R. v. Peters

Ontario Court of Justice

Date: October 21, 2013

Court File No.: Brampton, File number 3111 998 09 3115

Parties

Between:

Her Majesty the Queen

— And —

Michael Peters

Before the Court

Justice: K. L. McLeod

Heard on: March 1, May 25, August 10, December 12, 2011 and May 6, 2013

Reasons for Judgment released: October 21, 2013

Counsel

Ms. C. Nadler — counsel for the Crown

Mr. F. Fedorsen — counsel for the defendant Michael Peters

McLEOD J.:

Background

[1] Michael Peters faces a charge of driving with over 80 milligrams of alcohol in 100 millilitres of blood on the 11th March, 2009.

[2] There are two issues in this case: the first is whether Mr. Peters' evidence raises a doubt with respect to his alcohol consumption and whether he took his diabetes medication on the date of his arrest. And if the answer to the first is yes – then the second issue is whether the Court can conclude that there is a realistic scientific possibility the Intoxilyzer 5000C malfunctioned when Mr. Peters' BAC was tested.

[3] Mr. Peters was stopped at 9.15 at night after being seen leaving a bar called Papa's Place in Mississauga. Constable Nicholson was waiting outside the bar to check the sobriety of those leaving and noted Mr. Peters' car speeding out of the parking lot. Constable Nicholson, after stopping Mr. Peters, formed the requisite suspicion to give an ASD demand at 9.18. He waited to administer the test so that any last drink problem could be remedied. At 9.31 Mr. Peters successfully gave a sample, the ASD registered a fail and as a result Mr. Peters was arrested, given his rights and the breath demand. Back at the police station Mr. Peters provided two samples of his breath to Constable Nicholson who is also a qualified breath technician. The first sample was taken at 10.51 and registered a reading of 137 milligrams of alcohol in 100 millilitres of blood; the second test was at 11.11 and registered 139. As a result Mr. Peters was charged with the offence for which he now stands trial.

[4] Since the amendments contained in Bill C-2 and the modifications contained in the decision of Regina vs. St. Onge-Lamoureux 2012 SCC 57, Mr. Peters has to rebut the presumption contained in Section 258 of the Code on two bases:

(i) To provide both credible and reliable evidence as to his consumption of alcohol coupled with expert evidence that that consumption should have led to a BAC reading of 80 or less, and

(ii) To establish a possibility that the BAC readings are inaccurate, sufficient to rebut the evidentiary presumption that the breathalyzer was functioning correctly.

[5] This judgment will deal with the issues in the following way:

1. The traditional "Carter" evidence
2. The Operation of the Intoxilyzer 5000C and the Expert Evidence as to the Possibility of Machine Malfunction

1. The "Carter" Evidence

[6] Mr. Peters testified that on the evening he was arrested he left his work where he is employed as a service manager after a meeting, encountered bad traffic on the 410 and decided to stop off at Papa's Place. When he went to the bar he met up with his friend, Gerry Gorman. In his testimony at trial Mr. Peters indicated that he had consumed four bottles of Labatts Blue and that he paid the bill in cash: $15 for the drinks and a $5 tip.

[7] Mr. Peters also testified as to his personal circumstances: he is 39 years of age, he is married and has a number of ailments for which he was taking medication at the time. He listed those medications as the following:

• Metformin and Glybride for his diagnosis of diabetes. Mr. Peters says that since 2009 his diabetes has been aggravated to the extent that he now is medicated with insulin.
• Livitor for high cholesterol
• Avapro and Indapamide for high blood pressure
• Buckley's for the flu with which he had been suffering for approximately three weeks leading up to the evening of the alleged offence.

[8] Mr. Peters said that the evening of March 10th, the night before his arrest, he had shared a bottle of Merlot with his wife; he drank three glasses; his wife had one.

[9] With respect to the regimen of taking his medication, Mr. Peters testified that he usually takes his medication at lunch time but on the date he was arrested he realized upon returning home from the police station that he had not taken his medication. He was alerted to this fact by his wife who, he testified, asked him why his daily pill dispenser was still full. With respect to symptoms of lack of medication he said he felt shaky when he returned home from the police station.

[10] Mr. Peters was interviewed by Constable Nicholson during the breathalyzer process. The information he provided to Constable Nicholson differed from his testimony at trial in three crucial areas.

Firstly, with respect to his alcohol consumption: Mr. Peters told Constable Nicholson that he had drank three beers not the four that he stated at trial. Mr. Peters indicated that until he saw the receipt from the bar obtained some two days after his arrest, he believed he had had three beers.

Secondly, with respect to the taking of his medication on the day of the offence, Mr. Peters told Constable Nicholson he had taken his medication that day and in his testimony indicated he must have been mistaken.

Thirdly, Mr. Peters told Constable Nicholson that he was alone at the bar but testified he met up with his friend. Mr. Peters suggested that he believed the question from Constable Nicholson to be whether he had come with anybody to the bar rather than meeting up with somebody he knew at the bar.

[11] Eike Huebner is Mr. Peters' colleague. He testified that he met with Mr. Peters on the evening of the 11th March at around 6.00 p.m. He testified that neither he nor Mr. Peters had any alcohol at that meeting.

[12] Ron Watson is the Manager of the bar Papa's Place. He testified that two days after Mr. Peters had been arrested, he was asked to check his records and provide a receipt for however much Mr. Peters drank. He provided a receipt for four beers. He testified that Mr. Peters came in between 6.30 and 7.00 and met up with a friend who had arrived shortly before him.

[13] Mr. Ishmael Moftah was qualified to provide opinion evidence in both areas upon which Mr. Peters is seeking to rebut the presumption. For the sake of clarity, I intend to deal with Mr. Moftah's evidence on the "traditional Carter" issue in a discrete fashion.

[14] Mr. Moftah was qualified to provide opinion evidence as to the absorption and elimination of alcohol and its effect on the blood alcohol concentration in the human body given a specified consumption pattern.

[15] Mr. Moftah in assuming the veracity and reliability of Mr. Peters' evidence – that he had four beers prior to being stopped by Constable Nicholson at 9.15 - opined that Mr. Peters' blood alcohol concentration at 9.15 would have been, with a low elimination rate of 10 milligrams of alcohol per hour, 61 milligrams of alcohol in 100 millilitres of blood.

[16] When asked by Ms. Nadler, Mr. Moftah opined that based on the test result at 10.51 which produced a reading of 137 and based on the presumption that the intoxilyzer was both operated correctly and working properly, Mr. Peters' blood alcohol level at the time of driving would have been as low as 130 and as high as 162. This opinion expressly did not take into account any issues of bolus drinking or drinking between the time of arrest and testing. To state the obvious, there was no evidence of either being an issue in Mr. Peters' case.

[17] Additionally, Mr. Moftah opined that given Mr. Peters' version of events, his reading at the time of the first test would have been 45 milligrams of alcohol and at the second 41. The difference between using the intoxilyzer as a base and using Mr. Peters' version as a base would be in the area of a 300 per cent variation.

[18] Mr. Fedorsen, on behalf of Mr. Peters, correctly argues that if Mr. Peters' evidence as to his consumption of alcohol on the night in question does not pass the credibility and reliability muster, any evidence as to any malfunctioning of the Intoxilyzer 5000C would be irrelevant in this case.

[19] Much of the Court time utilized in this trial however was not on this aspect of the defence. Given the breadth and depth of the evidence provided on the functioning of the intoxilyzer, it behoves me to deal with that evidence as well before coming to any determination as to whether, ultimately, the Crown has proven its case beyond a reasonable doubt.

2. The Operation of the Intoxilyzer 5000C and the Expert Evidence as to the Possibility of Machine Malfunction

[20] Evidence was received from three witnesses concerning the functioning of the Intoxilyzer 5000C. Firstly, there was the evidence of Constable Nicholson who testified that as far as he was concerned the machine was operated correctly in accordance with his training, that it appeared to pass all the internal standards checks, that there was no error messages and that Mr. Peters produced a proper sample.

[21] The Annual Service Records of the specific Intoxilyzer 5000C which tested Mr. Peter's BAC were introduced into evidence. The document entitled "Intoxilyzer 5000C Test Procedure Check Sheet" dated July 21, 2008 is Exhibit 12. That document listed the work performed on the machine at the annual service in the following way:

"Complaint annual service. Replaced IR source and breath tube RCA connector. Checked both 3-way valves and sample chamber for leaks. Recertified. Unit is operating within manufacturers specs."

[22] The 2009 Annual Service was performed on December 15, 2009. The check sheet is filed as Exhibit 6 in these proceedings. The listing of the work performed was:

Intoxilyzer 5000C – 64-004125

Complaint – Annual. Performed an annual preventative maintenance. Replaced IR source, chopper motor, clock back-up battery. Unit is operating within manufacturers specs.

[23] Two experts were called to testify as to the operation of the Intoxilyzer 5000C and as to the possibility or probability of a functional error which was undetected and undetectable by the qualified intoxilyzer operator.

[24] S.258(1)(c) mandates that there must be evidence tending to show the instrument was malfunctioning or operated improperly, failing that there is a presumption that it was accurate.

[25] The onus on the defence must raise more than a mere possibility that the instrument had malfunctioned. Once that has been done then the burden rests on the prosecution.

[26] R. v. St. Onge - Lamoureux set the legal parameters which define this presumption.

[27] The types of evidence that will suffice to permit the defence to overcome the presumption are set out by the Supreme Court in St. Onge at paragraph 78:

"a maintenance log that shows the instrument was not maintained properly or an admission by the technician that there had been erratic results or he or she might argue that health problems had affected the functioning of the instrument."

[28] In R. v. Corley 2013 ONCJ 178, my colleague Justice Maund concluded:

"Evidence capable of raising such a reasonable doubt must be accepted by the Court in the sense that it meets normal evidentiary standards. But such evidence need not rise to a standard of scientific probability or certainty."

Justice Maund found that the defence had to establish a realistic scientific possibility of machine malfunction to rebut the presumption.

[29] Both experts who testified in this proceeding, not surprisingly, had very divergent views about the possibility of an undetected error in the Intoxilyzer 5000C. Given Constable Nicholson's evidence and the Intoxilyzer Test Record, such an error is the only route by which the defence in this case could rebut the presumption.

[30] Those divergent views were no more evident that in a discussion about disclosure of maintenance records. While disclosure of the maintenance records, to the extent they exist in Peel was requested and provided, the testimony at trial on this issue from the Crown witnesses left all in no doubt that had very strong opinions on the issue which I find informed their opinions about the possibility of error.

[31] Constable Nicholson described Mr. Fedorsen's request for disclosure of voltages of the Intoxilyzer 5000C obtained through the calibrations of the instrument from the manufacturer of the manuals for the machine as a "delaying tactic".

[32] With respect to those requests from Mr. Fedorsen the officer said:

"….and then in my view Sir, once it was finally given to you and I have had several cases who were involved in that 30-50 cases you had.

….They basically disappeared either by way of 11(b) or by way of careless driving charges. The …it didn't appear that the evidence that was being looked for was of any evidentiary value, other than to be a delaying tactic, Sir, and that's the way I looked at it."

[33] Dr. Langille, whose qualifications I will detail later in this judgment, opined that the maintenance records of the particular Intoxilyzer machine "would not be relevant to the trier of fact"….He conceded the records may be relevant to quality assurance practice examination "but not to whether or not a particular instrument was in proper working order at the time of an accused person's breath tests".

[34] These rather intransigent views about historical data are no doubt earnestly held – but the Crown's office in Peel has taken a different view as has the Supreme Court of Canada. In R. v. St. Onge-Lamoureux the Court stated at paragraph 78:

"Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt. The accused can request disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence".

[35] As discussed earlier the Supreme Court specifically stated that one of the areas upon which the defence could rely to meet its evidentiary onus of "tending to show" a deficiency in the machine is "a maintenance log that shows that the instrument was not maintained properly …."

[36] Clearly the Supreme Court of Canada considered that maintenance logs were relevant – hopefully that opinion will have some impact on those who do not accept that legal proposition.

[37] Furthermore while I appreciate that both Constable Nicholson and Dr. Langille believe, for both empirical and scientific reasons, that the machine is infallible - that errors will be obvious - the lessons of history demonstrate that science advances as do all things in life and that as science advances – it improves. The emergence of the 8000 Intoxilyzer is an example. It is obviously a better and more efficient machine. Having said that this judgment will not deal with the issue of whether the 8000C has improved the very area of the functioning of the intoxilyzer that is impugned in this case as it really does not assist in the determination of the ultimate issue in this case.

[38] Additionally when a machine purports to provide the sole proof that a person has committed a criminal offence which has enormous consequences on a person's life, it behoves counsel to make every inquiry and leave no stone unturned to determine the machine was operating correctly.

[39] The lack of understanding by Constable Nicholson, in particular, but also Dr. Langille, of the fundamental importance of that task within the adversarial system is troubling and has the potential of a judicial trier not viewing the evidence of these experts as being unbiased and therefore discounting it to some degree.

[40] I will now turn to the evidence on the operation of the 5000C and the possibility of a malfunction.

[41] The defence position on the potential unreliability of the readings is, at its highest, the following:

• Mr. Peters has diabetes
• He has raised a doubt about whether he took his medication on the day of his arrest
• Without his daily medication, Mr. Peters' diabetes will not be held in check.
• That acetone will likely be present in his blood
• The evidence with respect to acetone and its effect on the BAC: Acetone is an interferent which can affect BAC. The 5000C has installed in it an interferent detector. As a result if the machine is maintained, serviced, operated correctly and if it is checked and everything is working properly, it will render a reliable result.
• There is a realistic possibility that the intoxilyzer was not functioning correctly in that at its very next check-up (albeit many months after Mr. Peter's test) the chopper wheel required replacing.
• The malfunctioning of the machine could have gone undetected to the operator.
• In this case the defence has rebutted that presumption and the Crown has chosen not to respond.

[42] Clearly the intoxilyzer passed all internal checks and to all intents and purposes appeared to be working properly.

[43] The onus is on the defendant to raise the spectre of error (i.e. a reasonable scientific possibility) in the machine which the Crown then has to rebut.

[44] Mr. Fedorsen argues that there is evidence to meet the onus that the Crown is required to rebut from two areas.

(1) That Exhibit 6, the Savoia letter, evidences a concern with the chopper motor at the intoxilyzer's annual check up so much so that it was replaced;

and

(2) A "Will Say" under the authorship of Constable Giovanni Carlo Savoia of the Toronto Police Service, who states he is qualified to maintain, calibrate and repair intoxilyzers. Apparently at some point Mr. Savoia found, at his weekly inspection, that an intoxilyzer was found to have a DVM – Differential Voltage Measurement - fluctuation and required repair. On examination the "motor" was not operating at proper speed and needed to be replaced;

and

(3) The opinion of Mr. Moftah based on these documents and Mr. Peters' evidence

[45] Mr. Fedorsen argues the "Savoia letter" provides an air of reality to his hypothesis that there is a realistic scientific possibility that there was a malfunction in the 5000C and that it only became detectable on a service or check up.

[46] Ms. Nadler argues however that this "Will Say" has absolutely no evidentiary value given that Mr. Savoia was never called as a witness and is therefore of no assistance in bolstering Mr. Fedorsen's argument.

[47] Evidence as to the relationship of the chopper motor to the operation of the intoxilyzer and how any defect in the chopper motor could (1) go unnoticed by the intoxilyzer operator and (2) affect the readings – came from both Mr. Moftah and Dr. Langille.

[48] On this issue Mr. Moftah was qualified to give expert evidence:

(1) The theory and operation of the Intoxilyzer 5000C and its ability to detect interferents;

(2) The effect of interferents on the Blood Alcohol Readings;

(3) If a subject has diabetes where that can affect the BAC readings;

(4) The operation of the 8000C, the successor to the 5000C, and its ability to differentiate between interferents and BAC.

[49] Dr. Robert Langille was qualified to provide expert testimony in similar areas.

Mr. Moftah's Evidence

[50] An understanding of the various components of an Intoxilyzer 5000C appears to be crucial to any analysis of the issue. Mr. Moftah explained it this way:

• The sample of breath goes into the chamber of the intoxilyzer
• The chamber is heated to 45 degrees (+/- 5 degrees)
• There is an infrared light in the chamber
• In the chamber alcohol will evaporate
• The infrared light will absorb part of vapour
• The light that is not absorbed will be what is converted into a BAC calculation by a detector
• Before the remaining light hits the detector there is a filter wheel
• That wheel will filter the remaining light into 3 wavelengths
• Those 3 wavelengths are at 3.80, 3.48 and 3.39 microns
• A micron is a millionth of a metre
• The 3.8 micron is the baseline
• The 3.48 micron is the wavelength that is specific for ethyl alcohol
• The third wavelength (3.39) is specific for interferents i.e. something that interferes with the ethyl alcohol reading – an interferent can include acetone
• Acetone will convert into propyl alcohol – i.e. "body made" as opposed to "consumed" alcohol
• Thus if the machine is, for some reason, unable to appreciate the difference between the two alcohols it could possibly combine the two types of alcohol and render that as a BAC
• The difference between the second and third wavelength is 9/100th millionths of a metre
• The filter wheel rotates and allows the infrared light to pass through to the receptor
• The filter wheel spins with the assistance of the chopper motor
• The filter wheel differentiates between the "alcohol" and acetone wavelengths. If the machine is operating correctly it will differentiate the two
• During the testing process low levels of detected acetone (i.e. up to 20 millionths) will automatically, without notification, deduct the propyl alcohol from the BAC reading
• Higher levels of acetone will cause the machine to illuminate a screen message "interferent detected"
• The Intoxilyzer 5000C during the set up process does not self test the interferent/acetone detector
• If the filter wheel is not rotating at the correct R.P.M. (1800-2400) it will pick up incorrect wavelengths
• Thus as long as the aggregate is correct the machine will pass the internal checks regardless of whether individual wavelengths are correct.
• When the 5000C goes through internal checks it adds up each of the wavelengths, the aggregate of those = the Differential Voltage Monitoring System (the DVM)
• The newer 8000C model of intoxilyzer has two (rather than three wavelengths) one measures interferents at 3.34 microns and the other ethyl alcohol at 9.4 microns. It also has two detectors.

[51] Ultimately Mr. Moftah's evidence is this:

1. A problem with the chopper motor and/or filter wheel could produce deviations from the expected wavelengths.
2. That problem could produce inaccurate measurement of the combination of acetone and alcohol.
3. Neither the internal standards check nor the calibration check assist in the determination of the accuracy of the acetone detection capability. It can be checked when the machine is sent for service.
4. This opinion has added weight due to an incident in the Toronto area - Mr. Savoia's letter - in which all of the internal standard checks had been passed; yet further inquiry revealed the fluctuation of the D.V.M.

Dr. Langille's Evidence

[52] Dr. Langille's position on the issue is as follows:

1. The acetone detection system in the 5000C has been checked and tested numerous times by various bodies:
2. The detection system accurately removes any effects that the acetone might have on producing an accurate BAC:
3. He is not aware of any scientific literature that suggests any difficulty with determining these wavelengths
4. As to whether a technician would have any indication as to whether the acetone detection system was functioning, Dr. Langille opined that if part of the 3 channel processor was malfunctioning and not providing an accurate number then there could be a message – the type of message would depend on how the ratio had changed and which criteria had changed.
5. If for some reason the three channel processor failed the technician would find out only when attempting to do a test as the machine would not produce a reading.

[53] Dr. Langille was asked directly:

…..can the instrument check to see if the chopper motor is functioning properly? At its proper speed?

The answer was in the affirmative – that during the processor check - there would be exhibited a message - processor error number 2.

There was no such indication in the test records on the machine when it tested Mr. Peters' breath.

[54] Mr. Moftah had been asked the following:

Q. What I want to know is, if I were to suggest to you that if the chopper motor had to be fixed, that would mean either that the diagnostics on the machine were bad at some point or the DVM ……would be out of whack. Would that make sense to you?

A. It does make sense. However, if you have the stability of the DVM for a short period of time, this could be sufficient. But if you have – so once you see the DVM over a period of time and it's not stable, this will give, again, rise to some doubts.

[55] Dr. Langille was asked directly to opine on Mr. Moftah's response:

"I say that it's an incomplete answer."

When explaining why it was incomplete, Dr. Langille said that if the chopper motor was operating incorrectly – it could not be fixed, it would have to be replaced. He also suggested that as a preventative measure the chopper motor could be replaced.

[56] When opining on the Savoia letter Dr. Langille explained that if the DVM was fluctuating at a frequency that would affect the breath alcohol test and that fluctuation occurred before the machine went into the ready mode it would not become ready – or would show a processor error – but if it was not fluctuating enough to cause any notification – "that would have been the cause for further further analysis". However he could not speculate as to what would alert the officer to the need for further inquiry.

[57] Dr. Langille could not agree with Mr. Moftah that there could be an error with the machine that was not evident. He stated – "I can't just simply agree with, with that. I need specifics."

[58] He stated he did not believe in undetectable errors that would affect the instrument. However, there was the following exchange:

Q. If in fact the motor was not operating at the proper speed needing to be replaced and the speed was varying between the diagnostic checks and then the breath sample you'd have to concede there could be a problem with respect to the reliability of a given breath sample, correct?

A. That is something which I'm, I'm not a hundred percent certain of.

Q. If you're surely going…..

A. Your drifting in the speed likely effects the, the processor's ability to, to process the data correctly, but whether that would ultimately – if it's changing slow enough over time then it may be at, at a speed that for the time of the breath test is, is constant.

Q. And it may not be?

A. And, and if it is not then that may have some effect, yes.

Q. Right, so….

A. But I'm not, I'm really not certain what a – as, as I said earlier, if the frequency of the change is enough that it will occur during an actual breath – in other words the actual blow then, then the instrument will flag a processor error.

[59] While dealing with the Savoia letter Dr. Langille stated:

Q. This says here. Page 2 of Exhibit A, the motor was not operating at the proper speed. It needed to be replaced.

A. In, in his opinion, yes. But that doesn't mean that it wasn't working – that the instrument wasn't producing accurate and reliable results.

[60] With respect to acetone detection, Dr. Langille opined that the acetone detection system was always working.

[61] And as to the change of the chopper motor – there was the following exchange:

Q. Okay. So the bottom line is you, you can't tell the court one way or the other according to this whether or not that repair could have affected the results that were given to my client. The results he gave, you don't know if that repair's relevant or not because you simply don't know why it was done? Isn't that right?

A. It was done a very long time after this particular event too, so it would be complete speculation to think that, that, that they were operating an instrument for months that – well apparently giving accurate and reliable results was actually not.

Q. You don't know one way or the other do you? In truth, as a scientist?

A. No, it, it would be mine, it would be – it is my opinion that, that, that chopper motor was not a problem.

Q. Good, but how do you know that?

A. In this particular……

Q. How do you know that? You don't know what, what was wrong the chopper motor?

A. Well, if the chopper motor is affecting the D-V-M of the instrument then it would not give reliable determinations of the target value of the alcohol standard.

Q. Well, that's…..

A. Or if, if those fluctuations were so minuscule that they were contributed no more than the standard analytical variability they'd not be having any effect on the reliability or accuracy of the instrument.

Q. But if there were intermit problems with the chopper motor you'd have to change your last answer, correct?

A. So – no, because….

Q. No?

A. What you're saying is, it's working fine a minute before during the calibration check then it doesn't work during the subject test then it works again during the next calibration check and then not during the subject test. No, I, I don't, do not believe for a minute that that the probability of that is so infinitesimal small as to, to, to not be considered.

[62] The Doctor was consistent in his evidence that the machine cannot malfunction on the distinction of acetone – without the production of some alert.

[63] His view is that he has never seen an instance where the machine was not infallible with respect to acetone detection.

[64] Thus I have been presented with two very divergent views. There is the opinion of Mr. Moftah that the Intoxilyzer 5000C could appear to the technician to be correctly measuring the BAC of an individual, but as a result of the filter wheel and the chopper motor not functioning correctly, the acetone detection function could be affected so as to produce a BAC which is inflated and inaccurate.

[65] Dr. Langille disagrees. His opinion is that the acetone detection system is an integral part of the alcohol detection system and that the machine cannot produce a BAC unless it is correctly operating. If it does not, then an error message of some variety, will appear.

[66] The essence is:

Mr. Moftah – the machine could give incorrect readings without alerting operator.

Dr. Langille – It cannot.

The Crown's Position

[67] Ms. Nadler's position is that the defence position is no stronger than speculation. In order for the defence to meet its onus there must be more than speculation in the following areas:

• That there was acetone in Mr. Peters' breath.
• That the chopper motor, which was replaced many months after Mr. Peters' arrest, was not operating correctly at the time of Mr. Peters' tests.
• That it is possible that despite problems with the chopper motor, the aggregate of the DVM was correct, but the interferent/acetone wavelength and the alcohol wavelength were incorrect
• That the introduction of an 8000C with a way wider differential of wavelengths is because of the differential in the 5000C wavelengths was too minute.

[68] Finally with respect to the Savoia letter, Ms. Nadler suggests it is not proof of anything as it is hearsay and inadmissible.

[69] Mr. Fedorsen argues that it is the opinion of Mr. Moftah that is evidence and that opinion does not have to be based on proven facts.

[70] Dr. Langille did suggest that the person who could cast light on why Mr. Savoia made the notations was Mr. Savoia.

Analysis

[71] I will deal firstly with admissibility of the Savoia letter.

[72] Ms. Nadler is correct: the letter is hearsay. However in the context of expert evidence: the letter is, at the very least, not inadmissible. It is "minimally admissible for the limited purpose of explaining the foundation of the expert's opinion".

[73] Indeed Ms. Nadler conceded the following:

"I can accept that this witness has said that in his experience with other instruments there hasn't been a complaint with a fluctuating DVM".

[74] In dealing with this kind of evidence which is referred to by an expert, but not proven to be true, McWilliams stated:

"In each case it is for the trial judge to determine those assumptions of facts, if any, which the expert relied on which are sufficiently reliable or trustworthy with the expert's field of expertise, to admit as a hearsay exception".

[75] Mr. Moftah, in his evidence, explained the process by which the Savoia letter was produced. He appears to have been, in part, involved in the process of obtaining the document. It was clear that Mr. Moftah did not just find this letter lying around on the street, or on someone's desk. Therefore the letter in of itself does meet certain indicia of reliability and credibility.

[76] Additionally, Mr. Savoia is a Police Officer, although not of the Peel Regional Police Force. Accessibility to this officer by the Crown would, it is safe to presume, have been possible – both for consultation and as a witness.

[77] However, the very foundation of Mr. Moftah's opinion was not based on the letter, rather it was based on his knowledge of the "mechanics" of the Intoxilyzer. The example of the problem in Toronto was given by Mr. Moftah when he was asked if he had seen fluctuations in the DVM "in other machines".

[78] Having responded in the affirmative, Mr. Moftah produced the downloads of the machine which were the subject of the Savoia letter as an example.

[79] I find that the use of the unproven letter does not in anyway diminish the relevance of Mr. Moftah's opinion.

[80] I will now turn to the real issue in this case and this is whether the defence has met the evidentiary onus that

(1) Mr. Peters had acetone in his blood due to his lack of medication for diabetes in the 24 hours prior to his arrest.

(2) That the acetone detection system in the Intoxilyzer 5000C could be subject to error and that error might have gone unnoticed.

[81] I will deal with the evidence that is uncontested.

(a) Mr. Peters has diabetes;

(b) Unmedicated diabetes can produce acetone;

(c) Acetone is an interferent and in the absence of adjustment can inflate the readings of an intoxilyzer as to a BAC;

(d) The Intoxilyzer 5000C has an interferent detector which will deduct low levels of acetone from the readings thereby producing a true BAC;

(e) That when high levels of acetone are present an error message will alert the intoxilyzer operator of the problem.

(1) Does Mr. Peters' evidence as to his consumption of alcohol and assertion that he did not take his medication on the day of his arrest pass the credibility test.

[82] Obviously a trier of fact looks to inconsistencies and consistencies when making a credibility decision. Of the three major inconsistencies in Mr. Peters' testimony I find two to be of no consequence. The issue of the number of beers consumed – this was a difference of one beer – the same drink, the same brand – is it reasonable that Mr. Peters was mistaken about how many beers he had. The answer to this is absolutely. Legions of Crowns have argued and Judges agreed that, as a matter of commonsense – it is rare one counts the number of drinks consumed when at a social occasion. I agree. Additionally there was no reason why the manager of the bar should fabricate. If he was to fabricate he would have agreed with Mr. Peters' first recollection – that he drank three beers. Accordingly I do not reject the evidence as to consumption.

[83] The second alleged inconsistency – that of being with another person at a bar. I do not find this an inconsistency. It is one thing to arrive with or meet by arrangement, it is entirely another to meet up with. I accept Mr. Peters' evidence that he thought Constable Nicholson's question related to the former.

[84] The third inconsistency is more troubling – that is whether Mr. Peters took his medication. Is this contradiction suspicious? Of course, however the question that must be put is: is it incredible that Mr. Peters assumed and asserted he took his daily medication when in fact he did not? A bright line could be drawn through this issue - to categorically state that I reject Mr. Peters' evidence on this issue as being incredible would quite frankly be an error.

[85] There was nothing in Mr. Peters' version of events that did not have an air of reality rendered to it by corroboration or by the human condition of being mistaken. The nature of Mr. Peters' assumption – he took his medication because he always does - is reasonable. The nature of his situation i.e. under arrest, in a police station being questioned by an officer – does not lend itself to thoughtful re-enactment of what occurred at his lunch break many hours earlier.

[86] Accordingly I cannot reject Mr. Peters' evidence on this point.

[87] Given this finding I need to turn to the next question which is: Whether there is a likelihood that Mr. Peters had acetone in his blood?

[88] Any evidence on this point was proffered by Mr. Moftah. He stated - If you have a diabetic – whose disease is not under control the subject will "likely" have acetone in his blood and that acetone will be in his breath sample.

[89] This evidence favours the defence.

(2) Has the Defence provided evidence that shows there is a scientific possibility that the acetone detection system was unobtrusively suspect

[90] The contrast between the two experts is stark. Mr. Moftah's view is – it could happen when all the stars line up – (i) a diabetic (ii) unmedicated acetone (iii) a faulty chopper motor leading to the filter wheel not correctly reading and translating the differing wavelengths – and that all of this occurred unbeknownst to the operator.

[91] Any commonsense approach to this would lead to a conclusion that to conceive of such a perfect storm may be difficult. But commonsense also says perfect storms do occur.

[92] The Savoia letter, which is the potential smoking gun for the defence, is problematic for the Crown on two bases. When one compares the earlier annual check up there is no mention of the replacement of the chopper motor – therefore this action is obviously not an annual preventative measure which could be said for the replacement of the "IR Source" and secondly, while the technician styled Exhibits 13 and 6 as "annual" – that is a stretch. The 2008 "annual" was performed in July and the 2009 "annual" in December. Wear and tear on the machine without a check up every 12 months could add to the potential for unreliability.

[93] I have a real difficulty in accepting Dr. Langille's categorical absolute. His approach to the disclosure issue also reflected an intransigence that I found troubling and that extended to his view of the infallibility of the detection system. Obviously should I accept the opinion of Dr. Langille it would be determinative.

[94] Having said that, both experts are just that – supremely qualified experts who have a difference of opinion. It is impossible, on the evidence before me, with the lack of an absolute answer, to choose which, if any of the divergent positions, is correct. I am unable to reconcile the opinions nor am I persuaded on the evidence or rather better described, argument before me, that either is correct beyond a reasonable doubt.

[95] Any analysis and determination on this issue is therefore dependent on the onus. The defence need not establish the perfect storm occurred. What is needed is proof of a realistic scientific possibility. Mr. Moftah explained how it was a possibility and what added credibility to this opinion was the evidence of the replacement of the chopper motor being affected at the first annual check up after Mr. Peters' test, his knowledge of the operation of the 5000C and his knowledge of machines where this error had gone unnoticed.

[96] The proof that the machine was operating correctly is a rebuttable presumption. Once the presumption is dislodged the Crown still has the option of providing evidence that would reduce Mr. Moftah's opinion to speculation. The Crown has failed to do that. As the evidence stands, the possibility that the intoxilyzer was malfunctioning is realistic, within certain very limited parameters.

[97] Mr. Peters has squeezed himself within those parameters and accordingly I must find Mr. Peters has rebutted the presumption.

Conclusion

[98] Given my findings that Mr. Peters has provided evidence which remains unanswered in law, the Crown is disentitled from relying on the presumption as contained in Section 258 of the Code. Given that factor and there being no other evidence upon which the offence can be proven beyond a reasonable doubt, the charge must be dismissed.

Released: October 21, 2013

Signed: Justice K. L. McLeod

[1] McWilliams: Canadian Criminal Evidence