requisition for the tests, she collected the samples, she received the samples, she tested the samples and completed the analysis and provided it to the doctor. [19] This Court is not entitled to substitute its view of the evidence for that of the trial judge. However, where the findings of the trial judge are unreasonable or cannot be supported by the evidence, this Court is obligated to intervene. [20] The evidence of Ms. Andrews is clear. She drew the vials of blood (as stated in cross-examination) or collected the blood (as stated in direct evidence) at 2:38 a.m. on August 7th, and immediately tested the blood in the lab. [21] The Court is satisfied the Crown has discharged the burden of establishing that the finding of the trial judge that Ms. Andrews did not draw the blood from Mr. Landry is unreasonable and cannot be supported by the evidence. ANALYSIS - SECOND ISSUE [22] If I am wrong, I am of the view that Exhibit 4 and Exhibit 2 are admissible under the traditional exception to the hearsay rule for business records and are not excluded under the principled approach; they are therefore prima facie evidence not only of the results of the testing of the blood but also of the fact, as stated in the exhibits, that the blood was obtained from the accused, Scott Landry. THE LAW [23] As items of real evidence, Exhibit 4 (the Report) and Exhibit 2 (the labels on the blood vials) must be proven to be authentic. That was not an issue before the trial judge or in this appeal. [24] As sources of hearsay, the statements made in these exhibits, that are relied upon for the truth of their contents, fall under the hearsay exception. In this case the Crown did not seek their introduction pursuant to s. 30 of the Canada Evidence Act but only under the common law exception to the hearsay rule for business records, as modified by Ares v. Venner. [25] The traditional definition of hearsay is of an out of court statement admitted for the truth of its contents. See R. v. Evans [1993] 3 S.C.R. 653 at paragraph 20. [26] The dangers of hearsay have been described in many decisions. Most descriptions include as factors: the absence of oath, the inability to observe the witness while testifying, and the absence of an opportunity to cross-examine to test honesty, perception, memory and the use made by the witness of language, all of which concern reliability and fairness. [27] Common law exceptions to this hearsay rule have evolved over time in those circumstances where courts felt there was a reduced risk that the hearsay dangers would affect reliability and fairness. One such exception was for declarations made in the course of duty. Originally there were five pre-conditions to the admissibility of such evidence; they were: (a) a statement by a deceased person, (b) who was under a duty, and (c) who made a recording in the ordinary course of business, (d) contemporaneously with the event, and (e) without any motive or interest to misrepresent. [28] This common law rule evolved with Ares v. Venner [1970] S.C.R. 608, to include notes made contemporaneously by someone still living, with personal knowledge of what is recorded and who was under a duty to make the record. The factual situation in Ares was similar to that in this case, in the sense that it involved hospital records. Many of the statements in Ares with respect to necessity and reliability apply in this case. [29] Further refinements of the common law rule are contained in R. v. Monkhouse, 1987 CarswellAlta 248 (Alta.C.A.), the primary refinement being removal of the requirement that the person or persons who made the record have personal knowledge of the information recorded. Monkhouse has been recognized as an accurate statement of the law by the Nova Scotia Court of Appeal in R. v. Wilcox, 2001 NSCA 45, at paragraph 59. [30] In R. v. Khan [1990] 2 S.C.R. 531, the Supreme Court set out a principled approach to the admission of hearsay evidence. Whether it would be admitted depended upon whether the evidence met conditions of reasonable necessity and threshold reliability. [31] Originally the principled approach had no impact on the common law exceptions, but in R. v. Starr [2000] 2 S.C.R. 144, the Supreme Court held that the common law exceptions had to be analysed in each case in the context of the principled approach and reconciled with this new approach; if the common law exception failed to meet the necessity and reliability tests in the principled approach, then the evidence was not admissible. [32] This reconciliation of the common law exceptions with the principled approach is described in R. v.Wilcox at paragraphs 45 to 48. APPLICATION OF HEARSAY RULES TO THIS CASE [33] Most of the contents of the Report were entered by Christine Andrews. She indicated that some of the first part (the top part) of the Report were entries made when the patient was admitted to the hospital by others. She testified that she entered the Health Care Number of the patient whose blood she collected or drew, which in turn brought up the “demographics” of Mr. Landry on the computer. The Report shows the Health Care Number as being the number of Mr. Landry. The printed labels on the vials of blood, which were entered as Exhibit 2, have the following wording (by Line): First Vial Line 1 - 511558 (M) 0007 796 758 Line 2 - Landry, Scott Andrew Line 3 - Stat Outpat Line 4 - ER TR (Opposite lines 3 & 4 is a bar code) Line 5 - Routine Chemistry Line 6 - P-2, ALC Line 7 - 32 years Unit # 45516 Dr. ER Doctor Line 8 - Coll. 7 Aug 03. [34] On the second vial the printed label contains identical wording except Lines 5 and 6 which read: Line 5 - Routine Haematology Line 6 - CBC. [35] The accession number (511558) described by Ms. Andrews and shown on the printed labels (Exhibit 2) is the same as shown on the Report (Exhibit 4). The name of the donor of the blood on both exhibits is Scott Andrew Landry. The donor's health card number on both exhibits is the same. [36] There can be no doubt that Exhibit 2 and Exhibit 4 refer to blood samples from the same patient - whose name is Scott Andrew Landry, whose Health Card Number is 0007 796 758, whose accession number is 511558, and who was admitted to the hospital at about 2:19 a.m. on August 7th. [37] As the Supreme Court said in Ares v. Venner, the entries and records made should be received as prima facie proof of the facts stated. This admission should not preclude a party from challenging the accuracy of the entries and records (paragraph 26 of the decision). In Ares v. Venner the nurses were available at trial, but no one called them. In the case at bar, Ms. Andrews was available at trial, was called and examined by both parties. [38] The dangers of the hearsay rule, on the facts of this case, have been negated by the presence of Ms. Andrews and her examination. [39] As noted in Ares v. Venner, and in cases since R. v. Starr, the availability of the person who made the record which is sought to be entered as a business record, does not necessarily negate the requirement (necessity) for the admission of the record pursuant to the hearsay rule. It is not reasonable to expect witnesses, who testify about routine matters repeatedly performed in the course of their duties on a daily basis, to remember the particulars contained in the Report. [40] In circumstances where the common law exception to the hearsay rule does not apply, courts admit records made under the “past recollection recorded” rule of evidence. The procedure for admission of such records in the “past recollection recorded” rule of evidence is described by Sopinka, Lederman and Bryant in The Law of Evidence in Canada (1999: Butterworths, Toronto) at pages 924 - 933. The rule requires the party seeking the admission of the record to prove the four preconditions described in Part 16.83 of that text. [41] In the case of the traditional exceptions to the hearsay rule, the party challenging the admissibility of the evidence has the onus of establishing that the evidence should be excluded. This onus differs when evidence, that is not a common law exception, is sought to be tendered under the principled approach; in the latter instance, a voir dire is held and the party seeking to admit the evidence has the burden of establishing its admissibility. [42] In the case at bar the learned trial judge did not address the admissibility of Exhibit 4 and Exhibit 2 for the purposes of establishing the truth of the identity of the patient whose blood was taken and tested. It appears that the trial judge admitted Exhibit 4 under the Ares v. Venner rule for the purposes of establishing the results of the tests performed by Ms. Andrews. Her decision shows that she accepted the results of the tests. [43] Since this Court finds that the Report (Exhibit 4) and the labels on the vials of blood (Exhibit 2) are, as business records, prima facie evidence of the truth of their contents, which contents include the identity of the person whose blood was drawn, and since there was no challenge by the accused to the admissibility of the Report (Exhibit 4) or the vials of blood (Exhibit 2), there is no basis upon which the learned trial judge could find an absence of evidence as to identity of the donor of the blood tested, or that the donor was not Scott Andrew Landry. CONCLUSION [44] This Court finds that there was clear direct evidence that Christine Andrews drew the blood from the accused. Alternatively, if the evidence is not clear from her viva voce evidence, then the Report (Exhibit 4) and the labels on the vials of blood (Exhibit 2) both of which were tendered to the Court for the proof of their contents as exceptions to the hearsay rule, do establish, on a prima facie basis, the identity of the accused as the donor of the blood tested. [45] Applying the standard of review set out in R. v. Burns [1994] 1 S.C.R. 656, described by our Court of Appeal in R. v. Nickerson and R. v. Andrea, this Court holds that the trial judge's finding as to whether or not the blood tested was that of the accused and the manner in which it was drawn is unreasonable and cannot be supported by the evidence. [46] The appeal is allowed, and the verdict set aside. Both counsel in their submissions to the Court and oral arguments, agreed that, if this Court allowed the appeal and set aside the verdict, in accordance with R. v. Kelly 2003 NSCA 164, a new trial must be ordered. I so order. J.