COURT FILE No.: Newmarket Courthouse 11-02781

DATE: 2012-01-12

Citation: R. v. Jenabfar, 2012 ONCJ 26

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

FARHAD JENABFAR

Before Justice Peter N. Bourque

Heard on December 16, 2011 and January 12, 2012

Reasons for Judgment released on January 12, 2012

A. Ghosh ................................................................................................................... for the Crown

J. R. Forget ................................................................................... for the accused Farhad Jenabfar

Bourque J.:

Overview

[1] This trial has raised a determination as to the evidentiary hurdles to be met when a defendant (in the post Bill C-2 world) asserts "evidence tending to show", as per the regime set out in section 258 (1) (c) (iv) and section 258 (1) (d.01) of the Criminal Code.

[2] The defendant was stopped at a RIDE program on the evening of St. Patrick's Day in the City Vaughan and now faces a charge of operating a motor vehicle with excess alcohol.

NICK SMILIS

[3] Nick Smilis is a York Regional Police officer of four years experience. His timelines in this investigation are set out in Schedule A of these reasons as they do not strictly impact upon the issues to be decided here, but will give the background of the stop.

[4] Filed as Exhibit #1 without objection from the defence was the breath certificate indicating that the truncated readings of the defendant were 130 and 110.

[5] The officer was asked about the defendant's belongings and he stated that it was his practice on arrest to take the person's belongings and place them in a bag in his cruiser. He had no specific recollection of the defendant's cell phone location.

Sean Skanes

[6] Sean Skanes is the breath technician and had been qualified for about three weeks before this test. In that time he had performed over fifty breath tests. He described receiving the defendant and conducting the breath tests. He observed that the defendant's speech and balance were fair, he had a smell of alcohol on his breath and his face was flush.

[7] The officer in his testimony indicated that the Intoxilyzer 8000C had a built in device to detect radio interference (RFI) and it would shut off and not function if it detected such interference. He advised that he always had his cell phone and police radio on his person throughout the process. He stated that he keeps his police radio turned off and did not use his cell phone at any time during the procedure, although the cell phone was probably on. There was another officer in the room who had his police radio and he did not know if the officer had a cell phone. He stated that the door was closed to the other areas of the trailer when he performed the test.

[8] The officer stated that in a previous training session, three cell phones were used to trigger the RFI cut off device in the machine. He has never seen the cut-off device activated at any other time.

[9] At no time did the machine give any indication that it was shutting down or making any sounds which his training told him could be any indication of RFI. The defendant completed the first test without incident at 11:07 p. m. and the second test at 11:29 p. m.

[10] The officer stated that the breath tests were taken in a RIDE van (he said it is similar to a motor home). It has a room at the back where an accused can have a private solicitor-client consultation, a room in the middle where the breath machine is located, and a room in the front where officers can do paper work. The rooms are separated by doors. He said the doors were shut when he was performing the tests. He did not believe that there was any cell phone on the desk between the defendant and the breath machine. He stated that there was another officer in the vicinity. I will assume the officer had a standard police radio on his person.

[11] He stated that the readings were 133 milligrams and 115 milligrams of alcohol in 100 millilitres of blood.

DEFENCE

[12] The Mr. Jenabfar testified. He stated that he left work at about 6:00 and got to a pub with four friends at after 7:30 p. m. and had his first drink at after 8:00 p.m. He said that he and his friends had two rounds of beer and he drank two pints of Harp beer during the evening. He also stated that he had a shot of tequila at around 10:00 p.m. just before he left the pub. He stated he left the pub and had a cigarette outside and then got in his car and drove around the corner and into the RIDE program. He stated that while the officer who arrested him took his belongings from him, his cell phone was used by the officer to attempt to contact duty counsel. As the officer could not operate the defendant's cell phone, the officer eventually used his own cell phone to call duty counsel. He stated that the officer handed the defendant's phone back to him and the defendant laid it on the table in the breath room, in front of the Intoxilyzer 8000C, and it remained there during the breath tests. As the officer could not remember taking the cell phone from the defendant, and its eventual location, I am prepared to accept the defendant's evidence that it was on the table. The defendant stated the phone was a Blackberry, and while I may take judicial notice that it could be receiving data at any time while it was on, there is no evidence that it was in fact on. The witness stated that he saw other officers in the trailer and during the course of his sitting there he heard officers speaking on their radios.

[13] In cross examination, when asked how he was feeling when he left the bar he stated that he was not drunk but he was "relaxed". When the Crown suggested the obvious, that the alcohol he drank may have contributed to this feeling, he recoiled from the suggestion, and I find that to be a less than genuine response (even accepting the amount he had to drink, his expert asserted that his blood alcohol level at 10:30 p.m.) was between 55 and 80 milligrams of alcohol in 100 millilitres of blood). However, even if this impacts a little on his credibility, he gave his evidence in a generally forthright manner, and his description of the evening, including his alcohol consumption was not shaken in cross examination. I would have to say that this evidence would have been sufficient "evidence to the contrary" pursuant to the test first enumerated in R. v. Carter.

Inger Bugyra

[14] Inger Bugyra is a Forensic Toxicologist with the Centre of Forensic Sciences in Toronto. She was called by the defence and, with the consent of the Crown, I certified her as an expert with regard to:

1- What the readings should have been assuming the defendant consumed what he says he consumed.

2- Wordings and functioning of the Intoxilyzer 8000C, including its proper operation.

[15] Her report filed as Exhibit # 4 stated that the defendant's BAC, if his statement of consumption is correct, would be between 55 and 80 milligrams of alcohol in 100 millilitres of blood.

[16] With regard to the operation of the Intoxilyzer 8000C and the possible effects of RFI from cell phones and radios, her evidence consisted of the following:

1- The device contains internal shielding to stop RFI from entering the device and affecting the readings. The core of machine is insulated as a safeguard against FRI's.

2- The device has an antenna outside of the shielding to detect RFI. If RFI is detected above a certain level, the device makes a sound and it stops any analysis in progress and returns the device to a stopped state.

3- She has not observed any situation where an Intoxilyzer 8000C has generated this status but she has heard of situations where it has arisen. She gave the opinion that a police radio operating at the time could set off the RFI detection device.

4- The RFI interference must be generated at the exact same moment as the machine is performing the precise analysis and it is not likely that it would happen twice. By the nature of the readings in this case, the witness did not think it likely that any RFI of sufficient strength would have occurred.

5- She stated that her cell phone could not generate sufficient RFI to cause the device to stop the analysis.

6- With regard to the recommendation in the ‘recommended standards and procedures of the Canadian Society of Forensic Science Alcohol Test Committee” that "no radio transmissions shall be made from the room in which the Approved Instrument is being operated", the witness did not say that a cell phone or police personal radio would be contrary to this direction.

7- The witness did not comment on the operation of the device by the breath technician in this case, and certainly did not say that any aspect of the operation was improper.

8- The witness gave no opinion as to whether it was possible to override the shut down device in the Intoxilyzer 8000C.

9- The witness gave no opinion as to whether the presence of the cell phone and the personal police radio, or any other scenario (whatsoever) in the breathalyzer room would have had any effect upon the operation of the machine.

10- The witness opined that the experts say that you only have to be concerned if there is a actual triggering of the mechanism

11- The witness did not say that there was any malfunction in this device.

12- In the report of the witness (Exhibit #4) the witness states: "A review of the Intoxilyzer 8000C Test Record indicates that the calibration of the instrument was checked and it appears to have been in proper working order".

The Test Under s. 258 (1) (c) (iv)

[17] In order to defeat the presumption of identity, there must be evidence tending to show all of the following three things:

1- That the approved instrument was malfunctioning or was operated improperly,

2- That the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood,

3- That the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[18] With regard to evidence concerning point #1 above, section 258 (1) (c) (d.01) provides that you cannot use proof of point #3 above, to assist in that effort.

[19] Under the previous legislation which spawned the R. v. Carter defence, the evidence to rebut the presumption was described as "evidence to the contrary". Is this the same level of proof as "evidence tending to show..."?

[20] Jurists have always sought to define burdens of proof with concepts that they are familiar with and so we have a tendency to equate new phraseology with the tried and tested concepts of "proof beyond a reasonable doubt" or "balance of probabilities". Complicating the analysis is the concept of R. v. W.D. which is an extension of the criminal proof beyond a reasonable doubt.

[21] I turn to the decision of R. v. Proudlock 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525 which states:

In my view, there are in our criminal law only three standards of evidence:

1. Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;

2. Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;

3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.

In Batary v. Attorney General of Saskatchewan [46], at p. 476, Cartwright J., as he then was, said speaking for the Court:

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on the authorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish his innocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and it will be sufficient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence. In any case, the evidence given by himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima facie case remains and conviction will ensue.

[22] The basic principle is guilt "beyond a reasonable doubt", so that unless Parliament has enacted a presumption in terms which require an accused to "prove" an excuse he has to do no more than raise a "reasonable doubt" to escape conviction.

[23] I believe that the scheme of the new enactments require only that the defendant lead evidence in all three areas which have the effect of raising a reasonable doubt in all three areas.

[24] In assessing the evidence, the defendant has successfully raised a reasonable doubt in my mind as to the third element of the test enumerated above. It is the first and second parts of the test which is more problematical for the defendant.

[25] There is no evidence that the machine was operated improperly. There is no evidence of a malfunction. The net result of the expert evidence shows that where there is sufficient RFI to affect the operation of the machine, the machine will shut down and reset itself. There is no evidence that the machine will continue to operate in the presence of RFI. There is also no evidence as to what may occur if the automatic shut down operation malfunctions. The expert spoke of the shielding inside the machine which she described as a "safeguard against FRI.

[26] The best scenario for the defendant is the following:

(a) Defendant cell phone on the table where the Intoxilyzer is located and phone is not switched off.

(b) Breath technician officer has his personal police radio on him but not switched on.

(c) Breath tech officer has his personal cell phone in his pocket not switched off.

(d) Another officer is in the room with his personal police radio not switched off.

(e) There are other officers, not in the room but in the trailer, who may be using their personal police radios

[27] This scenario, and indeed no other possible scenario, was put to the expert witness. I do not have any evidence to say whether, in this scenario, the "shut down" mechanism would have been activated.

[28] The defence argues that if I accept the presence of these devices nearby, when the tests were being taken, then there was a probability that the Intoxilyzer 8000C should have engaged the "shut down" mechanism. There being evidence that the mechanism was not engaged is sufficient evidence which "tends to show" the Intoxilyzer in this case was malfunctioning.

[29] Put simply, has the evidence presented been sufficient to raise in the mind of the trier of fact a reasonable doubt as to the presence of a malfunction in the Intoxilyzer 8000C on that evening.

[30] Upon considering all of the evidence, I feel that the evidence, as presented in this case, does not go beyond speculation. The situation would have been different if the expert had stated that there was some discernable possibility that in the best case scenario, set out above, the "shut down" mechanism would have been engaged.

[31] Even if I had a reasonable doubt about the functioning of the device, the defendant has a second hurdle in presenting evidence which would tend to show that any such malfunction (if shown) would have resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[32] There is certainly no evidence that excessive RFI will lead to an increased reading. The expert stated that the reading could be "up or down" (remember I cannot use the evidence tending to show the elements in point three to assist in the proof of point one). In R. v. White [2011] O.J. No. 5076, Justice Carr, of the Ontario Court, held that there was an error in the operation of the Intoxilyzer 5000C concerning a failure by the operator to check the temperature of the simulator. He held that this created a reasonable doubt in his mind with respect to the proper operation of the Intoxilyzer 5000C and the other two inquiries and entered an acquittal.

[33] Because I have not held the evidence of the defendant sufficient to raise a reasonable doubt in mind as to whether the Intoxilyzer 8000C was malfunctioning, I therefore do not need to decide the further point.

[34] I am therefore not placed in a position that the evidence as set out in paragraph 26 above would "tend to show" that there was improper operation or malfunction of the Intoxilyzer 8000C or that such malfunction resulted in a reading which exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[35] In R. v. Ahmed [2010] O.J. No. 1500, Justice Tuck-Jackson stated:

"124... My conclusions will depart from those of some jurists not necessarily because we differ on the interpretation of the law, but by reason of the differing nature of the evidentiary foundations that were placed before me. I cannot emphasize enough that had the evidentiary foundation before me been different, I may very well have reached different conclusions as to the likely relevance of the items sought."

[36] In commenting on the possibility of the Intoxilyzer 8000C performing a false reading by the "shut down" mechanism not functioning and the RFI entering past the shielding, the Justice states:

"....the evidence before me suggests that the existence of a double error of this magnitude is simply theoretical. In the absence of any evidence as to its statistical probability, it is difficult for me to accord any weight to it as a reality."

[37] I feel I am in the same evidentiary position as Justice Tuck-Jackson and the issue of RFI, though raised by the defence, does not have a sufficient evidentiary foundation to accord any weight to it as a reality.

[38] I am therefore not left with a reasonable doubt and the presumptions in section 258 apply and the court finds beyond a reasonable doubt that the defendant, at 10:35 p. m. on March 17, 2011, was operating a motor vehicle with a concentration of alcohol in his blood which exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[39] The defendant will be found guilty of the charge.

SCHEDULE "A" (TIMELINES OF ARRESTING OFFICER)

19:00 - Began shift and observed that ASD device was Alcotest 7410 GLC which had been calibrated on March 6, 2011.

22:25 - Saw the defendant car approach - spoke to defendant and noticed smell of alcohol, defendant said he came from a bar, defendant admitted to drinking and he had red glassy eyes.

22:26 - Officer formed his reasonable suspicion that the defendant has alcohol in his body and reads the breath demand.

22:28 - Defendant registered a fail on the ASD - officer formed the opinion that the defendant was operating a motor vehicle with excess alcohol and arrested the defendant.

22:31 - RTC - The defendant wished to speak to "the free lawyer".

22:32 – Caution.

22:33 - Breath demand - escorted the defendant to the RIDE truck.

22:43 - Called the duty counsel on the officer's cell phone as the phone in the RIDE truck was not working.

22:48 - Duty Counsel (Sherman) returned the call - defendant placed in an enclosed office in the van for a private call (22:49)

22:56 - Call to Duty Counsel complete - gave grounds to breath technician and handed defendant over to the breath technician.

23:37 - Defendant returned to the officer, with breath technician certificate - defendant taken to 4 District - paraded - placed in cells - copy of breath test certificate served on the defendant.