Court Information

Ontario Court of Justice

Court File No.: Central East 11-7763

Date: 2013-09-12

Parties

Between:

Her Majesty the Queen

— AND —

Joseph Sergalis

Judicial Officer and Counsel

Before: Justice C.M. Harpur

Heard on: December 13, 2012 and August 1, 2013

Reasons for Judgment released on: September 12, 2013

Counsel:

• D. Chronopoulos — Counsel for the Crown
• B. Cugelman — Counsel for the defendant Joseph Sergalis

HARPUR J.:

Overview

[1] Mr. Sergalis is charged with impaired care or control of a motor vehicle and care or control with excess blood alcohol on December 23, 2011. His trial commenced December 13, 2012 and continued on August 1, 2013. Mr. Chronopoulos for the Crown called the arresting officer, P.C. Rick Hueson, the booking officer at the Barrie Police Service Detachment on December 23, 2011, P.C. Vicki Thisdelle, and the qualified breath technician, P.C. Colin Hopper. Mr. Cugelman for Mr. Sergalis did not call any witnesses.

The Impaired Charge

[2] Mr. Chronopoulos relies principally on the observations of P.C. Hueson on the night in question in asserting that the Crown has proven some degree of impairment in accordance with R. v. Stellato 2005 SCC 36, [2005] 1 S.C.R. 914. Identity and jurisdiction were conceded by Mr. Cugelman. P.C. Hueson said that he had received word on his police radio at approximately 9:08 p.m. of a possible impaired driver in a white pickup truck with a particular licence plate number in the area of Ferndale Drive and Ardagh Road in the City of Barrie. Later that evening, at approximately 9:52 p.m., P.C. Hueson was driving in his cruiser eastbound on Ardagh Road when he spied a white pickup ahead of him. Thinking this might be the vehicle reported earlier, P.C. Hueson followed it. He said the driver's-side tires of the truck strayed approximately twice into the outer of the two eastbound lanes of the roadway before correcting to the inner or curb lane. He said the movements of the tires into the outer lane were slow, as were the corrections. P.C. Hueson characterized the movements as "not normal". P.C. Hueson went on to testify that, as the truck approached the intersection with Patterson Road, the traffic light at the intersection turned red at a time when the truck was approximately 35 feet west of intersection travelling at approximately 50 kilometres per hour. The officer said this represented "plenty of time to stop" but that the truck proceeded through the intersection against the red light without any activation of the brake lights or other indication of any attempt to stop or slow down as it did so.

[3] P.C. Hueson said he activated his emergency lights and siren at 9:53 p.m. and stopped the truck in the curb lane of Ardagh Road a short distance east of the intersection through which the truck and he had just passed. He said the truck stopped abruptly. He noted that the licence was the same as that reported earlier on the police radio. He approached the driver, Mr. Sergalis. He smelled a strong odour of alcohol in the truck. He noted that Mr. Sergalis had bloodshot eyes. Mr. Sergalis provided his documents without difficulty or hesitation. Indeed, he was, the officer said, "one of the most compliant and friendly arrests I have had in my whole career".

[4] P.C. Hueson demanded and administered an ASD test at 9:54 p.m. on what he said was a properly operating and calibrated approved screening device. The test was administered on the passenger side of P.C. Hueson's cruiser. Mr. Sergalis had proceeded there from his driver's seat without any stumbling, swaying or other trouble walking being noted by P.C. Hueson. Mr. Sergalis did give off a strong smell of alcohol. Until Mr. Sergalis provided the roadside sample, P.C. Hueson did not feel he had grounds for an arrest.

[5] Mr. Sergalis's test on the ASD produced a fail. At 9:56 p.m., P.C. Hueson arrested him for the charges before the court. He gave rights to counsel, a caution and the breath samples demand. P.C. Hueson said Mr. Sergalis exhibited no slurred speech and no walking difficulties following the arrest through to being placed in the cruiser. He said Mr. Sergalis's eyes remained bloodshot and that he continued to have an odour of alcohol on his breath.

[6] P.C. Hueson and Mr. Sergalis arrived at the Barrie Police Services detachment at approximately 10:10 p.m. Mr. Sergalis accompanied another officer who had come to the scene. Exhibit 3 at Mr. Sergalis's trial is a DVD of his time at the detachment both in the booking and the breath rooms. The DVD discloses no difficulties being encountered by Mr. Sergalis in any of his activities in his dealings with the police, including his speech and his fine motor skills.

[7] P.C. Hueson said he gave Mr. Sergalis his paperwork at 1:18 a.m. on December 24, 2011 immediately prior to his release and that he still had a strong smell of alcohol on his breath at that time.

[8] In addition to P.C. Hueson's evidence on the matter of impairment, Mr. Chronopoulos called evidence from P.C. Hopper that Mr. Sergalis's eyes were red and glassy and that he had an odour of alcohol on his breath when providing samples at 10:53 p.m. and 11:15 p.m. P.C. Hopper said Mr. Sergalis had no balance issues and no difficulty handling the mouthpiece wrapper.

[9] Mr. Chronopoulos submits that the totality of the driving errors, Mr. Sergalis's undiminishing odour of alcohol on his breath and his bloodshot eyes serve to establish by inference the essential impairment, "from slight to great", required by Stellato. Mr. Cugelman counters with (i) the admonition from R. v. Tavone [2007] O.J. No. 3073 that one cannot equate the presence or strength of an odour of alcohol on breath with impairment of the ability to operate a motor vehicle; and (ii) the finding in R. v. Singh [1997] O.J. No. 1164 that where, on the one hand, there is evidence of a strong odour of alcohol and "terrible driving" but, on the other, evidence of "indicia which are more consistent with non-impairment than impairment", conviction is dangerous.

[10] Here, I accept P.C. Hueson's description of Mr. Sergalis's weaving and running the red light and of his bloodshot eyes and breath alcohol odour. There are, however, strong countervailing indicia of non-impairment in the form of Mr. Sergalis's coordination in his movements and the clear thinking and control exhibited in his speech. Mr. Chronopoulos submits that Mr. Sergalis should be regarded as one of those persons unaffected by excessive alcohol consumption unless and until challenged by a task, such as operating a motor vehicle, in which a number of important mental manoeuvres must be carried out simultaneously. Certainly, I have heard expert evidence commenting on the phenomenon in other cases. Here, however, no expert testified for the Crown about these matters. I regard the non-impairment evidence on the record as raising doubt on this issue and I find Mr. Sergalis not guilty of impaired care or control.

Over 80

[11] Mr. Chronopoulos relies on the presumptions of accuracy and identity in s. 258(1)(c) C.C., together with the viva voce evidence of P.C. Hopper as to the approved instrument readings of, respectively, 184 and 170 mg of alcohol in 100 ml of blood. The Crown asserts that the prerequisites of (i) a demand made under s. 254(3) C.C.; (ii) samples taken as soon as practicable at least 15 minutes apart and the first within two hours of care or control by Mr. Sergalis; (iii) the samples having been received directly into an approved instrument operated by a qualified technician; and (iv) an analysis of the samples having been made by means of an approved instrument operated by a qualified technician have all been proven.

[12] Mr. Cugelman disputes that the evidence led by the Crown has proven beyond reasonable doubt an excessive blood alcohol concentration. That evidence, he submits, is subject to an important weakness. Specifically, Mr. Cugelman has noted that the January 10, 2010 Intoxilyzer 8000C Training Aid Manual, an excerpt of which was made Exhibit 4 at trial, sets out nine "parameters" for an "Instrument Diagnostics Check" and provides that "each must successfully pass in order to operate the instrument". Mr. Cugelman contrasts this requirement with the Intoxilyzer 8000C printouts made Exhibit 1 in this case. The latter indicate that only eight diagnostic checks were carried out. The test mentioned in Exhibit 4 and absent from Exhibit 1 is the "Diagnostics Internal Printer Test" described as follows in Exhibit 4:

…checking the internal printer status to confirm • There is paper in the roller • The mechanism will move • There is proper voltage being supplied to the printer • The print buffer is empty (i.e., no data waiting to print)

Diagnostics Int Prnt Test

[13] This discrepancy was the subject of some inquiry at trial in the course of Mr. Cugelman's cross-examination of P.C. Hopper, beginning at p. 139 of the trial transcript, as follows:

Q. Okay, and then if we go to the top of that page, 7-5, 'The diagnostic purpose, the diagnostics check is a self-limiting evaluation of the functionality of the Intoxilyzer 8000C.' It says, 'A successful diagnostics check provides evidence to the breath technician that the instrument is operating properly', and then it says 'Nine different parameters are evaluated and each must successfully pass in order to operate the instrument.' That was part of your training.

A. Yes.

Q. How many parameters are…are showing on that diagnostics check you have before you?

A. It shows eight printed off.

Q. But it says here nine are evaluated and each must successfully pass in order to operate the instrument. So did you…did you not check that list against sort of the master list in order to ensure that all of the parameters were actually confirmed to be working properly by the instrument?

A. Did I compare those eight to the list in the manual?

Q. Yes.

A. No, I did not compare the eight to the list in the manual.

Q. So you…so you didn't look at that diagnostics print-out in order to confirm that all nine parameters successfully passed. Is that correct? There's one missing.

A. I don't know if one is missing, or if one is rolled into one of the eight. I'm just looking at the nine to see.

THE COURT: The nine that you're referring to, Officer…

THE WITNESS: Yes.

THE COURT: …are the nine under the heading "Diagnostics' at the bottom of page 7-5. Is that right?

THE WITNESS: Yes. Okay. The eight do not include internal printer test because we're using an external printer.

MR. CUGELMAN: Q. So when…when the Centre of Forensic Science says that all nine must be shown to be operating, that's not something that you check at the time?

A. The one of the nine that is not listed on exhibit one is the internal printer.

Q. And the internal printer is a printer that actually comes with…it's part of the instrument. Is that correct?

A. It is. It's internal of the Intoxilyzer 8000C.

Q. And…and it's set up in order to give a proper and accurate print-out of what the findings are in terms of the readings by the instrument?

A. If your service is set up to use the internal printer, then, yes, it would. The internal printer would provide the accurate readings, so…

Q. All right. Do you…do you have any information that it…it's who decides to use an external printer as opposed to the printer that's actually part of the instrument itself?

A. I honestly have no idea who made that decision. But I do know the Intoxilyzer 8000C is set up to use an external printer which Barrie Police Service does in our breath room at this time.

Q. When…when you had conducted your training, was it ever discussed whether or not an external printer would be something that could work properly and accurately with the instrument?

A. Yes.

Q. That was part of your training.

A. Yes.

Q. And is it somewhere in the manual?

A. Bear with me, Your Honour.

MR. CHRONOPOULOS: Your Honour, I see that manual is pretty thick and I don't want this officer to feel rushed. I'm not sure if he'd be more comfortable if the court would take an adjournment for him to find…

THE WITNESS: I found it.

MR. CHRONOPOULOS: Oh, you found it? Okay, sir. Sorry, Your Honour.

MR. CUGELMAN: Q. What does…what does it say?

A. Well, just on my first quick look, I found on page 5-7, there's two USB connectors to allow for the use of the instrument with an external printer. On page 5-14, using an external printer…

Q. And what does it say?

A. Among numerous points, 'Successful connection of an external printer will inhibit the internal printer. All records will print to the external printer on 8 ½ by 11 inch letter paper.'

Q. Okay. What that machine ever used with the internal printer as opposed to an external printer?

A. That particular instrument?

Q. Yes.

A. I couldn't tell you what its history is with printers.

Q. Okay. So as far as you're aware, has anybody ever confirmed whether the print-out you get from the internal printer is exactly the same as you get with a print-out from the external printer?

A. And just to clarify, you're asking if the external print-out would be the same as from the internal print-out, if both were working?

Q. Yes. Has anybody ever determined that that's the case in your…to your knowledge?

THE COURT: I think that the question is not if both were activated, but rather if only the external is activated. Is that correct, Mr. Cugelman?

MR. CUGELMAN: Yes, Your Honour.

THE COURT: Okay.

THE WITNESS: If I understand your question correctly, it's my understanding when I was taught that if you use the external printer, it will print the exact, although larger, results as if printed from the internal.

MR. CUGELMAN: Q. Has anybody ever confirmed that with that particular instrument that was used on that particular day, to your knowledge?

A. To my knowledge, I have no idea.

MR. CUGELMAN: All right, sir. Thank you.

Sorry, just one moment please. Yes.

Q. I mean, it's clear that the external printer that you're using is…isn't part of the Intoxilyzer and it's not…it's not a printer that you would…that the police would obtain from the company that manufactures the Intoxilyzer?

A. I have no knowledge of where the printer was provided by.

Q. Do you know what kind of printer it was?

A. No, I don't.

MR. CUGELMAN: All right. Thank you, sir.

[14] In re-examination of P.C. Hopper, the Crown put into evidence Exhibit 6, an additional page of the training manual confirming that the Intoxilyzer 8000C "allows for use of the instrument with an external printer".

[15] The defence position is that, since the Crown did not prove the equivalent of the internal printer diagnostics check referred to in the training manual for the external printer used in this instance, or otherwise establish that the printer accurately reflected Mr. Sergalis's sample results, the accuracy of the excess BAC readings to which P.C. Hopper testified and which are reflected on the Intoxilyzer printouts forming part of Exhibit 1 cannot be seen as free of reasonable doubt.

[16] The Crown's response can be characterized as threefold: (i) if the defence wished ultimately to submit that there is something problematic about the Intoxilyzer printout showing the excess readings, it was incumbent on them to put the matter squarely to P.C. Hopper in cross-examination (an argument along the lines of Browne v. Dunn) and, in the absence of such questioning, P.C. Hopper's evidence that the Intoxilyzer 8000C was in proper working order and that the printouts are those resulting from the Intoxilyzer tests of Mr. Sergalis ought not to be impeached in argument; (ii) even if such argument is to be permitted, there is nothing in the record to cast doubt on the accuracy of the printout, that is, no inference of improper functioning can be drawn from the fact of use of an external printer; and (iii) leaving aside the printouts as evidence, P.C. Hopper's testimony is that he observed the excessive concentration readouts on the Intoxilyzer 8000C's screen as they occurred, so that the printouts reflecting Mr. Sergalis's concentrations are, from the Crown's perspective, non-essential - a "bonus" as Mr. Chronopoulos put it.

[17] The defence has a rejoinder to the third Crown argument. Mr. Cugelman argues that P.C. Hopper's evidence as to what he observed on the Intoxilyzer screen does not meet the necessary standard of proof since, in respect of the second and lower reading, the officer acknowledges that the notebook note on which he bases this testimony may have been altered after he saw the Intoxilyzer printout — and, inferentially, was affected by seeing the printout. Thus, the argument goes, the viva voce evidence based on the readouts has no higher status as proof than the evidence based on the printout.

[18] Leaving aside the presumptions in s. 258(1)(c) C.C. for the moment, in my view the Crown has proven both that the Intoxilyzer was in proper working order and that the external printer accurately recorded Mr. Sergalis's readings. P.C. Hopper testified that the instrument was in proper working order and that it manifested "no problems". When presented by Mr. Chronopoulos with the printouts comprising Exhibit 1, the officer said, "These would have been the result printouts from the Intoxilyzer 8000C after doing the tests of Mr. Sergalis". It was not suggested to P.C. Hopper in cross-examination that use of the external printer in this instance had the potential to render the printout of Mr. Sergalis's blood alcohol concentrations inaccurate. On the neutral questions which were asked in cross-examination on this issue, the essence of P.C. Hopper's evidence was that external printers, in general, give the same results as internal printers, only larger. This testimony does not, in my view, cast doubt on the accuracy of the blood alcohol concentration printout in Exhibit 1 to which P.C. Hopper had otherwise testified.

[19] Turning to the statutory presumptions, I understood Mr. Cugelman to submit that the burden of proof on this issue of the proper functioning of the instrument and the authenticity of the printout readings remained with the Crown throughout, that is, that Mr. Sergalis was not, at any stage of the trial, required to elicit evidence to the contrary concerning them. If that is indeed the defence position, I cannot agree. It may be, however, that Mr. Cugelman's submission on this point is simply a paraphrase of the law as set out in R. v. Proudlock, [1979] 1 S.C.R. 525 and reiterated in R. v. Boucher 2005 SCC 72, [2005] S.C.J. No. 73:

The burden of proof does not shift. The accused does not have to "establish" a defence or excuse, all he has to do is raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.

[20] In any event, R. v. St. Onge-Lamoureux 2012 SCC 57, [2012] S.C.J. No. 57 confirms that s. 258(1)(c) C.C. contains a presumption of accuracy, as well as a presumption of identity. Thus, proof by the Crown of the pre-requisites set out at paragraph 11 of these reasons necessarily, and explicitly, requires a defendant to adduce evidence tending to show "that the instrument was malfunctioning or was operated improperly" to rebut the presumption of accuracy. If the Crown proves the requirements of s. 258(1)(c) C.C., as it has here, proper operation and functioning – and, thus, accuracy of results – is presumed, although the presumption can be rebutted by the presence of evidence tending to show the contrary. As indicated, there is no such contrary evidence on this record.

[21] For the foregoing reasons, I am obliged to find Mr. Sergalis guilty of the over 80 offence.

[22] I do agree with Mr. Cugelman's submission that P.C. Hopper's note-based evidence of the result of the second sample is on no better or distinct footing than his evidence based on the printout of that sample, since P.C. Hopper acknowledges the possibility of having changed the notebook entry after seeing the printout. However, again, with or without the benefit of the statutory presumption, I do not regard the Crown's evidence of proper functioning and operation of the instrument and authenticity of the printout readings as deficient.

Released: September 12, 2013

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.