Court File and Parties

Ontario Court of Justice

Date: 2014-01-09

Court File No.: Central East 12-4807

Between:

Her Majesty the Queen

— and —

Jeffrey Huffman

Before: Justice C.M. Harpur

Heard on: December 2 and December 4, 2013

Reasons for Judgment released on: January 9, 2014

Counsel:

• Ms. M.A. Alexander, counsel for the Crown
• Mr. K. Evans, counsel for the defendant Jeffrey Huffman

HARPUR J.:

Overview and Issues

[1] Mr. Huffman is charged with a refusal to comply with the demand of P.C. Michael O'Grady on April 1, 2012 that Mr. Huffman provide samples of his breath suitable for analysis pursuant to s. 254(3) C.C.

[2] On that date, Mr. Huffman was stopped by P.C. O'Grady in Alliston at approximately 3:40 p.m. after the officer observed what he regarded as peculiar and possibly impaired driving on Mr. Huffman's part. The roadside investigation led to an arrest of Mr. Huffman for impaired care or control at approximately 4:00 p.m. followed by a demand for breath samples under s. 254(3) C.C. Mr. Huffman was duly taken to an O.P.P. detachment and presented to P.C. Sean Gilbert, a qualified breath technician.

[3] Between P.C. Gilbert's meeting with Mr. Huffman at 4:46 p.m. and 5:05 p.m., P.C. Gilbert gave Mr. Huffman ten opportunities to provide a suitable sample, preceded by instructions and accompanied by the usual exhortations to "blow, blow, blow". On each occasion, Mr. Huffman took the Intoxilizer 8000C mouthpiece between his lips and exhaled to some extent. P.C. Gilbert did not regard any of the attempts as providing a suitable sample. On two occasions, the instrument's minimum criteria for analysis were not met. On eight occasions, the minimum criteria were met, but P.C. Gilbert rejected the samples on the basis that they did not constitute samples of Mr. Huffman's "deep lung" or aveolar air and thus did not properly reflect his blood alcohol concentration. P.C. Gilbert acknowledged that he observed various "over 80" instrument readings in seven of the ten attempts by Mr. Huffman and that there may have been readings on the other three which he did not note. He said, however, that none of the samples was suitable for the reason described.

[4] The Crown's case consisted of the evidence of P.C. O'Grady and P.C. Gilbert and a DVD of Mr. Huffman's session with P.C. Gilbert in the breath room.

[5] Mr. Evans for Mr. Huffman called two witnesses: (i) O.P.P. Constable Thomas Shantz, an experienced breath technician who, in April 2012, was in charge of arranging for ongoing maintenance and repairs of the instrument used to analyze Mr. Huffman's samples; and (ii) Dr. Joel Mayer, a toxicologist whom I qualified as an expert in the proper use of an Intoxilyzer 8000C. Mr. Huffman didn't testify.

[6] The primary issue to which the evidence in this case gives rise might best be characterized as "when is a sample a suitable sample?", that is, what discretion does a breath technician have to reject a sample which has met the minimum criteria of the instrument and produced a reading?

[7] Mr. Evans raised a second issue concerning Mr. Huffman's mens rea. He submits that this is a case where Mr. Huffman's pre-sampling conduct was overtly compliant and where the proper functioning of the instrument during sampling is open to question. The result, the defence says, is that, even if I find that there was a failure, I cannot draw the common sense inference that Mr. Huffman intended to avoid giving P.C. Gilbert the deep lung air sample he desired.

P.C. Gilbert's Discretion

[8] In chief, Dr. Mayer stated that (i) the temporal minimum requirement of the Intoxilyzer 8000C is 1.75 seconds, so a technician needn't wait four or five or more seconds to be accessing aveolar air; (ii) once the four discrete minimum criteria of the 8000C are met by a subject (the passage of 1.75 seconds, a sufficient flow rate, a volume of at least 1.1 litre of air and a level "slope" rate), the instrument's detection system switches on and the instrument will display readings; (iii) typically, the readings will visibly "scroll up" and then level off as the subject continues to blow; (iv) after air in the subject's trachea has been cleared (by the subject's exhalation of 1.1 litres of air), the blood alcohol concentration of the air then exhaled may continue to rise marginally but will not necessarily do so; and (v) in Mr. Huffman's case, the seven readings in the range of 93 to 98 mg. of alcohol in 100 ml. of blood noted by P.C. Gilbert are within 3 percent of each other, thus "highly reproducible", and can be regarded as accurate.

[9] Dr. Mayer made several concessions supportive of the Crown's position on the issue of a breath technician's discretion, namely: (i) a breath technician does have a discretion as to whether a given sample is suitable but it must be exercised reasonably; (ii) at least concerning a sample of approximately two seconds' duration, the blood alcohol concentration readings will usually increase with duration beyond that length; (iii) typically, a breath technician wants a subject to blow as long as he can and the longer a subject blows, the better the sample; (iv) the blood alcohol concentration numbers produced by Mr. Huffman's seven blows "might have inched up more" if he had been induced to continue; (v) a breath technician is "trying for accuracy", and need not regard as suitably accurate the first blood alcohol reading which shows on the instrument; and (vi) of the more than 200 tests on the 8000C which Dr. Mayer has reviewed as an expert, the vast majority have involved samples taken after a minimum interval of five seconds; P.C. Gilbert's desire for a blow of at least five seconds was not unusual and not improper.

[10] P.C. Gilbert testified that he has been using the 8000C as a breath technician since 2011 and that he has performed approximately five tests with it during his training and approximately twenty since. He said he became a breath technician on the 8000C's predecessor, the 5000C, in 2008 and performed 180 to 200 tests "in the field" with that instrument. As to samples generally which he considered suitable, he said that (i) a blow of 5 to 10 seconds will produce deep lung or aveolar air; (ii) if a subject has no apparent respiratory problems, he expects them to be able to blow for 8 to 10 seconds; (iii) Mr. Huffman was not reaching a "plateau" in his blood alcohol readings in four seconds and, in P.C. Gilbert's view, never did reach it in any blows, although all exceeded the minimum duration described in the Alcohol Test Committee manual for the 8000C; (iv) he observed no signs of respiratory difficulties in Mr. Huffman; (v) if the sample involves "shallow air" and is "short", it will under-evaluate the subject's blood alcohol level; and (vi) his training and the manual produced by the Alcohol Test Committee of the Centre of Forensic Sciences indicate that the breath technician is the ultimate arbiter of what constitutes a suitable sample, not the instrument itself.

[11] My conclusion from this evidence is that Dr. Mayer rightly describes a breath technician's discretion when he says it exists but must be exercised reasonably. While the outer limit of reasonableness will no doubt vary depending upon the characteristics of a given subject, I share the view expressed both by Dr. Mayer and P.C. Gilbert that, in general terms, it is signalled by signs of distress in the subject; a subject should not be called upon to gasp or become red in the face before being seen as having given a suitable sample. The art of sampling appears to lie in finding the point where the maximum blood alcohol aveolar air has been obtained but the subject has not sustained undue discomfort. Here, P.C. Gilbert testified, and I accept, that Mr. Huffman manifested no signs of distress in any of his attempts, and that Mr. Huffman's premature stops, in relation to the exhortations to continue blowing, were not caused by lack of air in his lungs. Accordingly, P.C. Gilbert did not exercise his discretion unreasonably and had not, objectively viewed, received a suitable sample.

[12] The authorities on this issue favour the Crown. In Regina v. Dabrowolski [2005] O.J. No. 2576 (O.C.A.), the Ontario Court of Appeal dealt with the question of whether a breath technician has any discretion in a case where an approved instrument is shown to have conducted an analysis and produced a result. The court held that he or she does.

[13] In Regina v. Melville [2007] O.J. No. 2649 (O.C.A.), the Ontario Court of Appeal was dealing with circumstances quite similar to those of Mr. Huffman's, although not in the context of an alleged refusal. The technician in Melville obtained a second breath sample which the instrument analyzed and "read", but which the technician rejected because of an eventual "precipitous drop" in the readings. The defence argued that the failure of the technician to keep a record of the second sample invalidated the two other over-80 readings put into evidence. The court disagreed in the following terms:

The language of s. 254(3) of the Criminal Code as interpreted in R. v. Dobrowski, [2005] O.J. No. 2576 contemplates that a qualified technician may in the course of administering a test, determine that a sample is unsuitable in which case a demand for a further sample may be made under the scheme. In this case, the qualified technician made the assessment based on her training that the second sample provided by the appellant was not suitable for analysis. Whether she ultimately, as a matter of science, right or wrong in that assessment is irrelevant. Under the statutory scheme, she was entitled to make that assessment in good faith. Her good faith was not challenged in this proceeding.

[14] The "good faith" limitation referred to in Melville is, in one of its manifestations, the refraining from inflicting undue discomfort which I find P.C. Gilbert observed here.

[15] Thus, I would find that Mr. Huffman did fail to provide a suitable sample. The actus reus has been established by the Crown.

Mens Rea

[16] In R. v. Farkas, [2002] O.J. No. 4682 (O.C.J.), Pringle, J. carries out a thorough and helpful analysis of the question of the Crown's obligation to prove the proper working of the instrument in a prosecution under s. 254(5) C.C. Her conclusion, with which I agree, is as follows:

In the first category of cases, the rationale for requiring the Crown to produce some evidence of a properly function machine seems to be that whenever the Crown's case rests on a failed attempt to blow, there is automatically a concern that the failed attempt is due to the machine. Consistent with the notion that the burden of proof always rests on the Crown, it falls to the Crown to prove that the fault lay with the defendant.

In the second category of cases, the courts prefer to focus on "evidentiary guidelines" as opposed to strict "pre-conditions". It is implicit in these cases that, although the learned judges may see a close relationship between the failed attempt and a concern that there is a faulty machine, they do not make an automatic connection between the two. As a result, the cases do not make it a requirement that the Crown automatically provide proof of this issue.

For my own part, I prefer to approach taken in the first category of cases. I do see the issues of a failed attempt and a concern about the integrity of the machine as inextricably interwoven. If the defendant has attempted to blow but the sample is insufficient, there are only two possibilities about where the fault lies: either the problem is with the defendant, or it is with the machine. In these circumstances, it seems entirely logical to require that the Crown resolve the competing inferences about where the fault lies in a manner that is consistent with the Crown's burden to prove the case. There is no presumption that an approved screening device will function properly. Moreover, the machine is one owned and operated by the state, and it is not an onerous burden for the Crown to provide some evidentiary foundation upon which to infer that the machine was working properly. In some cases, this may not even require direct evidence, but may be inferred from the totality of the Crown's case. But if there is no evidence at all on this point, I think that the accused is entitled to a directed verdict. Putting it differently, I find that, in the absence of some evidence that the machine was working properly, no reasonable jury properly instructed could find the accused guilty of providing an insufficient sample.

As for the third category of cases that hold that the Crown can supply the necessary proof of fault by showing that the defendant was faking it or trying to cheat the machine, I wonder how a trial judge could possibly be sure that the defendant was feigning his efforts without some evidence that the machine was functioning properly. I agree with the court's assessment in R. v. Weir, supra, that the police officer's suspicion that the effort is half-hearted cannot be sole determining factor for the judge. A judicial assessment of the surrounding circumstances will be important to confirming that the officer's opinion is supported by the evidence. I believe that this must logically include some indication that the fault is not that of the machine. In this regard, I believe it important to avoid an unspoken assumption that the machines always function properly and that any fault must lie with the defendant.

[17] Here, Mr. Evans vigorously challenged the wilfulness aspect of the Crown's case. As indicated, he called P.C. Shantz and established that (i) the officer received a letter from the Centre of Forensic Sciences dated February 14, 2013 indicating the possibility of problems with the "flow sensor" in 8000C instruments; (ii) on February 21, 2013, he inspected the 8000C on which Mr. Huffman had been tested on April 1, 2012 and found it to be "reading low" in the sense of registering a flow of air at a lesser value than it was in fact; and (iii) he sent the 8000C out for service after his February 21, 2013 inspection, receiving it back shortly thereafter with the flow sensor replaced.

[18] Mr. Evans coupled this evidence with that of Dr. Mayer that, in April 2012, the Alcohol Test Committee recommended yearly inspections of deployed Intoxilyzer 8000C instruments and that of P.C. Shantz that there was a gap from November 2011 to February 2013 in the inspection of the 8000C used in Mr. Huffman's tests in April 2012.

[19] The defence argument is that this constellation of factors relating to the instrument, together with Mr. Huffman's undisputed cooperativeness with the police in all other respects, gives rise to a material uncertainty as to whether the failure to give P.C. Gilbert the sample he was after is attributable to Mr. Huffman's will or to the instrument's malfunction.

[20] As indicated, I accept Mr. Evans's submission that the Crown must prove proper operation of the instrument to succeed. The question is whether the factors identified by the defence are enough to keep the Crown from this proof. I find that they are not.

[21] P.C. Gilbert described in detail the steps he took preparing the 8000C in order to conduct Mr. Huffman's analysis. These included the instrument's internal diagnostic check and P.C. Gilbert's self-test. P.C. Gilbert concluded from his preparation that the instrument was in proper working order. In cross, P.C. Gilbert acknowledged that the memo of the Centre of Forensic Sciences dated February 14, 2013, some ten months after Mr. Huffman's testing, said that an Intoxilyzer 8000C will not, through its internal diagnostic check, signal an error if its flow sensitivity has been compromised. However, he went on to point out that the Alcohol Test Committee Manual provides that a technician's self-test is a means of determining whether flow sensitivity of an instrument has been significantly compromised, that he performed a self-test prior to testing Mr. Huffman, and that the instrument performed properly.

[22] P.C. Shantz, Mr. Huffman's witness, said that (i) the Intoxilyzer 8000C in question was used in approximately ninety to one hundred tests per year; (ii) following the instrument's inspection in November 2011, it did not require servicing; (iii) he is the officer to whom other technicians would report any problems they experienced with the instrument and he received none from November 2011 until the memo of February 14, 2013 and (iv) he regarded the instrument as working properly in April 2012 when Mr. Huffman was being tested.

[23] Finally, Dr. Mayer acknowledged in cross-examination that, having heard P.C. Gilbert's testimony, having seen the breath room video and having reviewed the Intoxilyzer records of all of Mr. Huffman's tests, his conclusion was that "there was nothing to suggest that the instrument was not in proper working order" at the time of Mr. Huffman's tests. He also said that no person is in a better position than the operating breath technician to determine whether a problem exists with the flow sensor on a given instrument on a given test.

[24] On the basis of all of this evidence, for me to retain a doubt whether Mr. Huffman's failure to provide a suitable sample was caused by a fault in the instrument would be contrary to the overwhelming proof to the contrary and an exercise in speculation.

[25] The Crown having established both the actus reus and mens rea of the offence charged, I am obliged to find Mr. Huffman guilty despite Mr. Evans's vigorous and thorough presentation of his client's case.

Released: January 9, 2014

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.