R. v. Wang
Her Majesty the Queen, and
 O.J. No. XXXX
Ontario Court of Justice
B.A. Brown J.
Oral judgment: September 21, 20XX.
M. Lerner, Esq., Counsel for the Crown.
T. Pain, Esq., Counsel for the Accused.
1 B.A. BROWN J. (orally):— The Court listened carefully to the evidence given by both the Investigating Officer, P.C. Exton and the Qualified Technician, P.C. Poynter.
2 With respect to the evidence in this case, the Crown has indicated that at the end of the trial, it does not rely on the certificate of a qualified technician for proof of the element of the offence, as far as the blood alcohol readings related back to the time of driving, which is the earlier time when Mr. Wangchuk was stopped as part of the R.I.D.E. Program. This means the Crown must prove all of the elements of the offence through the viva voce testimony of the witnesses that it has called as added to potentially by the DVD tape.
3 As I indicated earlier, I am not prepared to view again — I already saw the DVD tape, and I am not prepared to review again a DVD tape with respect to, somehow taking judicial notice of whether the Intoxilyzer was a 5000C or 8000C instrument. Whether I would recognize that or not may be unique to me as a person who happens to be a judge that does a lot of drinking and driving trials, and I do not think it would be akin to any Judge of my court being able to recognize with such notoriety, issues that meet the standard of judicial notice, such as the fact the Queen and Bay Streets meet outside Old City Hall. It is a different type of issue, so I am not prepared to deal with it on that basis.
4 So what the Court has, with respect to the Crown proving the elements of the offence, is the viva voce testimony of P.C. Poynter, a qualified technician, that he received Mr. Wang, through being introduced to him by P.C. Exton. And I would indicate I do not see any defects in anything P.C. Exton did at the R.I.D.E. Program or any investigatory step which he did prior to turning him over to the qualified technician. But the evidence of the qualified technician, P.C. Poynter, is that he had been trained and he did use an Intoxilyzer 8000C on the night of the incident, and that he had received samples and so on.
5 I am going to get back to this in a moment, but as I alluded to in exchange of submissions with the Crown, there is much more evidence that needs to be led by the Crown if the Crown is intending to not rely on the certificate, to just rely on the viva voce testimony of a qualified technician with respect to all the preparation steps to be taken with an Intoxilyzer, than if the Crown is just putting the certificate in evidence. So, I am not sure whether all of those elements were proven or not. And I am not going to actually go back and review that because, in the meantime, the Court is of the view that there is a serious problem in this case. And that is the fact that it is clear that the qualified technician has signed a certificate that is inaccurate. And it is inaccurate as far as him saying that he used an Intoxilyzer 50000 in order to perform these tests when clearly, he indicates orally he used an Intoxilyzer 8000C.
6 At the end of the day, they are both instruments that are approved under the Criminal Code for doing blood alcohol testing, however, this is not a scenario where, as we sometimes have, someone leaves out part of an alcohol standard lot number, something along that line, or it does not entirely line up with an Intoxilyzer test record. This is a defect. This is an inconsistency, and I would say an issue of reliability of P.C. Poynter — not credibility, I am not making any kind of finding that he is not telling the Court the truth. I am just making a finding that I have a reasonable doubt as to the reliability of the rest of his evidence that he has given and put before the Court. The Crown is not relying on the certificates. That means the Crown needs to rely on his viva voce testimony.
7 For a qualified technician to mix up in signing off on a certificate that he used one instrument, that, if the Court were to accept as true, the Crown’s submissions that the two instruments, 8000C and 5000C look so entirely different, causes the Court to have concern with respect to the reliability of the balance of his testimony.
8 I do not, in any way, criticize him over the fact it was a busy night. In his testimony he said he did five test subjects, I believe it is in my bench book, before he dealt with Mr. Wang. He had a lot on the go. Perhaps he was just a little bit too rushed. But at the end of the day, the Crown has to prove all of the elements of the offence beyond a reasonable doubt, and, as to the elements of the blood alcohol readings, they need to be proven through the qualified technician, P.C. Poynter. At the end of the day, as a result of this serious inconsistency, which the Court finds impacts on the reliability of the balance of that Officer’s testimony, the Court has a reasonable doubt which I must resolve in favour of Mr. Wang, because it is the Crown’s obligation to prove guilt beyond a reasonable doubt. It is not the defence obligation to do anything.
9 So at the end of the day, the Court has a reasonable doubt. Again, not a reasonable doubt with respect to the aspect of the operation of a motor vehicle or any other events which preceded this gentleman being tested. So, at the end of the day, the Court enters a finding of not guilty. Thank you.
10 MR. PAIN: Thank you, Your Honour.
11 MR. LERNER: Thank you, Your Honour.