R v Palmaria

R. v. Palmaria

[2005] O.J. No. 5276
Ontario Court of Justice — S.R. Shamai J. | Oral judgment: June 6, 2005

Background

Pierre Palmaria was charged with driving with a blood alcohol concentration above zero while holding a G2 licence, contrary to Ontario Regulation 340-94 section 6(1). This is a zero-tolerance offence — G2 licence holders (novice drivers) cannot have any alcohol in their system while driving, unlike full licence holders who can drive with up to 80mg of alcohol per 100ml of blood.

At trial in Toronto on December 12, 2002, a police officer testified that he saw Palmaria's G2 licence with a number on it, and conducted a breath test using an "Alcotest 7410-GLC Blood Alcohol Screening Device." Palmaria was convicted, but appealed on several grounds including lack of proper evidence about his licence type and the testing device.

Issues

1. Was there admissible evidence that Palmaria actually held a G2 licence?
2. Was there proper evidence that the breath testing device was legally approved?
3. Was the officer qualified to interpret the test results?
4. Were Palmaria's Charter rights violated during the investigation?

The Evidence Problem

Justice Shamai identified two fatal flaws in the prosecution's case. First, the only evidence that Palmaria held a G2 licence was the police officer's testimony that he "saw a G2 licence with a number attached to it." This is hearsay evidence — the officer was essentially repeating what the licence said rather than providing independent proof. While hearsay might be sufficient to establish reasonable grounds for an investigation, it's not enough to prove a critical element of the offence beyond a reasonable doubt.

Second, there was no evidence that the breath testing device was actually approved for use under the relevant legislation. The officer named the device but provided no proof it was legally designated. Under Highway Traffic Act section 48.1(14), only "provincially approved screening devices" can be used for novice driver testing. The prosecution failed to prove this essential requirement.

The judge also noted that the officer admitted he had "no basic training" on using the device, making his interpretation of the results worthless as evidence. As Justice Shamai put it: "I think it amounts to no evidence whatsoever that could be properly considered by the Court."

Key Takeaway

The prosecution must prove every element of an offence with proper, admissible evidence — assumptions and hearsay won't cut it.

This case shows that even seemingly straightforward charges can fail if the prosecution doesn't lay a proper evidential foundation. Self-represented defendants should scrutinize whether the Crown has actually proven each required element, not just whether the officer's story sounds plausible.