R v Bennett-Morgan

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Alexandra Bennett-Morgan

Before: Justice Robert Bigelow

Heard on: November 29, November 30, 2012, January 31, February 1, April 26, December 12, 2013

Reasons for Judgment released on: January 21, 2014

Counsel:

• M. Mackett, counsel for the Crown
• R. Jourard, counsel for the Accused

Table of Contents

1. The Evidence

   • A. Factual Background
   • B. Expert Evidence
     • i. Dr. K. Woodall
     • ii. Mr. G Kupferschmidt
     • iii. Dr. M. Langille
   • C. Mouth Alcohol

2. Issues Before The Court

   • A. Charter Issues
     • i. Lack of Access to the Intoxilyzer
     • ii. Failure to Provide a Sample of the Alcohol Standard Solution, Simulator and Thermometer Records
     • iii. Arbitrary Detention
   • B. Non Charter Issues
     • i. Is the Instrument Approved?
     • ii. Evidence of Breath Demand
     • iii. Admissibility of the Intoxilyzer Printout
     • iv. Evidence of Impairment

3. Judgement

   • i. Remedy for Section 9 Breach

Reasons for Judgment

Justice Robert Bigelow:

Ms. Bennett-Morgan is charged that on or about the 22nd day of June in the year 2011 she did operate a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol or drug and further that on the same date she operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 mg of alcohol in 100 mL of blood. The Crown elected to proceed summarily and Ms. Bennett-Morgan entered a plea of not guilty.

By notice of application dated October 16, 2012 counsel on behalf of the accused brought an application for:

…a conditional stay pending defence expert access to an Intoxilyzer 8000C and related training. Alternative remedy sought for the alleged breach of sections 7 and 11D are a stay and exclusion of evidence. The application also includes complaints regarding, and seeks remedies for, over holding (breach of section 9), unnecessary handcuffing (breach of ss. 7 and 12), nondisclosure (breach of ss. 7 and 11D). There is also an application for disclosure of police records on over holding that should be addressed only if, after hearing evidence, the court concludes that a section 9 breach occurred due to over holding.

After some debate it was agreed that the Crown would initially call its witnesses with respect to the trial proper and examine them with respect to both the trial issues as well as Charter issues and defence would cross examine. The Crown would then have an opportunity to cross-examine the affiants of the affidavits filed by the defence in support of the applications and then call any additional evidence the Crown may wish to call with respect to those applications.

1. The Evidence

A. Factual Background

PC Griffiths stated that he was on duty on the early morning hours of June the 22nd 2011 assigned to a Ride spot-check. At approximately 12:25 AM he pulled over a car with a female driver later identified to be Ms. Bennett-Morgan. When asked whether or not she had consumed any alcohol that evening she indicated she had a glass of wine and then began to fumble in her wallet for her license before she was asked to produce it. The officer also noted that her eyes were glassy and there was a smell of alcohol. Based on all the information he had noted, he made a demand that she provide a breath sample into a roadside screening device.

Prior to setting up the spot-check he tested the Draeger Alcotest model 7410 GLC to ensure that it was in proper working order. He noted that it had been calibrated on June 8 of 2011. He performed a self-test and received a result of zero. In his opinion the device was operating correctly. And he believed that the device was calibrated to fail at 100 mg grams of alcohol per 100 mL of blood.

The driver accompanied him to his vehicle and he noted that she appeared to be a little unsteady on her feet but believed that this could have been due to the very high heeled shoes that she was wearing.

The driver had some difficulty initially providing a breath sample but eventually provided a suitable sample which registered a fail at 12:30 AM. He then formed the opinion that she was driving with over the legal limit of alcohol in her system and advised her she was under arrest for over 80 operation. She was handcuffed to the rear. He stated that his reasons for placing her in handcuffs were both to prevent access to any means of escape which she might have as well as for officer safety.

Constable Griffiths' partner on the date in question observed his interaction with the accused. He noted that she had a glazed look in her eyes and that the smell of alcohol was very prominent. He also noted that there appeared to be a delay in her responses to questions from his partner. He did not note any evidence of her being in any form of distress.

Another officer at the scene indicated that he was standing by while Ms. Bennett-Morgan was arrested and noted a smell of alcohol coming from her that she was unstable on her feet and staggered a bit to the left and right while walking to the scout car.

The Breathalyser technician stated that he was qualified to operate both the Intoxilyzer 5000C and the Intoxilyzer 8000C. He changed the alcohol standard solution at 23:33 the evening before with solution manufactured in September 2009 and which had an expiry date of August 2012. He then performed a diagnostic test at 23:41 which appeared to complete successfully. At 23:59 he attempted to do a calibration check but received an "ambient fail" message. He "surmised" that the fail was caused by alcohol vapour remaining in the room from changing the standard solution, so he repositioned a fan in the room and performed another calibration check at 00:02 which was successful.

Prior to testing the accused, he had set up for another test subject but that person had refused the test. He then did a further calibration check before the accused entered the testing room which completed successfully. His certificate of analysis indicates that at 01:30 the accused provided a breath sample which resulted in a reading of 210 milligrams of alcohol in 100 mL of blood and a second test which commenced at 01:52 which resulted in a reading of 190 mg of alcohol in 100 mL of blood although the printout from the Intoxilyzer 8000C indicates a 1st reading of 219 and a 2nd reading of 193.

He indicated that he stopped the videotape of the process after the accused had provided her first suitable sample but before the Breathalyzer had completed its last air blank. On the second test he started the machine prior to commencing videotaping and the air blank tests prior to the second test were not recorded.

He noted that her speech was good, the color of her face was normal, her attitude was polite and cooperative and the effects of alcohol were moderate. As well he agreed that she had no difficulty following instructions. However, he advised the Sergeant in charge of the station that she needed to be lodged at the station for her own safety due to her high readings.

The Officer in charge of the station was present during the booking process and agreed that she could hear the accused stating that her wrists hurt on the videotape of the process but did not recall her saying that and made no note of it. After learning the results of the breath tests, the officer in charge decided that she would not release the accused from custody but hold her until she sobered up. She indicated that her concern was:

My concern is because of the readings and because of her - when she indicated to me that she was not an alcoholic, she wasn't an experienced drinker in my opinion, that's the perception I got, her slight build, the fact that she had a full bottle of wine in her possession, that she was completely intoxicated, her levels were over 200. She's a small woman and I was of the opinion that she was too intoxicated to understand the release.

She made no attempt to explain the Form 10 release procedure and was not aware of any other officer explaining that procedure to her.

The accused was then transferred to 55 Division because it was the only Division of Toronto Police Service with holding cells for women in custody. Upon her arrival at 3:38 AM she indicated to the officer in charge that she suffered from severe rheumatoid arthritis as well as giving oral evidence. The officer indicated that she did not appear to have any difficulty understanding his questions and responded appropriately and that there was nothing other than the high readings which gave him any concern that it might not be safe to release her. She was eventually released from custody at 8:56 AM.

Ms. Bennett-Morgan provided an affidavit in support of her Charter Application in which she indicated that she suffers from severe rheumatoid arthritis which causes her pain in her joints and that the arthritis was exacerbated by cold and fatigue. She indicated that she advised the staff Sgt. at Traffic Services that she had arthritis and that the handcuffs were hurting her wrists.

After completing the breath tests she asked if her boyfriend could come to pick her up and was allowed to call him but could only leave a voice mail. She was not informed that he had called both Traffic Services and 55 Division in an attempt to arrange to pick her up.

Although police indicated that they had concerns about her ability to understand the conditions of release there was no evidence that she had any difficulty understanding anything which was occurring.

Prior to being taken to 55 Division she was again handcuffed which she stated was more painful because she was suffering from fatigue and cold. Upon arrival at 55 Division she was placed in a tiny cell with a metal bench and steel metal toilet. She immediately requested a blanket as it was extremely cold and received a reply that there were no blankets available. She was wearing a thin short dress and was not offered an opportunity to obtain any warmer clothing from her overnight bag.

In cross-examination on her affidavit she agreed that she had not consumed any alcohol after being stopped by the police and that she had not vomited, burped or regurgitated throughout the time she was in custody.

The accused's husband also filed an affidavit indicating that he had received a voicemail message from his then girlfriend indicating that she had been stopped at a Ride spot check and charged with drinking and driving. She did not indicate in the message where she was.

He then contacted the nearest police station and was told that likely she would have been taken to Central Traffic for investigation. At 2:59 AM he called Central Traffic and was told that she was being processed but that he could not speak to her. He was advised that because she was a woman she would be transferred to 55 Division and held for 4 to 6 hours. He drove to 55 Division and arrived there at about 7 AM and was told to leave and that he was wasting his time. Nevertheless he waited and eventually a male officer went to check on her and about one half hour later she was brought up.

He confirms that she suffers from rheumatoid arthritis. He also indicated that would have picked her up at Central Traffic if he had been permitted to do so.

B. Expert Evidence

i. Dr. K. Woodall

Dr. Woodall filed a report and gave oral evidence on both the trial proper and the Charter Application. She was qualified to give opinion evidence with respect to the absorption, distribution and elimination of alcohol in the human body and the effects of alcohol on individuals as well as the operation of the Breathalyzer and Intoxilyzer instruments and the approved screening device.

She stated that:

My review of the Intoxilyzer 8000C test record shows that it appeared to be in proper working order and operated correctly. In addition to the two subject tests reading, there was an ambient fail message displayed at approximately 11:59 PM, that doesn't affect my opinion the instrument was in proper working order.

In her opinion, impairment begins to become significant at a level of 50 mg of alcohol in 100 ml of blood and increase from then onward. Even if someone appears to be able to speak, walk and stand relatively normally her opinion of impairment would not change.

She also agreed with a suggestion from counsel that it was important that there be a 15 minute observation/deprivation period before both the first and second subject breath tests in order to ensure that nothing has been placed into the mouth of the subject or any alcohol consumed in order to ensure that the presence of mouth alcohol did not affect the test. However she also indicated that the Intoxilyzer 8000C had a slope detector which would trigger a message if alcohol was present in the mouth although that detector is not effective 100% of the time.

ii. Mr. G Kupferschmidt

The defence filed the Affidavit of Mr. G Kupferschmidt and he was called as a witness on the Charter Application and was qualified as an expert in the field of toxicology and in relation to breath testing technologies some of which are utilized in the Intoxilyzer 8000C.

In his affidavit Mr. Kupferschmidt states that despite numerous attempts, he has been unable to purchase or obtain access to an Intoxilyzer 8000C for testing or examination. Nor has he been able to obtain any specific training with respect to the operation of the 8000C. He also suggests that there is no clear evidence that the instrument has received CSA approval and that the fact that it cannot be purchased by independent experts is contrary to the recommendation of the Alcohol Test Committee which indicated that any breath testing apparatus should be commercially available. He further suggests that the inability to perform independent testing of the instrument should give rise to concerns with respect to the scientific validity of results obtained through the use of the instrument.

Specifically with respect to the matter before the court he raises a number of concerns. He states that in his opinion the explanation given by the Breathalyzer technician for the ambient fail is extremely unlikely and that an ambient fail without explanation should raise concerns. Given his inability to personally test the instrument he has concerns with respect to the possibility of radio frequency interference (RFI) and its impact on the reliability of results from the instrument. He also indicates that it appears to him from reviewing the video of the testing in this matter that it is unclear whether the temperature of the simulator used was manually set by the technician or set electronically. He notes that it appears from the video that the technician enters 3 digits but print out from the instrument shows 4 digits.

In cross examination he agreed that he had never published in a peer-reviewed scientific journal. Although he indicated he had done testing with respect to RFI on an Intoxilyzer 5000C. When asked if any of his research had been published he responded:

No, it has not and I don't feel it needs to be. The idea of radio frequency interference is well-established. It was published in a fairly substantial internal report by the National Highway Traffic Safety Administration in 1983.

When asked about his own testing he stated:

And what I did with those devices was tried to introduce radiofrequency at various times during the testing process and sometimes I would get a response, sometimes I wouldn't, but that's hardly publishable material because I can't quantify it, I don't have the equipment do that, but I can certainly tell the court whether radio frequency can have an impact.

But what he failed to state is that, over the 30 years since the 1983 study to which he referred, manufacturers of breath testing equipment have designed their instruments to terminate the testing sequence whenever their radio frequency interception systems detected such interference and have developed shielding methodologies as well and that all instruments in use in Canada complied with the standards of the International Organization Of Legal Measurements with respect to RFI. Nor did he refer to the fact that the Intoxilyzer 8000C had been subjected to testing for the impact of RFI which testing was reviewed by the Alcohol Test Committee prior to recommending approval of the instrument.

When asked about studies comparing Intoxilyzer results with blood test results, the following exchange took place:

A) Well, there are lots of them around and I question the techniques that they use in some of them because a lot of them do not use near simultaneous blood tests. Most of them are looking at breath test taking as much as two hours before, I mean a breath test taken as much as two hours before a blood test and the whole reason for comparing blood with breath is to do near simultaneous analysis.

Q) Okay. Of the ones which do simultaneous analysis, do you have any studies which show the Intoxilyzer over reporting to a level of 100, 200 300 over reporting that?

A) No, I do not, and that I wouldn't expect that those studies would be published in any event.

Q) So you don't have any studies, but you're suggesting that the evidence is out there, but just not published.

A) Correct

In Paragraph 39 of Mr. Kupferschmidt's affidavit he states that:

The manufacturer's online software specifications suggest that supervisors appear to have the ability to change blood-breath ratio and breath volume software settings.

In cross examination it became clear that he was not in fact referring to the software specifications of the Intoxilyzer 8000C but rather specifications for a breath testing instrument manufactured for use in Great Britain where testing procedures are significantly different.

iii. Dr. M. Langille

The Crown filed an Affidavit of Dr. M. Langille who also gave oral evidence. He was qualified to give expert evidence with respect to the absorption and elimination of alcohol from the human body, the design of approved instruments used to measure blood alcohol concentration and the operation and design of the Intoxilyzer 8000C. He also is, and has been for some time a member of the Alcohol Test Committee and has been involved with the approval of the instruments used in Ontario as well as the modifications to them which have occurred.

Dr. Langille indicated that an ambient fail error message from an Intoxilyzer 8000C can be caused by an interfering substance in the room air or RFI. He agreed with Mr. Kupferschmidt that the explanation given by the Breathalyzer technician for the ambient fail was quite unlikely. However, he was of the view that it would be impossible to attempt to duplicate what happened because there is insufficient information to create scenarios close enough to be considered the same. In his opinion the ambient fail does not cause any concern. It shows, in fact, that the instrument was performing properly. He stated:

Well, if it's something which causes an ambient fail, then I would expect it to cause an ambient fail continuously, and since there was no ambient fail during Ms. Bennett Morgan's tests, nor I believe any other exception message, the only conclusion one can draw is that whatever condition produced that ambient fail is no longer present….

Based on the results of the tests where there is two tests in good agreement, with an instrument that appears to be in a proper working order, it's my opinion that there is no evidence of any interfering substance or interference and that to suggest that the fact that an ambient fail occurred earlier in that day and to then suggest that … what caused that may still be affecting the instrument in a way in which we have no evidence, is pure speculation and..… would not be a scientifically valid opinion.

He also indicated, as had Mr. Kupferschmidt, that any ambient alcohol present in the room at a concentration which would not result in an ambient fail would only cause the reading to be lower.

Dr. Langille did agree that in order to absolutely rule out the possibility of any other cause of an ambient fail message one would have to have access to an instrument and test it. However he then went on to confirm that in fact the Intoxilyzer 8000 C had been tested and that testing reviewed by the Alcohol Test Committee prior to its recommendation for approval by Parliament.

He also explained in response to Mr. Kupferschmidt's concerns about the apparent discrepancy between the number of digits which it appears that he breath technician entered into the machine when recording the temperature and number of digits which appear in the printout that the "instrument always records to two decimal places, even if only one decimal place has been entered by the qualified technician."

In response to Mr. Kupferschmidt's comments about the inability of a anyone other than a governmental agency to purchase a Intoxilyzer 8000C violated that Alcohol Test Committee's recommendation that Approved Instruments be commercially available, he indicated that the intention of the Committee was to ensure that prototypes were not considered and that the actual instrument be available for purchase.

C. Mouth Alcohol

I heard extensive evidence from all 3 experts with respect to the possible impact of mouth alcohol on breath testing results. However, Ms. Bennett-Morgan gave evidence on the Charter application and agreed in cross examination that she had not consumed alcohol at any time after being stopped by the police. She also agreed that she had not vomited, regurgitated or belched at any time between being stopped and completing the tests. Therefore, with respect to the Charter Application not only is there no evidence of mouth alcohol, there is in fact evidence that there was no source for mouth alcohol and accordingly no basis for any argument that testing is required to ensure that mouth alcohol had no effect in this case.

2. Issues Before The Court

A. Charter Issues

i. Lack of Access to the Intoxilyzer

Defence Position

Defence counsel submits that the inability of his expert have access to an Intoxilyzer 8000C denies his client her right to make full answer and defence as guaranteed by section 7 of the Charter. He suggests that the fact that his expert cannot access the instrument prevents him from testing it to determine the cause of an unexplained ambient fail that occurred prior to his client providing samples and that an unexplained ambient fail should raise concerns about the reliability of the breath testing apparatus.

He suggests remedies for the alleged breach as follows:

1. The court should, under section 24 subsection 1, draw an adverse inference against the crown, namely, that the Intoxilyzer 8000C malfunctioned and that the malfunction raises any irrefutable and reasonable doubt as to the reliability of the breath test results; or

2. Alternatively, the Intoxilyzer test results should be excluded from evidence either pursuant to the common law or section 24 subsection 1 of the Charter; or

3. The imposition of a conditional stay pending provision of access to an Intoxilyzer 8000C by the applicant's expert and appropriate training to the expert.

Crown Position

The Crown relies upon two recent decisions of this court where the issue of the inability of private experts to have access to an Intoxilyzer 8000C was raised and where the courts found that there had been no breach of the applicant's rights to make full answer and defence. The Crown also suggests that the defence application is actually a challenge to Parliament's authority to designate approved instruments and as such Notice of Constitutional Question should have been filed.

She also relies on the evidence of Dr. Langille who opines that the Intoxilyzer 8000C had been tested prior to review by the Alcohol Test Committee and that it would not be possible for an independent expert to set up conditions sufficiently similar to those which existed at the time of the ambient fail shortly before Ms. Bennett-Morgan's tests in order to determine what actually caused the fail.

Ruling

Mr. Jourard relies heavily upon the evidence of Mr. Kupferschmidt to support his contention that his client is unable to make full answer and defence absent her expert having access to an Intoxilyzer 8000C and related training. I have significant concerns about the reliability of that evidence. Mr. Kupferschmidt continually referred to what was and what was not good science yet often made assertions based on rank speculation such as that there were studies done showing the Intoxilyzer to be grossly in error which have never been published for reasons he does not provide. He provided misleading evidence by failing to mention changes which had taken place in breath testing instrument technology with respect to protection of the instruments from RFI and he relies on testing that he has done himself on RFI but admits that his results "are hardly publishable material because I can't quantify it.

Yet nevertheless he wants to have access to an Intoxilyzer 8000C to perform tests the results of which he will be unable to quantify or publish so that his results can be independently assessed.

I also have the same concerns as expressed by Justice Chester in R v Nachoff with respect to Paragraph 39 of Mr. Kupferschmidt`s Affidavit which also appears to have been filed in those proceedings. This paragraph is clearly misleading and shows a lack of concern for detail and accuracy which is quite concerning.

On the other hand, I have the evidence of Dr. Langille who I find to have been a much more reliable witness. In my view his evidence was balanced and fair despite the vested interest he has in the suitability of the Intoxilyzer 8000C as a member of the Alcohol Test Committee which recommended its approval to Parliament. I accept Dr. Langille's opinion that it would not be possible to recreate the exact circumstances which led the ambient fail in this case and also accept his opinion that in fact the ambient fail supports the reliability of the test results. As he indicated the Instrument detected a problem and terminated its processes as it was designed to do if it found a problem. During the testing of Ms. Bennett-Morgan the Instrument reported no problems and the two tests were in agreement. In those circumstances it was his opinion that the possibility of RFI was "so vanishingly small as, you know, for practical purposes to be not possible in layman's terms."

In R v Nachoff Justice Chester summarized the application brought on behalf of the accused as follows:

This is a Charter application wherein the applicant is seeking an order pursuant to section 24 subsection 1, stating all charges, or alternatively, an order excluding evidence pursuant to section 24(2) or, in a further alternative, in order for production of an Intoxilyzer 8000 C compelling the sale or lease of the approved instrument, including all requisite training, to a defence expert, (Mr. Gerald Kupferschmidt) all at the applicant's cost. They are bringing the application by reason of breaches of section 7 , 8 and 11 of the Canadian Charter of Rights and Freedoms.

Justice Chester found that he had no jurisdiction to order a foreign corporation or the government as represented by either the Center Of Forensic Sciences or the Ontario provincial police to sell or lease an instrument to an independent expert. He also found that there had been no breach of the Charter and that:

The applicants can still make full answer and defence without the necessity of having a private expert test by himself the Intoxilyzer 8000 C. He does not have to prove that the improper operation or malfunction caused the results be over 80 as emphasized in St. Onge-Lamoureux.

In his Memorandum to Counsel of his Reasons for dismissing a similar Application under sections 7 and 11(d) of the Charter in R v Woodsworth Justice Forsyth states:

I have no difficulty sympathizing with the defence position that in a perfect world the Intoxilyzer 8000C ought to be available to private toxicologists to purchase and be trained upon in order to work in their own laboratories with respect to individual cases that are brought to their attention. However, the mere fact that the Kentucky, USA manufacturer to date has chosen to refuse to sell the Intoxilyzer 8000C to private toxicologists, whether they be in the USA or in Canada, is not, in my view, a breach of Mr. Woodworth's s. 7 right to make full answer and defence by the State/Government of Canada. That is the protection that is afforded to a person under our Canadian Charter of Rights and Freedoms . Section 7 , in my view, is not a shield against the decision of a private corporate entity to sell or not to sell one of its pieces of equipment to private toxicologists.

I agree with the Crown that if Mr. Biss is actually attempting to challenge the constitutionality of the approval of the Intoxilyzer 8000C by the government as being the instrument of choice for taking and reading breath samples pursuant to charges under s. 253(1) (b) of the Criminal Code , then that is quite another issue. Mr. Biss has indicated in the presentation of this application that he is not making that formal argument.

Justice Forsyth went on to find that the applicant had not established a breach of his rights under either section 7 or section 11(d) of the Charter.

It is noteworthy that neither Justice Forsyth nor Justice Chester had the advantage, which I have had, of having heard the evidence of Dr. Langille. In fact no expert evidence at all appears to have been called in R v Woodworth.

The only issues that Mr. Kupferschmidt brought out with respect to potential problems with the Intoxilyzer 8000C were its ability to detect mouth alcohol which I have already determined is not relevant in this case given the Applicant's evidence, and the concern with respect to RFI. He indicated that he wanted access to an instrument to conduct his own "tests". However, it appears that those "tests" would not be of any real assistance to the court since he agreed that he does not have the equipment to perform systematic testing for RFI and apparently does not see the need to publish results so that they could be reviewed by other experts. What we would be left with after his testing would be essentially anecdotal evidence which could be accorded very little, if any, weight.

I agree with Justice Forsyth's comment that "in a perfect world the Intoxilyzer 8000C ought to be available to private toxicologists to purchase and be trained upon in order to work in their own laboratories with respect to individual cases that are brought to their attention."

However, as stated by Justice McLachlin (as she then was) in R v O'Connor:

[T]he Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair…. What the law demands is not perfect justice, but fundamentally fair justice.

Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system -- all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.

Based on all the evidence before me, I am not satisfied that the applicant has met her onus with respect to establishing on the balance of probabilities that her rights guaranteed by sections 7 and 11 (D) of the Charter were breached by the failure to provide to an expert retained by the Applicant access to the Intoxilyzer 8000C and related training.

ii. Failure to Provide a Sample of the Alcohol Standard Solution, Simulator and Thermometer Records

In a letter dated 3 July 2011 counsel for Ms. Bennett Morgan requested disclosure of a sample of the standard alcohol solution from the lot used to calibrate the Intoxilyzer 8000C and the simulator and thermometer service and certification records.

The Crown replied by letter dated July 27, 2011 refusing to provide those items. She stated:

We are not willing to provide samples from the lot, based on the boilerplate request you have made, as we take the position that this information is completely irrelevant to any issues at trial…. If you do not accept our position, please bring a timely application for production. The Toronto Police Service has been asked to preserve some samples in case the court ultimately disagrees with our position.

Although an Application for Production/Disclosure was scheduled to be heard after a pre-trial in February 2012, that application was later abandoned prior to any formal materials being filed with the court.

It should be noted that the Alcohol Standard Solution used in the Applicant's tests expired in August 2012 and that counsel was in possession of a copy of the Certificate of an Analyst of the alcohol standard solution used indicating that it was suitable for use in the Intoxilyzer 8000C and what its expiry date was.

It is fair to say that the law respect to whether or not the Crown has a duty to provide samples of the alcohol standard solution is unclear. There are a number of decisions of this court directing that samples be provided as well as a number of decisions of this court where requests to require the provision of samples were refused. However, it is clear that where defence counsel are of the view that the Crown has not fulfilled its disclosure obligations, they have a responsibility of bringing that matter to the attention of the court as soon as possible in order to avoid delays in trials. The Supreme Court of Canada stated in R v Stinchcombe that:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

Defence counsel concedes in his written submissions that the normal remedy for nondisclosure is the making of a disclosure order. However he suggests that in this case, "where the breath instrument is inaccessible to the defence expert, the usefulness of any withheld disclosure is limited."

He then submits that because the alcohol standard solution is now expired and therefore cannot be produced that a stay of the over 80 charge should be granted or "an adverse inference should be drawn that disclosure of material would have revealed a malfunction of the Intoxilyzer and raise an irrefutable reasonable doubt regarding the reliability of the breath tests" effectively arguing that either the charges be stayed or an acquittal entered.

In my view it is not necessary to determine in this case whether or not the Crown was in breach of its duty to disclose by failing to provide samples of the alcohol standard solution and the simulator records. The response of the Crown to the request for disclosure was consistent with a number of decisions from this court and Counsel was aware of the Crown's position well over one year prior to the commencement of the trial in this matter and could have brought a disclosure application at any time. Counsel was also aware that the alcohol standard solution used in the tests of his client would expire in August 2012. Although counsel had indicated at a pretrial that he would be bringing a disclosure/production application. That application was later abandoned. In those circumstances, counsel failed to fulfill his responsibilities to bring disclosure issues to the attention of the trial judge at the earliest opportunity so that the court could grant a remedy should a breach of the Crown's responsibility be found without unnecessarily delaying the trial.

Given that failure, even if I determined that the Crown was in breach of its disclosure responsibilities, I would not be prepared to grant either of the remedies sought by the defence since the appropriate remedy would have been to order disclosure which is no longer possible, at least with respect to the Alcohol Standard Solution, due to the inaction of counsel. As stated in R v Dulude:

A stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits. A stay because of the Crown's failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused's ability to make full answer and defence, or the integrity of the administration of justice.

Neither of which tests are met in this case.

iii. Arbitrary Detention

Ms. Bennett-Morgan was arrested at approximately 12:25 AM, completed providing breath samples at shortly after 1:52 AM but was not released from custody until 8:56 AM. She was also handcuffed upon arrest and again handcuffed when transported from Traffic Services to 55 Division although by that time there had been no evidence of any kind of a lack of cooperation or any other reason to believe that she might be a risk either to escape or to officer safety and she had advised police of her health concerns.

The only basis for the detention of the accused for over seven hours after completion of the breath tests was the high readings obtained from the tests. Both the Officer In Charge of Traffic Services and the Officer In Charge of 55 Division relied on the readings to support a belief that the accused may not be able to understand the terms of release. However, none of the numerous police officers involved in dealing with the accused was able to point out any time when she had any difficulty understanding anything and neither of the officers in charge made any attempt to explain the contents of a Promise to Appear to determine whether or not she appeared to understand. In fact, Constable Kuzmetsov indicated that he had explained to her the contents of a Promise to Appear and was satisfied that she understood.

Ms. Bennett-Morgan stated in her affidavit that upon arrival at 55 Division she was placed in a cell and a request for a blanket was refused despite the fact that she was wearing a very light dress with a short skirt and had advised the officer in charge that she suffered from rheumatoid arthritis. She also stated that she could only recall speaking to two officers between the time she was placed in the cell and the time she was released. On both occasions she asked about how long she was going to be held and received noncommittal replies and no attempt to determine her state of sobriety was made.

In his decisions in R v Price and R v Hernandez Justice Durno considered the issue of over-holding of individuals charged with drinking and driving offences. In Hernandez he stated:

25 … [P]ermitting the blood alcohol level to be the sole determining factor was too narrow a focus, the officer was required to consider all the circumstances.

He then provided the following non-exhaustive list of factors to be considered:

a) the accused's blood alcohol level;

b) whether the accused was charged with impaired operation;

c) his or her level of comprehension;

d) that the accused is prohibited by statute from driving a motor vehicle (the automatic administrative license suspension);

e) that the accused's vehicle would be impounded;

f) whether there was a responsible person to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound;

g) whether the accused had a criminal record and if so, its contents;

h) whether the accused had outstanding charges;

i) his or her attitude, and

j) that he or she had been drinking and driving and had thereby recently exhibited poor judgment.

26 It was only after an objective consideration of those factors and any others deemed relevant that the officer-in-charge could make an informed decision whether to release. If after a consideration of all the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the circumstances, there is no breach.

Applying those criteria to the case at bar, Ms. Bennett-Morgan:

a) had very high readings truncated to 210 and 190 as shown on the Certificate of Analysis;

b) was charged with impaired driving but it is noteworthy that the arresting officer stated that he did not make the decision to lay the impaired driving charge and had no input into that decision;

c) had shown no difficulty understanding anything;

d) was subject to an administrative suspension;

e) had her vehicle impounded;

f) had a responsible person who would have picked her up and who attempted to advise both Traffic Services and 55 Division that the would do so;

g) had no prior criminal record;

h) had no outstanding charges;

i) had been polite and cooperative throughout her detention;

j) had shown bad judgement by operating a motor vehicle after consuming alcohol.

I would add to the list of factors provided by Justice Durno any medical condition known to the police which might make her detention in custody more difficult or which might be exacerbated by detention in a holding cell and any mistreatment of or any unnecessary additional restrictions placed on the individual.

Based on the evidence before me I find that the police did not in fact consider all the relevant circumstances when deciding to hold Ms. Bennett-Morgan for over 7 hours after completion of the tests and thereby breached her rights not to be arbitrarily detained as guaranteed by section 9 of the Charter. The only justification provided for holding her were the readings. In particular, I find that the police failed to consider the fact that she had no difficulty understanding anything during her involvement with the police, her cooperation during the process or that there was a responsible adult who was prepared to pick her up. The police also did not consider her medical condition which was exacerbated by the conditions of detention including placing her in handcuffs when transporting her to 55 Division when the police were well aware of her lack of prior involvement in the criminal justice system, her cooperation with the police and her complaints with respect to pain in her wrists.

In his factum Mr. Jourard also alleges that the treatment of Ms. Bennett-Morgan also was a violation of her rights as guaranteed by section 12 of the Charter to be free from cruel and unusual treatment or punishment. Although as I have indicated, I am concerned about the handcuffing of Ms. Bennett Morgan and her confinement in a cold holding cell without provision of blankets or warm clothing, I am not prepared to find that the treatment was of such a nature that it could be considered to constitute cruelty. Therefore, I do not find that there was a breach of section 12.

B. Non Charter Issues

i. Is the Instrument Approved?

In his written submissions counsel raised an issue with respect to whether there was proof beyond a reasonable doubt that the Instrument used to test Ms. Bennett-Morgan was an approved instrument. Although the breath technician both gave viva voce evidence and indicated in his certificate that he used an Intoxilyzer 8000C, an approved instrument, a certificate of calibration produced by the American manufacturer of the instrument describes it as an Intoxilyzer 8000. Counsel submitted that the fact that the certificate of calibration referred to the instrument as an Intoxilyzer 8000 should raise a reasonable doubt with respect to whether or not the instrument was in fact approved.

Upon receiving notice from the defence that this issue would be raised the Crown sought an adjournment in order to consider whether or not she would apply to reopen her case to call evidence on that point. I allowed her application and she recalled Dr. Langille who stated that the manufacturer of the Intoxilyzer instruments provided a Certificate Of Calibration with all 8000 series instruments which solely referred to the instrument as an 8000. Subsequently the machines were provided with software specific to the jurisdiction where they were to be used and that the 'C' is noted on the instrument itself as well as on the test records produced in order to identify it as an instrument intended for sale in Canada.

In support of his position Mr Jourard relies upon the decisions of R v Thanapalan and R v Fenn in both of which the courts found that on the evidence before them that they had a reasonable doubt as to whether the Crown had proven beyond a reasonable doubt that the Instrument was approved.

This issue was also considered in the cases of R v Almeida and R v Chupryna where the courts found that on the evidence before those court that the fact that the Certificate Of Calibration referred to the instrument as an 8000 rather than an 8000C did not raise a reasonable doubt with respect to whether or not the instrument used was in fact approved.

After reviewing the above-mentioned decisions and the decision of Justice Trotter sitting as a Summary Conviction Appeal Court Judge in R v Penavic I find the reasoning in Almeida and Chupryna more persuasive and, even without the evidence of Dr. Langille on the issue, would not have found that the labeling of the instrument as an 8000 in the Certificate Of Calibration would have raised a reasonable doubt as to whether or not the instrument used in testing Ms. Bennett Morgan was an approved instrument after having been identified as an approved instrument by both the Breath Technician and Dr. Woodall.

ii. Evidence of Breath Demand

In his written submissions Mr. Jourard points out that the arresting officer did not testify as to making a demand pursuant to section 254(3) and therefor submits that the breath test results are not admissible. He is in fact correct that the officer did not testify to that before this court. However, a transcript of the communication between the arresting officer and Ms. Bennett Morgan was entered as an Exhibit in these proceedings. That transcript was prepared at the request of Mr. Jourard and although he initially only wished to enter portions into evidence, the court directed that the entire transcript should be placed in evidence on both the trial and the Applications. The transcript shows the arresting officer making a section 254(3) demand at p. 9.

iii. Admissibility of the Intoxilyzer Printout

In his written submissions Mr. Jourard raises an issue with respect to the admissibility of the Intoxilyzer printout. He points out that such a printout is only admissible where it has been signed by the qualified technician who:

…Certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused breath….

He further submits that it is unclear in the oral evidence of the qualified technician that he certified the printout.

Although it may be arguable whether or not the qualified technician indicated that he certified the printout in his oral evidence, it is not arguable that in fact the document itself contains a statement that it is:

Certified to be a printout produced by the approved instrument when it analyzed the breath samples of Alexandra Bennett-Morgan.

And the section provides that proof of the signature or official character of the person signing is not required.

Therefore, I am satisfied that the prerequisites for the admissibility of the printout have been satisfied.

iv. Evidence of Impairment

Counsel submits that the observations of his client by the various police officers with whom she interacted do not on their own established beyond a reasonable doubt that she was impaired at the time that she was operating her motor vehicle. However, counsel does concede that if the Intoxilyzer readings are admitted into evidence and the presumption of identity is not displaced, the Crown has established impairment beyond a reasonable doubt based on the expert evidence of Dr. Woodall.

3. Judgement

As indicated above, I am not satisfied that the Applicant has established breaches of her right to make full answer and defence but am satisfied that there was a breach of her section 9 rights and will consider the appropriate remedy after determining whether the Crown has established all the elements of the offences beyond a reasonable doubt on the trial proper.

With respect to the Over 80 charge, both the Certificate of Analysis and the Print Out from the Intoxilyzer were entered as Exhibits and both showed tests results well over the legal limit. I have no evidence before me with respect to any malfunction of the Instrument other than the ambient fail and the expert evidence of Dr. Woodall was that this raised no cause for concern. I am satisfied that the Crown has established the elements of the offence of Over 80 beyond a reasonable doubt.

With respect to the impaired, counsel has conceded that if the results of the breath tests are admitted and the presumption of identity is not displaced that the Crown has established impairment beyond a reasonable doubt based on the evidence of Dr. Woodall. Since I have not found a breach of the right to make full answer and defence, I am satisfied that the statutory prerequisites to the admissibility of the Certificate of Analysis have been met and that the presumption of identity has not been displaced, I find that the Crown has proven the offence of impaired driving beyond a reasonable doubt.

i. Remedy for Section 9 Breach

Mr. Jourard stated in his written submissions that, if a section 9 breach was found, he would bring an application for disclosure of police records on over holding. In a letter to Crown Counsel dated September 13, 2012 Mr. Jourard indicates that he wishes disclosure of:

The following details on cases since January 2009 where persons held for breath testing by Toronto police were detained for six hours or longer after their tests.

1. Reasons given by police for the post-test detention

2. Whether charges of impaired driving were also laid

3. Breath test results

4. Length of the detention (time tests were completed and time accused released)

5. Whether a complaint was made regarding excessive detention and the outcome of that complaint

6. Whether an issue was raised at trial regarding over holding and the outcome

(information that would identify the persons involved such as names, addresses and contact information is not necessary.)

The Crown responded to that request stating:

Over holding: your clients measured BAC into tests corroborated the roadside tests measuring her BAC as something over 100 mg of alcohol in 100 mg blood. The Intoxilyzer readings show she had an extremely high alcohol level, 2 ½ times the legal limit. Your issues can be explored without close examination of two and a half years worth of all OPP Toronto detachment files, plus the ordering and review of transcripts of all trials resulting therefrom and I'm of the opinion that your request for this production is unreasonable and not required for full answer and defence. [Crown Counsel mistakenly refers to OPP rather than Toronto Police Service records.]

In his written submissions Mr. Jourard stated that if the court found a section 9 breach he would seek an Order:

That the Crown disclose information regarding the prevalence of the practice of over-holding and cases of unwarranted post-test detention (See defence counsel's letter dated September 13, 2012…)

I have a number of concerns with respect to this request. The first is what evidence do I have that any of the information requested actually exists in a disclosable form. The second is what purpose would be served by its production even if it does exist and was provided. It appears that counsel is suggesting that the court review each and every case over a several year period where individuals were held more than six hours after providing breath samples and then determine whether or not the detention was justified in each case in order to then determine if over-holding is a systemic problem. Clearly that is well outside the bounds of both the ability and jurisdiction of this court.

The only information in Mr. Jourard's list which may be relevant and available are court decisions dealing with allegations of over-holding in Toronto which information is as available to the defence as it is to the Crown.

Therefore, I am not prepared to order disclosure of the information requested.

Mr. Jourard submits that a stay of proceedings is the appropriate remedy for the over-holding and handcuffing or,

If the court views a stay alone as an excessive remedy, it could impose a "hybrid" stay, that is, stay the charges that require the applicant to enter into a common-law peace bond with conditions that restrict her driving.

In the case of R v Iseler our Court of Appeal found that there was a breach of the accused section 9 rights due to his being held by the police for over 11 hours after his breath tests were completed. However, the court determined that although the conduct of the police was inexcusable, it was post-offence, had nothing to do with the investigation or gathering of evidence and therefore did not affect trial fairness. In those circumstances the court was of the view that a stay of proceedings was not an appropriate remedy but did indicate:

It may be that there is some other remedy available to the appellant, but the only question before us is the request for a stay of proceedings.

In R v Price the trial judge found that the accused's section 9 rights had been violated by over holding and granted a remedy by imposing a sentence of time served rather than the mandatory minimum penalty. Justice Durno sitting on appeal upheld that decision and leave to appeal to the Court of Appeal was refused.

Recently in R v O'Neill Justice Horkins took a similar approach to a breach of section 9 by over holding of a woman some 16 hours after arrest in conditions quite similar to those described by Ms. Bennett-Morgan when he refused to impose a stay but rather imposed a nominal fine of $1.00 rather than the statutory minimum and a 1 year driving prohibition.

I have reviewed the decisions of R v Dunn and R v Chasovskikh where the courts granted "conditional stays" (i.e. a stay of proceedings accompanied by a common law peace bond with terms that prohibited the individual from being the driver's seat of a vehicle with any alcohol in their body and not to operate a motor vehicle not equipped with an operating ignition interlock device).

Considering all of the facts in this case including the readings of 2 ½ times the legal limit, the nature of the breach and the public safety concerns raised by an individual operating a motor vehicle with those readings I am of the view that the approach taken by the trial judges in Price and O'Neill is the appropriate one. Therefore, I am entering a finding of guilt with respect to the Over 80 charge with a fine of $100.00 in view of time served in custody of 1 day with enhanced credit due to the circumstances of the detention along with a driving prohibition of 1 year. The charge of impaired driving is conditionally stayed.

Released: January 21st, 2014

Signed: Justice Robert Bigelow