Court File and Parties

Information No.: 099434 Date: 2013-12-09 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

George McCullaugh

Before: Justice P. Boucher

Heard on: June 20, 2013

Reasons for Judgment released on: December 09, 2013

Counsel:

• J. Masse for the Crown
• E. Greenspan and V. Christie for the Defendant

BOUCHER, J.:

BACKGROUND

[1] The defendant plead not guilty to a charge that on the 16th of May, 2009 he operated or had the care and control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(b) of the CCC ("over 80").

[2] The trial proceeded by way of a blended voire dire on the Charter issues raised by the defendant.

[3] There was agreement that the evidence on the over 80 charge apply to the fail to stop charge under the Highway Traffic Act, upon which the defendant was not arraigned.

[4] Identity was not in issue.

[5] The court was called upon to answer the following questions:

a. What is the impact, if any, on the discovery at trial of a previously undisclosed civilian witness who was in the patrol cruiser of the arresting officer (the "ride-along");

b. Has the defendant rebutted the presumption of accuracy as it now exists in light of the Supreme Court of Canada decision in St Onge Lamoureux?

c. If the answer to question (b) above is negative, did the failure of the police to video record the breath testing room procedures result in a breach of the defendant's section 7 Charter rights? If so, should the evidence be excluded pursuant to section 24(1) or 24(2) of the Charter?

THE FACTS NOT IN DISPUTE

[6] On May 16, 2009 at 11:32 p.m. Provincial Constable Whitby ("PC Whitby") of the Ontario Provincial Police ("OPP") observed the defendant's motor vehicle approach the intersection at Sharp Street and Armstrong in the Town of New Liskeard.

[7] PC Whitby testified that the motor vehicle did not completely stop for the stop sign at the intersection and he therefore decided to conduct a traffic stop.

[8] He followed the vehicle for several blocks, approximately twenty seconds, and then activated his emergency lights to stop the vehicle.

[9] There were only two occupants of the motor vehicle; the defendant, who was the driver, and a front-seat passenger.

[10] As a result of smelling alcohol on the defendant's breath, noting red eyes and an admission by the defendant to having consumed two beer, PC Whitby made a roadside demand of the defendant. After one failed attempt to provide a sample the defendant successfully registered a fail on the approved roadside device.

[11] PC Whitby therefore arrested the defendant at 11:41 p.m. for over 80 and then read him his rights to counsel and caution.

[12] PC Whitby requested a breath technician at 11:46 p.m. and transported the defendant to the local detachment at 11:47 p.m.

[13] During cross-examination PC Whitby testified that there was a civilian ride-along with him in the front seat of his police cruiser.

[14] He neither asked the civilian ride-along to take notes, nor did he take a statement from him.

[15] PC Whitby testified that he had edited this information out of his disclosed notes. He testified that it is his practice to delete all information prior to the incident in question when disclosing his notes.

[16] It was learned after the trial had been completed that the civilian ride-along is now a Provincial Constable at the same detachment as PC Whitby.

[17] PC Whitby's evidence was that the civilian ride-along did not speak to the defendant and at no point exited the police cruiser.

[18] At 12:06 a.m. the defendant spoke with duty counsel in private and PC Whitby provided his grounds to Provincial Constable Hopkins ("PC Hopkins"), the breath technician.

[19] From 11:58 p.m. until 12:22 a.m. PC Hopkins set up and tested the Intoxilyzer 5000C ("the intoxilyzer").

[20] He changed the alcohol standard in the simulator and ensured there was a certificate of analyst for the standard solution.

[21] PC Hopkins was satisfied after all of the testing that the intoxilyzer was ready to take a sample.

[22] The following exchange occurred when PC Hopkins brought the defendant into the breath room:

a. 12:51 a.m.: breath demand was read to and understood by the defendant

b. 12:52 a.m.: caution was read to and understood by the defendant

c. 12:52 a.m.: supplementary caution was read to and understood by the defendant

d. 12:53 a.m.: the defendant confirmed to PC Hopkins that he had spoken with counsel and did not wish to speak further with counsel

e. 12:54 a.m.: the air blank test of the intoxilyzer registered an ambient fail. PC Hopkins moved the mouth piece away from the defendant and the next time the air blank test registered zeros and allowed him to continue the testing

f. 12:57 a.m.: breath reading of 140mg/100ml

g. 1:17 a.m.: breath reading of 140mg/100ml

[23] PC Hopkins noted the following on his alcohol influence report with respect to the defendant:

a. Odour of alcohol present;

b. Face colour normal;

c. Eyes light green;

d. Bloodshot eyes;

e. Good speech;

f. Orderly clothes;

g. Polite and cooperative; and

h. No unusual actions were noted.

[24] PC Hopkins noted that in the north east corner of the breath room there was a soap dispenser as well as a tub of degreaser.

[25] There was no video recording equipment in the breath room.

THE FACTS IN DISPUTE

The events leading up to the intoxilyzer tests

[26] The evidence dealing with the grounds to stop the defendant's motor vehicle and the grounds for the roadside demand and breath demand was restricted to the evidence of PC Whitby.

[27] PC Whitby's evidence was that the civilian ride-along did not leave the police cruiser, thus restricting this potential witness' evidence to the reasons for the original traffic stop. Any dealings with the defendant in the cruiser would have been after the grounds for the roadside and breath demand.

[28] The evidence regarding the grounds to make the roadside and the breath demand was short and mostly consistent. His grounds were the smell of alcohol emitting from the defendant's breath, somewhat glassy red eyes, and an admission to having consumed two beer. Although there was no objection from the defence, a great deal of this evidence was introduced by way of leading questions from the Crown.

[29] For example, when PC Whitby listed his observations of the defendant he was asked if he questioned him about any alcohol consumption. As well, when PC Whitby testified as to the indicia of alcohol consumption he was asked if he formed any suspicion or belief. He was asked if he had an approved instrument with him at the time and to describe it. He was also asked if he took any steps to set up the roadside testing device or approved instrument. He was asked if he was satisfied that the instrument was working properly.

[30] When the defendant registered an "F" on the roadside device PC Whitby was asked if as a result of that he formed any belief. After testifying that he read the defendant the right to counsel, PC Whitby was asked twice if he read anything else to the defendant, which effectively took PC Whitby through the supplementary caution and when asked the same question again, the breath sample demand.

[31] This questioning basically lead PC Whitby through the essential elements that needed to be established, almost in checklist fashion.

[32] In cross-examination PC Whitby essentially repeated the same indicia and grounds but some issue was taken with respect to the reference that the defendant had glassy eyes. Despite the passage of four years from the arrest to the date of trial, PC Whitby was adamant that he specifically recalled the glassy eyes of the defendant. Although he had not put it in his duty notes, it was in his will say report. He had problems recalling other things he had not specifically noted (such as whether the defendant was wearing a seatbelt) and he sometimes stated that if something was not in his notes then it did not happen (such as whether the defendant slurred his speech or was unsteady on his feet).

[33] When he was asked why he did not note the grounds he provided to the breath technician, PC Hopkins, PC Whitby indicated that it was fresh in his mind at the time and that each officer has his or her own way of taking notes. Once again, despite the passage of four years, he specifically recalled telling PC Hopkins that the defendant had glassy eyes.

[34] PC Hopkins, who took notes on the grounds that were provided to him by PC Whitby, did not make mention of glassy eyes, although all of the other matching grounds were noted.

[35] Although a dispute over one of the grounds may seem trifling, it suggests a reluctance on the part of PC Whitby to simply admit there were things he could not recall. Instead he seemed to tie it into his note taking and several times his response to questions was that if it was something important and was not in his notes then it didn't happen. Yet at the end of cross-examination he indicated that he did not need his notes to specifically recall the exact grounds he provided to PC Hopkins.

[36] These answers in cross-examination point out the difficulty with the way he was lead through his key in-chief evidence; that is to say, there was no room left for error in the way the questions were put to him.

The Intoxilyzer Tests

[37] PC Hopkins testified as to the steps he took to ensure the intoxilyzer was ready to properly take a breath sample. He agreed that this diagnostic testing does not include testing for ambient air conditions.

[38] The print outs of the set-up testing as well as the breath tests were filed as composite exhibit two in these proceedings.

[39] PC Hopkins' evidence was that when the air blank test occurred prior to the first sample of the defendant's breath, an ambient fail registered.

[40] He testified that his training requires him to move the accused from the area or relocate the breath tube farther away from the accused. He accordingly moved the breath tube and did another air blank test. An ambient fail did not occur on the second test and he thus continued with the taking of the first breath sample of the defendant.

[41] PC Hopkins testified that he could not recall if he had ever had an ambient fail on that particular intoxilyzer. He indicated that it could have been the first time. He agreed that an ambient fail is a rare occurrence.

[42] On consent, Gerald Kupferschmidt, the defence witness, was qualified as an expert in the area of forensic toxicology and the proper operation of and reliability of the Intoxilyzer 5000C.

[43] Although there had been an order excluding witnesses, counsel agreed that Gerald Kupferschmidt remain in the body of the court given his expert report had already been delivered.

[44] Gerald Kupferschmidt indicated that the explanations provided by PC Hopkins regarding the ambient fail were reasonable because that it what he is taught to do.

[45] He went on, however, to explain the air blank test and possible reasons for an ambient fail.

[46] The air blank test measures alcohol in the air around the breath tube. Anything less than 20mg/100ml is deducted from the breath sample provided by the accused. If the air blank test results in a reading of 20mg/100ml or over, then an ambient fail is registered.

[47] Gerald Kupferschmidt testified that in addition to the breath of the accused there could be other reasons for an ambient fail.

[48] One example is the presence of interfering substances in the room. This can occur when something that looks like alcohol to the intoxilyzer is detected, such as hand cleansers. In this case, there was Gojo hand-cleanser in the north east corner of the room. Gerald Kupferschmidt's evidence was that Gojo contains limone which interferes with the infrared spectrum of the intoxilyzer.

[49] Gerald Kupferschmidt testified that radio frequency can also impact on the air blank test. His evidence was that he has seen cases where repeaters influenced the intoxilyzer.

[50] Another reason for the ambient fail could have related to the chopper motor upgrade in the intoxilyzer. Gerald Kupferschmidt testified that the Intoxilyzer 5000C only works on three wavelengths. The chopper motor is required to monitor the wavelengths. In this case, the chopper motor had been upgraded on October 25, 2006. This upgrade was treated as a Category 2 modification by the Alcohol Test Committee and according to Gerald Kupferschmidt it was "assessed on a limited basis only". His evidence on this issue is found in paragraph 11 of his report filed as exhibit 4B:

Given the importance of this component with respect to the stability of the electronics and how the 5000C determines the presence/absence of interferences in the sample path, it is my considered opinion that this modification should have been viewed as a Category 1 modification, thereby requiring a more thorough assessment.

[51] In the end Gerald Kupferschmidt concludes that he is uncertain about the "impact of this modification on the ultimate breath test results".

[52] Gerald Kupferschmidt's evidence, therefore, was that an ambient fail may look like a room air issue but could in fact be something else. He testified that the only way to determine with certainty what caused the ambient fail would be to see a video of what is occurring in the breath room at the time and to look at the downloaded data from the intoxilyzer.

[53] The video would provide, for example, audio of sounds the machine may make which would require further investigation. It would also show the orientation of the breath tube. On the intoxilyzer 5000C the breath tube is either in the front or the back and it is not easily moved, according to Gerald Kupferschmidt.

[54] Both Gerald Kupferschmidt and PC Hopkins agreed the location of the breath tube could impact on an ambient fail. In fact, after PC Hopkins moved the breath tube away from the defendant for the blank test, no further ambient fails registered. Gerald Kupferschmidt's evidence, however, was that it is preferable and it is his practice to take the blank air tests from the area where the breath sample will be taken. His position was that a fan would normally be able to correct the problems caused by ambient air conditions.

[55] In cross-examination Gerald Kupferschmidt was asked if there is an ambient fail and the operator corrects the problem and the ambient fail does not repeat itself, would the operation of the instrument be affected? His response was that he couldn't answer that question at this point, meaning, presumably on the facts of the hypothetical question.

[56] When he was asked more specifically about the issues he had raised he noted that if an interfering substance was the cause of the ambient fail, one would expect that to continue. He also testified that if radio frequency was the cause of the ambient fail, then as long as the frequency was operative one would expect it to continue to interfere. Finally, he testified that if the true reason behind the ambient fail was the proximity of the subject to the breath tube, then if corrections were made it would not affect the following results.

[57] Finally, when Gerald Kupferschmidt was questioned about the possible difficulties, if any, with respect to the repairs to the chopper motor, he confirmed that he would need to compare a motor with the modification and one without the modification. This would be the only way he could determine with certainty if the repaired motor's functioning had been affected.

ANALYSIS

What is the impact, if any, on the discovery at trial of a previously undisclosed civilian witness who was in the patrol cruiser of the arresting officer (the "ride-along")?

[58] The defence argues that the failure of the police, and thus the Crown, to disclose the ride-along prior to the trial resulted in a breach of the defendant's section 7 Charter rights. The defence equates the late disclosure of this evidence to lost evidence given the passage of four years and the fact the ride-along was not asked by PC Whitby to take notes. The defence urges the Court to enter a stay of proceedings or to make an adverse inference against PC Whitby given his failure to identify the ride-along as a current officer in his detachment when he was given the opportunity to do so at trial.

[59] The Crown argues that this is a case of late disclosure that did not violate the defendant's section 7 Charter rights. In the event the Court were to find a breach, the Crown urges the Court to consider other remedies short of a stay, such as a disclosure order and re-opening of the defence case for this limited purpose.

[60] The Crown concedes that the R. v. Stinchcombe requirement of "likely relevance" has been met but argues that the late disclosure has not affected the overall fairness of the trial process.

[61] Most of the appellate cases cited by counsel address with this issue after the fact; ie., on appeal after the taking of evidence has been completed and a decision has been made by the trial court.

[62] One such case is R. v. Dixon [1993] 1 S.C.R. 244. Cory, J. held at paragraph 33 that the

…accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose. This burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process…however, the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired.

[63] In the case at bar, there was neither a request by the defence to adjourn the matter during the trial, nor a request to reopen after the trial, to allow for investigation of this witness.

[64] The Court is mindful of the adversarial process and of the tactical decisions that are made by defence counsel at trial.

[65] As Cory, J. stated in R. v. Finta, [1994] 1 SCR 701:

It has long been recognized in Canada and in England that in criminal cases a trial judge has a limited discretion to call witnesses without the consent of the parties. This step may be taken if, in the opinion of the trial judge, it is necessary for the discovery of truth or in the interests of justice. This discretion is justified in criminal cases because "the liberty of the accused is at stake and the object of the proceedings is to see that justice be done as between the accused and the state" (Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 826).

The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused. It should not be exercised after the close of the defence case, unless the matter was one which could not have been foreseen.

[66] Based on this analysis, this is not a case where the Court can order the calling of the ride-along as a witness at this stage. The Court is then asked to speculate on what this evidence may have been in determining whether the test in Dixon has been made out. Did the ride-along in fact take any notes? Does he have an independent recollection of what happened that evening?

[67] On the basis of the evidentiary record, the Court cannot conclude that the defendant's right to a fair trial and to full answer and defence were infringed. There has not been a violation of the defendant's section 7 Charter rights.

[68] Even if this is incorrect and there has been a breach, it cannot be said that the extraordinary remedy of a stay pursuant to section 24(1) of the Charter would be appropriate in these circumstances.

[69] Cory, J. in Dixon reasoned as follows at paragraph 35:

For example, an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right. See Carosella…at p. 112. By contrast, where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial proceeding, and nothing more.

[70] The evidentiary record simply does not support the argument that the defendant's right to make full answer and defence was prejudiced irreparably.

Has the defendant rebutted the presumption of accuracy as it now exists in light of the SCC decision in St Onge Lamoureux?

[71] Changes were made to section 258 of the CCC on July 2, 2008. The Supreme Court of Canada assessed those changes in the decision R. v. St. Onge-Lamoureux (2012 SCC 57). In that decision the Court struck down two of the changes relating to the presumption of accuracy but upheld the requirement that the accused may raise a reasonable doubt that the intoxilyzer was functioning and was operated properly, and thus rebut the first presumption of accuracy.

[72] In writing for the majority of the Court, Deschamps, J. held:

According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and that relate to the possible deficiencies in the instrument itself or in the procedure followed in operating it. (para 38). (emphasis added)

[73] He expanded on the type of evidence upon which an accused may rely as follows 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 in this regard. The accused can request the disclosure of any relevant evidence that is reasonably available in order to present a real defence. If the prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure (see R. v. O'Connor, [1995] 4 SCR 411 (SCC)). In short, the accused might rely, for example, on a maintenance log that shows that the instrument was not maintained properly or on admissions 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 (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254 (Alta. C.A.)) (para. 78 emphasis added)

The significance of the ability to challenge the test results is heightened in a case such as the one at bar; ie., where the evidence required to lawfully get the defendant to the breath room is entered in a check-list leading question fashion.

[74] The evidentiary record in this case reveals the following:

a. An ambient fail was recorded. PC Hopkins testified that this was a rare occurrence. He moved the breath tube away from the defendant and no further ambient fails were registered.

b. Gerald Kupferschmidt testified that mouth alcohol of the accused is a plausible cause of an ambient fail. If that was in fact the cause of the ambient fail in this case, then moving the breath tube away from the defendant would have corrected the problem.

c. Gerald Kupferschmidt further testified that there could be other causes of the ambient fail including interfering substances such as hand cleanser. Radio frequencies from police radios and walkie-talkies have been shown to interfere with results.

d. He also raised concerns about the chopper motor repair history and the possible impact this could have had on the intoxilyzer.

[75] Gerald Kupferschmidt's expert evidence on possible causes of the ambient fail is objectively identifiable. It is based on experience and scientific testing. It is not speculative. This evidence also relates to possible deficiencies in the instrument or in the testing procedures.

[76] A review of all of the evidence on this issue raises a reasonable doubt sufficient to rebut the presumption of accuracy. According to the technician ambient fails were rare in his experience; he could not recall if he had ever had another one on the Intoxilyzer 5000C. If the only cause of the ambient fail was the mouth alcohol of the defendant, then query whether this technician had experienced other accused with similar or much higher readings. Why, then, had it been a rare experience for this technician? This causes concern for the Court regarding the accuracy of the instrument or the testing procedures in this case. This concern was only heightened by Gerald Kupferschmidt's evidence on possible reasons for this problem.

[77] Gerald Kupferschmidt fairly testified that a video recording of the breath room procedures would help sort out the issue of the ambient fail. A video recording is not available in this case. The Court must make a decision on the basis of the evidentiary record and must not embark on speculation. Perhaps a video recording would confirm the ambient fail was simply a result of mouth alcohol and it was accordingly corrected prior to the readings. Perhaps it would not.

[78] The defence does not have a burden of proof. Sometimes the Crown's evidence alone will raise a reasonable doubt sufficient to rebut the presumption of accuracy. In this case after reviewing all of the evidence from both sides the Court concludes that there is a reasonable doubt sufficient to rebut the presumption of accuracy.

[79] There being no further evidence from the Crown to prove this element of the offence, an acquittal must be entered.

[80] Given the Court's decision on this issue there is no need to determine whether or not the absence of a video recording of the breath room procedure violated the defendant's section 7 Charter rights.

Released: December 09, 2013

Signed: "Justice P. Boucher"