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Supreme Court of Canada

Criminal law—Breathalyser test—Approved instrument—Instrument’s margin of error—Evidence to the contrary—Criminal Code, R.S.C. 1970, c. C-34, ss. 236, 237.

Appeal—Summary conviction offence—Question of law—Criminal Code, R.S.C. 1970, c. C-34, s. 771(1)(a)—Supreme Court Act, R.S.C 1970, c. S-19 (as amended by 1974-75-76 (Can.), c. 18, s. 5), s. 41(3).

Respondent was found guilty, on summary conviction, of driving a motor vehicle having consumed a quantity of alcohol exceeding 80 milligrams in 100 millilitres of blood. The certificate of a qualified technician, who had used a Borkenstein Breathalyser, an approved instrument under s. 237(6) Cr.C., showed that respondent had 90 milligrams of alcohol in 100 millilitres of blood, and the latter was found guilty by a municipal judge. On appeal to the Superior Court by way of trial de novo an expert witness testified that Borkenstein Breathalysers were subject to a possible margin of error of 10 milligrams, more or less, and the judge was of the view that this uncontradicted testimony was “evidence to the contrary” within the meaning of s. 237(1)(c) Cr.C. and sufficient to raise a reasonable doubt justifying acquittal. The majority of the Court of Appeal affirmed the judgment of the Superior Court on the sole ground that no question of law was involved and that consequently the Crown had no right of appeal. This Court, having granted the Crown leave to appeal that decision under s. 41(3) of the Supreme Court Act, must decide whether the evidence of the expert witness is evidence to the contrary within the meaning of the Code and whether a question of law is raised.

Held (Laskin C.J. and Spence, Dickson and Estey JJ. dissenting): The appeal should be allowed.

Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: In order to comply with the wording of s. 237(1)(c)

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Cr.C., evidence to the contrary has to be evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. The evidence adduced through the expert witness’s testimony in the case at bar is not aimed at rebutting the presumption provided for in the Code but at denying its very existence. Such evidence is not evidence to the contrary when its only effect is to demonstrate in general terms the possible uncertainty of the scheme or the inherent fallibility of instruments which are approved under statutory authority. Instruments approved under statutory authority cannot be assimilated to ordinary instruments. Parliament must be taken to have made allowance for these limitations inherent in all instruments when it provided for the analysis of breath samples by way of approved instruments and to have wanted its precise prohibition to be exactly enforceable.

Secondly, since the main issue hinges upon the interpretation of a provision of the Criminal Code: what is capable of being evidence to the contrary, it raises a question of law.

Per Laskin C.J. and Spence, Dickson and Estey JJ., dissenting: None of the Crown’s submissions raises a question of law once it is accepted that the expert evidence of the defence was admissible and relevant. The weight of evidence and its sufficiency to raise a doubt are common instances of matters which do not give rise to any question of law. On the other hand, the accused is not to be condemned by an unchallengeable certificate based on the use of a fallible machine. It must not be assumed in the absence of Crown evidence to this effect that the qualified technician had taken into account the possible margin of error of the instrument. It would require much more express words than are found in s. 237(1)(c) Cr.C. to conclude that the accused cannot challenge the results of the chemical analysis by challenging the accuracy of the approved instrument which produced them.

[R. v. Davis (1973), 14 C.C.C. (2d) 513, discussed; R. v. Gaetz (1972), 8 C.C.C. (2d) 3; Shafer v. Regina (1971), 5 W.W.R. 692; R. v. Westman (1973), 11 C.C.C. (2d) 355; R. v. Falkenham (1974), 22 C.C.C. (2d) 385, referred to.]

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court, Criminal side, allowing an appeal

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from a conviction by a municipal judge. Appeal allowed, Laskin C.J. and Spence, Dickson and Estey JJ. dissenting.

Rémi Bouchard, for the appellant.

Gilles Garneau and Wildy Fontain, for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—This is a Crown appeal, by leave, from a judgment of the Quebec Court of Appeal (Tremblay C.J.Q. and Kaufman J.A., Bernier J.A. dissenting) which affirmed a judgment of Fournier J. of the Quebec Superior Court setting aside, on a trial de novo, the conviction of the respondent on a charge under s. 236(1) of the Criminel Code. The respondent was charged, in terms of the section, with being in control of a motor vehicle, having consumed alcohol of such a quantity that the proportion thereof in his blood exceed 80 milligrams in 100 millilitres of blood.

The Crown could not appeal as of right on the basis of any dissent on a question of law by Bernier J.A., as is provided by s. 621(1)(a) of the Criminal Code, because this provision applies only to proceedings by indictment, and here the accused was charged with a summary conviction offence. Moreover, the Crown’s appeal by leave under s. 621 (1)(b) is also restricted to questions of law and also relates back to proceedings by indictment, as is clear from s. 605(1)(a) giving the Crown the right to appeal on questions of law alone to the provincial Court of Appeal from a verdict of acquittal. The present case, therefore, could only come here through an invocation of s. 41(3) of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended by 1974-75-76 (Can.), c. 18, s. 5, to hear the appeal on a question of law from a judgment of the provincial Court of Appeal acting under s. 771(1)(a) of the Criminal Code.

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Counsel for the Crown urged three errors of law by the majority of the Court of Appeal. Kaufman J.A., speaking for the majority, did not think that any question of law was presented, as s. 771(1)(a) required, and would have dismissed the appeal on that ground alone. However, he went on to dismiss the appeal on the merits as well, assuming that it presented a question of law.

The issues raised by the Crown arise on the following facts. The Crown sought to prove the charge against the accused by the certificate of a qualified technician who, using a Borkenstein breath analyzer, indentified as No. 4799, and being an “approved instrument” under s. 237(6), found that the accused had 90 milligrams of alcohol in 100 millilitres of blood.

Section 237(1)(c) of the Criminal Code provides that evidence of the results of the analysis is, “in the absence of any evidence to the contrary” proof of the proportion of alcohol in the blood at the material time. It is not disputed in this case that the certificate of analysis was admissible in conformity with s. 237(1)(f). The accused, on his trial de novo before Fournier J., had adduced evidence of an expert witness, whose qualification to testify as to the Borkenstein type breath analyzer was not questioned, and who testified that there was a marging of error of 10 milligrams, more or less, in the use of the type of approved instrument in the present case. Fournier J., disagreeing on this point with the judge at first instance, held that this being admissible evidence, and being sufficient to raise a reasonable doubt, was “evidence to the contrary” under s. 237(1)(c), and left the Crown in a position where the charge against the accused was not proved beyond a reasonable doubt. In short, he held that the accused did not have any larger burden than that of raising a reasonable doubt by evidence tendered on his behalf.

In this Court, the admissibility of the expert’s evidence as to the margin of error of the particular type of approved instrument was not contested, but it was contended by the Crown that (1) the Court of Appeal erred in law in deciding that the issue of

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the weight given by the judge on the trial de novo to the defence evidence raised a question of fact; (2) the Court of Appeal erred in law in deciding that the general evidence offered as to the accuracy of the approved instrument was evidence to the contrary within s. 237(1)(c); and (3) the Court of Appeal erred in law in deciding that the aforesaid expert evidence was alone sufficient to give the accused the benefit of a reasonable doubt. Put in the stark way in which I have enumerated the Crown’s submissions as made in its factum and in argument, none raises a question of law once it is accepted, as it has been, that the expert evidence of the defence was admissible and hence relevant, relevant that is to the only issue that was in contention, namely, whether there was proof beyond a reasonable doubt that the accused had exceeded the permitted limit of the proportion of alcohol in the blood Certainly, there is no error of law in point 1 nor in point 3 of the Crown’s submissions. The weight of evidence and its sufficiency to raise a doubt are common instances of matters which do not give rise to any question law: see Sunbeam Corporation (Canada) Ltd. v. The Queen[2].

Point 2 seems to me to raise only a question of the relevance of the expert evidence, and of this I have no doubt. The approval of an instrument for breath analysis under s. 237(6) is approval not of a particular instrument but of a particular type. The Crown is given the advantage under s. 237 of using a special form of proof of a fact essential to conviction, and this proof involves use of a breath analysis instrument of a type approved by the Attorney‑General of Canada. It must surely be open to an accused to adduce evidence which, if accepted as was the evidence tendered here, would go to show such a margin of error as to cast doubt on the reading made by the qualified technician.

It follows that if there is here a question of law it must rest on the contention that “evidence to the contrary” must mean evidence that goes beyond the raising of a doubt and is sufficient to overcome the certificate of analysis on a balance of

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probabilities. Yet this position was not taken either by counsel for the Crown or by the dissenting judge, and I think they were right in not taking it. It is enough to contrast the present provisions of s. 237(1)(c), which speaks of “the absence of any evidence to the contrary”, with s. 237(1)(a), which contains a deeming provision, followed by the words “unless he establishes”, to illustrate in the latter case a different and more onerous evidentiary burden on the accused: See R. v. Appleby[3]. What was said by Ritchie J. for this Court in R. v. Noble[4], at p. 638, with reference to the “burden” on the accused under s. 237(1)(c), should not be taken as obliging an accused to do more than raise a reasonable doubt. This Court was concerned in that case with the question whether more than one breath sample must be taken to enable the Crown to rely on a qualified technician’s certificate, and Ritchie J. emphasized the necessity of strict construction of statutory provisions which “restrict the normal rights of the accused”.

What Bernier J.A. fastens on (and so too Crown counsel in supporting his view) is that the expert evidence offered by the accused cannot be “evidence to the contrary”, for the purpose of raising a doubt, because it is the results of the chemical analyses that are given probative force “in the absence of any evidence to the contrary”, and the justness or correctness of the results cannot be impeached by expert evidence showing the margin of error that may exist in the use of the particular type of approved instrument. In short, Bernier J.A. would have it that this margin of error is subsumed in the qualified technician’s understanding and qualifications in the use of the approved instrument. I am not prepared to assume this in the absence of Crown evidence that this was taken into account in arriving at the 90 milligram proportion.

The accused is not to be condemned by an unchallengeable certificate based on the use of a

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fallible machine. I would require much more express words than are found in s. 237(1)(c) to give so strong an effect to a chemical analysis made through use of an approved instrument. The accused is entitled, as I read the provisions of s. 237(1)(c), to challenge the results by challenging the accuracy of the instrument which produced them. The learned dissenting judge, in truth, takes his position on the want of any relevance of the expert evidence of the defence to the issue raised by the proof offered by the Crown. I read his reasons to say that the advantage of proof available to the Crown under s. 237(1)(c) (in being able to rely on a subsequent test to prove blood alcohol content at the prior time of the alleged offence) can only be countered by evidence directed to the temporal presumption. In my opinion, this is too narrow a view, and the approach taken by Kaufman J.A. is the proper one in his adoption of what was said on the matter by McFarlane J.A. in R. v. Davis[5], a decision of the British Columbia Court of Appeal, and by McDermid J.A. in R. v. Ryckman[6], at p. 296, a decision of the Alberta Appellate Division.

I would dismiss the appeal. In accordance with the term imposed by this Court as a condition of granting leave, the Crown will pay the costs of the respondent on a solicitor-client basis.

The judgment of Martland, Ritchie, Pigeon, Beetz and Pratte JJ. was delivered by

BEETZ J.—Respondent was charged with an offence punishable on summary conviction under s. 236 of the Criminal Code in that he drove a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams in 100 millilitres of blood. He was tried by judge Cossette, a municipal judge. Apart from admissions made by the defence with respect to the time and place respondent had driven the

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motor vehicle, the only evidence consisted in the certificates of an analyst and of a qualified technician pursuant to s. 237(1). The technician, using a Borkenstein Breathalyser of certain model, an “approved instrument” under s. 237(6), found that respondent had 90 milligrams of alcohol in 100 millilitres of blood. Neither the analyst nor the technician were required to be in attendance for the purpose of cross-examination, under s. 237(4). The defence tendered no evidence. Judge Cossette found respondent guilty and condemned him to pay a fine of $50 with costs or to fifteen days in gaol in default of payment.

Respondent appealed to the Superior Court by way of trial de novo. The trial was held on the record of the evidence which had been heard by judge Cossette. In addition however, an expert witness whom the Superior Court found highly competent and objective was called by the accused and, without being contradicted, testified in short as follows:

1) Borkenstein Breathalysers of the type or model used in this case (Model 900 or 900A) were all subject to a possible margin of error of 10 milligrams, more or less;

2) This possible margin of error was inherent in these instruments, due to their design;

3) While this possible margin of error was common knowledge, qualified technicians were not instructed to make allowance for it; they were trained to consider their instrument as accurate for the purpose of s. 237 provided that, in the chemical control test which they were required to carry out in each case with a known quantity of alcohol, the margin did not exceed 10 milligrams, more or less;

4) The particular Borkenstein Breathalyser used in this case, serial number 4799, had not been examined or otherwise tested by the expert witness who could not recall whether he had ever seen it.

It was further admitted in the course of the trial de novo that the qualified technician had stated

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the exact reading of the breath analyser, without taking into account the possible margin of error.

Fournier J. held that the testimony of the expert witness was “evidence to the contrary” within the meaning of s. 237(1)(c) and sufficient to raise a reasonable doubt. He accordingly set aside the conviction and found respondent not guilty.

The Crown appealed to the Quebec Court of Appeal with leave of that Court. Under s. 771(1)A), it could only do so on grounds involving questions of law.

The Court of Appeal, (Tremblay C.J.Q. and Kaufman J.A., Bernier J.A. dissenting) affirmed the judgment of Fournier J. Tremblay C.J.Q. and Kaufman J.A. took the view that no question of law was involved and would have dismissed the appeal on that sole ground. Kaufman J.A. would also have dismissed the appeal on the merits, assuming that it involved a question of law. His main reason was that an accused ought not to be “restricted in his defence to evidence which would tend to show that he was not impaired by non-consumption (or consumption of a small amount) of alcohol”.

The Crown now appeals by leave of this Court its appeal being limited to a question of law or jurisdiction: s. 41(3) of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended by 1974‑75-76 (Can.),c. 18, s. 5.

At the relevant time, s. 237 of the Criminal Code read in part as follows:

237. (1) In any proceedings under section 234 or 236,

(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1) if

(i) (not proclaimed in force)

(ii) the sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

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(iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician, evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed;

(6) In this section

“analyst” means a person designated by the Attorney General as an analyst for the purposes of this section;

“approved container” means a container of a kind designed to receive a sample of the breath of a person for chemical analysis and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

“approved instrument” means an instrument of a kind that is designed to receive and make a chemical analysis of a sample of the breath of a person in order to measure the proportion of alcohol in the blood of that person and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

“qualified technician” means a person designated by the Attorney General as being qualified to operate an approved instrument.

The main issue is whether the evidence of the expert witness is “evidence to the contrary” within the meaning of s. 237(1)(c). There is another issue namely whether the main issue raises a question of law. I propose to deal first with the main issue.

In the course of argument, counsel for the Crown said that the evidence of the expert witness was admissible. However, I did not understand this concession to have been unqualified: according to counsel, the evidence of the expert witness was admissible as a general introduction which should have been completed by specific evidence related to the particular facts of this case, but it had not been so completed and had remained purely theoretical or general in nature; Fournier J. had erred in law in taking it into consideration.

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What is “evidence to the contrary” within the meaning of this section has been the subject of some discussion in various courts. I agree with what was said on the subject by McFarlane J.A. speaking for the British Columbia Court of Appeal in R. v. Davis[7] at p. 516:

While not expressed too clearly, I think the intention of Parliament becomes manifest when it is remembered that the fact to be proved is the proportion of alcohol to blood at the time of the offence. The result of the chemical analysis is one method of proving that fact: and the certificates are evidence, inter alia, of that result. It follows, in my opinion, that the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limits is “evidence to the contrary” within the meaning of the subsection. (Underlining is mine)

In order to comply with the wording of the Code, “evidence to the contrary” has to be evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. There is no such evidence in the case at bar. Apart from the certificates, there is no evidence of any kind directed at showing what was the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. What evidence there is, tendered on behalf of the accused, is expert evidence from which Courts are asked to conclude, contrary to what the Code explicitly prescribes, that the result of the chemical analysis is not or ought not to be proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. This, in my opinion, is not evidence aimed at rebutting the presumption provided for in the section but at denying its very existence. “Evidence to the contrary” cannot be evidence solely directed at defeating the scheme established by Parliament under ss. 236 and 237.

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This elaborate legislative scheme contemplates and provides for elements of positive certainty such as the official approval of certain kinds of instruments, the designation of analysts and qualified technicians, a maximum time period between the commission of the alleged offence and the taking of a breath sample, and the reading by a qualified technician on an approved instrument of a proportion of alcohol in the blood in excess of a specified proportion. Once the conditions prescribed or contemplated by this scheme are fulfilled, a presumption arises against the alleged offender which he can rebut by tendering “evidence to the contrary”. But in my opinion, no evidence is “evidence to the contrary” when its only effect is to demonstrate in general terms the possible uncertainty of the elements of the scheme or the inherent fallibility of instruments which are approved under statutory authority. Thus, the proof by expert evidence that, for physiological reasons of a general nature, the maximum time period of two hours between the commission of an offence and the taking of a breath sample is too long would not be “evidence to the contrary”. (See also R. v. Gaetz[8]).

In the case at bar, the evidence of the expert witness was to the effect that Borkenstein Breathalysers of the kind used to analyse respondent’s breath sample were all inherently subject to a possible margin of error of 10 milligrams, more or less: the trial judge was asked to infer that unless this approved type of instrument indicated a reading in excess of 90 milligrams of alcohol in 100 millilitres of blood, an accused ought to be given the benefit of the doubt. Such an inference might perhaps be drawn in other kinds of cases with respect to instruments other than instruments which are approved under statutory authority. For instance, expert evidence could probably be tendered to show that radars of a certain type used by the police to measure the speed of motor vehicles are subject to an inherent margin of error which would make their reading unreliable as evidence against an accused unless the margin of error was taken into account. But radars are not approved instruments under a statutory scheme. To admit

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the evidence of the expert witness in this case is to concede that evidence gathered through the use of certain types of approved instruments may be treated in the same manner as that obtained by ordinary instruments. The same would be true, up to a point, of approved instruments of any type since all instruments used for measurement or analysis are necessarily subject to built-in limitations which affect their precision. I think the assimilation of instruments approved under statutory authority to ordinary instruments amounts to an error in law. It seems to me that when Parliament provided for the analysis of breath samples by way of approved instruments, it was aware of the limitations inherent in all instruments. Parliament must be taken to have made allowance for these limitations in the provisions relating to the approval of certain kinds of instruments as well as in those setting the highest permissible level of alcohol in the blood at 80 milligrams in 100 millilitres of blood.

If the Superior Court and the Court of Appeal were right, no one could in effect be charged under s. 236 unless the reading indicated a quantity of alcohol in excess of 90 milligrams in 100 millilitres of blood whenever the qualified technician used an approved Borkenstein Breathalyser Model 900 or 900A. Similar practical results would inevitably occur if other approved models of breath analysers were used, with slight variations upwards or downwards; but whatever approved instrument be used, the prohibition enacted in s. 236 would never be fully enforceable in any given case by the means expressly provided for in the Code nor, for that matter, by any other means. Yet, one of the reasons if not the only reason why Parliament prescribed the use of approved instruments must have been that it wanted its precise prohibition to be exactly enforceable. This intent would be frustrated if approved instruments were treated as ordinary instruments.

The approval of instruments under s. 237(6) is approval of types of instruments, not of particular instruments. A particular instrument may conceivably be subject to certain faults other than those which are inherent in the type. The question

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whether such a particular instrument continues to be within an approved class of instruments and whether the proof of such faults is admissible does not arise in this case and does not call for comment.

I now briefly turn to the other issue, that is whether the main issue raises a question of law. I think it does. It hinges upon the interpretation of a provision of the Criminal Code: what is capable of being “evidence to the contrary” within the meaning of s. 237(1)(c)? The Courts of Appeal of Nova Scotia, British Columbia, Alberta and Saskatchewan have indicated that they consider the issue as a question of law: Shafer v. Regina[9]; R. v. Gaetz, (supra); R. v. Westman[10]; R. v. Davis (supra); R. v. Falkenham[11]. I agree with their approach on this point.

For the reasons stated above, I believe the evidence tendered on behalf of respondent was not “evidence to the contrary” within the meaning of s. 237(1)(c) of the Criminal Code. It was the only evidence tendered on behalf of respondent and the sole possible basis for his acquittal. His conviction must accordingly be restored.

I would allow the appeal, set aside the judgment of the Court of Appeal and of the Superior Court and restore respondent’s conviction. Further to the terms imposed by this Court as a condition of granting leave, the Crown will pay respondent’s costs in this Court on a solicitor-client basis. Respondent should pay the costs in the Municipal Court and the Superior Court. The Court of Appeal made no order as to costs; I would not make any either as to costs in that Court.

Appeal allowed, LASKIN C.J. and SPENCE, DICKSON and ESTEY JJ. dissenting.

Solicitor for the appellant: Rémi Bouchard, Québec.

Solicitor for the respondent: Gilles Garneau, Québec.

 



[1] [1977] C.A. 409.

[2] [1969] S.C.R. 221.

[3] [1972] S.C.R. 303.

[4] [1978] 1 S.C.R. 632, (1977), 37 C.C.C. (2d) 193.

[5] (1973), 14 C.C.C. (2d) 513.

[6] (1975), 25 C.C.C. (2d) 294.

[7] (1973), 14 C.C.C. (2d) 513.

[8] (1972), 8 C.C.C. (2d) 3.

[9] [1971] 5 W.W.R. 692.

[10] (1973), 11 C.C.C. (2d) 355.

[11] (1974), 22 C.C.C. (2d) 385.

 

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