Court File and Parties
Court File No.: 10 11017 Ontario Court of Justice
Between: Her Majesty the Queen — and — Leah Hebert
Before: Justice Lloyd Dean
Heard: February 15, 2012 for trial
Counsel:
- R. Cornett, for the Crown
- B. Ducharme, for the Accused
Judgment
DEAN J.:
Introduction
[1] The accused has been charged with impaired driving and exceed, contrary to s. 253(1)(a) and 253(1)(b) of the Criminal Code. This is the second time the matter is before the court for trial. The first time, before a different judge, a mistrial was declared. At the conclusion of this case the Crown invited the court to dismiss the impaired driving, and I will do so. These reasons pertain only to the exceed charge.
Issues
[2] The Crown would like to rely on the presumption of identity within s. 258(1)(c)(ii) and the presumption of accuracy within s. 258(1)(g) to prove the accused blood alcohol level was above the legal limit at the time she was operating the motor vehicle.
[3] In order to rely on the presumption of identity certain criteria must be met, one being that the breath samples must have been taken as soon as practicable ("ASAP").
Defence counsel has argued the ASAP requirement was not met in this case.
[4] Defence counsel further argued that even if I decide the ASAP requirement has been met there is a further issue with respect to the filing of the certificate. In other words, the defence submits the Crown cannot rely on the presumption of accuracy. His argument centres around the Alcohol Standard used to perform the breath test.
Facts
[5] A brief overview of the facts relevant to this judgment follow. All events occurred in the early hours of December 20, 2009.
[6] On December 20, 2009 shortly before 1:00 the accused was operating her motor vehicle when she was stopped by an officer of the Ontario Provincial Police. As a result of his observations she was ultimately arrested for impaired operation of a motor vehicle.
[7] With respect to the ASAP issue the relevant time line follows:
- 12:52 — vehicle first observed by arresting officer
- 1:00 — arrested for impaired driving, rights to counsel read and accused said no to a lawyer. Breath technician advised she is needed to conduct the breath test.
- 1:03 — demand made for breath samples
- 1:15 — arrive at police detachment
- 1:28 — breath technician arrives at detachment
- 1:31 — breath technician changes alcohol standard solution
- 1:45 — breath technician asks accused if she would like to speak to a lawyer
- 1:55 — accused speaks to duty counsel
- 2:00 — grounds given to breath technician by arresting officer
- 2:05 — accused turned over to breath technician
- 2:09 — secondary caution given by breath technician
- 2:13 — first test completed
- 2:28 — breath demand read again before second sample provided
- 2:37 — second breath sample provided
[8] The relevant facts surrounding the Alcohol Standard are as follows. On the certificate of a qualified technician the Alcohol Standard Lot Number recorded is different than the Alcohol Standard Lot Number shown on the breath tests records and indicated during the testimony given by the breath technician.
Was the first sample taken as soon as practicable?
Position of the Parties
[9] Defence counsel argues the Crown has failed to prove beyond a reasonable doubt that the first sample was taken ASAP. The main thrust of the defence argument is that the accused was forced by the police to speak to duty counsel despite having given a clear and unequivocal waiver of her right to counsel to the arresting officer at the roadside. In support of its submissions the defence relies on the evidence heard by this court and the cases of R. v. Davidson [2005] O.J. No. 3474 (SCJ) and R. v. Morris, 2010 ONCJ 138. Defence counsel submits the cases relied upon by the Crown are distinguishable and, unlike Davidson, are not binding on this court.
[10] Defence counsel further submits that aside from the accused being forced to speak to duty counsel, there are other delays in obtaining the samples which are not sufficiently explained by the evidence before the court. He points to the time frame between the arrest and the taking of the first sample, a period of 73 minutes. He also points to the time frame of when the first test was completed and the completion of the second test, a time period of 24 minutes. Defence counsel referred to the case of R. v. Yeung, 2012 ONCJ 148 to further support his position.
[11] The Crown argues that although the accused declined counsel at the roadside her actions at the detachment amounted to the waiver at the roadside becoming equivocal and unclear. Therefore, the police did not force the accused to speak to duty counsel but rather were required to call duty counsel because of the conversation between the accused and the breath technician at the detachment. On the issue surrounding the call to duty counsel the Crown relies on the evidence heard by this court and several cases they provided, including R. v. Tran [2010] O.J. No. 4764 (OCJ), R. v. Valdez [2010] O.J. No. 4767 (OCJ), R. v. Graham [2006] O.J. No. 307 (OCJ) and R. v. St. Jean [2012] O.J. No. 2684 (OCJ).
[12] The Crown further submits that when the court applies the principles enunciated in the cases of R. v. Vanderbruggen, [2006] O.J. No. 1138 (OCA) and R. v. Mailey 2012 ABQB 138, [2012] A.J. No. 304 (ABQB), the court ought to conclude the ASAP requirement was met in this case.
Analysis
(i) The Law
[13] Section 258(1)(c)(ii) states:
where samples of the breath of an accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, . . .
[Emphasis added.]
[14] The leading authority on this issue is the Ontario Court of Appeal judgment of Vanderbruggen, supra. Since this case trial courts have been directed to view the time period between the offence and testing as a whole and not require explanation for each minute or period in the process. The Ontario Court of Appeal has clearly decided that "as soon as practicable" does not mean "as soon as possible". Rather, the samples must be taken in a reasonably prompt manner. The determination is a factual one to be considered by the trial judge. Where the time is prima facie unreasonable the Crown will need to explain to the satisfaction of the judge how the delay meets the requirement set out in s. 258(1)(c)(ii). If there is a reasonable doubt about whether the samples were taken ASAP then the Crown will not be able to rely upon the presumption of identity.
[15] The above principles can be found at paragraphs 12, 13 and 16 of Vanderbruggen:
12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).
13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
16 To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.
[16] As stated in paragraph 12 in Vanderbruggen, there is no requirement that the tests be taken ASAP. The touchstone for determining whether the tests were taken ASAP is whether the police acted reasonably. The issue becomes whether the police acted reasonably when considering the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test, and the provisions should not be interpreted in such a way as requiring an exact accounting of every moment in the chronology. There is no consensus in the case law about what length of delay is unreasonable or what actions by the police are unreasonable. The cases are largely determined on the unique facts of each case.
[17] There is no need for the Crown to provide through the evidence an explanation for every incident which occurred from the time the offence is alleged to have been committed until the samples were taken unless, on the evidence before me, I am not satisfied the samples were taken as soon as practicable. Focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken ASAP. It is the overall time in the circumstances that must be shown not to be ASAP: see R. v. Price 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at paragraph 16. All the circumstances, of course, include the fact that the delay here subject to scrutiny is a product of choices made by the police.
[18] It must be remembered however, as explained in R. v. Willette [2011] O.J. No. 504 (S.C.J.) at paragraph 46:
The "as soon as practicable" requirement was enacted as a protection for the accused, since the presumption operates to fix the accused with a blood alcohol content that existed sometime after the time of driving. This requirement mandates that the breath test be conducted as soon after the time of driving as reasonably possible [sic] in order to ensure that the presumption operates fairly and that the breath test leads to accurate results: R. v. Davidson, [2005] O.J. No. 3474 at para. 12 (sic) (S.C.J.); R. v. Phillips, [1988] O.J. No. 415 (C.A.).
[19] As noted above Dawson J. stated similarly at paragraph 19 in the case of Davidson, supra:
19 It must be remembered, however, that the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.
[20] In this case, defence counsel has argued that the Davidson decision stands for the proposition that when there has been a clear and unequivocal waiver of the rights to counsel and the police nonetheless force the accused to speak to counsel, then the breath samples have not been taken ASAP. Defence counsel relies on the following paragraphs in Davidson to support its position:
[20] The decisional law builds in some flexibility in determining whether breath tests were administered as soon as practicable, in terms of permitting periods of delay that are found to be justified as reasonable in the circumstances. However, a delay will not be reasonable where there is no legitimate basis to support the delay. If the circumstances of a particular case do not show that it was reasonable to take the time to contact duty counsel, then provided the delay is of more than a very minor nature, the tests will not have been administered as soon as practicable. This is the chain of reasoning recognized in R. v. Barrick, with which I am in substantial agreement.
[21] In Barrick Justice Quinn reached the following conclusions, (which I have re-phrased), after referring to a number of cases decided on the issue:
The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel;
If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed;
If the degree of the accused's intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breach of the right to counsel;
If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;
The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;
There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, "no means no";
The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn.
(ii) Application of the law to the facts
[21] Applying the holistic approach as directed in Vanderbruggen, the over-all period of one hour and thirty-seven minutes (1:00 – 2:37) cannot be dismissed outright as requiring no scrutiny whatsoever. In keeping with the comments made in Willette and Davidson with respect to the purpose of the ASAP requirement, I believe the overall time period requires some further examination/scrutiny in the manner set out in Vanderbruggen.
[22] The evidence heard in this case makes it clear that at the roadside the accused gave a clear and unequivocal waiver to her rights to counsel. The breath technician was advised by the arresting officer that the accused had said "no" when asked if she wanted to call a lawyer. The breath technician, as is her normal practice in such a situation, asked the accused if she wanted to speak to a lawyer and explained there is a free legal aid lawyer that could be called; the accused answered "yes, that's fine." The breath technician acknowledged it was her suggestion that the accused should speak to a lawyer. She explained the reason for her to ask the accused if she would like to speak to a lawyer, despite indicating a "no" at the roadside, is that in her experience once someone has been arrested and are at the detachment they become more aware of the severity of the situation and they are a little more nervous. She described this accused as appearing upset, nervous and scared. When asked by Crown counsel if she was forcing the accused to talk to a lawyer, the breath technician answered, "Oh, of course not."
[23] The breath technician advised the arresting officer, at 1:45 that the accused wished to speak to duty counsel and the arresting officer made those arrangements. At 1:55 duty counsel returned the call and spoke with the accused at that time. No evidence was heard as to the exact time that call was completed, but at 2:00 the arresting officer gave his grounds for the arrest to the breath technician and at 2:05 the accused was turned over to the breath technician for the taking of the breath samples.
[24] The accused gave evidence that, at the detachment, the breath technician suggested she should call a lawyer so she said, "Yes, I will." I have included here the relevant excerpts from the transcript of the proceedings, first from the direct examination of the accused:
Q. Now he indicated that at the roadside that he asked you if you wanted to – if you – he gave you your complete rights to counsel and he said you understood them, is that correct?
A. Yes.
Q. And he asked if you wanted to call a lawyer and what did you say?
A. I said, "No."
Q. At the police station you heard the second officer testify that she said something to you about a lawyer?
A. Yes.
Q. How do you – and she didn't record the conversation but how do you recall that conversation at the police station with Officer Fleming about the lawyer?
A. That Officer Fleming suggested that I should call a lawyer.
Q. And so what did you do?
A. I said, "Yes, I will."
Q. Okay. Why did you say that?
A. I just thought it was – I wasn't sure what to do and she had strongly suggested that you should call a lawyer, she had said it a couple of times.
Q. And did you speak to the lawyer?
A. Yes, I did.
Q. Why did you speak to the lawyer when you didn't want one?
A. I wasn't sure what to do. I went in and the phone was ringing and I picked it up and I spoke with him.
Q. Did anybody suggest that you speak to the lawyer?
A. Yes, Officer Fleming said I should.
Q. And did you go along with what he said?
A. Yes, I – with Officer Fleming?
Q. Yes.
A. Yes, I did.
Q. Oh, pardon me, with what she said?
A. Yes, I did.
Q. And why did you go along with what she said?
A. I just – she had mentioned it a couple times and I just wasn't sure what else to do there. It was late and I had never been through anything like this before so I wasn't sure.
Q. How did you feel while you were at the police station?
A. I was scared.
Q. Had you ever been in that situation before?
A. Never. Never been pulled over, arrested, anything.
[25] The relevant evidence on this issue given by the accused in cross-examination is also reproduced here:
Q. Did – so when you get to - when you get to the location where the police officer, Vincer, stops you, he tells you "You have a right to talk to a lawyer if you want right now." Do you remember him ever saying that?
A. Yes, I do.
Q. And you said, "No." Right?
A. Yes.
Q. Why did you say no?
A. I didn't feel I needed to.
Q. You didn't need one?
A. No.
Q. Was it because that you were afraid it was going to cost you money?
A. Nope.
Q. And then when you're at the police station and you're dealing with Detective Fleming, you say she's saying to you, you should contact a lawyer a couple of times, right?
A. Yes, she did.
Q. You said she said you could talk to one for free, a duty counsel, right?
A. Yes.
Q. Why didn't you say no then?
A. I didn't feel I needed one.
Q. Beg your pardon?
A. I didn't feel I needed a lawyer.
Q. Well, why didn't you just say no, I don't need a lawyer at that time?
A. I did say it and then she had asked me a couple more times and I said "Yes, I will."
Q. Okay.
A. She had suggested I should.
Q. Right. Then afterwards she asked you if – if you were satisfied with your discussion with the lawyer, right?
A. Yes.
[26] Of some significance, as the Crown has argued, is the fact that defence counsel never put the suggestion to the breath technician that she was told by the accused that she did not want to call a lawyer, but she continued to ask the accused a couple of more times. Although not specifically referring to the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), that is no doubt what the Crown was referring to when he made submissions on this point. The rule in Browne and Dunn is not absolute. In every case where there is a failure to confront, counsel is not precluded from challenging the testimony. Nor does it mean that evidence of the witness not so confronted is to be believed. The effect depends on the circumstances of each case. In the case before me the fact that the breath technician was not confronted with the aforementioned evidence is, in my view of some significance in this case. It is crucial to the overall context or dynamics of the interaction which occurred between the accused and the breath technician. In the circumstances of this case it should be factored in when evaluating the overall credibility of the accused evidence. On that particular piece of evidence, I prefer the breath technician's evidence. In other words I do not accept that the accused told the breath technician that she said "no" to calling a lawyer and yet was continued to ask if she wanted a lawyer. That evidence of the accused is rejected.
[27] That being said, upon consideration of the conclusions reached in Barrick, as set out in Davidson referred to above, I conclude that although the accused gave a clear and unequivocal waiver at the roadside, that waiver became unclear and equivocal once she was at the detachment. I do not find on the evidence before me that she was forced to speak to duty counsel. I do not find that she told the breath technician in clear and unequivocal terms that she did not want to speak to a lawyer. In Davidson, duty counsel was called at the detachment despite no further conversation about rights to counsel occurring since the accused had stated clearly and unequivocally at the roadside that they did not wish to speak to counsel. The facts in this case before me are distinguishable. Although it was not necessary for the breath technician to repeat the rights to counsel to the accused at the detachment, it was not unreasonable for her to do so under the circumstances she described (the demeanour of the accused) and for the reasons she described (the severity of the situation hitting home to the accused once at the detachment). To confirm the accused has not changed their mind with respect to such an important decision and such a litigated area, in my view, is not only reasonable, but wise. Had I concluded that the accused waiver at the detachment was clear and unequivocal, yet duty counsel was still called and the accused was forced to wait and speak to duty counsel, then I believe the conclusions in Barrick would have to be considered. As stated in #7 of the conclusions, as referred to in Davidson, "...All the surrounding circumstances must be examined to discern if the waiver has been withdrawn." And as stated in #2 of the conclusions, as referred to in Davidson, "If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to later be confronted with the argument that the accused's right to counsel was infringed."
[28] To be clear, having considered all the surrounding circumstances, I have concluded that although the waiver at the roadside was clear and unequivocal, that waiver became unclear and equivocal at the detachment and it was reasonable if not necessary, given the accused's response, to contact duty counsel.
[29] That conclusion does not resolve the ASAP issue. As I indicated earlier, defence counsel has also argued that there are unexplained periods of time which are of such length that the court should conclude the breath samples were not taken ASAP.
[30] Dealing first with the overall time period from 1:00 to 2:13 (arrest to time of first test). Having reviewed the evidence and applying the principles enunciated in Vanderbruggen, I am satisfied the police acted reasonably when considering the whole chain of events. There is ample evidence before this court which details what was occurring during this time period. As clearly stated in Vanderbruggen, it is not necessary for the Crown to give an exact accounting for every minute.
[31] Dealing with the time period between the completion of the first breath test and the completion of the second test, 2:13 – 2:37, a period of 24 minutes. Fifteen of the twenty-four minutes are legislated as the waiting period that must occur between the taking of the two samples. That leaves nine minutes. In my view nine minutes does not amount to a time period that requires explanation but, nonetheless, the breath technician provided sufficient evidence to account for this time period, such as the fact that it took the accused four attempts to provide a suitable sample, which involved explaining and reiterating the instructions to the accused as to what she needed to do in order that a suitable sample be obtained. Once again, I conclude the police acted reasonably during this time period.
Conclusion regarding the ASAP issue
[32] Having concluded that the police acted reasonably during the entire sequence, the ASAP requirement has been met. The presumption of identity has not been rebutted. The evidence heard regarding this issue has not raised a reasonable doubt in my mind that each breath sample was taken ASAP.
Issue Surrounding the Certificate of a qualified technician (presumption of accuracy)
Position of the parties
[33] As stated earlier, defence counsel submits the results shown on the certificate are unreliable because the Alcohol Standard Lot Number indicated on the certificate of a qualified technician is different than the Alcohol Standard Lot Number shown on the breath tests records and indicated during the testimony given by the breath technician. The Alcohol Standard Lot Number on the certificate is recorded as 20563 but the evidence given viva voce by the breath technician was that the Alcohol Standard Lot Number used was 20672. Therefore, the defence submits, the court should have a reasonable doubt about the reliability of the results shown on the certificate.
[34] Crown counsel provided written submissions to address this issue. He submits the viva voce evidence of the breath technician along with the tests records which are before the court as an exhibit should serve as a correction to the certificate and thereby satisfy this court beyond a reasonable doubt as to the accused's BAC. The Crown has provided the case of R. v. Costello, [2009] O.J. No. 1384 (S.C.J.) in support of its position.
Analysis
(i) The Law
[35] Section 258(1)(g) reads as follows:
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,
is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
[Emphasis added.]
[36] This section brings into play what is referred to as the presumption of accuracy: see R. v. St. Pierre, [1995] 1 S.C.R. 791. The presumption of accuracy is created by s. 258(1)(g) in combination with s. 25(1) of the Interpretation Act. Section 258(1)(g) allows a qualified technician to sign a certificate which can contain certain information. The certificate is evidence of that information without proof of the signature or the official character of the person appearing to have signed the certificate in the absence of evidence to the contrary. The presumption of accuracy only arises for consideration in relation to certificate evidence: again, see St. Pierre, supra. To rebut this presumption, the accused must adduce evidence that the test may have produced inaccurate results. Paragraph 21 of R. v. Boucher, 2005 SCC 72, [2005] 3 SCR 499 states:
21 Evidence to the contrary that is adduced to rebut the presumption of accuracy in s. 258(1)(g) Cr. C. must tend to show that the certificate does not in fact correctly reflect the blood alcohol level at the time of the breathalyzer test. This evidence must raise a reasonable doubt about the accuracy of the breathalyzer result.
Application of the law to the facts of this case
[37] The breath technician testified the accused provided two suitable samples directly into the approved instrument after she had changed the alcohol standard solution with Calwave Lot Number 20672. She then noted it was working properly and she received the proper results. The technician also adopted the contents of her certificate as her evidence. The relevant parts of the evidence are reproduced below. First at page 75, during direct examination:
Q. And does the breath room have an approved instrument in it?
A. Yes, the....
Q. Okay. Did it have....
A. I'm sorry?
Q. Did it have an approved instrument in it on that date when you attended?
A. Yes, the Intoxilyzer 5000C.
Q. Yes. And what did you do?
A. At one thirty-one I changed the – I checked the alcohol standard log. I changed the alcohol standard solution. And at – with the Calwave lot number 20672. And I noted that it was working correctly and I received the proper results, which was 95...
Q. What – what was – what was working properly, the approved instrument?
A. Well, I changed the alcohol standard solution...
Q. Right.
A. ...in the simulator and...
Q. Yes.
A. ...I tested it. Then I turned on the Intoxilyzer 5000C and I waited for that to achieve a normal operating temperature and made sure everything was in proper working order. It takes about 15 to 20 minutes for the Intoxilyzer to warm up, and about the same time for the simulator to achieve its proper temperature.
[38] Then a little bit later during direct examination at page 83:
Q. Okay. The – well I'm just going to back up a bit. If we could look at the certificate, at Exhibit A, before you did – did you complete that?
A. Yes, I did.
Q. And did you sign that?
A. Yes, I did.
Q. And it indicates that it was dated on the 20th of December 2009, is that correct?
A. Yes.
Q. And you certified that the certificate is true and accurate?
A. Yes.
Q. Are you prepared to adopt that as your evidence in court today?
A. Yes.
[39] So you see, the problem is she adopts the certificate as her evidence in court. So on one hand she is saying the Alcohol Standard Lot Number used was 20672 but she has adopted as her evidence, the fact that the certificate is true and accurate which has a different Alcohol Standard Lot Number, 20563. This discrepancy was never addressed by the Crown. I am left with not knowing which solution was used and therefore whether the solution was suitable for use in an approved instrument as required by s. 258(1)(g)(i).
[40] In the case of R. v. Walker, [2006] O.J. No. 2679, Mr. Justice Hill stated at paragraph two:
2 …Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.
[41] As stated earlier, the Crown submits the viva voce evidence of the breath technician along with the tests records which are before the court as an exhibit should serve as a correction to the certificate and thereby satisfy this court beyond a reasonable doubt as to the accused's BAC, providing the case of Costello, supra, to support its position.
[42] The Costello case is distinguishable from the case before this court. In that case the breath technician incorrectly recorded the Alcohol Standard Lot Number, instead accidentally writing down the payroll number of the officer who had most recently changed the solution. Prior to the trial the breath technician became aware of the error and sought out the correct Alcohol Standard Lot Number and made the changes to the certificate. At trial the error and correction were revealed and the technician explained what happened.
[43] McGarry J., sitting as a summary conviction appeal court judge in Costello, stated at paragraphs 17 and 18:
Correcting certificate errors
[17] The respondent acknowledges that a certificate that is incomplete on its face is inadmissible and therefore cannot be relied upon by the Crown. However, the respondent also correctly notes that a certificate that is seemingly complete, but that contains mistakes or ambiguous information is not inherently worthless. Rather, errors may be corrected at trial through viva voce evidence provided doing so would not interfere with the accused's right to make full answer and defence.
[18] In R. v. Ziemer (1994), 5 M.V.R. (3d) 34 (N.S.C.A.), the Nova Scotia Court of Appeal stated that the need for proper identification on certificates is to allow the accused to test it subsequent to being charged, so as to adduce a defence. Further, certificate errors may be corrected through viva voce testimony. As stated at paras. 11 – 13 of Ziemer:
11 There is ample authority to allow viva voce evidence to correct an error in a certificate. If the certificate is complete on its face, even though it contains an error, it is admissible and can be corrected (R. v. Pearce, 3 C.C.C. (3d) 434 (Ont. C.A.); R. v. Taylor, 38 M.V.R. 263 (C.A.); R. v. Gosby, (1974), 8 N.S.R. (2d) 183).
12 In the Gosby case there was a typing error in the certificate as to the times the breath samples were given by the accused. This court ruled that the certificate should not have been admitted into evidence. The Crown had not called the police officer who had completed the certificate to correct the error. MacKeigan, C.J.N.S. stated at p. 185:
The criminal law cannot however, convict on probabilities. We cannot guess or assume that this was a typist's error or that the early morning test was necessarily the only test taken by the appellant on June 17th. The prosecution could easily have removed all doubt by calling the analyst as a witness or even just by asking the appellant when he was on the stand whether he took any other test that day. This was not done.
The Crown could have proved the results of the breathalyzer test or by the viva voce testimony of the technician who conducted it. Instead it relied on a certificate, which if in proper form, would have been evidence of the results of a chemical analysis which, under s. 237(1)(c), is "proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed".
13 There can be no question that the purpose of requiring proper identification of the alcohol solution is to enable an accused, should he choose to do so, to have an expert make tests as stated in R. v. Lacey, [1972] N.S.J. No. 104. In the case we have under review the certificate was complete on its face and the Crown's re-examination of the technician. The Summary Conviction Appeal Court judge was not in error in this issue. However, I agree with counsel for the appellant that given the purpose of requiring proper identification of the solution used in the breathalyzer test that the summary conviction appeal court judge erred in entering a conviction. I would allow the appeal and order a new trial so as to give the appellant an opportunity to use the correct information as he may see fit.
[44] McGarry J. also referred to R. v. Zapfe, [2005] O.J. No. 3055 (S.C.J.) which also reached the same conclusion.
[45] In Costello and in the Zapfe case, the error on the certificate was corrected at trial by a witness who directly addressed the error that was made. In the case before me the breath technician was not asked by the Crown or the defence about the discrepancy between the certificate and her viva voce evidence. The only evidence she gave regarding the certificate is that she adopts the certificate as her evidence. It seems from the evidence, she is not even aware of the discrepancy. The number given in her viva voce evidence was not to correct an error on the certificate.
[46] The Crown argues, nonetheless, that the reference to the name of the manufacturer and to two lot numbers is sufficient identification for the purposes of s. 258 of the Criminal Code. He submits the purpose of s. 258(1)(g) "identification" information is for the purpose of "disclosure", to assist the defendant with making full answer and defence by investigation or cross-examination – neither of which the defence complained about, again relying on Costello for support of its position. The Crown points out that in Costello a new trial was ordered and if there is any real "surprise" to the defence in the present case the Court may grant the defendant the opportunity to re-open its case, including recalling the qualified technician for further cross-examination.
[47] The Crown is incorrect with respect to a new trial being ordered in Costello. The Summary Appeal Court upheld the trial judge's ruling and the conviction was upheld. I disagree with the Crown's submission if he is suggesting the Lot number is only for identification and disclosure purposes. That may be a piece of information that becomes useful to the defence for the purposes of making full answer and defence but it is also significant for the Crown to be able to rely on the presumption.
[48] The reference to the Alcohol Solution Lot number on the certificate follows the following sentence:
…an analysis was made of each of the samples by means of the said instrument which was operated by me and which I ascertained to be in proper working order by means of an alcohol standard that was suitable for use with the said instrument and identified as,
[Emphasis added.]
and then the manufacturer and the Alcohol Standard Lot Number is entered onto the certificate.
[49] An alcohol standard solution that was suitable for use with the approved instrument is a pre-condition found in s. 258(1)(g)(i) that must be met in order for the Crown to rely on the presumption of accuracy. If the evidence is unclear as to what alcohol standard solution was used how can I be satisfied it was a solution suitable for use with the approved instrument? I am mindful of the breath technician's evidence that she completed calibration and diagnostic checks, etc. and she found the instrument to be in proper working order but she does not state anywhere in her evidence that Lot Number 20672 was a solution suitable for the approved instrument. And that may have been the solution used or the solution on the certificate might have been the solution used. That evidence has caused me to have a reasonable doubt about the accuracy of the breath results on the certificate.
Conclusion regarding the presumption of accuracy
[50] Therefore, as a result of having a reasonable doubt as to the accuracy of the breath results shown on the certificate the Crown cannot rely on the presumption of accuracy.
Conclusion overall on count 2
[51] The effect of the Crown not being able to rely on the presumption of accuracy on the unique facts of this case leaves me with a reasonable doubt as to what the BAC of the accused was at the time of when the offence was alleged to have been committed. In other words the Crown has not satisfied me beyond a reasonable doubt that the BAC, at the time the alleged offence, was above the legal limit.
Other thoughts
[52] When s. 258(1)(g) was first enacted, it was believed that such a provision would eliminate the need for the Crown to call the breath technician as a witness, and rely on the benefit of the presumption. Initially, that may have been the case but, at least in this jurisdiction, it has now become increasingly common for the Crown to approach these cases by attempting to have the certificate of a qualified technician filed as an exhibit and also calling the qualified technician to give viva voce evidence to establish the manner in which the tests were administered and the results that were obtained.
[53] There are conflicting judgments as to whether or not the presumption of accuracy is still at play in cases where the Crown has filed a certificate of a qualified technician and called the technician to give viva voce evidence: see R. v. Snider [2006] O.J. No. 1677 (O.C.J.), R. v. Vandriel [2008] O.J. No. 1677 (S.C.J.) and R. v. Smith [2012] O.J. No. 3933.
[54] For the purposes of my ruling it is not necessary for me to comment on that issue, nor did the Crown make such an argument in this case. Regardless of which view is the correct view, my conclusion would not change. In either case I would still have resolved the issue of the two different Alcohol Standard Lot Numbers in evidence before me in favour of the accused.
[55] If the proper conclusion is that the presumption of accuracy is not at play here because viva voce evidence was given by the breath technician, I must then consider all the evidence that is before the court which would include the certificate despite the presumption of accuracy not being applied. Once again, the effect of the two different Lot numbers being given causes this court to have a reasonable doubt about the accuracy of the breath readings, for the reasons given above when discussing the evidence surrounding the two different Lot numbers.
[56] The Crown asks in its written submission, as an alternative, for the opportunity to re-open its case or allow the defence to reopen its case to be able to question the breath technician on this issue. I am not prepared to do such. This is not a proper case for such a remedy given that the evidence is in and oral submissions have been made. Where the Crown has closed its case and, as in this case, the defence has started to answer the case against him, the trial judge's discretion is very restricted and it will only be in the narrowest of circumstances that the Crown will be permitted to reopen its case. Allowing the Crown's case to be reopened after the defence has started to meet that case jeopardizes indirectly the principle that an accused not be conscripted against himself. When the Crown seeks to reopen its case after the defence has begun to answer the case, there is a real risk that the Crown will, based on what it has heard from the defence, seek to fill in gaps or correct mistakes in a case to which the defence had started to respond. To ensure that this does not happen, the Crown should not, as a general rule, be permitted to reopen once the defence has started to answer the Crown's case: see R. v. M.B.P., (1994), 89 C.C.C. (3d) 289. In my view this is not the narrowest of circumstances that would make it proper to allow the Crown to reopen its case. The defence has not asked for the case to be reopened and it would be unfair for me to do so.
Conclusion
[57] Count two is dismissed. As indicated earlier, the Crown has invited the court to dismiss count one. Therefore, count one is dismissed.
Dated at Windsor, October 29, 2013
Justice Lloyd Dean