Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Austin Ciccaglione
Before: Justice P.H.M. Agro
Heard on: December 5th, 2017
Reasons for Judgment released on: December 14th, 2017
Counsel
Mr. J. Levy — counsel for the Crown
Ms. K. Hepburn — for the defendant Austin Ciccaglione
Judgment
[1] Charge and Plea
Austin Ciccaglione entered a plea of not guilty to operating a motor vehicle with a blood alcohol level over the legal limit contrary to section 253(1)(b) of the Criminal Code of Canada.
The Facts
2On August 8th, 2016, the arresting officer, Jason Ridgway of the Ontario Provincial Police responded to a dispatch call to intercept a suspected impaired driver on the westbound Queen Elizabeth Highway headed toward Niagara.
3He made a traffic stop of a red Ford pickup operated by the accused after it had cleared the Niagara bound lanes of Skyway bridge in Hamilton. He observed the accused's eyes as glassy, his speech slightly slurred and the odour of an alcoholic beverage from his breath. Suspecting that Ciccaglione had alcohol in his body while operating that pick up, Officer Ridgway made the demand for a breath sample into an approved screening device.
4The accused failed the ASD test and with his added admission to the consumption of alcohol before driving, Officer Ridgway formed the reasonable grounds for Ciccaglione's arrest for impaired driving.
5After rights to counsel and caution, Officer Ridgway made the breath demand and transported the accused to the OPP station on the North Shore Boulevard in Burlington for an Intoxilyzer breath analysis.
6After exercising his right to counsel, Ciccaglione was turned over to the breath technician.
7The analysis resulted in readings of 123 mgs and 110 mgs in 100 mls of blood, respectively.
8None of these facts are in issue and there is no argument about the regularity or timing of the process to this point.
The Issue
9The issue arises out of the testimony of Officer Greg Valovich, the certified breath technician, and that is whether the Crown has proven that "each sample was received from the accused directly into an approved container or into an approved instrument" as required by ss. 258(1)(c)(iii).
10The Crown was unable to rely on the Certificate of Analysis as prepared by Officer Valovich for the presumption of identity as he had neglected to fill in the blood alcohol readings on the certificate that was served on the accused.
11Pursuant to ss. 258(1)(g) a properly prepared and signed certificate of analysis carries within it all of the requirements of ss. 258(1)(c) and from that flows the presumption that the blood alcohol content of an accused at the time of the occurrence and the time of the analysis are the same.
The Facts on the Issue
12The Crown did tender through Officer Valovich a copy of the Intoxilyzer print out, signed and certified by him and argues that that document, supplemented by the testimony of Officer Valovich, forms a sufficient factual basis from which I can infer the requirement that Ciccaglione provided a breath sample directly into an approved container or instrument.
13That print out, exhibit 1, details these facts:
- that the alcohol analyzer was an Intoxilyzer Model 8000C, an approved instrument,
- that the instrument was operating on the date of the alleged offence at 3:13:31 hours in Burlington,
- that Valovich was the operator of the instrument,
- that Austin Ciccaglione was the subject of the testing,
- that Officer Ridgway was the arresting officer,
- that the occurrence date and time was August 8, 2016 at 2:44,
- that the instrument passed two diagnostic tests prior to the first reading from the subject,
- that the first reading from the subject was 123 at 3:38:16,
- that the instrument passed two diagnostic tests prior to the second reading from the subject,
- that the second reading from the subject was 110 at 4:02:50,
- that the Alcohol Standard was manufactured by CALWAVE,
- that the standard was last changed on August 5, 2016, three days before the testing of the subject.
14This evidence was supplemented with testimony from Officer Valovich that the two readings of 123 and 110 represented 123 milligrams of alcohol and 110 milligrams of alcohol in 100 millilitres of blood respectively.
15By operation of ss. 258(1)(f.1) this evidence satisfies the requirement of ss. 258(1)(c)(ii) and (iv) but not ss. 258(1)(c)(iii). The Crown argued that this evidence, in light of ss. 258(1)(f.1), was sufficient to invoke the presumption of identity under ss. 258(1)(c).
16It is the defence position that while the print out establishes the facts set out therein for the purposes of ss. 258(1)(c)(ii) and (iv), the totality of Officer Valovich's testimony did not address the requirement of ss. 258(1)(c)(iii).
Applicable Law
17The elements to be proven by the Crown may be established by certificate of analysis, oral testimony, or through inference from other evidence, or some combination thereof, but they are not matters that may be judicially noticed: R v Maloney, [2009] O.J. No. 4581 (Ont. C.A.) citing with approval R v Alatyppo, [1983] O.J. No. 55. R v McNamara, [2014] O.J. No. 5593 (O.C.J.) and R v Li, [2017] O.J. No. 2953 (O.C.J.).
18I have carefully reviewed the testimony of Officer Valovich. He did not testify about the process involved in obtaining either of the samples from Ciccaglione, nor the instruction given to him for that purpose. Nor did he state that Ciccaglione blew a sample of his breath into the approved instrument or the mouthpiece of the approved instrument, or directly into such instrument, to obtain the test result recorded in exhibit 1.
19Officer Valovich made no reference whatsoever to the process in obtaining samples from the accused referring only to his having conducted a "first test" and a "second test" and the results therefrom.
20The Crown argues that, despite such direct testimony, because Officer Valovich is a qualified breath technician who made the appropriate demand for a suitable sample into an approved instrument, combined with the operation of ss. 258(1)(f.1), I can reasonably infer that the accused's breath went directly into the approved instrument.
21I disagree. In this case I am left only with speculation about how Ciccaglione's breath sample got into the Intoxilyzer 8000C.
22The cases are clear that there must be some evidence upon which I might reasonably draw the inference that the accused provided a sample of his breath directly into the approved instrument.
Conclusion
23For these reasons I find the Crown has not proven the required precondition in ss. 258(1)(c)(iii) beyond a reasonable doubt and cannot rely on the presumption of identity. There being no evidence to establish the accused's blood alcohol level at the time of driving, the charge against Ciccaglione is dismissed.
Released: December 14th, 2017