Court Information

Ontario Court of Justice

Date: April 25, 2019

Information Nos.: 4411-998-18-6622-00, 4411-998-18-405-00

Her Majesty the Queen v. Andrew McAlorum

Before: The Honourable Justice S. L. Atimer

Location: Kitchener, Ontario

Date of Hearing: April 25, 2019

Appearances

Provincial Crown: A. Paul, M. Michaud

Counsel for Andrew McAlorum: A. Fiszauf, K. Toews

Ruling

LATIMER, J. (Orally):

These are my reasons in part on the directed verdict motion. The applicant has made two related arguments: One aimed towards the inapplicability of the prior section 258 presumption of identity, the so called Shaikh argument (2019 ONCJ 157), and second, a submission about whether the new section 320.31 presumption of accuracy could apply to the present facts, the so called Flores-Vigil argument (2019 ONCJ 192). I say that while appreciating that Mr. Fiszauf's submissions are broader than the particular result in that decision from my colleague, Justice Parry.

Each of these arguments have been well argued at both sides. I am grateful for the level of advocacy I received in this matter. In the result, I am dismissing the application in whole and I intend to provide reasons with regard to the second issue only today. I will endeavour to provide written reasons on the Shaikh point in the very near future.

Presumption of Accuracy Under Section 320.31

With regard to the applicability of the new presumption of accuracy, in this case, the breath technician has testified regarding the testing procedure that occurred. She explained her pre-test procedure, which she conducted and became satisfied, consistent with her qualifications and training, that the approved instrument used, an Intoxilyzer 8000C, was capable of obtaining a reliable sample from the applicant.

The particular point in issue is the evidence available to a trier of fact that would allow a conclusion that the presumption of accuracy under section 320.31 applies. Section 320.31(a) currently contains a condition precedent to admissibility under this provision:

Before each sample was taken, the qualified technician conducted a system blank test, the result of which is not more than 10 milligrams of alcohol in 100 millilitres of blood, and a system calibration check, the result of which is within 10 percent of the target value of an alcohol standard that is certified by an analyst.

It is this latter portion that is presently at issue. Is there any admissible evidence that the system calibration check "was within 10 percent of the target value of an alcohol standard that is certified by an analyst"? I note there is clear evidence in Exhibit 3, the Certificate of Analyst, that the alcohol standard used was "suitable for use" and indeed certified so.

What is absent and it seems is now included in the new Certificate of a Qualified Technician - see Exhibit A, the one I did not admit because of a lack of notice - is an express statement by the CFS analyst that the target value of the particular standard is 100 milligrams of alcohol in 100 millilitres of blood.

Constable Hennig has testified in this case that she checked that the standard she was using was certified for use, and that she expected, because of her training, a calibration check result between 90 and 110. The alcohol standard solution is heated up by the device to create a vapour that is analyzed by the Intoxilyzer. The point of the calibration check is for the breath technician, based on her training and qualifications, to be able to reason whether the Intoxilyzer is in good working order and that it is presently capable of obtaining a reliable sample from a test subject. Her expectation was that the calibration check would be suitable if a result between 90 and 110 was received, as that would accord with her training with regard to the alcohol standard solution used in this particular approved instrument.

In cross-examination, Constable Hennig indicated that she had reviewed her training materials on a court break and contradicted or explained her earlier evidence that the target value related to the solution. I understand her evidence to be, as a whole, that it is the vapour which is injected into the instrument during the system calibration check that is expected to be in the range of 100.

Analysis and Decision

The issue resolves in my mind to this: is it sufficient for the breach technician to expect a certain result based on her training, or have an understanding of target value, or does there need to be express evidence from an analyst on the point? I resolve the issue on the present evidentiary record in much the same way my colleague, Justice Rose did in R. v. Porchetta [2019] ONCJ 244. I would note the following:

1) Statutory Language Does Not Require Direct Analyst Evidence

Section 320.31(1)(a), by its language, does not expressly require direct evidence from an analyst as to the target value associated with a particular standard; only that the standard itself be certified by an analyst, as this one was. I do not accept the applicant's interpretation of the wording of this provision. Indeed, section 320.34(1) provides some corroboration or interpretive assistance towards an interpretation that only requires general certification of the alcohol standard. As subsection (e) reads:

"A certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument".

2) Binding Appellate Authority

I, like Justice Rose, consider myself bound by the statements of the appellate courts in Ware and Harding. For present purposes, I would simply adopt paragraphs 45 to 50 of Porchetta as a correct statement of the law. I further note as the court in Harding did, the language of the Supreme Court of Canada in Lightfoot, [1981] 1 S.C.R. 566 at page 575:

In short, the Crown may obtain the advantage of the statutory presumption under section 237(1)(c) by offering proof by certificate or by oral evidence of the three elements specified therein. Nothing more is required in the absence of any evidence to the contrary.

Conclusion

In summary, there is direct evidence available both from the technician and contained in the Certificate of the CFS Analyst that this alcohol standard was suitable for use. The suitability of an alcohol standard is entirely reliant on it being capable of providing a vapour that assists a trained technician in assessing the present operability of the Intoxilyzer 8000C. In this case, it was used by a trained officer qualified in this particular form of testing in a manner consistent with her training. Her knowledge of the target value was part of that training.

In the circumstances, in my view, there is evidence from which a trier of fact could apply the new presumption of accuracy. It follows that this branch of the directed verdict application fails. That is my ruling at this time. As I said, I will endeavour in the very near future to provide written reasons with regard to the Shaikh point.