Court File and Parties

Court File No.: 109075 Date: 2013-04-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Phillip Michael Coffey

Before: Justice Douglas B. Maund

Heard on: March 11, 2011, June 1st, 2011, May 30, 2012 and February 25, 2013

Reasons for Judgment released on: April 10, 2013

Counsel:

• Marie Balogh, for the Crown
• F. S. Fedorson, for the accused Phillip Michael Coffey

Judgment

Maund, J.:

Introduction

[1] The accused before the court, Phillip Michael Coffey stands charged that on or about the 20th day of August, 2010, at the Town of Mono, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood he operated a motor vehicle contrary to Section 253(1)(b) of the Criminal Code.

[2] There has been considerable delay as this charge proceeded to trial and final argument on February 25th last. The essential case for the Crown was conceded by agreed facts which were put before the Court on June 1st, 2011. On May 30th, 2012 the Defence evidence was heard, including viva voce evidence from Mr. Coffey and his spouse. The Court also received the evidence of a toxicologist called on behalf of Mr. Coffey, Ismail Moftah, as well as an agreed statement of Dr. Felix Klajner in the form of an unsworn affidavit. Also on May 30th, 2012 the Crown submitted the report of a toxicologist from the Centre of Forensic Sciences, Mr. Jean-Paul Palmentier, who also testified.

[3] The delay from the commencement of this trial on June 1st, 2011 was waived by the Defence as this matter proceeded in the expectation that the Supreme Court of Canada would provide guidance to trial Courts in relation to issues arising from the amendments to the drink driving sections of the Criminal Code in effect July, 2008. The decision of the Supreme Court of Canada in R. v. St. Onge-Lamourex 2012 SCC 57, released November 2, 2012 substantially clarified the issues which were to be argued in this matter. In the result, the issues to be determined in this Judgment are relatively narrow and, inevitably, driven by factual assessments.

The Facts

[4] As part of the agreed statement of facts, the case for the Crown was that on August 20, 2010 at approximately 11:00 p.m., Constable McGuire was conducting a RIDE program at the intersection of Hockley Road and Third Line in the Town of Mono. A Saab motor vehicle operated by Mr. Coffey was intercepted at that location. P.C. McGuire detected the smell of alcohol on the breath of the driver. As a result of that and also Mr. Coffey mentioning that he had previously consumed three glasses of wine, the officer formed the requisite suspicion and read a demand for an approved screening device test. Mr. Coffey complied with the test and registered a 'fail'. On those grounds, he was then arrested by the officer for the Over 80 offence before the Court.

[5] Subsequently the accused was transported to the Dufferin O.P.P. detachment where two intoxilyzer tests were conducted. The results were 161 and 166 milligrams percent respectively at 12:41 and 1:03 a.m.

[6] The DVD of the interview with Mr. Coffey in the breath room was submitted as Exhibit '1(a)' and the transcript was Exhibit '1(b)'. The accused was entirely cooperative and appeared to be very forthcoming with the officer in their discussion. No voluntariness issues arose at trial. In the course of the interview, Mr. Coffey indicated that he suffered from acid reflux disease for which he took a drug called nexium. However, he said that he did not take nexium on that day for his symptoms. Mr. Coffey repeatedly indicated that he was surprised by the fail result. He could not believe that he had blown over the legal limit and expressed surprise at various points during his interview.

[7] As to his prior consumption at the wedding he had attended that evening, Mr. Coffey indicated that he had consumed two or three drinks of wine over a period of two to three hours. He did not think that there was any possibility that he had consumed more than that estimate. Mr. Coffey also told the officer that he takes corosolic acid and green tea pills to help his digestion. His height was given at 5'11½" and his weight was in the range of 163 to 164 pounds.

[8] As I indicated, Mrs. June Coffey testified on May 30, 2012. She and her husband attended the wedding at the Hockley Valley Resort from around 6:00 p.m. on the day in question. She confirmed that she had been with her husband during the day and that he had consumed no alcohol before they arrived at the wedding. Mrs. Coffey testified that her spouse consumed no alcohol during the reception and did not consume any alcohol before 7:30 p.m. when the dinner started. The witness said that she and Mr. Coffey were the only ones sharing a bottle of white wine provided on the table during the dinner which continued until they left the wedding at approximately 10:55 p.m. She said that she consumed only one glass, which she believed was probably five ounces, and her husband consumed three glasses. She clarified that her husband consumed the remaining bottle of white wine in those three glasses, less the amount that she personally consumed. Mrs. Coffey also was clear that the accused did not consume alcohol from the open bar during the entire period that she was with him at the wedding.

[9] Phillip Coffey gave evidence on his own behalf in this trial. His stated height and weight conformed with his indication to the officer on the date of the breath room interview. Mr. Coffey testified that he suffers from acid reflux which he described as a condition which results in the release of acids from his stomach into his esophageal organs and into his throat and mouth.

[10] According to Mr. Coffey, he was not taking nexium on that day to deal with these symptoms. On the day of the wedding he said he had nothing to drink prior to his arrival during the day and nothing before dinner started at approximately 7:30 p.m. At dinner, wine was provided and he poured his wife and himself glasses from a bottle of white wine that was on the table. The wine was an Italian Sauvignon Blanc, 11% alcohol by volume with a total amount in the bottle of 750 ml. In total, Mr. Coffey testified that he consumed three glasses of wine and no more. He started his last consumption at approximately 10:00 p.m. and he finished this just before he left. He also indicated that he had eaten a large meal at the wedding which included salad, pasta and a beef entrée. While this evidence was not explicit, I took from his evidence generally that a large meal of this nature exacerbates his digestion and the resulting acid reflux issues.

[11] It was pointed out to Mr. Coffey on cross-examination that while he mentioned his acid reflux condition during his interview with the breath tech, he did not complain of experiencing any symptoms that night. He said that he had been extremely nervous and also that he has lived with, that is to say become used to, the symptoms of acid reflux for years. In any event, Mr. Coffey disagreed with the suggestion by the Crown that he was not suffering from symptoms of acid reflux in the breath room that morning. His evidence of the amount of his consumption was firm and he also reiterated that he was not offered, nor did he consume, alcohol from any other sources at the wedding.

[12] Finally on re-examination, the accused expanded upon his evidence about the acid reflux symptoms he had been experiencing. He said that what had been regurgitated was a substance like bile, which he also referred to as acid, and he had learned to live with the effects of this coming up into his mouth. That was the reason he failed to mention it to the officer. Mr. Coffey said that what he referred to as bile was coming up into his throat in the breath room. He always tried to swallow it when that occurred. As to whether these symptoms would be something that another person might observe, Mr. Coffey said that they would not unless so severe that he would feel the need to vomit. And he added that he has generally experienced these symptoms of acid reflux on a daily basis.

[13] The agreed statement of facts concerning the medical evidence of Dr. Felix Klajner was filed as exhibit '3'. The medical evidence confirms that Mr. Coffey is a patient of Dr. Klajner who first diagnosed him with GERD (gastroesophageal reflux disease) in June of 2006. He described this condition as one where stomach acid is regurgitated up into the oesophagus and then into the mouth cavity. Dr. Klajner said that Mr. Coffey's condition was confirmed as moderate/severe by testing conducted in June, 2008. He also confirmed that, at the date of the offence, Mr. Coffey had been prescribed 40 mgs per day of nexium which is a potent drug to treat GERD. Dr. Klajner indicated that in the event that Mr. Coffey was not taking his prescribed drug and had alcohol in his stomach, "even a small amount of alcohol could be forced into his oesophagus and into his oral pharynx." Those were the circumstances described by Mr. Coffey in his evidence, as well as the fact that he had consumed a large meal at the wedding earlier in the evening.

Expert Evidence - Defence Toxicologist

[14] Mr. Ismail Moftah was qualified as an expert toxicologist and testified on behalf of the Defence. Mr. Moftah's extensive and well-known curriculum vitae was filed as Exhibit '4'.

[15] Mr. Moftah testified that, on the basis of Mr. Coffey's weight and other personal factors, in the event that he consumed twenty-one ounces of wine (that is, all of the bottle except for the five ounces said to have been consumed by Mrs. Coffey), his highest blood alcohol content at the lowest rate of alcohol elimination at the time of the offence would have been no greater than 66 milligrams percent.

[16] Mr. Moftah testified about the potential impact of acid reflux symptoms on the test results at the relevant time. He indicated that if Mr. Coffey had consumed a large meal up to approximately 10:30 p.m., he believed he would still have food in his stomach which had yet to be digested. At the times of the tests of 12:41 a.m. and 1:03 a.m. respectively, the toxicologist believed that Mr. Coffey still could have had some amount of alcohol in his stomach and small intestine. His premise was also based upon the consumption of part of the last drink until approximately five minutes before being stopped. That is, immediately before leaving the wedding. Mr. Moftah's conclusion was that if symptoms of acid reflux occurred under those conditions, regurgitated alcohol into Mr. Coffey's mouth could have given a false high reading in both tests. His opinion that potential alcohol was still present in the stomach at the time of the tests was based on his information that the last drink was up to about 10:55 p.m. and that recent consumption of food would delay absorption of the alcohol. Mr. Moftah's opinion was that the potential presence of mouth alcohol could have a dramatic effect and could produce abnormally high and false readings. In relation to the critical issue of the two relatively close readings in agreement of 161 and 166 milligrams percent, Mr. Moftah's evidence was that having two such similar readings both affected by acid reflux was a "scientific possibility". However, Mr. Moftah was unable to estimate the precise variability of those circumstances. As to the slope detector in the intoxilyzer 8000C, which is designed to detect mouth alcohol, the toxicologist indicated that in his opinion, the slope detector was the least reliable function on the machine and its operation that evening could not be established.

[17] On cross-examination Mr. Moftah calculated that, assuming that the test results were accurate, the subject would have had to consume at least forty-four ounces of wine to produce the results. That is with the lowest potential rate of elimination. He also confirmed that, from his review of the test records provided, the Intoxilyzer appeared to be in proper working order.

[18] And finally, Mr. Moftah agreed with the Crown that for the symptoms of GERD to have an effect on the test results, there would have to be some amount of alcohol remaining in the stomach and also active regurgitation. With respect to the suggestion by the Crown that the close agreement between the two test readings was unlikely, Mr. Moftah found the two readings in this scenario to be within what he referred to as "an acceptable analytical variability". I took this response to be that he did not find the similarity of the two readings to have increased the improbability of mouth alcohol creating false readings on both tests.

Expert Evidence - Crown Toxicologist

[19] The report of Jean-Paul Palmentier dated December 20, 2011 was filed as Exhibit '5'. Mr. Palmentier is a forensic scientist and toxicologist with the Centre of Forensic Sciences. In his report Mr. Palmentier concluded as follows:

"For GERD to have an effect on the Intoxilyzer 8000C alcohol result, the following conditions would have to be present:

(1) Alcohol in the stomach must be regurgitated into the oral cavity;

(2) The breath sample must be provided while alcohol is still present in the oral cavity;

(3) The Intoxilyzer 8000C slope detector which is capable of detecting residual mouth alcohol must not be activated; and

(4) Regurgitation must occur during each of the two breath tests for an individual to cause falsely high positive results on both breath tests to the same extent."

[20] Mr. Palmentier's conclusion was as follows: "in my opinion it would be very difficult to satisfy the four conditions outlined and obtain two readings in good agreement (161 and 166 milligrams in 100 millilitres) twenty-two minutes apart." In his viva voce evidence, Mr. Palmentier said that he found that the two intoxilyzer tests were in "excellent agreement". In a situation where there was potential mouth alcohol, he believed and said he would expect that one reading would be significantly higher or at least not in such good agreement with the other reading. And further, this toxicologist stated that, on the facts of prior consumption as he understood them, he did not expect that there would still be alcohol remaining in the stomach of Mr. Coffey at the time of the intoxilyzer tests.

[21] As to the proposition that regurgitation of alcohol from the stomach could have produced both breath tests in good agreement, Mr. Palmentier testified that he believed that this was "possible but more than likely to be impossible." While he conceded that it was possible for the slope detector to fail to detect mouth alcohol as it is designed to do, he believed it was unlikely to have failed during both tests. He said that if the software which monitors the device including the slope detector had detected the presence of any mouth alcohol, it would effectively have not allowed the testing to proceed.

[22] On cross-examination, Mr. Palmentier conceded that it was possible that there was some amount of alcohol in Mr. Coffey's stomach at the time of the tests. He conceded that he did not know how fast the subject's stomach would empty and any alcohol be absorbed. However, Mr. Palmentier reiterated that he still did not expect alcohol would still be present in the stomach at the time of the tests. And, Mr. Palmentier believed that his original opinion in his report that mouth alcohol produced by acid reflux resulting in two such readings in good agreement being "very difficult to satisfy" is consistent with his evidence at trial that the circumstances would be "next to impossible to produce."

Analysis

[23] As I have already noted, this analysis will be determined by the facts. The case for the Crown was conceded by the Defence. And, much of the essential evidence relied upon by the Defence was not contested.

[24] It has been established that Mr. Coffey has been suffering from acid reflux with symptoms which have been known to be severe and recurring. And, the evidence is clear that, on the evening of the tests, he consumed a large meal along with a quantity of alcohol. In addition, he was not taking nexium, a prescribed drug which can lessen the symptoms of GERD. I also find that both the accused and Mrs. Coffey gave clear and credible evidence as to his degree of and duration of alcohol consumption on that evening. Apart from the traditional Carter analysis in relation to such evidence, the pattern of his consumption was one of the factors cited by Mr. Moftah which lead to his conclusion that there was some amount of alcohol remaining in Mr. Coffey's stomach at the time of the tests.

[25] R. v. St. Onge-Lamourex upheld the first of the three amendments in section 258(1)(c) of the Criminal Code. An accused who raises a defence such as this one is now obliged to raise a reasonable doubt that the instrument was not functioning or operating properly. The Supreme Court of Canada made it clear in paragraph 78 of R. v. St. Onge-Lamourex that there is no limitation on the type of evidence which might be open to an accused to raise such a doubt. As the Court states explicitly in paragraph 78: ".... he or she might argue that health problems had affected the functioning of the instrument." Evidence capable of raising such a reasonable doubt must be accepted by the Court in the sense that it meets normal evidentiary standards. But such evidence need not rise to a standard of scientific probability or certainty.

[26] The evidence of both toxicologists agreed that four conditions must be present to establish that the instrument was not functioning in these circumstances. What must be established is:

1. Alcohol must be present in the stomach capable of being regurgitated;

2. The alcohol must be regurgitated into the mouth and still present at the time of both breath tests;

3. The slope detector on the instrument which is capable of detecting the presence of mouth alcohol must not be functioning during both tests; and,

4. The mouth alcohol present in the oral cavity during both tests must be capable of producing two tests in good agreement.

[27] The two toxicologists came to different conclusions on the evidence. They disagreed firstly that alcohol might still be present in the stomach of Mr. Coffey at the time of the tests. Mr. Palmentier conceded that he lacked information about the rate of potential absorption of the alcohol. In that regard, Mr. Moftah cited the potential for food delaying absorption of the alcohol and the late consumption in coming to his conclusion. Mr. Moftah's opinion or theory as to the presence of stomach alcohol appears to be supported by the facts.

[28] The experts also disagreed about the likelihood of the slope detector not functioning during both tests. Mr. Palmentier indicated that the software which monitors the instrument would shut down the procedure if the slope detector found a presence of mouth alcohol. I understand that there is no way of confirming whether the slope detector was operating properly. While Mr. Moftah testified that the test records recorded no apparent malfunction, he also indicated that, in his opinion, the slope detector is the least reliable mechanism in the intoxilyzer 8000C.

[29] And finally, there was the conflicting evidence between the two experts concerning the likelihood that mouth alcohol could have been present during both tests twenty-two minutes apart which produced similar high readings. Mr. Moftah did not find such a possibility improbable or as he referred to it, it was "an acceptable analytical variability."

[30] Mr. Palmentier first stated in his report that satisfying all four conditions would be "very difficult". On the potential for the tests being in such good agreement in this scenario, he testified that he believed this was "possible but more than likely impossible". Neither toxicologist was able to be more precise than that in their evidence.

[31] What is critical in this analysis is whether the Court accepts the Defendant's evidence that he was experiencing active symptoms of acid reflux during his time in the breath room and, in particular, at the time of both tests. While Mr. Coffey told the officer about his condition, he did not complain that he was tasting bile in his mouth at the time. His explanation was that those symptoms have become so common, he has learned to live with them. And he indicated that they are not something that might be visible to other people unless he was experiencing actual nausea to the point where he might need to vomit.

[32] I find that I accept Mr. Coffey's evidence that he was actually experiencing acid reflux symptoms during the breath tests. I found his evidence credible and he was unshaken in cross-examination. Having come to this conclusion, I find that it has been established that there was a real possibility that some alcohol may have been in Mr. Coffey's oral cavity when the tests were taken. There was therefore a real potential for false readings from the instrument.

[33] I am unable to reconcile the different opinions of the two experts as to the probable similarity of the potential false readings. The evidence of Mr. Palmentier did not, and as I understood it could not, completely rule out this possibility. And in relation to the proper functioning of the slope detector during the tests, there was no scientific evidence in support of either theory. Rather the two toxicologists testified as to their knowledge of this function in the instrument generally.

[34] In my view, the Defence need not establish the four factors necessary to impugn the proper functioning of the instrument to a degree of a scientific probability or certainty. What is necessary is to establish a realistic scientific possibility. A reasonable doubt must be raised on the basis of credible evidence tending to show that the instrument was malfunctioning. I find that the evidence before me has established such a reasonable doubt as required by section 258(1)(c)(iv) of the Criminal Code.

[35] The balance of the analysis can be described as a traditional "Carter" inquiry. As I have found that the defence evidence as to the level and pattern of consumption and the other supporting factors was credible and corroborated, Mr. Moftah's opinion put Mr. Coffey's BAC below the legal limit, that is at 66 mgs percent at the time of the offence.

[36] Having come to this conclusion, guilt has not been established. The charge against Mr. Coffey shall be dismissed.

Released: April 10th, 2013

Justice Douglas B. Maund