Court File and Parties

Court File No.: 08/LE8253

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Ketler

Before: Justice Gregory A. Campbell

Released: June 26, 2013

Counsel:

• S. Kerwin, for the Crown
• P. Ducharme, for the Accused

CAMPBELL J.:

REASONS FOR JUDGMENT

1: BACKGROUND

[1] This case began with a constitutional challenge to certain subsections under s. 258(1) of the Criminal Code of Canada. The defence alleged a breach of ss. 7 and s. 11. After the evidence was in, information was received that the Supreme Court of Canada would be hearing two appeals that would address the very issue I was being asked to determine. Mr. Ketler's matter was adjourned to await that decision, which was ultimately released in October 2012 by concurrent judgements in R. v. Dineley, [2012] S.C.C. 58 and R. v. St-Onge Lamoureux, [2012] S.C.C. 57.

[2] Accordingly, it is unnecessary for me to consider the constitutional challenge. What is left is a decision on the merits. I had the benefit of some submissions before the Supreme Court decisions were released. For the most part they focused on the Constitutional challenge. When we resumed, I invited counsel to make further submissions. What follows are reasons for judgment.

2: MATERIAL FACTS

[3] On August 21, 2008, Officer Flewellen was on patrol and stopped Mr. Ketler because of a concern with his driving. After approaching the vehicle and speaking with the accused, the officer had ground to make a screening device demand for a sample of Mr. Ketler's breath. Mr. Ketler failed the test. He was arrested and a demand was made for him to provide a sample of his breath for analysis by an approved instrument.

[4] I am satisfied that the arresting officer had grounds to make the demand, the demand was made as soon as practicable and that the officer provided his grounds for the breath demand to a qualified breath technician. I am also satisfied the qualified breath technician, Officer Bertoni, received samples into an approved instrument within two hours of the alleged offence. A certificate of qualified technician, together with the instrument's test records, were properly filed and relied on by the crown to prove that the results of Mr. Ketler's first breath sample was 250 milligrams in 100 millilitres of blood and the result of his second breath sample, taken 20 minutes later, was 259 milligrams of alcohol in 100 millilitres of blood. The Crown relies on the certificate indicating a truncated blood alcohol level (B.A.C.) of 250 milligrams in 100 millilitres of blood as proof of the offence alleged in this single count information; namely, that the accused was operating his motor vehicle having consumed alcohol in such quantity the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[5] When Mr. Ketler was eight or nine years old he was diagnosed with asthma. He has used an inhaler ever since. He estimated that he replaces or gets a new inhaler approximately once a month. On the day of his arrest, he had his inhaler with him in his truck. The arresting officer removed the inhaler and gave it to Mr. Ketler. Mr. Ketler had his inhaler in his pocket while he was with the breath technician. Mr. Ketler had difficulty providing a sample of his breath so he asked if he could use his inhaler. The breath technician authorized its use. Mr. Ketler said that he activated or "took a puff" from his inhaler three times before he provided the technician with a sample of his breath. The breath technician said that within approximately one minute of its use, he received a sample of Mr. Ketler's breath into an approved instrument. This, he said, was a suitable sample and measured 250 milligrams of alcohol in 100 millilitres of blood. The officer had no recollection of Mr. Ketler using the inhaler a second time. Mr. Ketler said that he did similarly use it again, about a minute before he was required to provide a second sample of his breath. The officer testified that the second sample received of the accused's breath was also suitable for analysis. The result was 259 milligrams of alcohol in 100 millilitres of blood. The two tests were in agreement with each other.

[6] The inhaler was described by Mr. Ketler as a Primatene Mist containing 34% absolute or pure alcohol. The qualified technician was asked if his training or experienced alerted him to the possibility of an adverse impact on the test results from Mr. Ketler's use of the inhaler. The officer said the instrument had a slope detector that controlled for and invalidated samples in the event of unusually high readings related to mouth alcohol. The instrument, however, did not invalidate the sample and as such the technician believed the sample was suitable.

3: THE LAW

[7] Section 253(b) of the Criminal Code creates the offence of driving with a blood alcohol content over 80, thus obviating the necessity to prove a driver was intoxicated or impaired. In order to prove the element of the offence as to whether, at the time of operation of the motor vehicle, the accused's blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, certain presumptions are codified to allow the prosecution to prove the offence without the necessity of having to call expert evidence about absorption, distribution and elimination rates in every case. Section 258(1) provides a mechanism for the admissibility of test results as presumptive proof of a person's blood alcohol content at the time of driving.

[8] Prior to the 2008 amendments to the Criminal Code in respect of drinking and driving offences, s. 258(1) provided for two basic presumptions. The presumption of accuracy provided that where certain procedures prescribed by statute were followed, the breath technician's certificate as to B.A.C. would be presumed accurate, in the absence of evidence to the contrary. The presumption of identity provided that, again, where certain pre-requisites were met, a B.A.C. exceeding 80 milligrams of alcohol in 100 millilitres of blood at the time of testing is proof of the accused's blood alcohol content at the time of driving or care and control in the absence of evidence to the contrary.

[9] Although there is a distinction between the two presumptions, regardless of whether one was challenging the presumption of accuracy or the presumption of identity, in order to rebut the presumption, evidence would have to be adduced to raise a reasonable doubt as to whether the accused's B.A.C. exceeded the legal limit as at the time of driving. (See R. v. Gibson, 2008 SCC 16, at para 50)

[10] The presumptions were often challenged by leading evidence about the quantity of alcohol the accused consumed buttressed by opinion evidence from a toxicologist as to absorption, distribution and elimination for the purpose of raising a reasonable doubt as to whether the accused's B.A.C. was in fact over 80 at the time of the offence. This approach to leading evidence to the contrary was commonly known as the Carter defence.

[11] In July 2008, the Tackling Violent Crime Act amended s. 258(1) of the Criminal Code. This amendment was essentially aimed at eliminating the Carter Defence by providing that evidence of the accused's drinking pattern and rate of absorption and elimination, suggesting a B.A.C. lower than 80 milligrams of alcohol in 100 millilitres of blood at the time of the offence, would no longer be sufficient to raise a reasonable doubt. Instead, the amendments provided that where the crown satisfied the pre-requisites to prove the elements of the offence under the statutory scheme, only evidence tending to show (i) the approved instrument malfunctioned or was operated inaccurately; (ii) the malfunction or operator error produced the results exceeding the legal limit; and (iii) the accused's B.A.C. was under 80 at the time of the offence could raise a reasonable doubt as to guilt. Accordingly, no longer would Carter evidence alone be sufficient to raise a reasonable doubt. The Carter defence was eliminated as an independent means to raise a reasonable doubt about the reliability of the test results.

[12] In October 2012, the Supreme Court of Canada released concurrent decisions in R. v. Dineley, [2012] S.C.C. 58 and R. v. St-Onge Lamoureux, [2012] S.C.C. 57. The issue in Dineley concerned the effect of the amendments that arose during the accused's trial, thereby limiting what may be adduced to raise a doubt about the reliability of breath test results. Or, more specifically, whether the amendments affecting the use of the Carter defence operated retrospectively. The court found the amendments affected substantive rights insofar as they had a direct effect on a defence that had been open to an accused.

[13] In St-Onge Lamoureux, the accused argued the new provisions in the Code with respect to breathalyzer test results were unconstitutional. The Court held that s. 258(1)(c), (d.01) and (d.1) infringed s. 11(d) (presumption of innocence) but that same were justified under s. 1 if severed from the second and third requirements for rebutting the presumption. That is to say, the requirement that the accused raise a doubt the instrument was functioning or operating properly was justified under s. 1, however, the requirement that an accused also raise a doubt that his/her B.A.C. reading of over 80 was the result of the instrument malfunctioning or operator error together with the requirement he adduce evidence to raise a doubt that his B.A.C. at the time of the offence exceeded 80 was an infringement of the right to be presumed innocent that could not be justified. The majority of the Court concluded that these two requirements in s. 258(1)(c) and (d.01) went too far. As a result, the accused is not required to establish that either an instrument malfunction or operator error resulted in the reading of over 80 and he is not required to establish his B.A.C. would have been under 80 either. As I understand matters now, there is a pre-condition required to rebut the statutory presumptions. That precondition is that the instrument malfunctioned or it was operated improperly. So, where the Crown is able to satisfy the presumptions and rely on the certificate of analysis as proof, it remains open to an accused to raise a reasonable doubt as to the reliability of the results by identifying a defect in either the testing or operation of the instrument.

4: ANALYSIS

A. The failure to observe and wait 15 minutes

[14] The defence argued that I should have a reasonable doubt as to Mr. Ketler's guilt because it is clear from the expert evidence of a witness from the Centre of Forensic Sciences that the sample was not taken properly due to operator error and as such, the crown has lost the benefit of the presumptions under s. 258(1)(c). To this end, the crown did not tender any additional evidence to prove that Mr. Ketler's B.A.C. exceeded 80 milligrams of alcohol in 100 millilitres of blood. Reference was made to the Supreme Court of Canada's analysis in St.-Onge Lamoureux. At para. 25 of the decision, the Court considered the presumptions of accuracy and identity and recognized, based on expert evidence filed in the case, the very real possibility of an approved instrument not being operated properly. Reference was made to the recommendations of the Alcohol Test Committee of the Canadian Society of Forensic Science in regard to the standards and procedures for the taking of breath samples. In particular, the 2009 recommendations included the requirement that a qualified breath technician must, among other things, observe the test subject for 15 minutes before collecting a breath sample.

[15] Dr. Darryl Mayers is a forensic toxicologist knowledgeable about absorption, distribution, elimination of alcohol and the theory and operation of breath testing instruments used in the Province of Ontario. He is a member of the same Alcohol Test Committee cited by the Supreme Court in St.-Onge Lamoureux. He has not only been trained in the specific courses that are offered to experts at the Centre of Forensic Sciences but has himself trained numerous police officers over the years in respect of the subject instrument and other approved instruments.

[16] Dr. Mayers indicated that having regard to the three criteria necessary to allow an approved instrument to accept a suitable sample; namely, pressure, time and slope, the qualified breath technician did the right thing by allowing Mr. Ketler to use his inhaler. The facts revealed Mr. Ketler was having difficulty blowing sufficiently. It was necessary, in the doctor's opinion, to allow Mr. Ketler to use his inhaler so that he could meet the pressure criteria. However, the toxicologist further indicated that because the technician would not have known what it was that Mr. Ketler was inhaling or putting directly into his mouth it was improper to take a sample of Mr. Ketler's breath within a minute of him using the inhaler. Dr. Mayer was asked specifically if this was "operator error". The Doctor stated on more than one occasion that the procuring of the breath sample in this manner was not in accordance with the recommended procedures or in keeping with what he and others teach police officers who are taking the course to become or update their status as qualified breath technicians. In this regard, there is no dispute. Dr. Mayers was consistent in his testimony indicating that in the absence of knowing what a test subject has placed in his mouth, in this case an inhaler for relief from asthma containing an unknown substance, the operator should have waited the minimum prescribed 15 minutes before he took a sample of the accused's breath. In this instance, the concern would be that there was at least a risk the inhaler contained alcohol and as such could affect the test results.

B. The inhaler and its contents

[17] I touched upon the history of this case with some background facts at the beginning of these reasons. Some additional information about how this and other evidence about the inhaler and its contents in relation to the central issue about operator error is important.

[18] As I indicated, the case began as a constitutional challenge to amendments of s. 258(1). To that end, the accused argued the amendments to that subsection ought to be struck down, in which case Mr. Ketler would be able to rely on the former Carter defence. It was during the course of defence counsel's cross-examination of the breath technician early on in the case when he was asked if Mr. Ketler had a problem with his asthma at any time. The officer responded in the affirmative and was invited to explain the situation. Following re-examination by the Crown, the defence sought to cross-examine the qualified breath technician further for the limited purpose of finding out if the officer actually inspected the inhaler device. The officer said he did not but he did recall that it was a prescription medicine with a pharmacists label but he had no knowledge in regard to its contents.

[19] The defence toxicology expert was called the next day and was examined in regard to the use and operation of the Intoxilizer 5000C and the loss of the Carter defence in light of the new amendments and issues in regard to Mr. Ketler's drinking pattern, absorption and elimination.

[20] On day three of the trial, Dr. Mayers took the witness stand. Again, it was during cross-examination when the issue about the inhaler was explored, this time with a particular focus on operator error. In addition to acknowledging that the qualified technician failed to follow testing recommendations, the expert was asked about inhalers and their contents. He testified specifically that not all inhalers contained alcohol and that he was only aware of two that do.

[21] Mr. Ketler was next called back to the witness stand. It was argued that he was called in reply insofar as it was the accused's application and he should be able to call evidence in reply to the Crown's witness. The Centre of Forensic Sciences expert was called to address issues raised by the defence application challenging the amendments to s. 258(1)(c) of the Code. Dr. Mayers wasn't called by the Crown to discuss circumstances surrounding the contents, use or effect of the inhaler. That evidence was led by the defence while the expert was in the witness stand during cross-examination. It was the cross examination that focused the theory of the defence on operator error and it unfolded in front of Mr. Ketler as he was present throughout the cross-examination and testimony of Dr. Mayers.

[22] When Mr. Ketler took the stand again, now nearly nine months after he first testified about the use of his inhaler before providing a sample of his breath, he had the opportunity to listen to Dr. Mayers talk about the use and effect of an inhaler containing alcohol. Much was said by the prosecutor during the trial and during submissions about the rule in Brown and Dunn when Mr. Ketler was called to introduce for the first time his Primatene Mist 34% alcohol base inhaler. I don't think much turns on the rule at this stage. What is important, however, is the weight to be afforded that evidence.

C. Alcohol based inhaler or otherwise

[23] I have good reason to doubt the reliability of Mr. Ketler's testimony and to that end I reject his indication that he used an inhaler that contained alcohol when he was with Officer Bertoni prior to providing samples of his breath. In addition to being more than a little suspicious about the timing when the inhaler was introduced as an exhibit during the trial, I would make the following additional observations.

[24] I accept the evidence of the qualified technician that the inhaler Mr. Ketler used was a prescription medicine. It was not an over the counter medicine as was the case with the inhaler introduced as Exhibit No. 9 by Mr. Ketler at the end of this trial. In addition, it is noteworthy that Mr. Ketler said that he used five or six different types of inhalers and at the time of this occurrence he had been using three different ones. He explained his doctor changed the prescription regularly to maximize the benefit he would receive which could be lost with repeated usage of the same product. To that end, Mr. Ketler testified that he rotated the inhalers he used regularly. Now, suddenly, on the fourth day of evidence after nine months since the issue of the use of an inhaler was first raised, Mr. Ketler introduced an over the counter Primatene Mist inhaler that contains 34 per cent alcohol. He insisted emphatically that this was the same inhaler he used the night of August 21, 2008.

[25] The inhaler marked as Exhibit No. 9 was presented to Officer Bertoni after it was introduced by Mr. Ketler. The officer was asked if this was the same as the one he saw that evening. The officer said it was not because the one he saw was by prescription with a label and had a doctor's name on it. The one produced in court did not have such a label. With all of this, it is difficult to reconcile Mr. Ketler's statement that "I've used inhalers for all my life and it's not something I think of on a regular basis. I just use them." His own evidence indicating that his doctor prescribed the inhaler and changed the prescription up often and that he rotated them regularly and did not think about them on a regular basis together with the lack of a prescription label on exhibit #9 do not do well for his credit. Rather, I am left to believe there is good reason to question the legitimacy of his assertion that the inhaler used was the Primatene Mist with alcohol content. For these reasons, and for others that follow, I am more inclined to believe that it was only as a result of Dr. Mayers testimony about the use of an alcohol based inhaler in the circumstances described that Mr. Ketler recognized the significant role an alcohol based inhaler might play in this proceeding.

[26] To this point it was not necessary to address the circumstances surrounding Mr. Ketler's activities during the evening before the demand was made to provide a sample of his breath because it was not relevant to what became the central issue; namely, operator error being relied on to raise a reasonable doubt. It is at this juncture, however, now worth noting that much of what Mr. Ketler had to say early on in the trial was not believable. Mr. Klassen was introduced to corroborate Mr. Ketler's version of the events to support the Carter defence. It became apparent from Mr. Klassen that he had discussed the events with Mr. Ketler numerous times prior to attending court, notwithstanding Mr. Ketler's indication they had discussed it "very few times" with the most recent discussion being a couple of weeks prior to their testimony. Mr. Klassen, on the other hand, said they discussed the circumstances surrounding that evening five to ten times, with the most recent occasion being the day before both men testified. Moreover, Mr. Klassen said the conversation they had was not in passing but rather lasted six or seven minutes.

[27] And, as for the alcohol they drank that night, Mr. Ketler testified that he did not discuss with Mr. Klassen how many beers each of them drank and did not discuss a drinking pattern. Mr. Klassen however said they did discuss how many beers they each drank and over what period of time.

[28] The difficulty with Mr. Ketler's testimony on day one did not end there. His testimony also included the assertion that he drank bottles of beer while Mr. Klassen said they both drank out of cans. Mr. Ketler said they split their bill at the restaurant between them, whereas Mr. Klassen testified they were issued separate receipts. Some of these simple inconsistencies are of course in isolation of little consequence but in total cause me to have serious concerns about Mr. Ketler's ability to put forward credible and trustworthy information for my consideration, especially when it comes to his testimony about the use of Exhibit No. 9, the Primatene Mist inhaler containing 34 per cent alcohol.

[29] I will now turn again to the testimony of Dr. Darryl Mayers, and in particular his statement relied on by the defence in regard to operator error. It is important to note that on the several occasions when defence counsel invited the doctor to agree that it was wrong or at least not in accordance with recommendations and guidelines for the qualified technician to take a sample of Mr. Ketler's breath within a minute of having used his inhaler, the Centre of Forensic Sciences expert added, on more than one occasion, that because there was excellent agreement between the two samples there was good reason to believe the inhaler used by Mr. Ketler did not have alcohol as one of its constituents.

[30] After acknowledging the failure to wait the prescribed 15 minutes after the inhaler was used was operator error, Dr. Mayers on more than one occasion qualified that answer. During his first day of cross-examination he said:

"In that respect, the officer did not follow the recommended procedures that we teach at the course. Now, because there's excellent agreement between the two samples, it appears this is one of the puffers that does not have alcohol as one of its constituents. Nevertheless, the officer did not follow the proper procedure."

[31] And on more than one occasion he indicated, consistent with the breath technician, that the presence of the alcohol in the mouth, should have triggered the slope detector but it didn't. These observations by the CFS expert, two samples in close agreement with one another and the slope detector not invalidating the sample would suggest the inhaler used did not contain alcohol. This of course is equally consistent with having good reason, for the above reasons, to reject Mr. Ketler's assertion that Exhibit No. 9 – being the Primatene Mist inhaler – was the same inhaler he used just before blowing into the approved instrument.

D. Operator Error Notwithstanding

[32] It seems to me the statement by the toxicologist from the Centre of Forensic Sciences about operator error must be considered in context. A strict reading of the amendment as it now stands since St.-Onge Lamoureux would suggest that the prosecution may not rely on the benefit of the presumption under s. 258(1)(c) where there is evidence tending to show the approved instrument was operated improperly. I am not satisfied that a failure to follow a recommended procedure for taking samples of breath will automatically equate to operator error, especially when it is plain on the face of the evidence adduced that notwithstanding the error, the results of the testing was in no way affected. Based on the findings I have made to this end, there can be no doubt about the reliability of the test results.

[33] In the absence of being satisfied that the inhaler used by Mr. Ketler before providing a sample of his breath did not contain alcohol, I may have come to a different conclusion. There would then not only be evidence tending to show the qualified breath technician proceeded improperly, but quite possibly reason to have doubt as to the accuracy of the results. In this case, I am not left with any doubt as to the results. As Dr. Mayers testified, both test results were in good agreement. To my mind, it is not sufficient simply to be able to point to a procedural error in circumstances such as these where it is plain on the facts as I have found them that the error was of no consequence.

[34] I am not suggesting by this that an accused must do more than introduce evidence tending to show the approved instrument was not operated properly, as to do so would place an unfair burden on the accused. However, the evidence relied upon tending to show operator error must at least cause the trier of fact to have some doubt as to the reliability of the test results. It may not have to do more but it must at least do that.

[35] Finally, I would add that I am satisfied the Crown met the pre-requisites to be able to rely upon the presumptions. The certificate filed is proof that the accused's BAC at the relevant time was 250 milligrams of alcohol in 100 millilitres of blood. I am not left with any doubt as to the accused's guilt. The crown has met its burden. A finding of guilt will be entered.

Released Orally: June 26, 2013

Gregory A. Campbell, OCJ