Ontario Court of Justice
(East Region)
Her Majesty the Queen v. Kevin Meranger
Before: Justice David M. Paciocco – Ottawa, ON
Reasons for Decision
Released: October 24, 2013
Counsel:
- Ms. M. Cunningham for the Crown
- Mr. P. Lewandowski for the Accused
Decision
Paciocco J.
I. Overview
[1] On 24 February 2013, at 12:50 a.m., Mr. Kevin Meranger was stopped at an Ottawa Police Service RIDE program check stop on Rideau Valley Road in the City of Ottawa. A lawful demand led to Mr. Meranger providing a sample of his breath into an approved screening device. That sample was analysed as a "fail," providing the officer with reasonable grounds to believe that Mr. Meranger was committing an alcohol driving offence. Mr. Meranger was then lawfully arrested and transported to the police station. At 3:06 and 3:29 respectively he provided breath samples into an approved instrument, an Intoxilyzer 8000 C, producing readings of 122 milligrams of alcohol in 100 millilitres of blood, and 114 milligrams of alcohol in 100 millilitres of blood. None of this is contested.
[2] The issue before me is whether, in the circumstances, those readings establish beyond a reasonable doubt that Mr. Meranger had more than the legal limit of alcohol in his blood at the time of driving, 12:50 a.m.
[3] The law, of course, provides short-cuts or presumptions to assist prosecutors in proving blood alcohol levels at the time of driving. The "presumption of accuracy" presumes that the blood alcohol readings secured by the approved instrument were accurate at the time they were taken. The "presumption of identity" presumes that the blood alcohol content at the time of driving is identical to the presumptively accurate readings secured at the time of the test. Both presumptions are found in section 258(1)(c) of the Criminal Code of Canada. In this case the Crown cannot benefit from either of these short-cut presumptions since one of the statutory prerequisites to their use has not been met. Contrary to section 258(1)(c)(ii), the first breath sample was secured beyond the two hour limit that must be satisfied before the presumptions operate. The Crown must therefore prove with evidence beyond a reasonable doubt that Mr. Meranger's blood alcohol level at the time of driving was over the legal limit.
[4] To accomplish this the Crown called expert testimony from Ms. Teri Martin, a toxicologist from the Centre for Forensic Sciences, who provided her opinion that the readings secured by the approved instrument are reliable, and that based upon those readings and four hypothetical assumptions Mr. Meranger's blood alcohol content at the time of driving would have been between 115 and 170 milligrams of alcohol in 100 millilitres of blood.
[5] Although the onus is on the Crown to prove Mr. Meranger's blood alcohol concentration at the time of driving, Mr. Meranger tactically seeks to raise a reasonable doubt about the accuracy of the expert's opinion by relying on his own oral testimony about his alcohol consumption pattern, coupled with answers furnished by Ms. Martin in cross-examination that if the facts attested to by Mr. Meranger were true his blood alcohol content would have been below the legal limit at the time of driving. This evidence is an assault, ultimately, on Ms. Martin's opinion about the accuracy of the readings secured by the approved instrument.
II. The Admissibility of Carter Defence type Evidence
[6] Mr. Meranger is therefore relying upon the kind of proof that was once used to support a "Carter defence," in which accused persons would present drinking pattern testimony along with expert evidence showing that based on that pattern of drinking their blood alcohol level at the time of driving would have been below the legal limit. If such evidence was credited to the extent that it would raise a reasonable doubt it would constitute evidence to the contrary within the meaning of section 258(1)(c) of the Criminal Code of Canada, undermining the ability of the Crown to rely upon the presumption of accuracy. This, in turn, would undermine the presumption of identity which depends upon the accuracy of the readings at the time they are taken. The result would be an acquittal on a section 253(1)(b) charge.
[7] In 2008 Parliament passed legislation precluding reliance on the Carter defence to rebut the statutory presumptions of accuracy and identity. Specifically, the Criminal Code of Canada was amended, narrowing the kind of evidence that could be used to do so. Section 258(1)(c) permits the presumptions to be rebutted by evidence relating to the malfunctioning or improper operation of the approved instrument. Meanwhile section 258(1)(d.1) leaves open the option of rebutting the presumption of identity by evidence of alcohol consumption patterns; in appropriate cases this enables proof of "bolus" drinking and post-driving alcohol consumption to raise a doubt about the accused person's blood alcohol concentration at the time of driving.
[8] The parties before me have proceeded on the assumption that this legislation abolishes the "Carter defence" solely as a means to rebut the presumptions of accuracy and identity. This leaves it open, they seem to agree, for accused persons in a case such as this to rely upon Carter defence type testimony to cast a reasonable doubt on expert toxicology evidence about the reliability of the readings produced by an approved instrument in a particular case. I agree with them.
[9] At first blush, section 258(1)(d.01) of the Criminal Code might appear to say otherwise. That section addresses specifically, reliance on Carter-type defence evidence to "show that an approved instrument was malfunctioning or was operated improperly." This is essentially the kind of challenge that Mr. Meranger is bringing here. I say this because he does not claim that approved instruments generally do not provide a reliable measurement of blood alcohol content. Instead, he is contesting the accuracy of the readings taken in this case, a position that by necessary implication entails a challenge to the functioning or operation of the Intoxilyzer 8000C when Mr. Meranger provided his breath samples. Still, in my view section 258(1)(d.01) does not prevent Mr. Meranger from marshalling Carter-type evidence where the presumptions in section 258(1)(c) are not in play. This provision can only be interpreted as supporting the abolition of the Carter defence solely as it applies to those presumptions.
[10] I say this because section 258(1)(d.01) follows section 258(1)(c), which both creates the presumptions and describes the kind of evidence that can rebut those presumptions. Section 258(1)(d.01) states (emphasis added):
"(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed;
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed."
The term "greater certainty" is a clear reference to what has come before, namely a provision redefining what will be sufficient to rebut the presumption of accuracy. In my view this phrase prevents section 258(1)(d.01) from being read as a complete bar on defence evidence of the amount of alcohol that the accused consumed, the rate of elimination, and an expert calculation.
[11] In coming to this conclusion I have considered the purpose behind these amendments as described by the Supreme Court of Canada in R. v. St-Onge Lamoureux, 2012 SCC 57, at para. 38. The majority in that case describes how, in amending the Criminal Code, Parliament relied on scientific evidence showing that "if the instrument functions properly and all the relevant procedures are followed, the results should be reliable'" making it "logical to challenge the results only by raising problems that can objectively be identified and that relate to possible deficiencies in the instrument itself or the procedure followed in operating it." I recognize that this purpose could be better fulfilled by interpreting section 258(1)(d.01) as expunging any challenge using Carter-type evidence, but that interpretation would, in my view, require ignoring the natural meaning of the phrase "for greater certainty," interpreted in the context of the language and the statute as a whole. In my view it is competent for Mr. Meranger to seek to raise a reasonable doubt about expert evidence relating to the accuracy of an approved instrument by presenting Carter defence type evidence.
[12] Since it is admissible for Mr. Meranger to present evidence about his alcohol consumption to assist in raising a doubt about his guilt, R. v. W.(D.) applies. If I affirmatively believe Mr. Meranger's evidence about his pattern of alcohol consumption I must acquit him provided I also credit Ms. Martin's opinions about the blood alcohol content that pattern would produce. Even if I do not affirmatively believe Mr. Meranger's evidence about his drinking pattern but I am left in a reasonable doubt by it I will still have to acquit him if I credit Ms. Martin's opinions about the blood alcohol content that this pattern would produce. Finally, even if I am not left in any doubt by Mr. Meranger's evidence, I must still go on and ask whether the Crown has proved its case beyond a reasonable doubt on the evidence I do accept.
III. Analysis
A. Crown Attempts to Re-Create a Presumption of Accuracy
[13] Ms. Cunningham, for the Crown, has argued that in evaluating the evidence in this case I should apply the spirit of the 2008 legislation. Although it was not put so directly, she is effectively inviting me to reject Mr. Meranger's testimony absolutely because the legislation reflects recognition that approved breathalyzer machines are so scientifically reliable that results properly taken cannot reasonably be cast into doubt by the subjective account of individuals about alcohol consumption patterns. That proposition has some intellectual attraction. It is curious why Parliament would have declared this kind of evidence to be insufficient to raise a reasonable doubt about the presumed accuracy of breathalyzer readings yet potentially sufficient to raise a reasonable doubt about the accuracy of breathalyzer readings as testified to directly by an expert witness. Still, I cannot accept Ms. Cunningham's invitation. It is, in substance, an invitation to apply the legislation beyond the reach Parliament gave it. Simply put, in making findings of fact I cannot import Parliamentary opinions about fact that are reflected in non-applicable legislation. I must decide the case on the quality of the evidence before me.
[14] Ms. Cunningham invited me, as well, to rely upon the Supreme Court of Canada decision in R. v. St-Onge Lamoureux, supra in evaluating the reliability of the results obtained by an approved instrument. If I understood her submission it was that in St-Onge Lamoureux the Supreme Court of Canada made such decisive determinations about the reliability of the results of approved instruments when operated properly that I should respect this and rely upon it to reject Mr. Meranger's testimony.
[15] To be sure, the St-Onge Lamoureux decision is a veritable paean to the reliability of approved instruments when operated and operating properly. In that case the Supreme Court of Canada upheld the abolition of the Carter defence in the face of a Charter challenge. It found that while testimony about alcohol consumption patterns is logically relevant in "discredit[ing] both the results of a breathalyzer test and – indirectly – the proper functioning and operation of the instrument itself," the abolition of the Carter defence was a justified limitation on the presumption of innocence because it was passed to remedy a "serious disconnect" in which "scientifically reliable" "test results could be rejected on the basis of testimony that was considered subjective" (at para. 65). The majority of the Court commented, "expert evidence accepted by the courts over the past few years has established that the breathalyzer results are very reliable, provided that the instruments are operated and maintained properly" and "[a]t the same time, many reports have shown the testimony of accused persons regarding the consumption of alcohol to be unreliable" (at para. 70). Indeed, the Court went on to hold that the abolition of the defence does not undermine the constitutional right to full answer and defence because, given the reliability of breathalyzer results, "[t]here is no reasonable risk that these provisions frustrate the objective of truth-finding" where there is no evidence "that tends to show that the instrument was malfunctioning or was operated improperly" (at para. 76).
[16] It is possible to make a case that I am obliged to accept the Supreme Court of Canada's evaluation of the reliability of approved instruments and the comparative unreliability of subjective testimony about drinking patterns; there are times when courts must take judicial notice of factual conclusions affirmed in other cases: see R. v. Koh (1998), 42 O.R. (3d) 668 at 679 (C.A.) and R. v. Paszczenko 2010 ONCA 615 at para. 66. Indeed, the Supreme Court of Canada did so itself in St-Onge Lamoureux in para. 70, quoted above. Yet I do not think this to be an appropriate instance for doing so. In R. v. St-Onge Lamoureux the Court was dealing with a question of "legislative fact" pertaining to the constitutional validity of an enactment. The Supreme Court of Canada was not purporting to declare a universal truth that in every case where proper operation occurs the readings from approved instruments are too reliable to be cast into doubt by drinking pattern evidence. The Court was interested in the more modest question of whether this proposition is consistently true enough to support legislation of general application that incorporates this assumption. In contrast, the key question before me is a specific one. Are the particular blood alcohol readings obtained from Mr. Meranger in this case reliable enough to convict him in the face of his testimony to the contrary? This is a question of "adjudicative" fact, leading to findings about what Mr. Meranger did on this occasion. It would be wrong, in my view, to translate the generic factual propositions in R. v. St-Onge Lamoureux into a recipe for prejudgment about the relative value of competing evidence in all cases.
[17] Moreover, the issue on which the Crown seeks to import the Supreme Court of Canada's factual assessment about reliability is central to Mr. Meranger's case. Both factors I have mentioned - that the reliability comments of the Supreme Court of Canada are being offered as evidence before me of what Mr. Meranger did (an adjudicative fact), and the significance or centrality of this factual question to the outcome of this case - require that I impose a higher standard before taking judicial notice than is ordinarily applied in cases of legislative fact: R. v. Spence 2005 SCC 71 at para. 60. I cannot follow the lead of St-Onge Lamoureux simply because the Supreme Court of Canada resolved the issue of reliability as they did for the purpose before them.
[18] Finally, if trial judges were required to accept and act upon the relative evaluation of approved instrument evidence and subjective testimony about drinking patterns accepted in R. v. St-Onge Lamoureux, this would not sit well with the admonition in R. v. W.(D.) to judges to avoid making credibility findings based on which version of facts is preferred. After all, at heart St-Onge Lamoureux turns on a comparative evaluation of which kind of evidence is apt to be more reliable, scientifically validated testing or subjective opinions. In my view, the proper way to evaluate the evidence in this case is in its own right; I am to evaluate the competing testimony by applying the principles in R. v. W.(D.), including evaluating the defence evidence, a task that is to be done in the context of the other evidence in the case.
B. Evaluation of the Evidence in Context
[19] It is customary, although not required, to begin the evaluation of evidence in a W.(D.) case with the evidence of the accused and I will do so here.
[20] Mr. Meranger testified that he had between 4 ½ and 5 beers in the immediate period leading up to his stop at the RIDE program. He said that he purchased a 6 pack of Coors light "tall boy" cans, each holding 473 ml of fluid at 4% alcohol. He split them evenly with his friend, Pat Derouin, between 5:00 and 6:00 p.m., in anticipation of going to a Senator's game in Kanata Ontario for 7:00. Mr. Meranger was not paying particular attention to what he consumed as he had no reason to do so at the time but recalls that he was still consuming the last of his 3 beers when their ride to the game was ready to leave. Mr. Meranger is not sure whether he finished that last beer. He testified he had two more beers while at the Senator's game. Both were Coors Light small cans, 355 ml. each having 4% alcohol. The first was consumed upon arrival shortly before 7:00 and the second between 8:00 and 9:00.
[21] It was based on this version of events that Ms. Martin offered the opinion that if the facts were so Mr. Meranger's blood alcohol level would have been no higher than 50 milligrams of alcohol in 100 millilitres of blood at the time he was pulled over, and 60 milligrams of alcohol in 100 millilitres of blood during the first operation of a motor vehicle admitted by him in his testimony.
[22] Viewed in isolation, Mr. Meranger's evidence stood up well to cross-examination. During questioning he was not contradicted on any of the details he gave, and he seemed to make appropriate concessions when confronted with suggestions, such as his disinterest at the time of drinking in keeping a close account of his consumption pattern.
[23] There is, however, an important fact that troubles me. Mr. Meranger provided a voluntary statement to Cst. Craig between furnishing the first and second samples. He told Cst. Craig that he started consuming alcohol at 7:00 and consumed his last drink at 9:15. This information is, of course, inconsistent with the narrative furnished in his testimony, particularly as it relates to the most prolific period of drinking he testified to, the beers consumed between 5:00 and 6:00. I am mindful that Cst. Craig testified that he did not follow up his questions with further probing for details but this does not change the fact that Mr. Meranger has furnished inconsistent details relating to his consumption pattern, details that were not explained by him in his testimony before me. This is not a contradiction on an incidental point. It is a contradiction that relates to Mr. Meranger's drinking pattern evidence, on which he relies tactically to create a doubt about his blood alcohol level at the time of driving.
[24] I also note that there is no confirming evidence for Mr. Meranger's version of events. I draw no adverse inferences against him for not having subpoenaed Mr. Derouin but the fact remains that his evidence stands on its own.
[25] Meanwhile his evidence is being offered in the face of evidence that contradicts his version of events, namely the blood alcohol readings produced by the Intoxilyzer 8000 C and the evidence of Ms. Martin, coupled with the evidence of Cst. Craig Scott, to the effect that those readings are reliable yet could not have been attained on Mr. Meranger's version of events.
[26] In the days when the Carter defence applied, had the Crown been relying upon the presumptions in section 258(1)(c) I would not have been permitted to consider the Intoxilyzer readings in evaluating Mr. Meranger's testimony: R. v. Boucher 2005 SCC 72 at paras. 43 and 64, and see R. v. St-Onge Lamoureux at para. 9. The reason was that doing so would have been hopelessly circular; it would have been boot-strapping of the highest order for the Crown to rely on the accuracy of readings in an effort to benefit from a presumption that those readings are accurate. One would have to assume what one is trying to prove in order to prove it. There is no similar illogicality in considering readings when an expert witness testifies to their accuracy, in assessing the contrary testimony of an accused person. In such a case, a Court is simply evaluating all of the evidence in context. For this reason there is no prohibition against a Court considering otherwise reliable and credible approved instrument readings in evaluating the drinking pattern testimony of accused persons where the presumption of accuracy is not being invoked by the Crown: R. v. Kernighan (2010), 2010 ONCA 465.
[27] Nor does it contravene the admonition in R. v. W.(D.), supra, against treating a case as a credibility contest, to evaluate the Crown evidence and the defence evidence in the context of one another. The admonition against engaging in a credibility contest is meant to prevent decision-makers from convicting because the Crown evidence is better, without remembering to ensure that the Crown evidence must prove guilt beyond a reasonable doubt.
[28] The pay-dirt question, then, is whether Ms. Martin's evidence and Cst. Scott's evidence is credible and reliable enough to prove the case for the Crown, in the face of Mr. Meranger's testimony to the contrary. This necessarily entails a comparative evaluation of the Crown and the defence evidence, bearing in mind that at the end of the process to secure a conviction, the Crown evidence must be sufficient in the face of the defence evidence to prove guilt beyond a reasonable doubt.
[29] In this case I found that Ms. Martin testified in a forthright and instructive manner. She explained her expert testimony clearly, and with supporting explanations, and she made concessions where concessions were due.
[30] With respect to the reliability of the Intoxilyzer 8000C Ms. Martin testified that when properly operated by trained individuals this tool provides accurate and reliable blood alcohol readings at the time it is used. She acknowledged that the machine is imperfect. It bears an error rate as do all scientific instruments used for measurement. She testified that the degree of error that the machine is susceptible to is up to 10%, albeit in rare cases. She testified, however, that each of the phenomena that can cause inaccuracy, from poor quality lung air to partition ratio deviations for individuals, are accounted for by protocols and practices that give the benefit of the risk of error to the accused. The Intoxilyzer 8000C results offered to courts when the machine is operating properly and properly operated therefore tend to underestimate the actual blood alcohol reading. This evidence by Ms. Martin was un-assailed by effective direct challenge, beyond attempts to raise hypothetical illustrations of potential inaccuracy, each of which was effectively parried by her.
[31] Ms. Martin also testified that the Intoxilyzer test record generated when the machine was used to secure Mr. Meranger's breath samples confirms that the machine was operating properly. All of the diagnostic checks were conducted, including a calibration test that would catch any errors that might be occurring because of such issues as software source code errors. She also testified that there was no indication on the Intoxilyzer test record of improper operation. This evidence also went without effective direct challenge.
[32] When Cst. Craig Scott, the qualified Breath Technician who secured Mr. Meranger's samples, testified he said that he satisfied himself that the machine was in proper working order before obtaining the samples in question. The samples furnished were suitable for analysis, in his opinion. He also said that the alcohol standard was appropriate, and the requisite waiting time between tests was respected. Cst. Scott was not challenged directly on his manner of operation by defence counsel nor was his credibility or reliability weakened.
[33] In addition Ms. Martin offered the opinion that if the readings were accurate in this case Mr. Meranger's blood alcohol level would have been over the legal limit at the time of driving. Ms. Martin's conclusion was reached by "relating back" to the time of driving the blood alcohol readings secured from the approved instrument, after relying on four hypothetical assumptions, none of which were effectively challenged by direct cross-examination or evidence.
[34] The first two hypothetical assumptions, (1) that the subject had a rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour, and (2) allowance for a plateau of up to two hours, are each scientifically valid assumptions suitable to be applied in offering evidence of blood alcohol levels at the time of driving. Indeed, these two assumptions are broadly considered reliable enough before courts that they have been the subject of judicial notice based on the decisions of other courts: R. v. Paszczenko 2010 ONCA 615 at para. 66.
[35] Ms. Martin also gave compelling evidence as to why these hypothetical facts could be applied in this case. She testified that while some individuals can eliminate alcohol at more than 20 milligrams of alcohol, applying such a higher elimination rate assumption would increase the inferred blood alcohol reading at the time of driving. The contingency of abnormally swift elimination is therefore disregarded in the calculation, thereby giving the accused person the benefit of the doubt. She also testified that it is not reasonably possible for individuals to have an elimination rate below 10%. No evidence was presented before me to challenge this assertion directly.
[36] In addition Ms. Martin testified that some experts do not use the second hypothetical fact, namely the plateau assumption, which accounts for a period of blood alcohol stability when absorption is occurring and being offset by elimination. Not all toxicologists work with this assumption because a plateau does not occur in most cases. Ms. Martin testified that she chooses to apply a plateau assumption because a plateau is possible and if it does occur it results in a lower inferred blood alcohol level at the time of driving. This assumption therefore inures to the benefit of accused persons. No complaint can be made in this case by Mr. Meranger about Ms. Martin making this assumption.
[37] The final two hypothetical assumptions relied upon in offering the opinion sought by the Crown relate to the consumption pattern, namely that no alcohol was consumed in large quantities within approximately 15 minutes prior to the incident, or after the incident and before the breath tests. Absent an evidentiary foundation for bolus or post-offence drinking, a trial judge should not speculate about such possibilities. I need not, however, rely upon this practice. Mr. Meranger, in his testimony, validated each of the assumptions, having provided testimony that his last drink before the tests was consumed long before his arrest.
[38] It was based on these assumptions - that the approved instrument provided accurate readings and that these four hypotheticals pertain – that Ms. Martin concluded that Mr. Meranger's blood alcohol level at 12:37 was between 115 and 170 milligrams of alcohol in 100 millilitres of blood.
[39] I therefore have before me facially credible and reliable expert evidence that the Intoxilyzer 8000C when operated properly and operating properly produces reliable results. I also have evidence of similar quality before me that in this case the Intoxilyzer 8000C was operated properly and operating properly. I have no evidence of any errors or problems caused either by the operator or by the machine. And as just indicated I have compelling evidence that if the readings in this case are accurate, Mr. Meranger's blood alcohol level was over the legal limit at the time of driving. This evidence together is inconsistent with Mr. Meranger's version of events, given that his version of events simply cannot produce the readings that this apparently reliable, properly operated and properly operating machine produced in his case. In turn, Mr. Meranger's evidence is inconsistent with the implications of this expert evidence because if his drinking pattern evidence is credited, the readings cannot be accurate in spite of the scientific offering by the Crown.
[40] I have considered all of this evidence together and conclude that I do not believe Mr. Meranger's inconsistent and unconfirmed account of his drinking pattern. Indeed, given its frailties and the quality of the Crown evidence that I have recited here I am not left in a reasonable doubt by Mr. Meranger's testimony. In contrast, I do believe beyond a reasonable doubt the testimony of Ms. Martin and Cst. Scott that I have recited here. This evidence is too compelling and credible to be weakened materially by Mr. Meranger's testimony. I therefore find that Mr. Meranger's blood alcohol exceeded the legal limit while he operated a motor vehicle on Rideau Valley Road in the City of Ottawa on 24 February 2013. I believe the Crown evidence and accept the opinions it is based upon. I find Mr. Meranger guilty of the offence contrary to section 253(1)(b) of the Criminal Code of Canada, as charged.
Released: October 24, 2013
The Honourable Justice David M. Paciocco