Court File and Parties
Court: Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Rodney Fulkerson
Before: Justice P.T. O'Marra
Heard on: April 15 and 16, 2019
Reasons for Judgment released on: May 17, 2019
Counsel
Erin Norman — counsel for the Crown
Mark Hogan — counsel for the defendant Rodney Fulkerson
Judgment
Introduction
1On November 12, 2017, the defendant was charged that he operated his motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). The defendant initially raised several Charter violations alleging that the defendant's rights under sections 7, 8, and 9 were violated. I agreed that the trial proceed by way of a blended voir dire. The defendant did not call any evidence on the voir dire or the trial proper. At the close of the Crown's case, the defence abandoned the challenge that the defendant's rights under sections 7 and 9 were violated, however, the defendant maintained that the arresting officer infringed on his right to be secure against an unreasonable search and seizure, contrary to section 8 of the Charter. The defendant seeks an order pursuant to section 24(2) of the Charter to exclude from the trial the evidence gathered including the breath readings. If I dismiss the Charter Application, in the alternative, the defendant argues that the Crown should be precluded from relying on the presumption of accuracy that comes within the transitional rules of the recent amendments to the Criminal Code of Canada.
The Evidence
2On November 12, 2017, at 2:17 pm, Constable Alszegi initiated a traffic stop of the defendant's car as a result of the defendant proceeding through a red light, after making a left hand turn from Battleford Road onto Winston Churchill Boulevard, in City of Mississauga.
3Constable Alszegi advised the defendant that he had ran a red light. The constable asked for the defendant's driver's licence, insurance and ownership. The defendant produced his insurance and ownership. The defendant became argumentative with Constable Alszegi, and insisted that he entered the intersection on an amber light. The defendant eventually provided his driver's licence to Constable Alszegi.
4During the conversation through the driver's side open window, Constable Alszegi detected a strong odour of alcohol on the defendant's breath. Constable Alszegi asked the defendant if he had consumed any alcohol. The defendant responded"no" and that he had "nothing to drink or eat since last night". Constable Alszegi testified that he did not ask any further questions regarding the defendant's consumption of alcohol. In cross examination, he testified that he believed the defendant's answer. However, solely based on the strong odour of alcohol from defendant's breath, Constable Alszegi felt that he have a reasonable suspicion that the defendant had alcohol in his body when he operated his car. At 2:20 pm, Constable Alszegi had the defendant exit his car and the Constable demanded that he provide a sample of his breath into the approved screening device ("ASD").
5At 2:26 pm, the defendant provided a sample of his breath in the "ASD" and registered a fail.
6At 2:27 pm, Constable Alszegi arrested the defendant for "over 80".
7At 2:30 pm, Constable Alszegi read to the defendant his rights to counsel, caution and made a formal breath demand.
8At 2:48 pm, Constable Alszegi transported the defendant to 11 Division.
9At 3:03 pm, they arrived at 11 Division.
10At 3:04 pm, the defendant was placed in the cells.
11At 3:12 pm, Constable Alszegi left a voice mail message for duty counsel.
12At 3:33 pm, Constable Alszegi left a second voice mail message for duty counsel.
13At 3:47 pm, duty counsel called back.
14At 3:48 pm, the defendant commenced his conversation with duty counsel in a private room.
15At 4:01 pm, Constable Alszegi transferred custody of the defendant to Constable Peach, the Qualified Breath Technician.
16Constable Alszegi testified that the odour of alcohol on the defendant's breath never dissipated and remained constant throughout his dealings with the defendant.
17Constable Alszegi testified that when he administered the ASD he noticed that the defendant's cheeks were flushed. Constable Alszegi attributed the state of the defendant's cheeks to the fact that he was flustered and upset over the traffic stop. Constable Alszegi testified that the red cheeks did not enter into the calculus of forming a reasonable suspicion. I am satisfied, and accept, that Constable Alszegi's reasonable suspicion was entirely based on the strong odour of the alcohol on the defendant's breath.
18Constable Peach has been a Qualified Breath Technician for approximately six (6) years. She administered the breath tests. Her qualifications were conceded. She testified that the Intoxilyzer 8000C was in proper working order. She confirmed that she used an approved instrument to seize and analyze the samples of the defendant's breath.
19Constable Peach produced the Test Card Record #5094-17-02006 for the Intoxilyzer Alcohol Analyzer Model 8000C that sets out a record of the diagnostic and calibration tests that were conducted. Constable Peach also identified the Certificate of a Qualified Technician that she prepared.
20Constable Peach testified that at 2:57 pm she arrived in the breath testing room at 11 Division. She testified that she took the Intoxilyzer out of ready mode and did the following:
(1) At 3:06 pm, she conducted a self-breath test that registered zero.
(2) At 3:08 pm, the Intoxilyzer completed a diagnostic test that passed.
(3) At 3:09 pm, the Intoxilyzer completed an air blank test that registered zero.
(4) At 3:10 pm, the Intoxilyzer performed a calibration check and which indicated that the standard solution was 101 mg of alcohol in 100 ml of blood when heated to 34 degrees.
(5) At 3:12 pm, the defendant provided his first sample of breath directly into the Intoxilyzer and the result was 160 mg of alcohol in 100 ml of blood.
(6) At 3:30 pm, the Intoxilyzer performed another air blank test that registered zero.
(7) At 3:32 pm, the Intoxilyzer performed another calibration check which indicated 101 mg of alcohol in 100 ml of blood.
(8) At 3:33 pm, the Intoxilyzer performed two more air blank which registered zero and passed a final diagnostic test.
(9) At 3:34 pm, the defendant provided his second sample of breath directly into the Intoxilyzer and the result was 162 mg of alcohol in 100 ml of blood.
21Constable Peach testified that she was satisfied that the calibration test result of 101 mg of alcohol, or the "target value", was within the acceptable range of 90 to 100 mg of alcohol. Constable Peach testified if the calibration test fell below or went above the acceptable range, the instrument will emit an audible message or a signal and will not function.
22Constable Peach testified that she understood the "target value" to be 100 mg of alcohol. It was her belief that the instrument in this case contained an alcohol standard solution that had been certified by the Centre of Forensic Science (CFS) as suitable for use. She also observed that the solution was manufactured by Laboratoire Atlas Inc. and that the alcohol standard lot number was 75IH. When Constable Peach was cross-examined on her knowledge regarding the alcohol percentage in the alcohol standard solution, she testified that it was written on the bottle and that she has been told that it was 100 mg of alcohol. However, later in cross examination she conceded that could not be certain if "100 mg" was written on the bottle. She conceded that there was nothing on the Certificate of Analyst from the CFS that indicated or certified the alcohol content in the solution, beyond that the solution had been analyzed, approved and suitable for use.
23Although the Crown relies on the presumption of accuracy, the Crown called a toxicologist, Ms. Chow from the CFS, in order to read back the breath samples to the time of driving, 2:17 pm. This evidence was largely unchallenged by the defence. Ms. Chow testified and wrote the following in her report: Based on her review of the Intoxilyzer 8000C test records the calibration of the instrument was checked and therefore the instrument in this case appeared to be in proper working order. Furthermore, when a qualified technician operates the instrument properly, it provides reliable readings of the Blood Alcohol Concentration (BAC) at the time of testing. Ms. Chow was asked to calculate the defendant's projected BAC at approximately 2:17 pm, the time of driving. The calculations were based on the following four (4) presumptions:
(1) A rate of elimination of alcohol from the blood ranging from 10-20 mg of alcohol in 100 ml of blood.
(2) A plateau of up to two (2) hours.
(3) There was no consumption of a large quantity of alcohol within 15 minutes prior to 2:17 pm.
(4) There was no consumption of alcohol after 2:17 pm and before the breath tests.
24The defence did not challenge the four assumptions that Ms. Chow relied upon. In fact, the Crown led positive evidence that there was no bolus drinking before or after the time of driving.
25Ms. Chow projected that the defendant's BAC at approximately 2:17 pm, was 160 to 195 mg of alcohol in 100 ml of blood.
The Charter Application: Section 8
26Section 8 of the Charter states that everyone has the right to be secure against an unreasonable search or seizure.
27In the case here, the defence argues that Constable Alszegi lacked the requisite grounds to form a reasonable suspicion that the defendant had alcohol in his body at the time of driving and accordingly illegally administered the ASD and illegally seized his breath. The ASD failure was the only basis on which Constable Alszegi based his arrest of the defendant for over 80 and made the demand for the samples into the Intoxilyzer. Consequently, the defendant submits that Constable Peach illegally administered the Intoxilyzer and unlawfully seized two breath samples from the defendant.
28Section 254(2)(b) of the Criminal Code, at that time stated (pre Bill C-46, Part VIII.1 [Offences Relation to Conveyances] that came into force December 18, 2018) that an officer may make an ASD demand, so long as the officer has a reasonable suspicion that a person has alcohol in their body and was operating, or had care or control of, a motor vehicle. Reasonable suspicion has a relatively low threshold. There is binding authority that indicates that the smell of alcohol alone on a driver's breath meets this threshold. (See: R. v. Carson, 2009 ONCA 157; R. v. Butchko, 2004 SKCA 159; R. v. Lindsay; R. v. Schouten, 2016 ONCA 872; and R. v. Shauch, [2007] A.J. No. 142 (Q.B.)).
29Candidly, Constable Alszegi testified that he suspected that the defendant had alcohol in his body after he observed him operate his car at 2:17 pm. I accept his evidence that the smell of alcohol was strong and did not dissipated. I found Constable Alszegi a credible witness. I find that both subjectively and objectively that Constable Alszegi believed that the defendant operated his car while having alcohol in his body.
30The case of R. v. Czerniawski, [2016] O.J. No. 4360, provided by counsel, is distinguishable on the basis that the arresting officer failed to properly articulate in his evidence "that he formed a reasonable suspicion that Mr. Czerniawski was driving a motor vehicle with alcohol in his body" (See: para. 105). In the case here, Constable Alszegi clearly articulated his belief.
31The fail on the ASD and Constable Alszegi's observations were sufficient grounds to arrest the defendant for the offence of over 80. Therefore, the defendant's section 8 Charter right was not breached by Constable Peach taking the defendant's breath samples. The application is dismissed.
Can the Crown Rely on the Presumption of Accuracy in an Over 80 Case that Comes Within the Transitional Rules Established by Bill C-46?
The Law
32Section 32(1) of the transitional rules indicates that the presumption of accuracy contained in section 320.31(1) of the Code applies to breath samples that were obtained before December 18, 2018. The presumption of accuracy that existed when the defendant's breath samples were taken has been replaced by section 320.31(1) which provides the following:
(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.
Analysis
33There are recent conflicting decisions from the Ontario Court of Justice on this issue. Justice Parry released his decision in R. v. Flores-Vigil, 2019 ONCJ 193 on April 2, 2019 and found that the Crown failed to establish the concentration of the alcohol standard used and also failed to establish that the alcohol standard was certified by an analyst, as required under section 320.31(1) of the Code. On the other hand, after a thorough review of the ratio in Flores-Vigil, Justice De Filippis in R. v. Does, 2019 ONCJ 233 and Justice Rose in R. v. Porchetta, [2019] O.J. No. 1985, (and recently on May 14, 2019 my brother Kenkel, J. released R. v. McRae, 2019 ONCJ 310), rejected the same argument and found that the Crown could rely on the presumption of accuracy. Justice Wakefield's oral decision in R. v. Baboolall, (unreported dated March 5, 2019) held that notwithstanding the Certificate of Analyst from the CFS, did not specify the information required under section 320.31(1) and was not made an exhibit, the breath technician's "standard practice was, and is, to confirm the lot number with the certificate of analysis posted on the breath room door and all that information in each case would be information that a breath technician would endorse on a new certificate form, which might be considered hearsay- relying upon the CFS certificate of analysis- but is now admissible pursuant to the new regime had a new form certificate been used".
34Subsection (a) is at issue in the case that is before me. I am mindful that the issue in this case and others is a factual one and does not turn on a point of law. The defendant submits that the Crown has failed to establish beyond a reasonable doubt that before both samples were obtained, the "system calibration check the result of which is within 10% of the target value of an alcohol standard that was [is] certified by an analyst."
35As in the case here, the testimony and the argument advanced in the other cases is similar, if not the same. Essentially, the defendant argues that for six (6) months leading up to the effective date of the transitional provisions becoming law, the Crown had this period of time to remedy or correct the older Certificates of a Qualified Breath Technician and issue new Certificates that would satisfy the preconditions under section 320.31(1) of the Code. Therefore, since the Crown relied on the Certificate of a Qualified Breath Technician that predated the amendments, the Crown should have produced the Analyst that certified the alcohol standard or an affidavit from the Analyst.
36I am persuaded by, and adopt the reasoning in the Does, Porchetta and McRae decisions. As in the case here, there was no attack on the operation of the Intoxilyzer 8000C. Constable Peach's qualifications as a Qualified Breath Technician were conceded. Constable Peach repeatedly testified that after the diagnostic and calibration checks she was satisfied that the instrument was in proper working order.
37Although the Certificate of Analyst from the CFS was not entered into evidence by the Crown, Constable Peach was satisfied that the instrument was in proper working order by using the alcohol standard that was deemed suitable for calibrating and testing of the instrument. Constable Peach based her belief on the following: Her past experience; her familiarity of the existence of a Certificate that stated that the solution was certified until September 2019; the information concerning the alcohol standard solution that was posted on the wall of the breath room; her belief that she had observed the alcohol standard solution bottle label that had written on it "100 mg" and that she identified and wrote both the manufacturer and the alcohol standard lot number as "Laboratoire Atlas Inc. 75IH" on the Certificate of a Qualified Technician.
38Constable Peach was satisfied that after two calibration checks, the results of 101 mg generated on both occasions were within 10% of the target value of the alcohol standard solution, which she believed was 100 mg. Furthermore, Constable Peach was satisfied that the instrument was in proper working order since the result of the calibration check fell between 90 and 110 mg which was in accordance with her training.
39I decline to follow Justice Parry's reasoning in the Flores-Vigil case but rather adopt the reasoning in the Does, Porchetta and McRae decisions. Justice De Filippis stated at paragraphs 16 to 18 the following:
[16] In R. v. Harding, 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.
[17] PC 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.
[18] These 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 (and referred to in the Flores-Vigil case). 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".
40Parliament's approach to the reduction, if not the elimination, of undue technicalities and the promotion of a common sense approach to "over 80" prosecutions, is set out in the preamble of Bill C-46 given Royal Assent on June 21, 2018 as follows:
"…it is important to simplify the law relating to the proof of blood alcohol concentration;
Conclusion
41I find that the Crown can rely on the presumption of accuracy. I also find that the first sample was provided within the two hour window. Nevertheless, I also accept Ms. Chow's "read back" of the defendant's projected BAC as being between 160 mg and 195 mg of alcohol in 100 ml of blood. Therefore, the defendant is guilty of the offence of "over 80" and a conviction is registered.
Released: May 17, 2019
Signed: Justice P.T. O'Marra