Court File and Parties

Ontario Court of Justice

Date: 2014-07-03

Court File No.: Regional Municipality of Durham 998 12 00689

Between:

Her Majesty the Queen

— and —

Layla Mirzazadah

Before: Justice J. De Filippis

Heard on: January 30 – 31, & March 21, 2014

Reasons for Judgment released: 3 July 2014

Counsel:

• Ms. A. Kok, counsel for the Crown
• Mr. M Fahmy, counsel for the Defendant

Judgment

De Filippis J.:

[1] Introduction

The defendant was tried on an Information alleging she operated a motor vehicle at a time that her blood alcohol level was above the legal limit; that is, over 80 mgs of alcohol per 100 millilitres of blood. Much of the evidence in this case are not in dispute. The main issue is the reliability of the test results obtained when the defendant provided samples of her breath into the approved instrument. I heard from the arresting officer, the technician who took the breath tests, the defendant, her family doctor and a Defence expert.

[2] Facts

On 31 March 2012 at 4:20 AM, Sgt. Bristow received information that a particular motor vehicle was being driven in an erratic manner. He located that vehicle seven minutes later on Brock Road in Pickering and caused it to pull over and stop. The defendant was the driver and sole occupant of the car. In speaking to the defendant, the officer detected an odour of alcohol on her breath. He was also told by her that she had consumed a glass of wine at a friend's house one hour earlier. Consequently, at 4:30 AM, Sgt. Bristow demanded that the defendant provide a sample of her breath into an approved screening device. The defendant registered a "fail" and this provided the officer with the additional necessary grounds to arrest her. She was advised of her right to counsel, cautioned, and taken to the police station to comply with a demand to provide a sample of her breath to a qualified intoxilyer technician. After speaking to duty counsel, the defendant provided two suitable samples and registered readings of 158 and 163, well above the legal limit.

[3] Crown's Position

The Crown submits that the defendant's truncated readings of 150 and 160 constitute proof of guilt beyond a reasonable doubt. The Defence argues it has rebutted the statutory presumption that the readings are accurate at the time of the offence. This debate is based on the fact that the defendant suffers from gastro esophageal reflux disorder (GERD).

[4] Legal Framework

The issue in this case is governed by section 258(1)(c) of the Criminal Code. As a result of the decision by the Supreme Court of Canada in R. v. St.-Onge Lamoureux, 2012 SCC 57, (ruling that part of the section is unconstitutional), the applicable provision is as follows:

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, C. 20, s. 3]

(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,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

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 concentrations determined by the analyses, in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly.

[5] Statutory Presumptions and Rebuttal

If the conditions set out in 258(1)(c) are met, the test results are conclusive of the defendant's blood alcohol level of the time of testing (the presumption of accuracy) and that it is the same blood alcohol level at the time of the alleged offence (the presumption of identity). The defendant can rebut these presumptions by "evidence tending to show that the approved instrument was malfunctioning or was operated improperly". In St-Onge Lamoureux the Supreme Court reaffirmed that this expression means raising a reasonable doubt. In other words, the evidence relied upon by the defendant will rebut the presumptions if it raises a reasonable doubt. In this regard, the guidelines for assessing credibility outlined in R. v. W.(D), [1991] S.C.J. No. 26 are instructive.

[6] GERD as Evidence of Instrument Malfunction

In the case of Petrin v. HMTQ, 2013 NWTCA 1, the North West Territories Court of Appeal heard an appeal on the issue GERD being used to rebut the presumption. At paragraph 48 – 50 the Court stated:

There may not be many reported cases dealing with acid reflux as "evidence tending to show" that a breathalyser apparatus malfunctioned, but there is also no controversy about whether it is evidence capable of rebutting the presumptions of accuracy and identity set out at paragraph 258(1)(c).

[7] Medical Evidence of GERD

In this case, it is clear the defendant suffers from GERD. Dr. Kwan, the defendant's physician, testified the defendant has a history of occasional symptoms of acid reflux including heartburn and retrosternal chest discomfort. As a result, he prescribed various antacids to treat her condition. After the defendant was charged with these offences, she sought and obtained an Upper GI Series X-Ray to investigate her heartburn condition. Dr. Yuen, the radiologist, made a diagnosis of mild gastro esophageal reflux.

[8] Technician's Observations

Cst. Stever is the qualified intoxilyzer technician who seized the defendant's breath samples after she was brought to the police station by the arresting officer. He testified that her face was flushed and she had red, glassy, blood shot eyes. He described her speech as good and noted she was polite and talkative. Cst. Stever said he could smell the odour of alcohol from the defendant's breath.

[9] Mouth Alcohol and Safeguards

Cst. Stever testified that mouth alcohol can result in a false reading about a person's blood alcohol level. He said the Intoxylizer 8000c recognizes mouth alcohol and will invalidate a test taken under such circumstances. He added that the "15 minute" and "20 point range" rules also promote accurate readings by requiring that the two tests, fifteen minutes apart, are within 20 points of each other. This allows for mouth alcohol to disperse and ensure the results are not out of sync.

[10] Defendant's Alcohol Consumption

According to the defendant, prior to being pulled over by the police, she had been out with friends. At 12:30 AM she had a glass of wine at Aladdin's Restaurant. At 1:30 AM, she went to Esquires Restaurant and had another two glasses of wine. During this time she ate a meal consisting of chicken in tomato sauce, salad and potatoes. The owner of Esquires allowed her and friends to remain in the establishment after the regular closing time. She left at 4:10 AM and was stopped by police 20 minutes later.

[11] Defendant's GERD Symptoms

The defendant testified that consuming a large meal, especially one with tomato sauce and red wine, triggers GERD. She added that she felt "pain in the chest and stinging" throughout these events and kept having to swallow. She testified these symptoms appeared every 10 to 15 minutes and lasted about two minutes. They continued until after the breath tests were taken. In cross-examination, the defendant was asked if she experienced symptoms other than a burning/stinging sensation in her chest and throat during the breath tests. She replied that there were no other symptoms; in particular, she did not vomit, regurgitate, belch or taste her stomach contents at any time between being stopped by the police and completion of her breath tests. She testified that she consumed the last glass of wine one hour and forty minutes before the first breath test conducted by Cst. Stever.

[12] Video Evidence of Breath Testing

The breath test process in this case was videotaped and played at trial. The defendant was brought to Cst. Stever's room at 5:23 AM. The first test was conducted at 5:39 AM and the second at 6:02 AM. At several points during this 40 minute period, the defendant can be seen to swallow, hiccup, and lick her lips. She testified these actions were the result of the burning sensation in her chest and back of her throat. The defendant concedes she did not disclose she suffered from GERD when asked by Cst. Stever if she had any medical difficulties; she explained this condition is part of her life and did not think it important to mention. She did, however, tell the officer that her smoking habit may make it hard for her to blow into the machine.

[13] Physician's Testimony

The defendant's testimony about her GERD symptoms is consistent with that of her physician. Dr. Kwan testified the defendant has complained of heartburn and discomfort in her chest. This suggests acid reflux that beaches the sphincter of the stomach, entering into the esophagus. In cross-examination, he confirmed the defendant has never complained of regurgitating stomach contents and added that such a symptom is uncommon and only seen in severe cases of GERD.

[14] Defence Expert Evidence – Part 1

Dr. Mofta was called by the Defence and qualified as an expert in the absorption, distribution and elimination of alcohol in the human body as well as the measurement of alcohol in biological samples including the use of alcohol screening devices and instruments. He agreed that a review of the Intoxilyzer 8000C test records in this case indicates the instrument was in proper working order. He testified that although the reliability of this machine is well established, its "slope detector" is not foolproof. This feature is designed to detect mouth alcohol. The witness pointed out that breath testing in Canada does not rely solely on the slope detector and additional safeguards are incorporated; namely, that there be two tests, 15 minutes apart, resulting in readings within 20 points.

[15] Defence Expert Evidence – Part 2

Dr. Moftah accepted the authority of an article entitled Reliability of Breath Alcohol Analysis in Individuals with Gastro esophageal Reflux Disease. It studied the relationship between breath alcohol concentrations and blood alcohol concentrations in 10 subjects suffering from severe GERD and scheduled for anti-reflux surgery. The study noted that 4 out of 10 subjects experienced gastric reflux during the study but this did not result in widely deviant breath alcohol concentrations compared to blood alcohol concentrations when sampling occurred in 5 minute intervals.

[16] Defence Expert Evidence – Part 3

Dr. Mofta agreed that the study supports the conclusion that after 90 minutes from the consumption of alcohol in those individuals there was no additional elevation of the breath test result on account of severe GERD. However, he would not rule it out in this case. When the Crown pressed him on this point, he said the following:

This is where I disagree with you. Probably there is a possibility with this kind of a situation that you could have an effect of mouth alcohol coming from GERD and this is clear cut in the literature. They said we cannot rule it out, the impact of GERD. It cannot be ruled out. Likely, if you have that amount of time, the likelihood now will come in favour of the people who say if you have 90 minutes or more then the impact of GERD is far much less than if you have it in less than 15 minutes.

[17] Defence Position

The Defence position is that the instrument malfunctioned and/or was operated improperly because of the defendant's GERD. Counsel stated as follows:

For the Defence to succeed, it is submitted that the Court must accept that Ms. Mirzazadah: is diagnosed with GERD; was experiencing symptoms during the time she was giving the breath samples; that there was alcohol in her stomach at the time that the breath samples were given; and if all three of the above are accepted by the Court, then Ms. Mirzazadah had acid reflux containing alcohol that is capable of providing unreliable readings from the instrument.

This was the purpose of adducing evidence of Ms. Mrizazadah's drinking pattern. The Defence is not raising a "Carter" defence, but should the Court find it necessary to do so, then it is the Defence position that Ms. Mirzazadah's drinking pattern would place her below the legal limit under any rate of elimination.

[18] Crown Position

The Crown position is that the defendant's "mild" GERD symptoms are distinct from those that can lead to mouth alcohol. These symptoms include burping, vomiting and regurgitating. Counsel stated that:

Ms. Mirzazadah's evidence on what symptoms she experienced, the timing of those symptoms and their severity is critical for the Court to consider when assessing whether there is reliable and credible evidence that alcohol was actually regurgitated into the oral cavity at the time of each breath sample.

These inconsistencies in totality should cause the Court serious concern about Ms. Mirzazadah's ability to put forward credible and trustworthy information for the Court's consideration, especially when it comes to her testimony about which GERD symptoms she was experiencing and the severity of those symptoms at the pertinent times.

[19] Analysis of Slope Detector

The Defence submits the test results themselves show the machine malfunctioned due to mouth alcohol. It follows that the slope detector twice failed to sense this fact. In this regard, counsel reminds me that Dr. Moftah testified the slope detector "is the least reliable mechanism in the instrument. This is correct. However, the expert opinion must be viewed in context. Dr. Moftah did not say the slope detector is suspect or untrustworthy. He said it is the least reliable feature of the Intoxlyizer 8000c, a machine that is highly reliable, and that additional safeguard is provided by the 15 minute and 20 point rules.

[20] Analysis of Test Results

The possibility of instrument failure is said to be established by the fact that the second reading is higher than the first and the testimony of Dr. Moftah that, due to the normal process of elimination of alcohol from the body, this is unusual. It must be noted that the statutory presumptions do not depend on a lower second reading. In this case, the two readings are close and well within the permitted differential. Significantly, Dr. Mofta acknowledged that it was impossible for him to explain why the second sample was higher than the first due to the variability in the quality and air pressure of the samples. At its highest, his evidence is that, "It may be the effect of GERD". He could say no more because, as he explained, unlike a blood sample, "with breath samples there are too many variables".

[21] Improper Operation Argument

The Defence argues that even if the approved instrument did not malfunction, the evidence tends to show it was operated improperly. This rests on the following:

Ms. Mirzazadah is diagnosed with GERD and was experiencing symptoms of GERD at the time that the tests were taken; and that a properly working approved instrument requires the technician to wait at least 15 minutes after symptoms of GERD before acquiring a breath sample. Since this procedure was not followed, then the 8000C was operated improperly.

[22] Court's Analysis of Improper Operation

This argument is circular; it adds nothing to the claim the machine malfunctioned. The technician had no reason to suspect mouth alcohol because the defendant said nothing about GERD and the slope detector did not invalidate the tests. In these circumstances, Cst. Stever did what was required of him; that is, he did operate the machine properly. In any event, the claim that GERD could have affected the breath tests is based on the assertion that the defendant "was experiencing symptoms during the time she was giving the breath samples." This contention is incomplete: Mouth alcohol dissipates quickly. For GERD to be a factor, the symptoms must occur in close proximity to each of the breath samples for mouth alcohol to have had an impact on the readings. Moreover, I do not believe the defendant's GERD produced mouth alcohol.

[23] Regurgitation and Mouth Alcohol

The Crown argues that because the defendant did not regurgitate into her mouth (and did not "taste" her stomach contents) there is no evidence to support mouth alcohol affecting the breath samples. The Defence submits that such regurgitation is not a precondition to mouth alcohol. The manual for the Intoxilyzer 8000C provides that if "unabsorbed alcohol remains in the stomach, vomiting, regurgitation, and GERD can introduce alcohol from the stomach into the mouth, producing a falsely elevated BAC." It defines regurgitation as the "act or process of bringing up (partially digested) food/fluid from the stomach back up to the mouth". It also states that "GERD involves episodic regurgitation and presents in various degrees..." and describes the symptoms associated with GERD to include, "coughing, hoarseness, sore throat, heartburn, discomfort, and pain."

[24] Conditions Required for GERD to Affect Results

It is not clear to me if the manual defines GERD as separate and distinct from regurgitation or as one of the medical conditions that can cause regurgitation. In any event, Dr. Moftah testified that the stomach acid moving up the esophagus and into the pharynx area was enough to trigger the mouth alcohol effect. I accept this opinion. The evidence of this expert, taken in its entirety, means that for GERD to have affected the breath test results in this case, the following conditions had to be present:

1. Alcohol in the stomach was brought up into the oral cavity;

2. The breath sample was provided while that alcohol was still present in the oral cavity;

3. The Intoxilyzer 8000C slope detector failed to sense the residual mouth alcohol;

4. All of the above happened again, 23 minute later; and

5. The amount of mouth alcohol was similar for each test so as two produce two consistent readings.

[25] Lack of Evidence

There is no basis to conclude that all these conditions existed. There is much supposition, but little evidence. To paraphrase the court in R. v. So [2013] A.J. No. 1067 (Alt. Q.B.), there is nothing to take the Defence argument from the realm of conjecture to that of reasonable doubt.

[26] Alcohol Absorption and Elimination

The defendant testified she had three glasses of wine over the course of many hours. The first one was taken five hours before the breath tests and the last one was consumed one hour and forty minutes before the first breath test. In such circumstances there would be little, if any, alcohol remaining in her stomach. This finding is amply supported by Dr. Moftah's testimony about how alcohol is absorbed and eliminated by the human body. In this regard, I am not troubled his additional opinion that the meal eaten by the defendant would delay this process and that the presence of some alcohol in the stomach cannot be ruled out. This is mere speculation. In any event, I do not believe the defendant experienced mouth alcohol during the breath tests because the symptoms she described, consistent with the actions I saw on the video record, do not suggest stomach acid moving up into the mouth. She did not belch, burp, or vomit. This is not surprising given that she has never reported experiencing such symptoms to her doctor and was diagnosed with mild GERD.

[27] Conclusion on Reliability

I find that the evidence does not tend to show that the approved instrument was malfunctioning or was operated improperly. I am satisfied beyond a reasonable doubt that the breath test readings in this case are reliable.

[28] Credibility Finding

The expert evidence is that quantity of consumed by the defendant in the circumstances described by her is insufficient to produce readings of 150 and 160. Having regard to my finding that these results are not due to the impact of GERD, it follows that the defendant was not truthful about her alcohol consumption.

[29] Verdict

The defendant is guilty as charged.

Released: July 3, 2014

Signed: "Justice De Filippis"

[1] Following these court appearances, the parties exchanged and filed written submissions.