Court File and Parties

Court File No.: Halton 1182/11 Date: 2013-07-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Daniel Bruce Woodworth

Before: Justice F.L. Forsyth

Heard on: April 12, 2012, October 9, 2012, November 2, 7, 2012, February 21, 2013, April 9, 2013 and June 17, 2013

Reasons for Judgment released on: June 17, 2013

Counsel:

• H. Apel and A. Khoorshed, counsel for the Crown
• S. Biss, counsel for the defendant Daniel Bruce Woodworth

FORSYTH J.:

History of this Trial

1Mr. Woodworth was charged with a single count contrary to s. 253(1)(b) of the Criminal Code arising out of an incident on April 13, 2011. He retained Stephen Biss, Esq., to defend him on this charge.

2The first date of trial was April 12, 2012. Before that date Mr. Biss had filed applications pursuant to s. 7, 11(d), 24(1) and 24(2) of the Charter requesting an order excluding evidence, including the results of Mr. Woodworth's Intoxilyzer breath tests pursuant to s. 24(1) of the Charter. As a corollary application he sought an order granting a stay of all of the charges pursuant to s. 24(1) of the Charter. As alternative orders he sought pre-trial orders pursuant to s. 605 and 652 of the Criminal Code.

3The latter applications were concerned with the defence request for supplementary disclosure subsequent to the amendments to s. 258(1)(c) of the Criminal Code. At that time, s. 258(1)(c) read as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, c. 20, s. 3]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

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

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [Emphasis added]

4At paragraph 68 of Mr. Biss's original Notice of Application on a Constitutional Issue he set out four distinct items of requested supplementary disclosure which had also been included in a letter which he had written to the Crown following initial disclosure on June 24, 2011.

5On July 18, 2012 I ruled in favour of Mr. Biss's application in part and ordered disclosure by the Crown of those four items. In addition, I ordered that the defence be permitted a view of the Intoxilyzer room in which the tests had been conducted on Mr. Woodworth.

6Ultimately, some of the items ordered disclosed were disclosed, but the Crown was unable to fully comply with the Court's order with respect to all of the items. Needless to say, there was extensive subsequent argument by Mr. Biss, with a response from the Crown, with respect to the effect of the Crown's non-compliance with the Court's disclosure order. These arguments are all, of course, a part of other areas of the record on this trial. Mr. Biss vigorously argued that the Court should grant the applicant's s. 7 and 11(d) Charter application even more so because of this development and order a stay of the charge.

7On February 21, 2013 I dismissed Mr. Woodworth's s. 7 and 11(d) Charter applications without reasons and undertook to provide my reasons on or before Friday April 5, 2013 in order for him to be able to consider them before the next trial continuation date of April 9, 2013.

8On April 5, 2013, with the consent of both counsel, I filed a summary memorandum of my reasons instead of a template-created judgment in the more customary format. I indicated to both counsel that because of my reserve judgment backlog at the time I had found it difficult to prepare as extensive a set of reasons as I would otherwise have preferred. Both counsel indicated that they were content with the memorandum format and it was filed with the court record.

9However, in the interim after my July 18, 2012 disclosure order and the February 21, 2013 date, Mr. Biss had also brought a s. 11(b) Charter application on behalf of Mr. Woodworth requesting that the Court stay the charge on the basis of unreasonable delay. That application was argued on October 9, 2012 and I dismissed it on October 29, 2012 with reasons to follow. After that dismissal, November 2, 2012 became the trial continuation date on which the first body of evidence was received by this Court on the trial proper.

Crown's Case

10On that date, P.C. David Allan testified in Chief that he is a member of the Halton Regional Police Service and was on duty on April 13, 2011. He stopped an automobile that was travelling eastbound on Plains Road near the Queen Elizabeth Highway off-ramp. This was at 10:56 p.m. and he was stopped in his cruiser at a red light in the middle lane. He noticed that the car in the inside lane seemed to be approaching quickly to the red light and it drove straight through the light just as it turned green. He decided to stop the vehicle at Mapleview and Fairview Avenue approximately 100 metres from Thorpe Avenue on Plains Road East.

11He explained that he had already run the vehicle's licence plate on his cruiser computer and had received information that the owner of that motor vehicle was subject to a suspended licence. When he approached the vehicle he noticed that there was a male driver in the driver's seat and a lady in the front passenger seat. There is no issue in this trial that the driver was the accused and the female party was his wife.

12The officer asked the accused to exit the vehicle and discussed his licence suspension with him. At this time he noticed that the accused had slightly slurred speech and an odour of alcohol on his breath when he was standing outside of the vehicle. The officer asked him if he had been drinking and the accused responded that he had had two drinks at the Flamborough Race Track. With this information, P.C. Allan testified that he formed a reasonable suspicion that the accused had alcohol in his blood and he estimated that he formed that suspicion at approximately 11:02 or 11:03 p.m. He requested that an approved screening device (ASD) be brought to the scene. About one or two minutes later he had been told on his police dispatch radio that there was an officer nearby his location with an ASD.

13He said that the ASD had arrived three or four minutes later and he administered the ASD demand to Mr. Woodworth which he said that he read from his notebook and he read it in exactly the same way in court at trial. He identified the officer who delivered the ASD as a P.C. Siomra. P.C. Allan described the unit as an Alco-test 7410 GLC and provided the serial number for it and the calibration date from the sticker on the unit by P.C. Urie of March 28, 2011. He said that P.C. Siomra had told him that he himself had used the unit earlier in the evening and that it had worked properly.

14At 11:13 p.m. he said the accused provided a proper sample into the ASD and it registered an "F" which, to the officer, signified at least 100 milligrams of alcohol in 100 millilitres of blood in the system of Mr. Woodworth. Because of that he said that he had reasonable and probable grounds to arrest him on this charge pursuant to s. 253(1)(b) of the Code. He said that he actually effected the arrest and informed him of the charge at 11:21 p.m. Mr. Woodworth was handcuffed and searched.

15P.C. Allan said that he then administered a demand pursuant to s. 254(3) of the Code for the accused to accompany him to the station to provide breath samples into the Intoxilyzer 8000C. He also provided him with his rights to counsel and that is not in issue at this trial.

16He then transported the accused to the local police station arriving at 11:34 p.m. After booking procedures were completed, he turned custody of the accused over to the Intoxilyzer technician, P.C. Erich Paroshy, at 12:03 a.m. on April 14, 2012. He said that the accused was returned to his custody at 12:36 a.m. and at 12:40 a.m. he lodged him back in a cell pending release.

17The Crown then, on consent, introduced as Exhibit Number 8 on this trial a combined Notice of Intention to Produce, a qualified Intoxilyzer technician's Certificate of Analysis on the trial and also the actual Certificate of Analysis of P.C. Paroshy. The exhibit indicates that the first breath test was at 12:11 a.m. and registered 160 milligrams of alcohol in 100 millilitres of blood and the second test was at 12:35 a.m. registering 150 milligrams of alcohol in 100 millilitres of blood.

18In cross-examination he agreed that the accused would have been in the booking room for the 12-minute period between 11:34 p.m. and 11:46 p.m. He also agreed that he did not have a time noted precisely when the accused was actually lodged into a cell.

19Mr. Biss asked him about the procedure that had been followed in Mr. Woodworth's case in order to provide him with the right to speak to duty counsel. The officer said that he had provided him that call in a private room for that purpose which was approximately 15 or 20 feet away from the booking room. Mr. Biss suggested that, therefore, the officer was unable to observe Mr. Woodworth when he was inside the duty counsel phone room, but the officer disagreed and said that he could see him through the door and that they are trained to keep an eye on the prisoners in that situation because it's an officer safety issue, as well as the prisoner safety issue.

20When pressed by Mr. Biss on the aspect of whether or not he had his eyes riveted every single moment continuously on Mr. Woodworth while he was in the duty counsel telephone room, the officer agreed that perhaps every 40 or 50 seconds he would glance through the window to make sure Mr. Woodworth was still on the phone and, secondly, not trying to harm himself in any way. In between keeping an eye on Mr. Woodworth, he said that he was preparing his notes while standing at the desk in the booking room which still allowed him the vantage point of being able to look up and through the window of the duty counsel phone room.

21He did agree that while Mr. Woodworth was in that room talking to duty counsel he himself had had a conversation with Constable Paroshy, and while having that conversation he agreed that he was focused on speaking to Constable Paroshy and outlining his grounds for his arrest. He agreed that Constable Paroshy had not given him any special instructions to keep an eye on Mr. Woodworth between 11:56 p.m. and 12:03 a.m. or, for that matter, before 11:56 p.m. He said that P.C. Paroshy traversed in and out of the breath room to have brief conversations with him, P.C. Allan, outside of the room about his grounds and that this is common practice.

Evidence of P.C. Erich Paroshy

22The next witness called by the Crown was P.C. Erich Paroshy who testified in Chief that he is a member of the Halton Regional Police Service and is a qualified Intoxilyzer technician. Mr. Biss did not challenge his qualifications or certification. His notes were qualified and the Court permitted him to refresh his memory from his notes and also from his Alcohol Influence Report when required to do so.

23Mr. Apel, acting for the Crown on November 2, 2012, showed him Exhibit Number 8 which is the Certificate of a Qualified Technician, and P.C. Paroshy identified it as the certificate which he had filled out with respect to Mr. Woodworth's case. He confirmed that everything in the certificate was accurate. At this point Mr. Biss agreed with Mr. Apel's suggestion that there is no need for the officer to "parrot" the information that is contained in the certificate and it was simply referred to in that fashion by P.C. Paroshy, it already having been made an exhibit.

24Mr. Apel also established that the officer had received training in the use of the Intoxilyzer 8000C and that he implemented that training in this particular case using an 8000C Intoxilyzer. Again, at this point Mr. Apel indicated that there was no issue between him and Mr. Biss that there would be a video of the interaction between Mr. Woodworth and P.C. Paroshy played for the Court with cross-examination expected of P.C. Paroshy with respect to that procedure. Mr. Biss agreed and indicated that the video would be able to be an exhibit on the trial at the appropriate time.

Cross-Examination of P.C. Paroshy - November 2, 2012

25In cross-examination P.C. Paroshy agreed that his first contact with Mr. Woodworth was at 12:03 a.m. on April 14. He also agreed that before having Mr. Woodworth delivered to him his primary focus was on setting up the 8000C which he had turned on at 12:35 a.m. as he entered the breath room. He also agreed that at some point thereafter he left the breath room to talk to P.C. Allan briefly to obtain his grounds for his arrest. He also agreed with the suggestion that he did not spend an extended period of time outside of the breath room for any other purposes related to the case. Of course he also agreed with what appeared to be an obvious suggestion by Mr. Biss that between 23:56 p.m. and 12:03 a.m. when P.C. Paroshy had already testified he had first been introduced to Mr. Woodworth, the latter was not in Paroshy's presence.

26He also agreed that he did not give any specific instructions to P.C. Allan about what he should be doing with Mr. Woodworth and, in particular, he had not instructed P.C. Allan to keep Mr. Woodworth under his specific physical observation. However, the officer also pointed out that during this period of time the accused would have been in the booking room which is right beside the breath room. Mr. Biss persisted and asked him if he would agree that he had not instructed P.C. Allan to look for certain things or keep Mr. Woodworth under observation for particular reasons. The officer said that he had not done so and that would have been the responsibility of Officer Allan. As he said, "I don't coach him through that".

27Mr. Biss suggested that between 11:51 p.m. on April 13 and 12:06 a.m. on April 14, a 15-minute period, that P.C. Paroshy had only had Mr. Woodworth under his personal observation for three minutes. After the officer checked his notes he agreed with that suggestion. Therefore, he also agreed with the next suggestion by Mr. Biss that he did not have the accused under his observation for 15 minutes prior to the first breath test. Although the transcript of November 2nd shows that Mr. Biss only used the phrase "15 minutes", I will assume that he meant 15 consecutive minutes.

28Paroshy also agreed that he had been trained by the Centre of Forensic Sciences in procedures to be implemented for the Intoxilyzer 8000C. This took place in September 2009. He was asked if he was familiar with certain reference materials called The Intoxilyzer Training Aid and The Intoxilyzer 8000C Training Aid. The officer said that he may have been familiar with those materials, but he had not tried to recall them for quite some time. Mr. Biss indicated that he had a copy of these materials for all of us for reference for his cross-examination. He then showed P.C. Paroshy certain pages in The Intoxilyzer 8000C Training Aid. Although the officer was only able to say that the materials looked to be similar to some which he may have been exposed during his training, nevertheless the Crown consented to this area of questioning and I was also in agreement.

29Mr. Biss then brought to the attention of the officer a portion of the materials wherein the manufacturer stated, "Before conducting a breath test on a subject, ensure that....the subject has not consumed alcohol or placed any alcohol-containing substances into their mouth for 15 minutes prior to the first breath test". After drawing that to the officer's attention, he suggested that P.C. Paroshy had not followed that protocol because he did not have the accused under his observation for the 15 consecutive minutes before the first breath test. Before the officer was asked to answer, at the urging of the Court, Mr. Biss read the next paragraph in sequence to him which states, "It is not necessary for this deprivation period to occur in the presence of the qualified technician and may occur while in the custody of another police officer".

30P.C. Paroshy responded in a somewhat ambivalent fashion by stating that his answer to that suggestion would be, "For the eight minutes he didn't have any alcohol whatsoever. And prior to that I know 100 per cent that there's no alcohol in that booking room. And while he was in there is video of their – he would've been on video, so – and that officer, unless he would've said something to me, I'm, I'm assured that he did not drink".

31Mr. Biss then turned his attention to questioning the officer about whether or not he had received training to the effect of it being desirable to be careful to watch for a subject who might be burping or belching or vomiting during this 15-consecutive-minute observation. Paroshy responded that he was trained to do that while he is conducting the tests. He actually quoted from page 2 out of a 7-page document which he then identified as his Alcohol Influence Report which has such categories on it. Not satisfied with that answer, Mr. Biss suggested to him that as a qualified technician he had an obligation to be observing the subject and if he could not do so, then he should have specifically delegated that responsibility to another officer for the 15-consecutive-minute period before the first breath test. Paroshy responded by saying that he guessed that Mr. Biss was suggesting that it was up to him to make sure the other officer does his job and, in his opinion, that was not his onus. He said that he relies on the other officer to do his job and to do it correctly.

32An issue was then raised about whether or not P.C. Allan, the arresting officer who was with Mr. Woodworth in the booking room, was a qualified Intoxilyzer technician at the time and Mr. Apel was able to agree that he was not.

33It was at this point that Mr. Apel raised the question about the Intoxilyzer 8000C Training Aid that was being discussed between Mr. Biss and P.C. Paroshy. He asked Mr. Biss if he could indicate that that Training Aid contained any instruction to a qualified technician to watch for burping and belching during that 15-minute period before the first test. Mr. Biss responded by saying it was his understanding that that was part of the training of the Intoxilyzer technicians, but in the final analysis he indicated that the basis for his suggestion had more to do with the evidence that had been given in affidavit form by Mr. Kupferschmidt much, much earlier in this particular trial to the effect that he had a concern with respect to the quality of the breath tests that had been administered by P.C. Paroshy on various grounds. Mr. Biss said that he wanted to give P.C. Paroshy a full opportunity to testify about what was going on during the 15 minutes before the first breath test. He also conceded that part of this cross-examination was as a sort of back drop for the anticipated evidence of Mr. Kupferschmidt on the trial proper. However, at this point I will certainly note that ultimately Mr. Kupferschmidt was not called as a witness by Mr. Biss for the defence on this trial.

Alcohol Standard Solution and Simulator Calibration

34Mr. Biss then moved on to questioning P.C. Paroshy about the alcohol standard solution in the simulator of the 8000C. He suggested that he is required by the manufacturer's training manual at page 7-19, item 1, to make sure that standard solution is suitable for use by checking the calibration in the alcohol standard log for the instrument and the Certificate of an Analyst. He then asked P.C. Paroshy if he had done those two things in this case. P.C. Paroshy answered:

When we do that is actually labelled on the simulator and it's copied verbatim just on documents which would be submitted to courts if it's ever in disclosure issues, which they are more than likely to have. But it is copied verbatim. It's actually sticker – on the simulator. I read it off in the video. The Certificate of Analysis comes in the solution box, and that is also available for you if you like it.

35He further explained that the requirement is that after 50 tests or 14 days the simulator solution has to be changed in any event and whoever is working as an Intoxilyzer technician on that particular day when that time period elapses may have to change the solution. If an officer does that, then that officer does a calibration check and configures the standard, makes a note of it on a police seal and puts that seal on the simulator. He indicated that he read from just such a seal on the particular 8000C which he used with Mr. Woodworth on the video of his interaction with Mr. Woodworth and the unit. When Mr. Biss then suggested that, regardless of that, he did not check the calibration alcohol standard log for the particular 8000C that he had used on April 13 and 14, 2011, P.C. Paroshy agreed, but said that he did not need to do so because it was actually on the simulator on that seal which is verbatim in the log. He agreed that what he had read from the seal was information that had been entered by another officer named Constable Wilson.

36Mr. Biss then directly suggested to P.C. Paroshy that he had not done his job properly because he did not check the alcohol standard log himself and he did not get the information about it from an alcohol standard log because he had simply read the sticker on the 8000C containing the information supposedly placed thereon by P.C. Wilson. P.C. Paroshy agreed that he had not checked the log and of course also wanted the Court to note that he had given his reason for not doing so.

37Mr. Biss then turned his attention to the Certificate of a Qualified Technician that had been entered as Exhibit 8 in this trial and asked P.C. Paroshy if he would agree that he had identified a particular lot of the alcohol standard solution that had been used in Mr. Woodworth's case on that certificate. P.C. Paroshy agreed and said that he identified it was lot number 20684, which information he had obtained from the police seal on the 8000C that he had previously discussed with Mr. Biss and the Court.

38Mr. Biss then suggested to him that, in this particular case, he did not get the information from the police seal on the 8000C because the video shows him reaching into a cupboard in the breath room and pulling a box out of the cupboard, then pulling out a bottle and reading the alcohol standard number on the video from that bottle which he held in his hand. P.C. Paroshy replied as follows:

I actually pulled that bottle off for reference. I did take it off, so – to make sure that – and it's nothing to do with the number. It's just to make sure I get the Cal Wave solution, 500 millilitres. It's just like a, a template. It just happens to be one of the six bottles in the box. And that bottle coincidentally is consistent with the bottle or the solution that was put into the simulator.

39Both Crown counsel and Mr. Biss then agreed to play the breath room video in the courtroom for the benefit of the Court and P.C. Paroshy. After the video had shown P.C. Paroshy going to the cupboard and getting a bottle out of the cupboard just as Mr. Biss had questioned him, Mr. Biss paused the video and asked if the officer would agree that indeed the way in which he had identified the lot number was not from the seal on the 8000C, but rather by taking that bottle out of the box in the cupboard and reading right from it. P.C. Paroshy said that he did not agree with Mr. Biss and he said he could explain the situation if Mr. Biss would like him to do so. He said:

As you look there, I was looking at the simulator when I turned it on. The seal is facing me. I can see what's on it. There is a Cal wave on the seal. It also has the lot number, et cetera, et cetera, with the seal number which I read off. Then when I grabbed the bottle out of the box, it's the same bottle with the same information. So when I read it out loud, I had that in front of me. The information is the same.

40In answer to Mr. Biss's next question, he said that the expiry date of the solution is either on the seal and/or on the bottle, or both. Mr. Biss suggested again that he had obtained that information by looking at the bottle rather than by looking at the seal. P.C. Paroshy answered by saying that he believed it was on the seal, but his point was that if it was on the bottle and the seal lot number was the same as the bottle, then obviously it is the same expiry date for both. He said that was just common knowledge for him.

41Mr. Biss then turned his attention to P.C. Paroshy's evidence that he believed that the solution had been changed by Constable Wilson on April the 8th at 12:34 p.m. and reminded P.C. Paroshy that that was the information he had read off the seal right on the video. Mr. Biss then referred to the Intoxilyzer test record, which was also one of the exhibits in the trial, and showed it to P.C. Paroshy. It states that the solution was last changed at 12:42 on April 8, 2011. Therefore, Mr. Biss suggested that there is a difference between the information contained on the seal on the 8000C used with Mr. Woodworth and what is on the Intoxilyzer test record that came out of that same 8000C, in other words, a difference of eight minutes with respect to when the solution had last been changed. P.C. Paroshy, of course, who was in a somewhat compromised position being asked to comment on something over which he had had no control, but he said maybe it was an error on the part of the entry made by P.C. Wilson. Mr. Biss then suggested to him that the best way to figure this all out would have been by examining the alcohol standard log itself to get the exact time when it was changed. P.C. Paroshy said he would not agree with that suggestion because it should be the same between the seal and the log.

42Mr. Biss then picked up the Intoxilyzer calibration sheet which he indicated he had received in disclosure just recently from the Crown. He produced it to P.C. Paroshy and asked him to look for a notation of a change of solution for this particular 8000C around April the 8th. So P.C. Paroshy happily answered that he was able to locate that entry and Mr. Biss pointed out to him that it says that the solution was changed by P.C. Wilson, and when he asked P.C. Paroshy to read out the time of the change of that solution on April 8, 2011 P.C. Paroshy said, "It says here 12:55".

43Mr. Biss then said, "Well, we have a third time for the change" and P.C. Paroshy said that these times can all be explained. Mr. Biss suggested that these differences could be very important because it is extremely important for a qualified technician like P.C. Paroshy to always make sure that he knows the last precise time that the solution was changed before he uses the instrument. P.C. Paroshy did agree with that suggestion. Mr. Biss then went further and suggested the reason that this is important is because the police may have a practice of changing the solution on a particular day of the week or whatever and P.C. Paroshy, when asked what his knowledge was of the HRPS practice, said it is either 50 tests or 14 days, which, of course, he had already said before in testimony. Mr. Biss asked if there was a particular day of the week when the solution is usually changed and P.C. Paroshy said that sometimes they like to do it on Sundays, but it depends on whether an officer is on duty at that time.

44Mr. Biss then suggested to him that one of the reasons it is so important to check the actual log is to make sure there has not been some unexpected reason for a change of solution such as where the unit had to be brought to a hospital to be used and the solution needed to be changed. P.C. Paroshy said:

"Yeah. Well, basically the answer to that is any time any breath tech changes the solution a police seal is placed on it. And they use their watch or they'll use the Intoxilyzer's watch. The difference is, in this case, six minutes which isn't uncommon".

45Mr. Biss, of course, reminded him that it is not just a matter of six minutes, it is the fact that there are three different times noted for the changing of the same solution on the same day. P.C. Paroshy said that he did not think this was a mistake in the log, he just guessed that it might be a difference in somebody's watch and the print-out time on the Intoxilyzer itself. He pointed out that his own watch is discrepant from the time printed on the Intoxilyzer clock.

Temperature Recording Issues

46This seemed to bring to an end this area of questioning by Mr. Biss and he then moved on to the Intoxilyzer test record that was part of his disclosure. He referred P.C. Paroshy to the temperature of the simulator that was recorded on the test record as 34.00 degrees Celsius. He then asked the officer if he knew where that number had come from and Paroshy said it was on the simulator. He agreed with Mr. Biss that he was using a Guth Model 2100 simulator on that particular Intoxilyzer 8000C and that that temperature was displayed on the simulator. Mr. Biss then put the suggestion to him that the display on the simulator only records the temperature to tenths of a Celsius degree and not to one-hundredths of a Celsius degree. Faced with that question, P.C. Paroshy disagreed and said that the simulator actually records it as "34." and after that would be "00". However, he then added that it does not show the zeros, it just shows 34 degrees, and if the temperature were to rise or to fall it would record it accordingly. He then also added the information that it was a digital thermometer.

47I asked for clarification of his answers, and he explained that if the actual temperature was, for example, 33.9 degrees, the display would be 33.9, but if it is right on 34, then it would just display 34 without the ".00".

48Mr. Biss then clarified with the officer that although the Intoxilyzer test record printed out 34.00, P.C. Paroshy was telling the Court that the display that he looked at on the simulator screen was only 34 without the ".00". Mr. Biss then suggested that the officer must have inputted 34.00 into the 8000C in order for the test record to produce 34.00 as a temperature reading even though he had looked at a display that only said 34. The officer disagreed and said that he simply inputs the temperature itself, so that in this case he inputted 34 without the ".00", but the 8000C prints it out as 34.00, and over which he has no control.

49Mr. Biss then suggested to P.C. Paroshy that the 8000C seemed to be rounding up or rounding down the temperature that was displayed on the simulator, but P.C. Paroshy, properly in my opinion, retorted that he was not qualified to determine how the 8000C records the temperature. He said that he is qualified to make sure that he inputs the simulator temperature into the 8000C and that is it.

50Mr. Biss then proposed to show the officer an excerpt from the affidavit that was prepared by Gerald Kupferschmidt as Exhibit "K" on the earlier ss. 7 and 11(d) Charter motions. He indicated to the Court that that excerpt provided a photograph of a Guth Model 2100 simulator that showed a temperature read-out display on it of 34.0 Celsius. He then asked P.C. Paroshy to comment upon the fact that this photograph of a Guth Model 2100 simulator showed 34.0 as opposed to just 34 as a temperature display and the officer said that may not be his simulator. Mr. Biss asked if the simulator used by the officer with Mr. Woodworth was different from the one in the photograph and P.C. Paroshy said that it could be, but he did not really understand the question.

51However, he was able to answer in the affirmative the next suggestion put to him by Mr. Biss that the simulator thermometer upon which he was relying with Mr. Woodworth's case had a digital display and was not a mercury thermometer, although, as he said, the actual simulator with which he had worked with Mr. Woodworth had both a mercury thermometer and a digital thermometer in it. He was asked when the mercury thermometer had been installed and he said it simply comes with the simulator and is actually part of it.

52Mr. Biss then asked him if his evidence was to the effect that all of the simulators in use at Number 3 District HRPS always had a mercury thermometer attached to them, Paroshy said that he was not saying that and that he was simply saying that the one he had used did have a mercury thermometer attached or inside. I then asked him what he meant by "inside" and he explained that it goes through into a jar that you can see on the photograph and he asked to have the photograph from Mr. Kupferschmidt's affidavit produced to him again. Mr. Biss complied and asked him if he could see the mercury thermometer in the photograph and Paroshy said that he could not in that photograph. He said that he did not even attempt to look at the mercury thermometer temperature with Mr. Woodworth's case and, as a matter of fact, he never did so in his duties as an Intoxilyzer technician. Therefore, of course, he was unable to answer Mr. Biss' question about whether or not the two thermometers were calibrated exactly the same way because he had never looked at the two of them. He again explained that he relied on the digital display from the digital thermometer on the simulator that was on the 8000C with which he was conducting his breath tests of Mr. Woodworth. The Court asked him if that was what he was taught to do, that is to say, just rely on the digital display, and he said that that was what he had been taught to do.

Simulator Serial Number Issues

53Mr. Biss then referred P.C. Paroshy to his Alcohol Influence Report and suggested that there was no reference to a serial number for the simulator that he had used on his April 13/14, 2011 investigation of Mr. Woodworth in that document. He then asked the officer if he could inform the Court of the serial number of the simulator that he had used and he immediately provided that serial number as DR5798. Mr. Biss asked him where that number was located in his documents and the officer said it was not in his documents, it was something that he did not put down at the time of the incident, and he said:

A. To be honest with you, when we have the matter on the 12th of April...that was something – a year later comes to mind. Unfortunately in this job that happens. So I wrote it down on my copy of my brief here. I take a copy of, of...I write down...

Q. When did you write that down?

A. I, I've made a, a date here. The 12th of April, 2012...something I wrote down for myself if I was ever asked.

54Mr. Biss, needless to say, was fascinated by that answer and asked the officer if he was telling the Court that one year after the events of April 13/14, 2011 he was telling the Court that he had been able to remember the serial number. The officer said that that was not correct; he was not telling the Court that he never remembered it, he was simply saying he had gone back and got it because he had to get it. Mr. Biss asked him from what source he had obtained the simulator serial number and he said from the simulator "from the time of the offence". Pressed for more detail, Paroshy said, "I went back and located the serial number for the simulator of the date of the offence and just for my knowledge I wrote it down on my brief here". Asked where he had gone, he said, "I, I made sure I went – did research just the day of the offence, that the simulator was changed, et cetera, et cetera. And I located the simulator, sorry, the serial number for that simulator and I noted it here". Asked again where he had obtained that information, he said, "It's the simulator and we had documentation. The person that brought the simulator in. It's just information that I've, that I've have collected".

55Mr. Biss then put a hypothetical question to the officer saying supposing on April 12, 2012 he had gone to Number 3 District and looked at the simulator that was there on April 12, 2012 and noticed that it was serial number DR5798, how would we know that that is the same simulator that had been in the station available to be used by the officer a year earlier with Mr. Woodworth? P.C. Paroshy answered that by saying because he had gone back and spoken to a P.C. Selecky who is one of the officers in charge. I do not know whether he meant in charge of that 3 District or whether he was only in charge of simulators at 3 District. In any event, he went on to say that he had just made sure that the simulator was the same or was not changed. He did not make a note of how he got the information, but he had written down what he found which was indeed that serial number that he has provided to the Court.

56Not surprisingly, Mr. Biss suggested that the obvious way that a person should go and check to see if the simulator had been changed between April of 2011 and April of 2012 would be to go back and look at a maintenance log for the simulator. However, P.C. Paroshy said that there are other ways to figure out which simulator was used at that time besides the maintenance log. As a matter of fact, when he was asked if he knew whether there was a maintenance log for that particular simulator, he said that he could not recall how he obtained the information. Mr. Biss pointed out that this Court had ordered that there be a maintenance log of that simulator disclosed to the defence, but P.C. Paroshy said he still did not know whether there was one in existence or not because that was not part of his own qualifications.

57At this point I asked some questions for clarification because, quite frankly, I said right on the record that I was becoming a little bit confused with this evidence. I asked the officer if the best that he could tell the Court was that he got the information about the serial number of the simulator that he had used with Mr. Woodworth from some source but he could not identify it, and the officer responded by saying, "Well, I, I could tell you today. If you give me a day, I can figure out and give you a whole breakdown of how I got it and I'd probably get the same number. I can...go do that".

58Mr. Biss picked up on this subject then and asked the officer what documents were in existence "out there" that would help to answer the question. P.C. Paroshy said that he could not really answer what documents were in existence because he does not deal with the actual buying and purchasing and setting up of the simulators. However, he offered to follow up with his boss and try to find out who had given him this information. Mr. Biss continued to be querulous and wondered what the source of information would be that the officer was going to try to access. He asked him if it was going to be oral information or something by way of a written document, and P.C. Paroshy responded by saying that when he did it he would provide that information to Mr. Biss and to the Court.

59Finally, Mr. Biss asked him how we could be sure which simulator thermometer was used on that particular occasion and whether there was a serial number for the particular thermometer. He asked the officer if he had any notes on that subject and P.C. Paroshy said that he did not.

60He then told Mr. Biss that he was quite satisfied that the day he was qualified, and I assume that he meant as an Intoxilyzer technician, and the Intoxilyzer 8000C came into the station, that the simulators have all been consistent since that time. He said he did not know how many simulators may have been used since that time, but they were all the same model and all of them had the same two types of thermometers, mercury and digital, and the display that is shown. However, when Mr. Biss asked him if by his answer he meant that there had been one, two or three simulators at 3 District Station, he responded by saying he did not know how many there had been and he did not even know whether there had been more than one. He was asked how many he thought there might have been at 3 District and he said he could not answer that question.

61At this point Mr. Biss conceded that he was at somewhat of a loss to continue this cross-examination into the possible source of the serial number which the officer had testified he obtained and wrote in his notes with respect to the simulator in question and, after conferring with Mr. Apel, the latter told the Court that a joint proposal was going to be made to the Court that the cross-examination be truncated at that point and that the officer would be released to attempt to find the serial number and the document or whatever information he could locate to support his evidence about how he had learned about this serial number. This information would be disclosed to Mr. Biss before the next continuation date, which just happened to be only five days hence on November 7, 2012. The Court agreed with this suggestion and P.C. Paroshy was released from the witness stand in the midst of his cross-examination for that purpose.

Evidence of P.C. Stephen Siomra

62Mr. Apel then suggested, and Mr. Biss agreed, that perhaps the Court could deal with the evidence of another witness while interrupting the cross-examination of P.C. Paroshy. Just before that occurred, on consent of both the Crown and the defence, the Intoxilyzer room video was entered as Exhibit Number 9 which showed the interaction between Constable Paroshy and Mr. Woodworth.

63The Crown and Mr. Biss also mutually consented to have various affidavit materials that had been filed in support of the earlier Charter applications applied to the body of evidence of the trial proper because, as Mr. Biss quite correctly pointed out, he had been cross-examining P.C. Paroshy with the assistance of the contents of some of them anyway. These included the affidavit of Mr. Kupferschmidt and the affidavit of Norbert Bartell, both number one and number two affidavits. It was also mutually agreed that the Centre of Forensic Sciences Training Aid Manual for the Intoxilyzer 8000C would be introduced as Exhibit Number 10 on the trial because it had been certainly utilized in the cross-examination by Mr. Biss of P.C. Paroshy. It therefore became Exhibit Number 10.

64The next witness called by the Crown was P.C. Stephen Siomra. He testified in Chief that he became involved with this investigation at 11:04 p.m. on April 13, 2011 when he was dispatched to assist Constable Allan on a traffic stop. P.C. Allen had requested an approved screening device be brought to his location where he had a vehicle stopped. This vehicle turned out to be the vehicle driven by Mr. Woodworth. P.C. Siomra said that he had an ASD in his possession that he had had with him since the beginning of his shift which had begun at 5:00 p.m.

65He said that he performed a self-test on the ASD and determined that it was working properly. He then delivered it to P.C. Allan at 11:07 p.m. He said that he would have advised P.C. Allan that he had performed the self-test on the unit at the start of his shift.

66He observed P.C. Allan when he conducted several breath tests with the ASD on Mr. Woodworth, approximately four tests in all. Eventually he was told by P.C. Allan that Mr. Woodworth had failed the ASD and he observed him arresting the accused on this charge under s. 253(1)(b). P.C. Siomra then took charge of Mr. Woodworth's motor vehicle and arranged for towing.

67Cross-examination by Mr. Biss was largely concerned with some apparent anomalies in the notes of P.C. Siomra by comparison with some of his evidence in Chief, but these anomalies seemed to be resolved throughout the cross-examination and, in any event, the ultimate issue to be decided by this Court really is not affected by P.C. Siomra's testimony.

68At the conclusion of his testimony, Mr. Woodworth's trial was remanded to November 7, 2012 for continuation beginning with the continuing cross-examination of P.C. Paroshy.

Continuation of Cross-Examination of P.C. Paroshy - November 7, 2012

69On November 7, 2012 Mr. Biss began by asking the officer if he had been able to locate any documentation with respect to the simulator that he testified he had used on Mr. Woodworth's case on April 13 and 14, the Guth 2100, serial number DR5798. The officer said that he had not located any documentation, but, however, he had contacted the officer in charge of traffic services, P.C. Steven Long, who is responsible for the Intoxilyzer and the simulators and the working of them and any maintenance records. However, he said that unfortunately the officer was unable to provide him with any information with respect to the day in question and if he was able to find any information out about that simulator on that day, it would take him up to two weeks. From that answer, Mr. Biss, quite understandably, asked P.C. Paroshy if he would agree that he was saying there was indeed some documentation out there somewhere on this simulator, but Paroshy said that he did not know what P.C. Long had accessible to him. He could not say one way or another whether there was a maintenance log for that particular simulator and he pointed out once again that it is not his responsibility to keep maintenance logs for the simulators.

70Mr. Biss then suggested to him that his testimony was to the effect that he was telling the Court that he does not have any obligation as the qualified technician involved in any particular case to have information available to him from the maintenance log from the simulator and the simulator thermometer that he uses in any particular test. The officer responded, "My obligation is to conduct the tests that are sequenced at the time of the event. Any time there's a maintenance issue, that's not my responsibility so I don't follow up with that". He also agreed that it was not his practice to document a serial number for the particular simulator that he uses on any given breath test. Mr. Biss asked him if he was familiar with a recommendation from the Alcohol Test Committee that there be a maintenance log kept for each approved instrument and each simulator. P.C. Paroshy said that he had no knowledge of that and his training had not ever advised him to consult such a maintenance log. He explained that if there is a problem that he notices with any particular Intoxilyzer or simulator he would forward that problem off to the responsible parties and, in this case, it would be P.C. Steven Long, and he would expect P.C. Long to follow up on it.

71Mr. Biss then asked him if he had any knowledge of the policy of the Halton Regional Police Service when they purchase an Intoxilyzer with respect to whether or not they purchase the simulator that would be attached to that Intoxilyzer at the same time. P.C. Paroshy said he had no such knowledge.

72Mr. Biss then showed him a document that was an excerpt from the Intoxilyzer 8000C maintenance records that he told the Court and the officer he had obtained pursuant to the Freedom of Information Act. Mr. Biss and the officer discussed some of the contents of that document and P.C. Paroshy agreed that it seemed to indicate that there had been an initial set-up of a new Intoxilyzer 8000C and a Guth 2100 simulator with a serial number DR5799 at 3 District police station in Halton on March 11, 2010. The officer said he had no information that that simulator had ever been changed. He agreed that there is nothing on the maintenance record that was being shown to him to suggest that the simulator had ever been moved away from 3 District after March 11, 2010 as far as the record went, which was December 1, 2011.

73Next, Mr. Biss showed him entries on the maintenance record document with respect to a Guth 2100 simulator DR5798 that had been calibrated by Constable Solecki. P.C. Paroshy agreed that he could not see anything in the records that were being shown to him to suggest that that particular simulator was ever moved to Number 3 District.

74Mr. Biss then suggested to the officer that the simulator that he had used with Mr. Woodworth's tests was DR5799 and not DR5798. P.C. Paroshy said he could not confirm one way or the other on that question until he received information from P.C. Long.

Protocol and Monitoring Issues

75Mr. Biss then asked the officer if he normally followed any protocol when conducting breath tests. P.C. Paroshy responded that there is a sheet that he fills out called an Alcohol Influence sheet and a report and that is what he follows. Mr. Biss showed him Exhibit Number 2 and suggested that he was saying that that was the only protocol that he followed and the officer agreed. Mr. Biss suggested that he was testifying that he does not follow any specific set of rules with respect to the steps that he should take before conducting a breath test and also with respect to how the breath test should be conducted. P.C. Paroshy disagreed and said that before the tests he does three quality assurance checks. Asked why he would do those checks, he said that he was trained to do so and he received a manual during his training to that effect. However, he did not have the manual with him in court.

76Mr. Biss then referred to the fact that he had shown the officer an excerpt from an 8000C training manual on November 2nd and that it had been marked as Exhibit Number 10. However, he also repeated that he had undertaken to the Court that he would try to obtain an older copy of that training aid because he realized that P.C. Paroshy had received his training on the instrument in 2009. With that, he produced another manual which was a 2009 edition and P.C. Paroshy agreed when he looked at certain pages of it that they were certainly similar to the pages he had seen on November 2nd in the Exhibit Number 10 manual which was a later edition. He agreed that he had testified on November 2nd that he did not check calibration of the alcohol standard log, but of course he also provided an explanation for that non-action on his part. He agreed that he also testified that he did not comply with the 15-minute observation period of Mr. Woodworth personally, but that he had assumed that someone else was watching Mr. Woodworth during the full 15 minutes or whatever number of the 15 minutes when he was not personally available to be observing Mr. Woodworth.

77However, he did say that he had checked the time and date on the 8000C and made sure they were correct by checking the digital display.

78Mr. Biss then took him through some cross-examination with respect to what the video exhibit revealed to the Court with respect to his actions with the 8000C on the test with Mr. Woodworth. He referred the officer to the requirement in the 2009 manual that before conducting a breath test the operator should ensure that the time and date on the instrument are correct by checking the digital display, and if there is a correction needed, then the keyboard function menu could be used with "Esc" and "C" to correct the date and time.

79He asked the officer if he had done that and P.C. Paroshy said that he had by entering the date and the time. Mr. Biss asked him if we would notice that on the video and P.C. Paroshy said yes, on the actual video itself it was at the beginning when we would be able to see him typing when he would be entering all of the information, including the date and time. Mr. Biss asked him how he would know what date and time to input and he said that the date and time was displayed on the front of the Intoxilyzer on the display screen.

80Mr. Biss then suggested to him that what he had done was to key in the time on the Intoxilyzer to match the time on the Intoxilyzer without undertaking any independent external check to see if the digital display of the time on the Intoxilyzer was consistent with an external timing mechanism. The officer agreed and simply pointed out that there was a clock on the Intoxilyzer with the time on it displayed digitally. After this questioning went around in circles once or twice, the officer finally agreed that there was no clock in the breathalyzer room other than the time display on the Intoxilyzer and he did not use a wristwatch, for example, to check the time displayed by the Intoxilyzer.

81Constable Paroshy agreed with Mr. Biss' suggestion that he was generally satisfied with the times because of his own general sense of time and also that he was quite comfortable with the time read-out on the Intoxilyzer screen. He admitted that he had not made any specific references to his Intoxilyzer training aid while he happened to be conducting the breath tests with Mr. Woodworth. He acknowledged that the 2009 training manual shown to him by Mr. Biss was indeed very similar to what he remembered using when he was trained.

82On consent, Mr. Biss introduced as Exhibit 10A the August 2011 Intoxilyzer 8000C training aid, pages 7-18 to 7-25, and also as Exhibit 10B the 2009 version of the same training aid with the same page references.

83Mr. Biss referred P.C. Paroshy to page 7-18 of the 2009 training aid and the officer agreed with him that that page informs the reader that the 8000C is a fully automated instrument that can be conducted with the push of a button. However, he also agreed that the manual also states that the qualified technician is ultimately responsible for the quality of the breath samples, and he agreed that that would be his responsibility as a technician. When asked by Mr. Biss how he complied with that instruction, P.C. Paroshy said that he conducted three quality assurance checks which were all successfully passed by the instrument.

84Next, the officer agreed that he had shown Mr. Woodworth where on the 8000C unit there was a display that said "suitable sample". He said that the instrument actually asks for a suitable sample to be keyed in and if he, the operator, is satisfied that the sample is suitable, then he enters yes by way of a "Y" into the 8000C computer program. Mr. Biss wondered why he would bother to show that display of suitable sample to Mr. Woodworth and the officer said it is because Woodworth had been insisting that he wanted to see it. He denied that it was because he was confused in any way about the meaning of the display of the words "suitable sample" on the 8000C.

85Next, Mr. Biss referred the officer, with the assistance of the breath room video exhibit being partially played for the officer, to one point where he is seen to be reading from a seal on the unit and saying that the instrument had been calibrated by Constable Wilson on a particular date and time. He suggested to the officer that, to be accurate, the instrument was not really calibrated, but rather the alcohol standard solution had been changed. The officer agreed that the alcohol standard solution is changed and the calibration check is done then, but not an internal tweaking, as Mr. Biss put it, of any interior parts of the 8000C.

86Mr. Biss then returned to the subject matter of the warm-up temperature of 34 degrees for the 8000C as opposed to 34.0 degrees Celsius. He suggested to the officer that he would have expected that the simulator when warmed up would display a temperature of 34 degrees and not specifically 34.0 degrees. P.C. Paroshy disagreed with that suggestion and said that the display and the simulator would both read 34 degrees, but not 34.0.

87Mr. Biss wondered if what we had seen on the video of the officer talking out loud to himself about the various checks that he was doing with the 8000C was a fairly new policy, and P.C. Paroshy said that it was not a policy. It was simply that when he took his testing on the unit in 2009 he was kind of left to learn by himself certain routines back at the station and so, therefore, he talked to other Intoxilyzer technicians who gave him some advice about how they usually go through a number of checkpoints and make a list and check things off. He said that he likes to read it out loud so it gets played on the video for everybody.

Monitoring of Diagnostic Checks

88Mr. Biss then referred the officer to a portion of the video where he appeared to be conducting what is described in the training manual as a stand-alone calibration check on the 8000C and he suggested to him that he was not actually watching the screen of the Intoxilyzer to see what it was displaying during that test. P.C. Paroshy agreed that he was not watching the screen and he also agreed that he was not watching the screen during the second part of that test which is known as the reference check. He also agreed that, with respect to the third recommended item in the training manual about the calibration check, he was not watching what was being displayed on the screen. He gave the same answer with respect to recommendation number four with respect to the air blank test.

89He agreed with Mr. Biss that the only time he had actually looked at the display on the simulator was just before the sequence when he had announced on the video that the temperature was 34 degrees. He agreed that, according to the manual, between steps two and three on the calibration check, he has to enter by the keyboard of the 8000C the temperature that is displayed and he said that he did enter 34 degrees.

90Next, Mr. Biss produced for the officer a photograph which had been entered as Exhibit 7A which depicted a top-down look at a Guth 2100 simulator. He suggested that the photograph depicted the simulator that had been on the 8000C at 3 District with simulator number DR5798. The officer agreed that, to the best of his knowledge, that was a simulator he had used on Mr. Woodworth's tests. Mr. Biss then suggested to P.C. Paroshy that Exhibit 7A shows a cable coming out of the top right corner of the simulator with a plug on it that looks as if it plugs into the Intoxilyzer 8000C and asked if the officer had any idea what that was. P.C. Paroshy answered that it was the connection to the Intoxilyzer from the simulator.

91Mr. Biss then asked him if he had any idea about some kind of electronic temperature connection between the simulator and the Intoxilyzer which would then account for a third temperature sensing device in the use of the 8000C. The officer said he had no training on that particular point.

92Mr. Biss then referred him to another item in the 2009 training manual and asked him if he agreed that item number three on page 7-20 stated that the operator should read the temperature of the alcohol standard solution from the simulator thermometer, and if the simulator is linked to the instrument via an RS232 cable, then the operator should review the temperature as communicated and either accepted or over-written. P.C. Paroshy agreed that he saw that instruction in the manual as it was shown to him by Mr. Biss, but he pointed out that "It was already connected". The point was, said P.C. Paroshy, in his particular case dealing with Mr. Woodworth, he would simply follow the temperature that was displayed on the simulator and be satisfied that the thermometer was working. He said that if he had noticed that it was not connected to the Intoxilyzer, then he would have obviously sought out his training manual and followed whatever direction would be contained with respect to that circumstance.

93Mr. Biss then asked whether he had simply accepted the temperature as displayed on the Intoxilyzer or had he overwritten it. The officer said that he had entered the figure 34 for the temperature because that was what was displayed on the simulator. Even though Mr. Biss wondered why he would do that when the Intoxilyzer and the simulator were linked together by a cable the officer said it was because the 8000C would not allow him to move on in the procedures unless he entered the temperature, and that this was a whole different sequence that was done during a breath test. He pointed out that he entered the temperature during the calibration check.

94Mr. Biss then played another portion of the Exhibit 7 breath room video for the officer and suggested that we could see on that video that the 8000C was sending out a certain number of displayed messages on the screen during the stand-alone diagnostic test that he was conducting, and that when those messages were being displayed, the officer was not paying any attention visually to the Intoxilyzer screen. P.C. Paroshy agreed that he had not paid any attention or reviewed them as they were coming out because they print out immediately thereafter.

95Again, Mr. Biss revisited the area of the 34.0 Celsius versus 34 degrees Celsius subject matter and after suggesting that P.C. Paroshy had testified on November 2nd that the simulator that he was using only displayed 34 as opposed to 34.0 which would be at odds with the simulator that was depicted in Exhibit 7, P.C. Paroshy simply testified that he just reads 34.0 as 34 and that is what he would record. Therefore, he denied that he was giving any discrepant evidence between November 2 and November 7 on that point. For clarification, I asked him if what he was saying was that he does not bother writing the ".0" after 34, but he would write the decimal point and any other additional numbers if the temperature displayed was more than 34.0. Specifically, Mr. Biss asked him if it was a possibility that, in fact, when he was testing Mr. Woodworth what he had seen was 34 and not 34.0 on the simulator that he was using at that time. P.C. Paroshy answered by saying he was sure that he could come to the conclusion that if the simulator said 34.0 or 34, to him it would always mean simply 34. His specific answer after another question by Mr. Biss on the same subject was, "If it reads 34.0, that's what happened on the screen there, then to me it's still 34. The zero has no relevance to me unless it's – there's a number behind it".

96At this point, on consent, Mr. Biss actually made the photograph that he had been showing to P.C. Paroshy of the simulator and the Intoxilyzer Exhibit 7D. If I earlier said that he had been showing him portions of the Exhibit 7 video when asking these questions, I was only partially correct. He was using the video and this new photograph 7D.

97On the subject of exhibits, on consent, a third Intoxilyzer 8000C training aid was entered as Exhibit Number 10C and this was the one from 2009. Also as Exhibit 7E, a photograph of the right-hand side of the Intoxilyzer 8000C used by P.C. Paroshy with Mr. Woodworth was entered. Mr. Biss pointed out that the photograph contained a depiction of the right-hand side of the Intoxilyzer with serial number 80-004843.

Observation During Breath Test Procedures

98Mr. Biss then played another portion of the breath room video, Exhibit 7, and after doing so suggested to the officer that what we had just seen on the video was that he had commenced taking the first breath test from Mr. Woodworth and that the instrument had begun its first air blank test in that procedure while he, the officer, was not visually watching the display on the instrument. As a matter of fact, the video showed us that P.C. Paroshy had momentarily left the breath room entirely. Mr. Biss suggested to him that we could even hear the sound of the pump for the first air blank test on the instrument while the video was being played and P.C. Paroshy agreed. He agreed with both of those suggestions, that he had left the room and that we could hear the pump operating. Mr. Biss then suggested that the video went on to show us that the first air blank was completed and the pump had stopped and that P.C. Paroshy had still not returned to the breath room to observe the instrument, and he agreed.

99The next portion of the video, suggested Mr. Biss, allowed the viewer to hear the beeps coming from the 8000C indicating that he was running its self-diagnostic checks that are part of the standard breath test and that while it was doing so P.C. Paroshy was still absent from the breath room and therefore could not be observing the displays on the instrument. P.C. Paroshy agreed.

100Mr. Biss then played the portion of the video that showed P.C. Paroshy returning to the breath room and suggested that, as he re-entered, the diagnostic checks were still being completed by the 8000C and that he began to interact immediately with Mr. Woodworth and paid no attention to what was being displayed on the 8000C screen with respect to the results of the diagnostic checks. P.C. Paroshy agreed with those suggestions.

101Mr. Biss suggested that the next step that we could see in the video after that was another air blank test being conducted by the 8000C because we could hear the pump right at that point in time when the video was playing, and the officer agreed. He also agreed with Mr. Biss that he did not appear to be paying any attention whatsoever to any displays on the screen at that point in the procedure.

102Mr. Biss then suggested to the officer that what we had all been able to see on the Exhibit 7 breath room video up to that point was the 8000C conducting an air blank test, the self-diagnostic checks that are part of a normal breath test sequence by the 8000C, followed by another air blank test. He then suggested to the officer that what we would likely see next would be a keyboard entry by the officer and a calibration check which are also part of the breath test procedure. P.C. Paroshy agreed that that is what we would expect to see next.

103Next, Mr. Biss asked P.C. Paroshy if he had followed the protocol on page 7-20 of Exhibit 10(b) either from the box at the top or the box at the bottom of that page. The officer said that when he had looked at the screen on the 8000C it showed a temperature of 34 degrees. He then hit the delete button and made sure that it still said 34 on the screen and he then pressed the enter button on the keyboard. He therefore deduced that he had been following the instructions from the top right-hand box of that manual page. Mr. Biss confirmed with him that he was testifying that he followed the protocol with respect to the situation where the simulator is linked to the 8000C via an RS232 cable.

104Mr. Biss then directed the officer's mind to his conduct of the second breath test on Mr. Woodworth. By playing the exhibit DVD portion for the officer again they both agreed that the DVD was showing the Court the 8000C going through its air blank tests, a diagnostic check, and a calibration check for the second breath test, and while it was doing so P.C. Paroshy did not seem to be paying very much visual attention to the display on the 8000C screen. In fact, he agreed that he was preoccupied by talking to Mr. Woodworth while the diagnostic checks were in progress. When Mr. Biss once again, and I must say somewhat repetitiously by this point, suggested to the officer that he had not been paying a lot of visual attention to the screen display on the 8000C or its simulator, the officer responded by saying that he had been listening to the sounds of the instrument and he knows the process of the calibration checks, et cetera, and he was very much aware of what the instrument was doing. As he stated, "I didn't need to stare at it".

105Mr. Biss then suggested that he was telling the Court that he had been relying on the unit being an automatic kind of machine that seems to do the same thing all the time. P.C. Paroshy responded by saying:

Yes and no. I guess I know exactly the sequence it goes through, the sounds it's making, the scenario it does. So for me to stare at it would be with the – with the gentleman in there – it's, well, one, a safety issue, but I don't need to be staring at it. I know what it goes through. I know what, what it prompts and when the errors occur. And if that happens I'll take it up. But everything went smoothly as it did the tests.

106Mr. Biss then asked him for the basis upon which he could give that opinionated answered with respect to the amount of hands-on experience the officer had had with the 8000C, and P.C. Paroshy said that he had done his fair share of tests and he knew what the air blank sounds like. Once again, he repeated that if there was an error during one of the diagnostic or calibration checks, it would all show up on "there". He pointed out that the unit self-generates itself to allow him to know that something went wrong which he would then immediately realize during the conduct of the breath tests. Mr. Biss wanted to be certain of what the officer was saying with respect to his reliance upon the unit and he asked P.C. Paroshy if he was testifying that he would rely on the automatic systems of the Intoxilyzer to tell him if there was any kind of an error. P.C. Paroshy responded by saying, "Yes, it'd be the only way I would know".

Thermometer and Simulator Issues Continued

107Mr. Biss then directed the officer's attention to the two exhibit photographs of simulator DR5798 and suggested once again to him that there appeared to be a yellow object attached to the simulator in each of these two photographs. P.C. Paroshy confirmed that the yellow object in the photographs was "the thermometer going down". Mr. Biss wanted to know to which type of thermometer the officer was referring and asked him specifically if he meant a mercury thermometer, but the officer said that he was not an expert on thermometers. Mr. Biss suggested that to him the object looked like a mercury column that goes up and down in a thermometer.

108At this point in the questioning I intervened and suggested to Mr. Biss that I was not really confident that the officer could answer that type of question definitively in order to tell the Court whether or not what was shown in the photograph was a column of mercury just because it appeared to be such in the opinion of Mr. Biss. Mr. Biss then agreed to suggest directly to the officer that it looked like a mercury thermometer and P.C. Paroshy said, "You can suggest that". Finally, Mr. Biss settled for a suggestion to the officer that those of us looking at the photograph could see that there was more than one thermometer on the simulator and the officer was able to agree with that suggestion.

109After some editorial discussion amongst Mr. Khoorshed, Mr. Biss and the Court about whether or not it would ever be possible to ascertain whether or not there was a mercury thermometer on the particular simulator used by the officer with the tests on Mr. Woodworth, Mr. Biss answered the Court's query about Mr. Kupferschmidt by saying that Mr. Kupferschmidt had been present when he and Mr. Biss had examined the simulator following the Court's granting of Mr. Biss's application at least in part for further disclosure, which included a viewing of the Intoxilyzer 8000C and its room at the Halton Regional Police station. However, when the Court asked if Mr. Kupferschmidt would be called as a witness, Mr. Biss indicated that he may not be calling Mr. Kupferschmidt.

110Once again, after a certain amount of discussion amongst Mr. Khoorshed, Mr. Biss and the Court about another line of questioning concerning the Guth 2100 simulator, Mr. Biss stated to the Court that he thought that someone had put a thermometer similar to a Guth 34C thermometer into a Guth 2100 simulator for some reason. He conceded that he did not know why that would ever happen and he also conceded after the Court suggested that it could be a situation where the simulator itself had been changed to another simulator, that that could have been the case as well. Clearly Mr. Biss was putting forward a theory at this point which even he realized was speculative.

111Mr. Biss finally concluded his cross-examination of P.C. Paroshy by introducing, on consent, the Intoxilyzer 8000C training aid and a diagram attached thereto as Exhibit Number 10(d).

Re-Examination of P.C. Paroshy

112In re-examination by Mr. Khoorshed, P.C. Paroshy said that the sticker that is affixed to the side of the 8000C unit which he used for Mr. Woodworth's tests would indicate that the unit was last certified by Mega-Tech on March 11, 2010. He explained that Mega-Tech was the manufacturer, as far as he knew, of the instrument. The Crown asked him when the manufacturer would have supplied that sticker for the unit and P.C. Paroshy said that he had no idea, but it was already on the unit when it first arrived at the police station to be put into use.

113Mr. Khoorshed then asked the officer if, to his knowledge, there should be a replacement sticker or an updated sticker on the unit to reflect any subsequent certifications done on the 8000C and P.C. Paroshy said not that he was aware and not that he had ever seen. He therefore stated that he would not have expected to see any subsequent sticker on the 8000C to reflect the certification that was done on March 11, 2011.

114Mr. Khoorshed then referred the officer to some of the questions asked by Mr. Biss with respect to his alleged failure to keep Mr. Woodworth under his personal observation for 15 minutes before the first breath test was conducted. He referred the officer to Exhibit 10(b), page 7-19, which contains some of the recommended requirements set out by the manufacturer for the proper operation of the 8000C.

115Mr. Khoorshed referred, first of all, to the requirement to make sure that the subject does not drink, and I presume that means alcoholic beverages, within the 15-minute period before the first test. He asked P.C. Paroshy specifically if prisoners who are in police custody waiting for breath tests are permitted to consume alcohol. Not surprisingly, the officer answered in the negative. He also said that they are searched twice before they are brought into the Intoxilyzer room for the breath tests.

116Mr. Khoorshed then asked the officer if he had conducted an interview of Mr. Woodworth between the two breath tests. He was asked if he had his Alcohol Influence Report handy and he said that he had a photocopy of the original. Mr. Biss informed the Court that the utterances given by Mr. Woodworth on that Alcohol Influence Report were admitted to be voluntary. Mr. Khoorshed then referred to one of the questions on the A.I.R. which was a question as to whether or not Mr. Woodworth had had any alcohol to drink since the time of the incident. P.C. Paroshy confirmed that he had asked Mr. Woodworth that very question and that Mr. Woodworth had answered in the negative. He then stated that he was satisfied that Mr. Woodworth had not been drinking alcoholic beverages in the 15 minutes before the first test.

117Upon the conclusion of the Crown's re-examination I asked the officer a question about the certification sticker on the 8000C in question. I referred the officer to his evidence that he would not have expected to see a replacement or updated sticker in March of 2011. I then referred him to his answers to Mr. Biss in cross-examination which had been to the effect that the whole idea of this sticker was news to him in the first place until he had been shown the photographic exhibit by Mr. Biss. P.C. Paroshy seemed to agree with that suggestion. I then reminded him that I thought that he had testified to the effect that he had never even noticed such a sticker on the unit before it was brought to his attention by Mr. Biss. P.C. Paroshy answered by saying, "No, I – yeah, I don't expect those stickers to be on there, the certificate – we get emails regarding any issues". I then asked him if it was his evidence that he doesn't really recall ever seeing even the March 2010 sticker on the side of the unit and he agreed. Neither counsel had any questions arising out of my questions. Therefore, the evidence of the qualified Intoxilyzer technician, P.C. Erich Paroshy, was finally concluded on this trial.

Crown's Case Closed - Charter Application

118Mr. Khoorshed closed the case for the Crown. At this point Mr. Biss asked the Court for leave to renew an application on behalf of Mr. Woodworth pursuant to s. 7, 11(d) and 24(1) to have these charges stayed.

119In support of this request for leave, Mr. Biss submitted that some of the concerns that Mr. Gerry Kupferschmidt had raised in his affidavit, which had been filed as part of his case about the operation and function of the 8000C, had become live concerns in the trial after hearing the evidence of P.C. Paroshy. Specifically, Mr. Biss submitted that Paroshy's evidence should allow the Court to conclude that he was relying upon the automatic aspect of the systems of the 8000C and was not paying "a lot of attention during the subject tests or the other test to screen messages. He was very much relying on it being an automatic system".

120Assuming that the Court agreed with that submission, Mr. Biss referred to the effect of the Supreme Court of Canada decision in R. v. St-Onge Lamoureux on November 2, 2012 cited as 2012 SCC 57 (CanLII), 2012 S.C.J. No. 57. Specifically, he acknowledged that in order for the Court to rule that the Crown should be deprived of the benefit of the s. 258(1)(c) presumption with respect to the applicability of the breath tests to the alleged time of the offence, the accused must demonstrate that there is some evidence before the Court that should raise a reasonable doubt in the mind of the Court on the subject of whether or not the prerequisites of s. 258(1)(c) regarding the introduction of the breath samples into an approved instrument and the operation of the approved instrument by a qualified technician have been met by the Crown.

121He submitted that the difficulty is that if the defence is expected to call expert evidence, it would have to be an informed expert who could give some evidence about the significance of a qualified technician appearing not to have followed the recommended protocols of the manufacturer of the 8000C while operating it. For reasons which Mr. Biss had been arguing throughout this case and which had been, to some extent, the subject matter of a previous interlocutory ruling by this Court during the trial, he again submitted that the defence is in an untenable position with respect to that onus because no defence expert toxicologist can purchase the 8000C in order to acquire the necessary knowledge and hands-on training to give that evidence.

122At this point I asked Mr. Biss if he was seeking leave of the Court to reserve the right of Mr. Woodworth to elect whether or not to call a defence pending the Court's ruling on this proposed renewed s. 7 and 11(d) stay application. In actual fact, the Court informed Mr. Biss, and I believe that Mr. Biss agreed, that this proposed application was really not a renewal of his previous s. 7 and 11(d) application because the Court had ruled on that application in July of 2012 dealing with the request for further items of disclosure. Mr. Biss seemed to agree and submitted that the time for presenting this proposed s. 7 and 11(d) application was, at this very point in the trial, upon the conclusion of the case for the Crown after hearing the evidence of the qualified Intoxilyzer technician, P.C. Paroshy.

123Mr. Biss conceded that if he called Mr. Kupferschmidt, his private toxicologist, as a witness on this application, he would be able only to provide limited evidence with respect to the Intoxilyzer 8000C and its simulator because he is not allowed to purchase one of the instruments in order to acquire the necessary hands-on training and knowledge with respect to its operation.

124Mr. Khoorshed vigorously opposed the application for leave by Mr. Biss to, in effect, argue an ad hoc s. 7, 11(d) and 24(1) Charter application at this point in the trial based on the evidence of P.C. Paroshy. The Court received some oral submissions from both the Crown and also from Mr. Khoorshed on the merits of the proposed application and at one point at page 12 of the November 7, 2012 transcript of submissions the following exchange occurred:

THE COURT: So your, your argument is, on this point, that the Government of Ontario has decided to contract with the Kentucky manufacturer for 8000C's which, it turns out cannot be sold privately because the Kentucky manufacturer refuses to do so to any independent private toxicologists in Ontario or it could be anywhere for that – let's say, now, in Ontario. That situation creates a breach of section 11(d) with respect to a person charged with an offence of over 80 where the defence is attempting to meet the standards set down by Parliament in section 258(1)(c) to attempt to create a reasonable doubt in the mind of the court about the charge.

MR. BISS: Yes.

THE COURT: Correct?

MR. BISS: That's it.

125Mr. Biss also submitted that in order for the defence to meet its burden under s. 258(1)(c), it would have to call a scientist who has knowledge of the operation of the 8000C and the required protocol of the training manuals and technical support for the 8000C and that witness would then have to consider the evidence of P.C. Paroshy and its significance on the issue of whether or not the 8000C that was used on Mr. Woodworth by P.C. Paroshy was "operated properly". As he stated at one point, "Well, that involves the question of what's proper operation and what's improper operation. It is ultimately going to be a question of what protocol ought to be followed and what protocol was followed". The Court then stated, "And what is the consequence of not following certain aspects of protocol" [meaning, and also], and Mr. Biss agreed by saying, "Right" (see page 17, November 7, 2012 transcript).

126Eventually I granted leave to Mr. Biss to present this ad hoc s. 7, 11(d) and 24(1) Charter application and I asked both counsel to supply written submissions to each other and to the Court. Both counsel agreed to do so and mutually agreeable dates for counsel to exchange their submissions and to eventually provide them to the Court were discussed. I granted leave to Mr. Biss to reserve Mr. Woodworth's right to elect whether or not to call a case for the defence until after I provided my ruling on this Charter application. February 21, 2013 was selected for my ruling.

127As earlier stated, on February 21, 2013 I dismissed this s. 7 and 11(d) Charter application on behalf of Mr. Woodworth by Mr. Biss, but I informed both counsel that my reasons for doing so were still a work in progress with respect to the preparation of them for distribution. At the request of Mr. Biss, I undertook to provide those reasons before April 9, 2013 because that was the next trial continuation date on the calendar for this case.

128After I dismissed the Charter application, Mr. Biss elected not to call any evidence on behalf of Mr. Woodworth in the case for the defence. Specifically, he informed the Court that he would not be calling Mr. Kupferschmidt, his private toxicologist.

129Again, as earlier stated, on April 5, 2013 I sent a memorandum to both counsel which explained that I had been unable to find the time since February 21 to be able to complete a composite set of reasons for my dismissal of the s. 7 and 11(d) Charter application on February 21. However, in that memorandum I informed counsel that I was certainly prepared to provide a summary of my conclusions which had resulted in the dismissal. I then sent to both counsel a seven-page summary of those reasons.

130This case was next revisited on April 9, 2013. At the outset of proceedings on that day, Mr. Biss sought leave to renew his s. 7, 11(d) and 24(1) Charter application on behalf of Mr. Woodworth which I had dismissed on February 21. Mr. Khoorshed vigorously objected to such an ad hoc renewal application on the basis that there was an extremely short service of any notice to do so. I refused leave to Mr. Biss to renew that application, emphasizing that he had made no application to the Court to re-open the trial in order to either present defence evidence or include this application as part of the case for the defence. He had closed the case for the defence on February 21 by electing to call no evidence. I, therefore, declined to rule on the merits of an ad hoc proposed renewed s. 7, 11(d) and 24(1) stay application on April 9, 2013.

131Both counsel then agreed to provide their submissions with respect to the merits of the issues on these two charges. Although the defence had not called evidence, Mr. Biss agreed to present his submissions first in order that Mr. Khoorshed could thoroughly understand the essence of them.

Position of the Defence

132Mr. Biss submits that following the Supreme Court of Canada decision in St-Onge Lamoureux, supra, a person accused of an offence contrary to s. 253(1)(b) of the Criminal Code now, in order to rebut the presumption available to the Crown under s. 258(1)(c) only has to comply with the following requirements:

That evidence of the results of the analyses so made is conclusive proof of the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analysis and if the results of the analyses are different, the lowest of the concentrations determined by the analysis in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly. [Emphasis added]

133Mr. Biss refers the Court to Madam Justice Deschamps' statement in paragraph 58 in St-Onge Lamoureux:

Moreover, it is important to note that, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results.

134Mr. Biss submits that P.C. Paroshy's evidence taken in its totality should cause the Court to conclude that he was not monitoring the functions of the 8000C on the night in question, but, rather, he was simply relying upon the automatic operation of the instrument. Mr. Biss argues that if the Crown is relying upon the 8000C as an automated instrument, the Crown should have called evidence to establish in the case for the Crown that visual monitoring of the 8000C is not required. In support of that submission, he refers the Court to Exhibit 10(b) which is the Intoxilyzer 8000C training aid that was in use by the toxicology section of the Centre of Forensic Sciences in 2009 when P.C. Paroshy was trained. Mr. Biss refers the Court to page 7-18 of that training aid which reads, in part:

How to Conduct a Breath Test Sequence

Definition: The breath test sequence is a complete process for testing the BAC of an individual. Initiated by pushing the green Start Test button, it includes not only the provision of a breath sample by the individual but a series of self-limiting QA checks as well.

Introduction: The Intoxilyzer 8000C is a fully automated instrument that allows for a complete breath test to be conducted at the push of a button. The Qualified Technician; however, is ultimately responsible for the quality of the breath test.

The Qualified Technician must ensure that:

• the instrument is operating properly

• breath samples of suitable quality have been provided.

Thus, while the instrument performs all the steps in a breath test sequence automatically, the Qualified Technician must understand each of the steps and monitor the outcome to ensure that the breath test has occurred properly.

135Mr. Biss relies upon the verb "monitor" in that instruction from the training manual to mean that the qualified Intoxilyzer technician must visually monitor the various functions and results being displayed by the instrument during its self-diagnostic testing and other procedures connected to the administering of breath samples to a subject.

136In the same vein with respect to the Crown's onus throughout to prove beyond a reasonable doubt that P.C. Paroshy was "operating" an approved instrument in the full and extended meaning of that verb as submitted by Mr. Biss, the Court should conclude from P.C. Paroshy's evidence on November 2nd and November 7th, summarized above, that he could not establish exactly what simulator was used on the 8000C which he used to take the breath samples from Mr. Woodworth. In making that submission, he is referring, of course, to the evidence of P.C. Paroshy in cross-examination that seemed to reveal some apparent distinction between serial numbers visible on the simulator that was photographed pursuant to my disclosure order and maintenance log references to the simulator that was supposedly in place on that unit on the day in question.

137Likewise, Mr. Biss refers the Court to Exhibit Number 2, page 7-19, the relevant portion of which states:

Before conducting a breath test on a subject ensure that

1 The alcohol standard solution in the simulator is suitable for use by checking the calibration/alcohol standard log for the instrument and the Certificate of an Analyst. • If necessary, follow the recommended procedure for changing the alcohol standard solution.

2 The time and date on the instrument are correct by checking the digital display • If incorrect, use the keyboard function menu ("Esc Esc E") to correct the date and time

3 The subject has not consumed alcohol, or placed any alcohol-containing substances into their mouth, for 15 minutes prior to the first breath test. It is not necessary for this deprivation period to occur in the presence of the Qualified Technician and may occur while in the custody of another police officer.

Once these preliminary checks are confirmed proceed with the breath test sequence.

138Mr. Biss draws the Court's attention to P.C. Paroshy's evidence wherein he conceded that he did not follow those recommendations to the letter as they are set out in the training manual, at least with respect to making visual observations and visually monitoring.

139In conclusion, Mr. Biss submits that the totality of the evidence before this Court, the majority of which is the evidence of P.C. Paroshy as the qualified technician and operator of the 8000C in Mr. Woodworth's case, should cause the Court to find that there is a reasonable doubt that P.C. Paroshy "operated" the 8000C approved instrument properly on the night in question.

140Therefore, argues Mr. Biss, the Crown loses the benefit of the presumption under s. 258(1)(c) and, since the Crown has not tendered any additional evidence of a toxicological nature to attempt to establish that the blood alcohol readings of Mr. Woodworth at the last time of his driving exceeded the legally permissible level of 80 milligrams of alcohol in 100 millilitres of blood, the Crown has failed to establish beyond a reasonable doubt Mr. Woodworth's guilt on this charge and he should therefore be acquitted.

Position of the Crown

141Mr. Khoorshed submits that the evidence of P.C. Paroshy is the only evidence that the Court has before it of an opinion of anyone who is qualified to operate the 8000C to the effect that the particular instrument in question on the night that it was used by P.C. Paroshy with Mr. Woodworth was operating properly. Mr. Khoorshed argues that since P.C. Paroshy gave evidence that, in his opinion, the 8000C had indeed operated properly and that every diagnostic check that it conducted in accordance with its design specifications showed nothing to the contrary, then the Court should conclude that the totality of the evidence before it has not raised a reasonable doubt on the issue of whether or not the instrument was "operated" properly. Now, since this is the only issue that Mr. Biss was raising on the merits of the case, at this point in his argument the Crown submits that the Court should simply find that the Crown has proven this charge beyond a reasonable doubt.

142Mr. Khoorshed reminds the Court that in my April 5, 2013 memorandum of conclusory reasons for dismissing the former ss. 7 and 11(d) Charter application by Mr. Woodworth I had already stated that the evidence of the manner of operation of the instrument by P.C. Paroshy in and of itself without any toxicological evidence to give an opinion about the possible effect of some or all of those abnormalities on the issue of whether or not the Court should have a reasonable doubt about the reliability of the results of the breath tests was insufficient for that purpose.

143Mr. Khoorshed submits that the verb "operating" cannot mean adherence to every single item of protocol that stems from recommendations by the manufacturer to qualified Intoxilyzer technicians who are operating an 8000C. Once again, argues the Crown, simply identifying some aberrations from the protocol without any toxicological evidence to assist the Court in deciding whether or not those aberrations would have any effect on the proper operation of the instrument and the reliability of its test results cannot raise a reasonable doubt as contemplated by St-Onge Lamoureux, supra, in s. 258(1)(c).

144In conclusion, the Crown submits that it should receive the benefit of the s. 258(1)(c) presumption in this case, and that, therefore, this charge has been proven beyond a reasonable doubt against Mr. Woodworth.

Analysis and Conclusion

145Section 258(1)(c), following the Supreme Court of Canada decision in St-Onge Lamoureux, supra, now reads as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, c. 20, s. 3]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

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

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly,

146Both counsel referred the Court to the decision of Mr. Justice Duncan of the Ontario Court of Justice in October of 2009 of R. v. Powichrowski, [2009] O.J. No. 4424. This decision by Justice Duncan is of some interest both because of the principles which he stated on this issue and also because of the fact that it is referred to with approval by the Supreme Court of Canada in St-Onge Lamoureux, supra. Although Mr. Justice Duncan was dealing primarily with an argument concerning the Constitutional impact of the provisions of Bill C-2 on the so-called Carter defence involving the accused being able to demonstrate evidence to the contrary in order to have the Crown deprived of its s. 258(1)(c) presumption, I find that his comments at paragraph 43 and footnote 13 are apposite to the issue in this case. Mr. Justice Duncan stated at paragraph 43:

The sum of the tests and checks leaves no room for a reasonable doubt to be held, absent some evidence of malfunction or error. In particular, the calibration check answers any concerns about the approval process or the self testing of the machine. It provides an external independent verification that the actual instrument in question was properly functioning immediately before the subject tests. 13 Scenarios posited to undermine the value of this check are highly speculative. The two sample requirement (to say nothing of the internal detectors) answers concerns about transient conditions such as mouth alcohol or radio frequency interference. No credible hypothesis has been suggested whereby an undetectable error could escape detection with all of these checks in place.

147And further at footnote 13:

I am aware that the calibration check is not specified as a condition precedent to the presumption. For that matter neither are any internal checks or the existence of a test record etc. However, I consider all of these items to be imbedded in the specified requirement that the samples be analyzed by an approved instrument operated by a qualified technician, thus incorporating the standards and protocols for testing developed by the scientific advisors, many of which are programmed into the machine. It would be unreasonable to expect Parliament to delineate all of these requirements, many of them changeable or inapplicable to some approved instruments, and require proof of each as conditions precedent to the presumption arising.

148In St-Onge Lamoureux Madam Justice Deschamps states at paragraphs 45, 46 and 47:

45 The scientific data presented at the time of the enactment of the new provisions show that Parliament intended to do more than simply adjust the wording that had been interpreted in Boucher. Apart from the theoretical difficulties involved in assessing the credibility of the accused on the basis of test results that are presumed to be accurate, returning to a Carter defence would make it impossible to meet Parliament's objective. Absent statutory provisions to the effect that the results are to prevail, judges would still be faced with the problem the amendments were actually intended to solve. If the testimony of the accused concerning his or her consumption of alcohol were accepted, it could raise a reasonable doubt about the reliability of the test results despite the fact that it has now been shown that the success rate of this defence is hard to justify in light of the scientific reliability of the instruments. It was appropriate for Parliament to enact provisions that would spare the prosecution the burden of tendering evidence of scientific reliability in every case.

46 I accordingly conclude that requiring evidence aimed at establishing that the instrument malfunctioned or was operated improperly satisfies the minimal impairment test.

47 What remains to be determined is whether the advantages of this requirement outweigh its disadvantages. For this, it is necessary to examine the consequences of the measure. The limits that flow from the requirement have a significant effect on the defences available to the accused, as it is now more difficult to rebut the presumptions. The evidence to be adduced is more complex. The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. However, it should be borne in mind that the Carter defence also required the accused to retain an expert.

149At paragraph 52, Madam Justice Deschamps provided an example of the type of evidence that would be insufficient to raise a reasonable doubt about the operation or functioning of the 8000C. She stated, in part:

The facts of Crosthwait provide a good illustration of this. In that case, the accused had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of the solution before making the analyses. The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results.

150And further at paragraph 53, Madam Justice Deschamps states:

Thus, it is necessary to proceed on the basis that the accused must not simply show that a deficiency is possible, but raise a real doubt that the instrument was functioning or operated properly. In short, if Parliament's objective was to eliminate frivolous cases, that objective would be achieved through the assessment of the evidence by the trier of fact.

151At paragraph 58, Madam Justice Deschamps states:

Moreover, it is important to note that, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results.

152Just by way of reference, Madam Justice Deschamps, of course, speaking for the majority of the Supreme Court of Canada in St-Onge Lamoureux, supra, concluded that the second and third requirements of s. 258(1)(c) could not be justified on a Constitutional analysis. Therefore, the only requirement that remains under s. 258(1)(c) as a burden for a person who is accused of a charge under s. 253(1)(b) is to be able to demonstrate that there is some evidence in the totality of the body of evidence on the trial to show that the approved Intoxilyzer instrument malfunctioned or was operated improperly.

153Ultimately, I reserved my decision to June 17/13.

Conclusion

154I totally agree with Mr. Biss that his cross-examination of P.C. Paroshy and indeed even the evidence that is available to the Court from the videotaped activities of P.C. Paroshy in the Intoxilyzer room with Mr. Woodworth and the 8000C have both established that P.C. Paroshy did not conform to the letter of the recommendations of the manufacturer contained in the exhibit training manuals that have been introduced in this case. Indeed, on many of the points raised in cross-examination P.C. Paroshy had no disagreement.

155However, with respect to whether or not P.C. Paroshy's procedures were in conformity and compliance with the recommendations of the manufacturer contained in Exhibit 10(b) at page 7-18 as argued by Mr. Biss, of understanding each of the steps and monitoring the outcome of the tests to ensure that the breath tests had occurred properly, I have absolutely no evidence before this Court of what type of monitoring would be considered to be sufficient, either by a qualified toxicologist trained on the 8000C or by a representative of the manufacturer.

156In other words, it may be that P.C. Paroshy's evidence that he, through his training, has become familiar with the sounds made by the instrument when it is going through its internal diagnostics properly is sufficient to qualify as monitoring as opposed to constantly visually monitoring the display screen of the 8000C as Mr. Biss seemed to be suggesting he should do. Quite frankly, I really do not know because I was not given the benefit of any qualified toxicological evidence to assist me in assessing the relative importance of P.C. Paroshy's procedures with respect to the essential test under s. 258(1)(c) of deciding whether or not the evidence would be capable of raising a reasonable doubt in my mind that the instrument was "operated properly".

157I respectfully disagree with Mr. Biss that the Crown has an onus to affirmatively call evidence during its case to establish that visual monitoring specifically is required of the qualified intoxilyzer technician in order to comply with the manufacturer's instruction that the technician must monitor the 8000C during its operation.

158I make the same comments with respect to the evidence that seems in some ways to be slightly anomalous with respect to the possibility of a change of simulator on the 8000C either before or after Mr. Woodworth's tests and whatever anomalous evidence there was with respect to the maintenance logs of the one particular simulator that P.C. Paroshy believed was attached to the 8000C which he was using on the night in question. Without scientific evidence to assist this Court, I do not see how I could be asked to give a lay opinion of the importance of that evidence on the essential task of assessing whether or not the evidence is capable of raising a reasonable doubt about the proper operation of the 8000C or a possible malfunction on the night in question with Mr. Woodworth.

159In conclusion, I quote from my memorandum of reasons for dismissal of the former s. 7 and 11(d) Charter application on February 21, 2013 as contained in my April 5, 2013 memorandum of reasons which has been filed with the court. At page 5, I stated:

By electing not to call any toxicological evidence at all in this case, I find that the Defendant/Applicant has left the Court in the position of having some curiosity and perhaps even suspicion about some of the procedures of P.C. Paroshy that were exposed in the cross-examination of him by Mr. Biss, but without any concrete scientific evidentiary nexus to the issue of whether or not those peculiarities ought to raise a reasonable doubt in the mind of the Court about whether the Intoxilyzer 8000C used by P.C. Paroshy on Mr. Woodworth was malfunctioning at the time or was operated improperly to such an extent that the Court ought to find that there is a reasonable doubt about the reliability of the breath results obtained.

160For all of these reasons, I find that I have no evidence upon which I can rely to conclude that I should have a reasonable doubt that the approved 8000C Intoxilyzer instrument used by P.C. Paroshy on the breath tests of Mr. Woodworth was either malfunctioning or not being operated properly.

161I therefore find that the Crown is entitled to the benefit of the presumption of s. 258(1)(c) and, accordingly, I find that the Crown has satisfied this Court beyond a reasonable doubt that it has proven this charge contrary to s. 253(1)(b) against Mr. Woodworth. For those reasons, I found him guilty of this charge on June 17, 2013 and these are my written reasons for doing so.

162Mr. Woodworth was sentenced on June 17 to a fine of $1,100.00 and a one-year driving prohibition.

Released: July 23, 2013

Signed: "Justice F.L. FORSYTH"