minicounsel

Ontario Court of Justice

Date: 2019-04-15

Court File No.: Niagara Region 998 18 F1037

Between:

Her Majesty the Queen

— And —

Melissa Does

Before: Justice J. De Filippis

Heard on: April 9, 2019

Reasons for Ruling released on: April 15, 2019

Counsel:

Mr. H. Limheng — counsel for the Crown
Mr. B. Starkman — for the defendant

Introduction

1The defendant is on trial on a charge of operating a motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). The defendant challenges the admissibility of the evidence because of alleged Charter violations. I agreed with the suggestion by the parties that the trial proceed by way of a blended hearing. The defendant did not call evidence. At the conclusion of the Crown's case, the defendant raised an issue with respect to recent amendments to the relevant Criminal Code provisions. If the Defence argument successful, the prosecution must fail. I agreed with the further suggestion by the parties that I rule on this issue before submissions on the Charter. Accordingly, the summary that follows does not include the evidence that pertains to the Charter motions.

2Defence counsel relies on a decision that he successfully obtained in R v Flores-Vigil, 2019 ONCJ 192. In that case, my colleague, Justice Parry, held that the Crown could not rely on the presumption of accuracy in an Over 80 case that came within the transitional rules established by recent amendments to the Criminal Code. Consequently, the charge in that case was dismissed. The present case is also governed by those transitional rules.

3I have carefully read the decision by Justice Parry. Respectfully, I cannot agree with him. These reasons explain why.

Relevant Evidence

4On March 17, 2018 at 8:50 pm the defendant arrived at the primary inspection booth at the Peace Bridge in Fort Erie, Ontario. She was the driver of a motor vehicle, with New York plates, that contained several passengers. Her attire might be seen as representing St. Patrick's Day festivities. The defendant told Border Security Officer McNulty that she had made a wrong turn and did not intend to cross into Canada. The officer saw an open beer can in the back seat and noted that the passengers were belligerent and appeared to be intoxicated. He detected the strong odour of alcohol emanating from the defendant's breath.

5BSO McNulty is also designated as a peace officer. He subjected the defendant to an approved screening device demand. She failed the test and was arrested for the present offence. She was taken to a nearby police station to comply with a breath demand.

6Police Constable Choy is the officer who administered the breath tests. It is conceded that he is a qualified intoxilyzer technician and that he used an approved instrument to seize and analyze the two samples of the defendant's breath. The officer testified that the machine was in proper working order. He has almost 10 years' experience in conducting breath tests.

7PC Choy produced the Test Record Card for the Intoxilyzer 8000C that sets out the results of its diagnostic and calibration tests. He also produced and explained the Certificate of a Qualified Technician that he prepared. His testimony, and these documents, show the following: Before the first breath sample was seized, the instrument began with an air blank test, the result of which was zero. The device performed a calibration check and this indicated that the standard alcohol solution had a concentration of 97 mg of alcohol in 100 ml of blood. The defendant provided a sample of her breath and the result was 193 mg of alcohol in 100 ml of blood. Before the second breath sample was seized the instrument performed another air blank and calibration test, which yielded results of zero and 98 respectively. The defendant's second breath sample revealed a blood alcohol level of 187. PC Choy accepted the suggestion by Defence counsel that the calibration test is based on an alcohol standard (solution) set at 100 mg of alcohol in 100 ml of solution, give or take 10%. He also agreed that he did not test the solution himself but relies on a Certificate of an Analyst. He added that the instrument in this case contained a solution that had been certified as suitable for use by the Centre for Forensic Science.

The Decision in Flores-Vigil

8The testimony of the technician in Flores-Vigil is similar to the evidence before me. In dealing with the applicable law, Justice Parry commented as follows:

Absent a statutory presumption, the crown would be faced with a daunting task in establishing that an Intoxilyzer device was indeed capable of measuring what it purported to measure at the particular time and in the particular circumstances of any given measurement. The statutory presumption, which envisions the employment of a calibration procedure as an assurance of accuracy, provides a statutory shortcut while safeguarding the truth seeking function of the trial.

To prove that the Intoxilyzer 8000C used by Constable Grieve accurately measured Mr. Flores-Vigil's breath, the Crown must rely upon a new provision of the criminal code that did not exist at the time Mr. Flores-Vigil provided his breath sample.

On December 18, 2018, pursuant to Bill C-46, Part VIII.1 [Offences Relating to Conveyances] of the Criminal Code came into force. Starting on December 18, 2018, these new provisions repeal and replace the driving offences that previously existed in the Criminal Code. Mr. Flores-Vigil's conduct occurred prior to December 18, 2018, so his conduct must be judged against the criminal laws that existed at the time…. Having said that, Bill C-46 contains transitional provisions…..One of these transitional provisions applies to Mr. Flores-Vigil's charge. Section 32(2) of the transitional provisions indicates that the presumption of accuracy contained in the new section 320.31(1) of the Criminal Code applies to breath samples that were obtained before December 18, 2018. Thus, the presumption of accuracy that existed when Mr. Flores-Vigil provided his breath sample is replaced by this new section 320.31(1).

Section 320.31(1) provides as follows:

320.31 (1) If samples of a person's breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same - or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person's blood alcohol concentration at the time when the analyses were made - if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

As can be seen, this sub-section dictates that numerous pre-conditions must be met before the presumption can be triggered in a criminal trial. Only one of them is at issue in the case before me, namely, whether the Crown has established the performance of a system calibration check before each sample"the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst."

The alcohol standard's usefulness in a calibration procedure depends entirely upon it containing a known concentration of alcohol, which explains Parliament inserting the requirement that the alcohol standard be "certified by an analyst". Calibration by definition requires the use of a known standard, whose value is not in dispute. Certification provides the necessary assurance of the concentration of the standard against which the device will be tested. In this context, the phrase "target value" must refer to the known/actual concentration of alcohol in the alcohol standard, as established through the certification of an analyst. The device's accuracy is only established when the calibration test provides a result that is sufficiently close to this target value. Parliament has thus indicated that successful calibration, within the meaning ordinarily assigned to that term, is a fundamental precondition to the existence of a presumption of accuracy. Read in its ordinary and grammatical sense, in the context of the provision as a whole, and with the obvious intent of parliament, the phrase in question clearly contemplates a process by which the accuracy of a measuring device can be assured by commanding that device to test an alcohol standard that contains a known concentration, so as to ascertain whether or not the device accurately measures the known sample. Certification of that known sample – the alcohol standard – provides the necessary assurance of the known sample's true alcohol concentration. This is the only way to rationally interpret the application and purpose of section 320.31(1).

9Justice Parry explained why he rejected two submissions by the Crown; namely, that the term "target value" means the concentration of the alcohol solution expected by the breath technician and that the court can infer the content of the alcohol solution because of the training of that technician. He continued as follows:

The Crown further argues that Constable Grieve offered proof that the alcohol standard was certified by an analyst when she testified about her observations of the contents of the Certificate of Analyst. In making this submission the Crown purports to proffer evidence a piece of documentary hearsay, without even tendering the document itself and without establishing that any exception to the hearsay rule permits the Crown to prove the truth of the contents of the document. This the Crown cannot do.

On the evidence before me, the Crown has failed to establish the concentration of the alcohol standard used in this case and has also failed to establish that the alcohol standard was certified by an analyst. I therefore conclude that the Crown cannot rely upon the presumption of accuracy found in section 320.31(1) of the Code.

Without the availability of the presumption of accuracy, I have no evidence before me capable of establishing beyond a reasonable doubt the accuracy of the Intoxilyzer 8000C used to measure Mr. Flores-Vigil's breath. Therefore, the tests results cannot establish beyond a reasonable doubt Mr. Flores-Vigil's blood alcohol content at the time he provided his breath samples. As a result, Mr. Flores-Vigil must be acquitted.

Analysis

10The amendments in question require that the Crown prove the concentration of the alcohol standard used in the approved instrument. The legislation specifies that the calibration check be within 10% of the known standard. This is the target value of the calibration test results. PC Choy testified that he was confident these requirements were met because the Certificate on the approved instrument verified that the solution was suitable and he knows from training and experience that this means it is at 100 mg of alcohol in 100 ml of solution. Moreover, the calibration tests he conducted, confirmed it was within 10% of that target (i.e. 97 and 98).

11Defence counsel points out that for charges arising after the amendments in question, proof of the pre-conditions can be satisfied by filing of a (new) Certificate of Qualified Technician. In this case, PC Choy used the Certificate drafted in accordance with the previous legislation. Defence counsel claims that to succeed in the transitional cases the Crown must produce the analyst who certified the alcohol standard.

12I pressed counsel to explain why I cannot rely on viva voce evidence in the transitional case. By way of example, and to highlight the danger in accepting the impugned evidence in this case, counsel pointed out that PC Choy merely observed that the Certificate came from the Centre of Forensic Science and did not particularize that an analyst at that institution had prepared it. Counsel asked rhetorically"what if it was the janitor [who certified the alcohol standard]?"

13The Defence insists that even if it is clear the alcohol standard was certified by the appropriate person, the declaration in the Certificate that the sample is suitable cannot be relied upon through the testimony of PC Choy. In debating this point, I put the following hypothetical to counsel: Assume legislation required that an element of an offence is that the distance between A and B is five feet and ten inches. Assume that a witness testified that she ascertained that precise distance by using a measuring tape purchased at Costco. I then asked, by analogy, doesn't your argument mean that the Crown must also prove that the inches marked on the measuring tape conform to the universal standard. To this question, Defence counsel answered"yes".

14Defence counsel is driven to these submissions because there is no evidence to suggest the document is not authentic and/or properly interpreted. So, I am to entertain the possibility that a Certificate of an Analyst issued from the Centre of Forensic Science was prepared by a janitor and that its declaration of suitability of the alcohol standard cannot be relied upon by a qualified intoxilyzer technician without further confirmation. To give effect to these submissions would mean the triumph of speculation over reason.

15I repeat that there is no dispute about the integrity of the instrument used in this case or the expertise of the technician who operated it. PC Choy's testimony that he saw the relevant Certificate and his interpretation of it was not undermined by cross-examination or contradicted by other evidence. It is clear and compelling. It should not be defeated by conjecture.

16In R v Harding, [1994] O.J. No. 410, the Court of Appeal for Ontario allowed a Crown appeal in an Over 80 case in which the trial judge acquitted because the breathalyzer technician performed the required tests but did not check that the alcohol standard used was identified as suitable by reference to the certificate that came with the ampoules containing the alcohol standard. In allowing the Crown appeal, the court quoted from one of its earlier decisions as follows:

….in my view, the learned trial Judge was in error in holding that the suitability of the substance or solution for use in an approved instrument had to be proved as part of the Crown's case before the accused could be found guilty of the offence charged. In my view subs. (1)(e) is merely an evidentiary subsection providing the Crown with the means by which to rebut any evidence that the substance or solution was unsuitable. I am of opinion that it is sufficient for the Crown, in order to prove the commission of the offence, merely to bring the accused within subs. (1)(a) and to file the certificate under subs. (1)(f) or prove the three enacted requirements of subs. (1)(c) by viva voce evidence.

Parliament created a new offence, the actus reus of which includes the prohibited blood-alcohol concentration; it set out a workable procedure to prove it. With great respect, it is not for the courts to defeat the laudable social purpose of the legislation, i.e., keeping off the roads people whose blood-alcohol proportion may exceed the prescribed limit, by adding, as part of the required proof of an offence, the necessity of an analysis of the solution in every case. I am required to "approach the matter by considering what is the mischief aimed at by this Act" …. and to avoid reading into the section technical requirements which do not flow from the language used by Parliament.

17PC Choy's testimony about the existence of a Certificate and what it means addresses the presumption of accuracy. In the absence of a credible challenge to this evidence, it constitutes proof of the pre-conditions set out in the legislation. In this regard, I adopt the comments of another colleague, Justice Bourque in R v Kotlyar, 2013 ONCJ 353:

In our case, the technician of many years experience testified that he obtained the information about the suitability of the sample from the information put into the device by the officer who calibrated it, by the information on the solution bottle, and perhaps from a notice which was attached to the wall of the breath room. He did not put into his notes the date of the expiry of the solution. He did state that he performed his regular duties and he was satisfied that the standard solution was suitable for taking the breath test. He stated that if the standard solution had an expired date upon it, then he would not have performed the breath test with that standard solution. He also testified that he was generally satisfied with the operation of the Intoxilyzer 8000C.

The defence argues that because he cannot state definitively (and the Crown cannot then prove) the date of the expiry of the sample, then a pre-condition in 258 (c) has not been met.

All of the existing case law, R. v. Harding and cases citing it, R. v. Corbett, indicates that such a requirement is not necessary and that the technician is the judge of the suitability of the alcohol standard, and his or her statement as to the suitability of the standard is sufficient proof of that issue.

The question is, does the new provisions in section 258(1)(c) (Bill C-2) change this and is there a requirement that the Crown prove that the sample was suitable beyond a reasonable doubt. I cannot see anything in the wording of 258(1)(c) that would require this exercise. In fact, as long as the instrument is approved and is being operated by a qualified technician, then without some evidence tending to show a malfunction or that the machine was being operated improperly, the presumption remains. The fact that the technician did not put into his notes the date of the expiry of the standard solution, does not, in my opinion, constitute evidence of improper operation of the machine. My thoughts in this matter may be different if there was some evidence led that the standard solution had actually expired, but I do not have to decide that.

18These two decisions pre-date the amendments in question. I cite them because they remain pertinent to issues of statutory interpretation and proof of facts. They reflect an approach that avoids undue technicalities and promotes common sense. It is an approach that was recently confirmed by the Court of Appeal for Ontario in R. v. Stipo, [2019] O.J. No. 28. The court held that all issues of statutory interpretation involve the fundamental question of what Parliament intended and that resolving this question requires consideration "of the words of the provision, informed by its history, context and purpose". The court also noted that "Parliament does not intend to produce absurd consequences. Absurdity occurs if the interpretation….defeats the purpose of the statute or renders some aspect of it pointless or futile".

Conclusion

19I decline to follow the ruling in R v Flores-Vigil. The Defence argument is rejected. The Crown has the benefit of the presumption of accuracy. The trial will proceed with submissions on the Charter motion.

Released: April 15, 2019

Signed: Justice J. De Filippis

[1] Defence counsel also noted that the alleged difficulties faced by the Crown in the transitional case can be overcome if the new Certificate is tendered as evidence.

R v Does, 2019 ONCJ 233

Case Summary

Introduction

Relevant Evidence