Court File and Parties

Ontario Court of Justice

Date: 2014-01-29

Court File No.: Walkerton 13-46

Between:

Her Majesty the Queen

— and —

Michael Rush

Before: Justice Brophy

Heard on: 21 November 2013

Reasons for Judgment released on: 29 January 2014

Counsel:

• Melody Martin, counsel for the Crown
• Brian Starkman, counsel for the defendant Michael Rush

BROPHY J.:

INTRODUCTION

[1] Michael Rush has been charged with an offence under section 253(1)(b) of the Criminal Code of Canada. It is alleged that on the 20th day of January 2013 he operated a motor vehicle while his blood alcohol concentration exceeded 80 mg alcohol in 100 mL of blood.

[2] Mr. Rush was stopped by the police just east of Walkerton as a result of some minor driving issues, and after an admission of alcohol consumption, together with an odour of an alcoholic beverage on his breath, he was asked to provide a sample into an approved screening device which resulted in a fail. He was then arrested for the over 80 offence and transported to Hanover for breath tests.

ISSUES

[3] The issues in this case are twofold.

[4] The first issue arises out of the evidence of the arresting officer and relates to the words he used in making the breath demand. He asked the accused to provide a sample of his breath, using the singular of the word sample. Section 254(3) which allows the demand to be made calls for samples in the plural. The defence argues that having made a demand for a single sample, the accused was not required to provide multiple samples. The fact that he did provide those multiple samples is an error and because the demand was for one sample only and that is all the Crown can rely on and consequently the presumptions in section 258 do not apply and the case fails in the absence of other evidence.

[5] The second argument is that a calibration check at the beginning of the Intoxilyzer breath testing process showed a reading that was below or outside the approved tolerance. Notwithstanding that there were subsequent calibration tests that showed a result inside the allowable limits, the defence says that this initial defect showed that the machine was either malfunctioning or that by proceeding there was an operator error. That having been said, the defence argues that the crown cannot then rely upon the presumptions in section 258 of the Criminal Code and the case must fail.

FACTS

[6] The facts are as follows.

[7] In the early morning hours of July 20, 2013, Officer Andrew Werle on general patrol observed a motor vehicle being operated by the accused at 1:34 AM. He noted that the motor vehicle swerved abruptly and crossed over the center yellow line on at least two occasions. He decided to make a traffic stop and did so at 1:40 AM. He spoke to Mr. Rush who admitted consuming one pint of beer at the Queen's Bush Pub in Hanover. Officer Werle also noted an odour of an alcoholic beverage on Mr. Rush's breath. As a result Officer Werle at 1:45 AM, made a demand for a sample of Mr. Rush's breath to be provided into an approved screening device. Officer Werle had with him an Alcotest 7410 GLC approved screening device. The device was warmed up and tested by Officer Werle who demonstrated its use to Mr. Rush. At 1:47 AM Mr. Rush provided a suitable sample and the test result was an F or fail. At 1:48 AM Mr. Rush was arrested for the offence of operating a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood.

[8] At 1:48 AM rights to counsel were read.

[9] At 1:49 AM the breath demand was read. The breath demand was read from the standard card issued to Ontario Provincial Police officers. In Officer Werle's evidence he read into the record what he understood to be the demand from the card. However, it is clear that his evidence, and this was checked by both the Crown and defence counsel when the record was played back, was that he said he demanded a breath sample. He did not use the plural of sample, that is to say samples. As a result, on a restrictive interpretation, he made a demand for one breath sample.

[10] A transcript of the evidence of Officer Werle indicates that his words were:

A. I read the breath demand which states:

I demand that you provide a suitable sample of your breath into an approved screening instrument to enable an analysis to me made to determine concentration, if any, of alcohol in your blood and that you accompany me for the purpose, [and that you accompany for the purpose]. Do you understand?

And I waited for a reply.

[11] Officer Werle advised his communication centre that he had a person under arrest and needed a breath technician. He then waited for a second police officer to arrive to deal with the automobile of Mr. Rush and also to arrange for the appropriate tow.

[12] At 2:02 AM officer Werle together with Mr. Rush left for Hanover. While en route he was momentarily delayed by another motor vehicle accident at 2:09 AM and was able to clear that scene by 2:14 AM and then arrived in Hanover at 2:18 AM.

[13] The officer had spoken to Mr. Rush about his rights to counsel and Mr. Rush had indicated he did not know what to do and Officer Werle had told him that he could call duty counsel for Mr. Rush and Mr. Rush agreed. Therefore, when they were at the Hanover Police Station Officer Werle called the duty counsel hotline at 2:21 AM.

[14] While waiting for duty counsel to call back, at 2:37 AM. Officer Werle gave his grounds to Officer Michael Boyko, a breath technician with the Hanover Police Service. At 2:48 AM the call came in from the duty counsel office and Mr. Rush was put on the phone with duty counsel and spoke to duty counsel from 2:50 AM to 3:05 AM.

[15] Mr. Rush was then turned over to Officer Boyko at 3:07 AM for the breath tests.

[16] Officer Boyko testified that the Intoxilyzer 8000 C was warmed up by 2:22 AM and that he did the diagnostic test and the machine passed. He found out however that the standard solution was out of date and that was changed at 2:30 AM and then he briefly waited for that solution to warm up. At 2:40 AM with the standard solution sufficiently warm he performed a calibration test at 2:41 AM. He found that the test result was 87 mg of alcohol in 100 mL of solution and that is outside the range of tolerance of 10% plus or minus from the target of 100 mg alcohol in 100 mL. Notwithstanding that result Officer Boyko continued with the testing procedure. He testified that he did not pay attention to that result and he explained why in redirect.

[17] It should be noted that Officer Boyko conducted a self-test between 2:41 and 2:46 AM and the machine passed.

[18] At 3:16 AM the first breath test was completed and at 3:46 AM a second test was commenced. In the opinion of Officer Boyko both samples were suitable samples. The test results were as follows: at 3:16 AM the result was 106 mg alcohol in 100 mL of blood and at 3:46 AM the test result was 97 mg alcohol in 100 mL of blood. Officer Boyko was of the opinion that the machine was working properly.

[19] Officer Boyko reported that at 3:38 AM as the machine was preparing to receive the second sample he received a call on his radio from his dispatch and when he answered it the Intoxilyzer 8000C recognized a radio frequency interference (RFI) and exited the testing process. Officer Boyko as a result was required to restart the process for the second test. The defence has no complaint about that delay.

[20] In cross-examination Officer Boyko acknowledged that there were a number of preconditions to obtaining a proper result, including the self-test, the calibration test and the diagnostic test.

[21] The calibration test at 2:41 AM was outside the appropriate tolerances and in cross-examination Officer Boyko agreed that if the calibration test was not satisfactory it would be improper to proceed.

[22] However in redirect Officer Boyko testified that there were 4 other calibration tests. One was at 3:14 AM, prior to the first test being completed, and it produced a result of 95 mg alcohol, which was inside the acceptable range. At 3:37 AM another calibration test took place, and this produced a result of 97 mg alcohol. At 3:44 AM a further calibration test was taken and this produced result of 97 mg alcohol. And lastly at 4:12 AM after the final test had been completed there was a further calibration test and the result was 96 mg of alcohol, again inside the acceptable range.

[23] Officer Boyko also testified that the Intoxilyzer 8000 C has built in safety checks such that if the various processes, including the calibration tests, are not satisfied, the machine will lock out the operator. He uses as an example, the exiting of the process when the radio interference occurred at 3:38 AM.

[24] His evidence is that he was confident that the machine was working properly.

ANALYSIS

Breath Demand Wording

[25] The defence argues that the demand for a "sample" means that only one sample can be obtained. If a second sample is secured it is not in accordance with the demand and is therefore not available to the Crown to allow the reading back presumptions to apply.

[26] It is noted that the defence does not assert that the use of the term "approved screening device" by the officer in the breath demand is problematic. Presumably this is because the officer did in fact say that the purpose was to have an analysis made of the concentration of alcohol in his breath.

[27] The leading case with respect to the form of the demand is R. v. Rentoul, [1977] A.J. No. 794. It stands for the proposition that the form of wording of the demand is not what is important. Justice McDonald said:

16 If the defence submission were correct, and the demand, to be one the refusal of which constitutes an offence had to be for "samples" because that is the word used now in the section, it might equally be argued that the officer would have to demand "such samples of his breath as in the opinion of a qualified technician ... are necessary ... (etc.)" But no such precision is required. As MacPherson, J., said in Regina v. Flegel (1971), 5 C.C.C. (2d) 155, at p. 157, the demand

"need have no exact words or form. It would be sufficient if the work or words plus actions of the peace officer impressed upon the accused that he, the accused, was required by the peace officer to take the test."

The sufficiency of the words and actions of the peace officer is a question of fact. However, as I have said, as a matter of law, the words used by the peace officer are sufficient to be capable of constituting a demand within the meaning of sec. 235.

[28] The general principle in drinking and driving cases with respect to language is to not rely upon magic words but rather to look at the evidence as a whole to see what the intentions of the actors were and whether they substantially achieved what they set out to do. See R. v. Summary [2013] O.J. No. 943 (O.C.J.) and R. v. Torsney 2007 ONCA 67, [2007] O.J. No. 355 (O.C.A.).

[29] In my view to accept the defence argument would be a classic example of form triumphing over substance. Nothing turns on this language. The officer said that the demand was read using the usual language that appeared on the preprinted card carried by police officers. In evidence however the officer said "sample" – whilst reading from the card. This was in addition to his other errors in reading. However these were all obviously misreadings. Slips of the tongue. The accused was not misled in any fashion.

[30] It is noted that the defence did not cross examine the officer on this point and allow him to address the issue. Although not the typical Brown v Dunn situation in that it is not an attack on the credibility of the witness, nevertheless an opportunity was missed to have a fuller explanation from the witness about what was said to the accused as part of the demand. The Ontario Court of Appeal commented on the Brown v Dunn rule with respect to its general principles of trial fairness in R v. Dexter, 2013 ONCA 744 as follows:

[17] The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

[19] The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.

[31] In this case it would have been preferable if the officer had been given an opportunity to reflect upon what words he had used and what it was that he was trying to convey to the accused.

[32] What is clear in this case is that the police officer told the accused that he needed to come with him for testing with respect to his blood alcohol concentration. The officer had reasonable and probable grounds for requiring him to do so. The accused simply complied with the statutory scheme and in the course of that provided two samples as anticipated in the legislation. The two samples having been provided they were analyzed by the Intoxilyzer 8000C and produced results that were above the legal limit. Just because the officer had misspoken with respect to the singular as opposed to the plural does not mean that the samples were not obtained in accordance with the legislation.

Intoxilyzer – Calibration Test

[33] The argument is then made that the evidence related to the first calibration test showing results that were outside the acceptable range is evidence tending to show that the approved instrument was malfunctioning or was operated improperly as provided for in section 258(1)(c), as modified in R. v. St-Onge Lamoureux 2012 SCC 57, [2012] 3 S.C.R. 187, and that therefore the presumptions of accuracy and identity are not available to the Crown and the case fails.

[34] The argument is that the burden on the defence is not high in that all that is necessary is that there is evidence "tending to show" malfunctioning or improper operation. It is argued that the calibration test at 2:42 AM was an indicator that something was wrong with the machine and that when Officer Boyko continued with the test process, notwithstanding that reading, this was indicative of operator error. This is particularly so when the officer had not noticed the calibration check being outside the proper tolerance until it was pointed out to him in cross examination.

[35] The argument goes on to say that once the defence has advanced evidence that tends to show that there was a malfunctioning machine or there was improper operation of the machine, then it becomes a burden on the crown to prove that the machine was functioning properly. In support of that proposition Mr. Starkman refers to the St. Onge decision at paragraph 58:

58. 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.

[36] Officer Boyko was rehabilitated in redirect. He confirmed that there was a basis for his belief that the machine was operating properly because in fact there were four other calibration tests conducted that gave consistent results that were inside the appropriate tolerance level. These satisfactory calibration tests were before, during and after the breath tests at 3:14 AM, 3:37 AM, 3:44 AM and 4:12 AM.

[37] Further, the officer indicated that if an error occurs the machine locks out the operator and exits the testing process. As an example, this is exactly what happened with the RFI incident at 3:38 AM.

[38] The Crown argues that the anomaly that occurred at 2:42 AM was simply that, an anomaly, and that the operator continued to operate the Intoxilyzer 8000C correctly and that the machine functioned properly.

[39] It is noteworthy that Officer Boyko is the only person testifying who has any expertise with respect to the Intoxilyzer and he says that the machine was working properly. It was open to counsel to call expert evidence on the functions of the machine and how it should be operated – but that did not happen. In the St. Onge decision at paragraph 47 it was strongly suggested that it is necessary for the defence to retain a technician or expert to determine whether the machine malfunctioned or was operated improperly. There may well be cases where an expert is not necessary (see for example the R. v White, 12-434, Walkerton O.C.J., 22 January 2014, unreported), but this was not one of them.

[40] At paragraph 52 in St. Onge the court said "The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results."

[41] The officer was alert to the requirements of the machine, knew the process that had to be followed, and was careful in his operation of the Intoxilyzer 8000C. The totality of the evidence clearly shows that there were multiple satisfactory calibration checks and that the officers decision to continue with the testing procedure was reasonable. The anomalous calibration reading at 2:42 AM does not tend to show that the machine was malfunctioning because all other indicators are that the machine functioned properly.

CONCLUSION

[42] The two issues raised by the defence are resolved in favour of the Crown.

[43] The evidence clearly establishes beyond a reasonable doubt that the Crown has proven all of the constituent elements of the offence. For these reasons there will be a finding of guilt.

Released: January 29, 2014

Signed: "Justice Brophy"