New & Notable: Putting the focus of expert evidence in the right spot...

David Murray was convicted of impaired driving causing bodily harm and dangerous driving after flipping his car into a ditch leaving himself and his 90-year-old mother hanging upside down from their seatbelts.  The Crown relied on the evidence of a toxicologist who determined Murray’s blood alcohol concentration from blood samples taken at the hospital.  In his appeal to the Ontario Court of Appeal, Murray challenged the validity of the search warrant to obtain the results of the blood testing.  He also argued that the results of the blood testing should not have been admitted nor given any weight because the hospital lab technician provided no details about the equipment used to conduct the testing or its reliability.  The Ontario Court of Appeal rejected both arguments: 2013 ONCA 173.


The search warrant issue

Murray argued that there was nothing in the Information to Obtain the warrant (“ITO”) to indicate that the hospital would test or had tested the appellant’s blood for blood alcohol content.

The Court of Appeal considered the following details set out in the ITO:  

  • Evidence that alcohol was present in the vehicle – 4 bottles of Motts Ceasar, some opened, a partially full bottle of rye and two empty beer cans;
  • Murray’s behaviour – refusing to answer paramedic’s questions about the speed of his vehicle before the accident and whether anyone else was in the car.  Advising that the accident was caused by a moose, followed by a bear, jumping in front of the car and then estimating that he’d had either 3 or 90 drinks.  He was verbally belligerent and spoke with slurred speech;
  • the smell of alcohol on Murray’s breath; and
  • his presence in the emergency room for treatment,

and held that they were sufficient to provide a basis for a reasonable inference that the hospital would test the appellant’s blood for alcohol in the normal course in order to determine the best medical course of action.  Accordingly, this ground of appeal failed.

The testing equipment issue

The lab technician from the hospital testified at trial as follows:

  • her job was to analyze the specimens, run the machines and report to the doctor;
  • upon receipt of the samples, she followed standard procedures;
  • she described the test to determination alcohol concentration as having been conducted on a closed system which performed the analysis and displayed a digital readout;
  • the results were released into a computer system which was accessed directly by the doctor; and
  • in cases where she might be suspicious that the analyzer wasn’t working properly, she might repeat the test, but in most cases, everything goes right straight through

The trial judge reasoned:

In assessing how much weight I am to place on the test results, I am compelled to consider not only the fact that the testing was conducted by a qualified technologist, but also the fact the laboratory in which the testing equipment was located and in which the testing and analysis was performed was in a large urban hospital [Sudbury].  This laboratory was designed to service doctors and other trained medical professionals.  It is implicit that these medical professionals were prepared to rely on the laboratory results to make their decisions, decisions which impact the health, and sometimes the life of hospital patients.  It is also implicit that a laboratory which is designed and operated for these purposes will use reliable and well maintained and calibrated equipment.

On these facts, I am prepared to find that the test results are acceptable from the standpoint of accuracy and reliability.  In making this finding, I accept the submission of the defence that I must make this finding on the criminal standard of proof and I so find.

The Court of Appeal accepted this reasoning and found that, although there were fewer details in evidence, the principle relied on in R. v. Redmond (1990), 54 C.C.C. (3d) 273 (Ont. C.A.) was satisfied. 

In doing so, the Court endorses a common sense approach to the consideration of this type of evidence.  To require the professional who conducts the actual testing to be intimately familiar with the exact mechanics of the instruments he or she is working with is not feasible and to require evidence on such points would most certainly create inefficiencies and a lack of focus in the trial process.