Court File and Parties

Information No.: 12 1610 Date: 2015-03-12 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Matthew Desjarlis

Before: Justice Lloyd Dean Hearing Date: October 27, 2014

Counsel:

• I. Mizel, for the Crown
• P. Ducharme, for the Accused

Reasons for Judgment

Introduction

[1] My written reasons here follow a summary of my decision which was given orally on March 5, 2014. I advised counsel that I wasn't quite finished editing my formal written reasons and would provide them this week. Following are my written reasons.

[2] Despite my extreme optimism at the conclusion of this case on October 27, 2014, that I could have a decision in this matter in short order that has not been the case. Due to a backlog of reserved decisions which has come about due to my involvement in a lengthy dangerous offender application my ruling in this matter has been delayed. Further, some of the issues in this case have quite frankly been difficult for me to wrestle with. At the time of closing submissions in this case I was perhaps of a certain view regarding some of the issues. Both of the parties have made strong arguments in support of their position. Since then I have reviewed the evidence, the submissions of counsel, yet again reviewed the Supreme Court's ruling in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, reviewed other case law provided by Crown counsel and other cases decided regarding similar issues to those facing me. All of that has formed my decision in this case.

Facts

[3] On August 12, 2012 at approximately 3:09 a.m. Officer Levac's attention was drawn to a motor vehicle stopped at an intersection a short distance away from where he was situated. He was outside of his police vehicle some six car lengths away from the intersection. From his location he observed that the vehicle was stopped in the turn lane at the intersection. The light at the intersection facing this vehicle was green. The officer could hear the horn being operated of the vehicle waiting behind the suspect vehicle. The officer got into his vehicle and drove to the intersection and parked perpendicular to the suspect vehicle with his emergency lights on and siren operating. He testified the lights were bright and the siren was very loud. He exited his vehicle and approached the suspect vehicle. He observed the driver slumped over with his head on his right shoulder. He began to knock on the vehicle as he was concerned about the well-being of the driver. He asked questions, called out, knocked loud and tried to open the door. He was met with no response for about thirty to forty-five seconds. Eventually the accused lifted his head with a blank stare. The officer requested the accused to roll down his window. The accused was unable to open the window. The officer asked him to open the door. It took him a few attempts to do so. When the door was open the officer could smell an extremely strong odour of alcohol wafting out of the vehicle. The officer observed the accused eyes were very red and glossy, almost glossed right over. The officer testified the accused movements were very slow. The officer asked for identification. The accused began to stand up, the officer pushed him back because the vehicle was still in drive. He told the accused to turn the vehicle off. When attempting to do so the accused took four tries to grab his keys. He turned the vehicle off but the gear selector was still in drive. There was conversation between the accused and the officer. The officer detected a very strong odour of alcohol emanating from the accused breath. He asked the accused to exit the vehicle. As the accused was attempting to stand he lost his balance and looked like he was about to fall. The accused had to grab the vehicle to hold himself up. Further conversation took place and at 3:12 the officer formed the opinion the accused was impaired. It was the officer's opinion that there was no other explanation for the observations he made. The officer further testified that when he escorted the accused to his vehicle he had to keep hold of the accused so that the accused would not fall and hurt himself. The officer felt he had to do so because the accused appeared to be off balance. The officer gave the accused his rights to counsel and caution after placing him under arrest. The officer waited on scene with the accused for a tow truck to arrive. The tow truck arrived at 3:46. At 3:47 the officer left the scene with the accused and at 3:50 arrived at the police station. The accused was put in contact with counsel and at 4:03 the officer gave his grounds to the breath technician.

[4] The officer testified he had to wait for a tow truck at the scene before transporting the accused because it was a very busy night downtown and he had been advised there were no other officers available to come and wait for the tow truck to arrive. The officer did not want to leave the accused's car in the middle of the road as it was in the turn lane and would have impeded traffic if left there. The officer indicated in his evidence that he does not drive other people's vehicle as he does not want to be responsible for any damage that may occur. He had been told by other officers that it would be a bad habit to get into. He waited with the accused in his transport vehicle with his lights on so that people would know to go around the vehicle.

[5] During cross-examination the officer testified the symptoms he observed of impairment at the scene were pretty obvious. He would not have expected the symptoms to have disappeared within forty–five minutes (time of the breath tests). He also acknowledged that the bright lights of the police vehicle might have caused him to not have been seen clearly by the accused while at the driver's side door.

[6] The breath technician, Officer Harmon, testified that at 3:14 a.m. he was advised, while he was on general patrol, that his services as a breath technician were required. He arrived at the police station at 3:37 and at 3:47 he commenced preparing the instrument. At 4:00 a.m. it was his opinion that the instrument was working properly and ready to receive a sample. He indicated he followed his training when readying the instrument. The test records were entered as an exhibit. The breath technician gave evidence surrounding the information seen on the test records. He also indicated what he would have done if the test records indicated a fail instead of a pass as it relates to the test and checks the instrument goes through during the preparation or readying of the instrument. The test and checks are done to ensure that the instrument is working properly. The officer was satisfied that the instrument was in working order and he had no concerns. At 4:17 the first sample provided by the accused resulted in a reading of 147 mg of alcohol per 100 mL of blood. The second sample was provided at 4:37 and the result was 139 mg of alcohol per 100 mL of blood.

[7] During cross-examination the breath technician could not explain why he wrote in the calibration log that five calibration checks were completed rather than the usual four, which his usual practice. He does not recall why he did five calibration checks. He conceded that the only reason there would have been five calibration checks was as a result of something having gone wrong. The test records filed indicated a total of four calibration checks were performed.

[8] Defence counsel read from the training manual that the technician would have used in his training and put several things to the technician form the manual. Such as the manual stating the maintenance of the instrument is an important part of the quality assurance program in forensic breath testing and that maintenance as required increases the likelihood that the instrument will be found in proper working order at the time of subject testing. The technician agreed he had learned those two things during his training.

[9] The calibration log and a certificate of annual maintenance were entered as exhibits. The certificate of annual maintenance indicates that an authorized technician from the Mega-Tech company performed annual maintenance on the intoxilyzer on August 5, 2010. It was conceded by the Crown that the last annual maintenance performed on the intoxilyzer before the test done on the accused was on that date.

[10] In re-examination the technician testified that the intoxilyzer appeared to be working fine despite the last annual maintenance being conducted a little more than two years prior.

[11] With respect to symptoms of impairment observed by the breath technician, he testified that the accused speech was slurred, that he moved slowly when he got up, that is eyes were glossy, bloodshot and droopy. The technician testified that it felt like the accused was looking through you and that he had trouble focusing on people speaking to him. He described the accused as walking slowly and deliberately. He indicated there was a slight smell of alcohol coming from the accused breath when he spoke. He indicated the accused had trouble initially handling the first mouthpiece, but handled the second mouthpiece okay. He also testified there was not much movement during the testing of the accused as the accused was seated much of the time. He further indicated he noted an odour of alcohol whenever the accused came close to him.

[12] During cross-examination he acknowledged that he had wrote a "light" smell of alcohol in his notebook. Defence counsel asked the technician to look at the accused in the court room. He then asked the technician if you would describe the accused eyes as being droopy at that time. The technician responded by saying "a little". When asked by defence counsel about any symptoms that might be shown on the video of the breath room, the technician testified that you don't see much in the breath room as there is limited space. He acknowledged that, while in the breath room, he did not note any slurring of speech, only that the accused speech was slow. He also acknowledged that it was not uncommon for people to struggle with the mouthpiece, further stating that when they are impaired it makes it much more difficult.

[13] The accused testified that he was twenty-four years of age at the time of the events. Prior to arriving at the intersection in question his vehicle had been parked in a parking garage in downtown Windsor. His evidence was that he had no difficulty driving his vehicle that early morning and that his consumption of alcohol had no effect on him. He recalls being awakened. He indicated he was tired from the day. He recalls from his familiarity with the light at that intersection that the stop light is usually a longer light. He had worked that day and he guesses he fell asleep at the intersection. He testified that he drank two beers at a friend's house between 8:00 and 9:40 p.m. He then went to a bar/nightclub in downtown Windsor. He got to the bar just before 10:00 p.m. and stayed until about 2:30 a.m. He testified he had two bottles of Bud light at the bar and that he would have finished drinking probably about 12:30 a.m. His evidence was that he was keeping his buddy (the bartender) company at the bar from about 12:30 until the time he left, at around 2:30. He has no idea how long he was asleep at the light. His evidence was that he has never fallen asleep behind the wheel before. He testified he does not have a speech impediment but he does mumble and some words are slurred. He testified he was talking in court as he normally talks. I noticed that his teeth appeared to be clinched while he spoke and I could hear some slurring of words. He does not believe he had any trouble opening the door when he saw it was an officer standing outside his vehicle. He does not recall the officer having to push him back into the vehicle. He did not understand the officer was asking him to roll down his window. His evidence was that he did not have any difficulty stepping out of the vehicle. He indicated he stepped out slowly so the officer wouldn't think he was going to do anything. He testified he had no trouble turning off his vehicle. He recalls telling the officer that he was tired.

[14] During cross-examination he again indicated that he did not feel any effect from the consumption of alcohol at the time he drove. His evidence was that he recalls stopping at least at two other intersections before coming to the intersection in question. He recalls getting to the light at the intersection in question and that the light was red. He has no idea how many light cycles he slept through. The first thing he remembers was knocking and hearing someone talking. He believes it took him ten to fifteen seconds to realise who was outside his window. He recalls red, white and blue lights, and that it was the white lights that were most piercing. He could not provide an explanation for why he would have a strong odour of alcohol in his breath. He does not see why he wouldn't have put his vehicle in park. His evidence was that it would not have been intentional for him to not put the vehicle in park. He explained he was told to get out of the car and he was startled and it was not intentional on his part to not put the vehicle in to park. He does not recall the officer asking for his identification. He testified he was not falling down drunk and he feels his demeanour was the same from the time he was put in the transport vehicle to the time he was within the breath room.

[15] The video recording of the breath room was entered as an exhibit. The Crown conceded there were no overt signs of impairment seen on the recording.

Position of the Parties

Defence

[16] Defence counsel first addressed count two, the exceed charge.

[17] His first submission was that the test was not completed as soon as practicable. Defence specifically points to the arresting officer making the decision to not move the vehicle to the side of the road as unreasonable.

[18] The other submissions made by defence counsel related to the maintenance and operation of the breath instrument. Counsel points to the fact that the instrument was last inspected more than two years prior to the date of the incident. He submits the breath technician gave evidence that the requirement he was taught during his training was that the instrument would be inspected yearly. Defence acknowledged in his submission that does not necessarily mean the instrument was not working properly but it is a reason to be concerned that at least at that time, in the Windsor Police Service, there was not any commitment or following of the recommendations of the Alcohol Test Committee ("ATC") that there be yearly maintenance examinations of the instrument.

[19] What was even more interesting to defence counsel was that the breath technician testified that with each testing of an individual, as far as he was concerned, there would be four calibration checks. He submits the breath technician could not explain why the two tests subsequent to the accused tests, and performed by different technicians, indicate there were three calibration checks performed during those tests, which defence counsel submits is the norm. Defence further points out that the breath technician wrote in the calibration log that he performed five calibration checks which the breath technician could not explain as to why he wrote five. Defence counsel points out that the breath technician went on to testify that you would only get to five if something went wrong in the earlier efforts he made to make sure the instrument was operating reliability. For example, one of the readings was off or something didn't read properly so you would have to do another one to be absolutely certain it was acting reliably.

[20] Defence counsel hopes the evidence called by the Crown along with the evidence from the accused as to what he consumed causes me to have a reasonable doubt about the reliability of the breath test.

Count One – Impaired

[21] With respect to count one, the impaired driving charge, defence counsel submits the arresting officer described fairly exaggerated symptoms of impairment during direct examination but during cross-examination agreed that some of the symptoms could be attributable to being awakened and being groggy. And further, the officer agreed that the bright lights the officer deployed would be debilitating such that a person wouldn't see him properly.

[22] Defence counsel dealt with the words the officer attributed to the accused with respect to how much alcohol the accused consumed that night. According to the officer the accused replied "way too much". The accused testified he said "not too much". Counsel points out the court had the opportunity to observe and hear the accused talk. He suggests the accused does not enunciate or speak clearly, that he mumbles and talks through his teeth and some of what he says is not real clear. Counsel submits the breath technician agreed that the accused speech was a little bit hard to pick up because he does speak like that. Defence counsel also points out the breath technician looked at the accused in court and agreed that the accused does seem to have droopy eyes. He further submits the accused understood what was said by the breath technician and was responsive to everything. Defence counsel submits the accused wasn't showing any exaggerated symptoms at the police station. He was speaking clearly. He wasn't slurring his words. Ultimately, defence submits there is not enough evidence to find the accused was impaired.

Crown's Position

[23] Crown counsel first addressed count one – the impaired charge.

[24] Crown counsel submits the arresting officer provided his evidence in a very fair manner and did not exaggerate the symptoms he observed in coming to his conclusion that the accused was impaired. The officer acknowledged the lights are bright and to some extent could be debilitating. The Crown submits that when this court exercises reason and common sense the court would conclude that although the lights are bright they would not be so bright that they would distract motorists.

[25] The Crown submits the arresting officer while being fair to point out that there may be other causes for a person exhibiting some of the symptoms the accused exhibited it was the officer's conclusion that the accused was impaired because of the symptoms he observed, such as the strong odour of alcohol, that he had to knock loud and shout "are you awake", "wake up", for thirty to forty seconds before receiving a response.

[26] The Crown submits when the court looks at the constellation of factors, the accused is at the very least exhibiting a slight degree of impairment of his ability to operate the motor vehicle due to the consumption of alcohol.

[27] With respect to the symptoms the arresting officer observed not being evident at the police station or on the video tape of the breath test the Crown submits it is possible the passage of time simply could account for that. The Crown submits it is reasonable to think someone's symptoms may not be the same almost an hour later in the breath room. The Crown also submits the differences in the two officer's observations may be attributable to the circumstances or context surrounding their interactions with the accused.

[28] The Crown points to the evidence heard that the accused left the downtown parking garage stops at least at two other red lights before the third. He did not fall asleep at the first two lights. The Crown submits most people are tired at that time of night but most people don't fall asleep at the wheel. The Crown submits what contributed to him falling asleep was that he was impaired by alcohol.

[29] Crown counsel points out that when Officer Levac approached he heard the horn of the car behind the accused honking. She submits if someone has just nodded off at the wheel, as opposed to falling into a deep slumber, the response to a car honking would be to be jolted awake.

[30] Crown counsel indicated she is not asking the court to make a determination whether accused said "way too much" or "not too much", as typically that goes to the officer's reasonable grounds.

Count 2 – Exceed Charge

[31] The Crown submits the defence submissions go to the Crown relying on the presumption in s. 258(1)(c).

[32] They addressed the issue "as soon as practicable" first.

[33] The Crown relies on the Ontario Court of Appeal decision of R. v. Vanderbruggen, [2006] O.J. No. 1138, and submits that "as soon as practicable" does not mean "as soon as possible" and ultimately the test is whether the police acted reasonably in the circumstances and was the delay reasonable.

[34] The Crown acknowledges there was a delay in transporting the accused to the police station between the time of arrest at 3:12 a.m. and the transport at 3:47 (35 minutes). The Crown submits the arresting officer adequately and sufficiently explained the delay. It was a very busy Saturday night. He contacted dispatch to see if another unit was available to come to the scene and wait for a tow truck to arrive. He was advised that there were no available units to come to the scene. The officer testified it was not an option to him to simply leave the vehicle in the position where it was. He did not feel comfortable getting into the vehicle and moving it. He wasn't sure if that was police policy or not but he wasn't comfortable doing it.

The Maintenance Issue

[35] Crown counsel acknowledges that Aug. 5, 2010 was the last annual maintenance of the intoxilyzer used to test the accused blood alcohol level. When addressing that fact and the fact that the breath technician wrote in the calibration log that five calibration checks were performed, the Crown submits that neither one of those facts meets the threshold to raise a "real doubt" as to whether the instrument malfunctioned or was operated improperly. The Crown argues the court in St-Onge Lamoureux makes it clear that it is not a speculative or frivolous doubt but a real doubt that must be raised. The Crown submits in the case at bar at the highest the case might have peculiarities, curiosity, speculation but a real doubt has not been raised.

[36] The Crown submits the breath technician's evidence as it relates to his lack of explanation as to why a calibration log sheet has the number five written on it provides no nexus between that evidence and evidence of malfunction or that the instrument was operated improperly. The Crown submits the fact that he wrote that five calibration checks were conducted does not equate to operator error; it might be an error but it is an error of no consequence. The Crown points out the breath technician testified the four calibration checks shown on the test records were all within the appropriate range. The Crown further points out that the breath technician testified if the instrument had malfunctioned that would be something that would be apparent to him. His evidence was that the instrument was functioning properly. The Crown submits the breath technician was in the best position to make that assessment and the court heard credible and reliable evidence from him that the instrument was functioning properly at the time. The Crown submits in the face of that evidence and other evidence, such as, there being no anomalies or nothing apparent on the face of the test records to indicate a malfunction or operator error, there should be no real or reasonable doubt raised about the reliability of the test results.

Analysis

The Exceed Charge

[37] The Crown in this case relies on the presumptions found in s. 258 (1)(c). The presumptions allow for the evidence of the results of the breath test analyses to be conclusive proof of the accused's blood-alcohol concentration at the time of testing and at the time of the offence, in the absence of evidence tending to show that the approved instrument was malfunctioning or operated improperly (see St-Onge Lamoureux, supra). If there is a reasonable doubt about whether the breath testing instrument was malfunctioning or was operated properly, the results obtained are cast into reasonable doubt without more.

[38] One way for the Court to rule that the Crown should be deprived of the benefit of the s. 258(1)(c) presumptions is for the accused to demonstrate that there is some evidence before the Court that should raise a reasonable doubt in the mind of the Court on the subject of whether or not the prerequisites of s. 258(1)(c) regarding the introduction of the breath samples into an approved instrument have been met. One of those prerequisites is that the test must be conducted as soon as practicable which is something defence counsel in this case submits was not done.

As Soon as Practicable ("ASAP")

[39] ASAP does not mean "as soon as possible". Rather, the samples must be taken in a reasonably prompt manner under the circumstances unique to the case. The determination is a factual one to be considered by the trial judge. Where the time is prima facie unreasonable the Crown will need to explain to the satisfaction of the judge how the delay meets the requirement set out in s. 258(1)(c)(ii). If there is a reasonable doubt as to whether the samples were taken as soon as practicable, then the Crown will not be able to rely upon the presumption.

[40] The Ontario Court of Appeal summarizes the relevant law in Vanderbruggen, supra, at paragraphs 12 and 13, as follows:

12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para.

[Emphasis added]

[41] The issue becomes what is an unreasonable delay. There is no consensus in the case law about what length of delay is unreasonable. The cases are largely determined on the unique facts of each case. I need only apply reason and common sense derived from my experience when determining this issue.

[42] The arresting officer was delayed some thirty-four minutes in transporting the accused to the Windsor Police Headquarters. That was the time period defence counsel took issue with in regards to the as soon as practicable issue. That delay was due to the officer having to wait for the tow truck to arrive to move the vehicle from its location in the turn lane at the intersection. The officer could not just leave the vehicle in that location and transport the accused to the police station. The officer testified that he had made inquiries to see if there were any other units available to assist by coming to the scene to await a tow truck. He was told there was not. The reason being, that it was a busy night for the police, and not because of the lack of resources. The officer was not comfortable getting into the accused vehicle and moving the vehicle to the side of the road. He did not want to take the risk of moving the vehicle and causing damages. The officer left the scene with the accused at 3:47 and arrived at the police station at 3:50.

[43] It is important to note that the breath technician testified the intoxilyzer was ready to receive a sample at 4:00. In other words, even if the accused had been transported sooner to the station the earliest he would have been able to provide a sample would have been at 4:00. No issue was raised by defence counsel regarding the time it took the breath technician to have the instrument ready to receive a sample. Even if he had, the time it took the technician to have the instrument ready to receive a sample from the time he was first notified was adequately explained and accounted for, and in my view was not unreasonable.

[44] The actual time the first test was completed was 4:17. Therefore from the time of the accused arrest to the time of the first sample being taken was approximately one hour and five minutes.

[45] Under the circumstances of this case, looking at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offense to the taking of the first sample, I am satisfied the police acted reasonably. I am satisfied beyond a reasonable doubt the samples were taken as soon as practicable as defined in Vanderbruggen, supra. Similar to what the Court of Appeal stated at paragraph 14, I would add, there is no evidence before me that the police acted unreasonably. There is no evidence that the officers gave unreasonable priority to any other task. As further stated by the Court of Appeal, when referring to Section 258(1)(c)(ii):

16…These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[46] The officer's actions in waiting for the tow truck and not wanting to get into the accused car and move it was understandable and in my view he acted reasonably. I find that the as soon as practicable prerequisite has been satisfied by the Crown beyond a reasonable doubt.

Maintained vis-à-vis Malfunctioned

[47] There is no issue that all the other prerequisites have been met. Despite how s. 258 (1)(c)(iv) continues to read in the Code, following the Supreme Court of Canada decision in St-Onge Lamoureux, a person accused of an offence contrary to s. 253(1) (b) of the Criminal Code now, in order to rebut the presumption available to the Crown under s. 258(1)(c), only has to show there is evidence before the court that "tends to show" that the approved instrument was malfunctioning or was operated improperly.

[48] Regarding what constitutes "evidence tending to show", Madam Justice Deschamps, writing for the court in St-Onge Lamoureux stated at para 41, in part:

[41] …Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

[Emphasis added]

[49] Note the word "maintained" in the above referenced paragraph. In my opinion it is unfortunate that Justice Deschamps uses both the words "maintained" and "malfunctioned" (or derivative thereof) interchangeably in some parts of her judgment. Her use of the word maintained (or derivative) within several paragraphs of her judgment, in my view, has caused confusion within the trial courts. Of course that may be more the fault of the reader more than the writer, me included. That being said, following are several paragraphs which I hope demonstrates what I mean.

[50] Justice Deschamps, when discussing whether the impugned provisions violated the s. 11(d) of the Charter, stated at paragraph 26:

[26] The Committee's recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments, which, it should be mentioned, are used Canada‑wide. Hodgson's report, which the prosecution itself relied on as a source of the statutory amendments, refers to the importance of proper operation and maintenance:

. . . to achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operated by qualified personnel using procedures based on good laboratory practice. [p. 83]

Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1) ( c ) and s. 258(1) ( d.01 ), since the accused can rebut the presumptions by showing that the instrument was not properly maintained or operated.

[Emphasis added]

[51] While the SCC may have used the word maintained here, the word maintained is not used by Parliament. Rather Parliament used the word malfunction (or a derivative thereof).

[52] In paragraph 28, Justice Deschamps, reverts back to the word malfunction and states:

[28] I wish to stress, however, that it is not because the test results could differ from the blood alcohol level of the accused at the time of the alleged offence that s. 258(1) ( c ) infringes the right to be presumed innocent. Rather, the infringement lies in the fact that, as Parliament recognized, the instruments can malfunction or be operated improperly and therefore that the trier of fact could have a reasonable doubt about the guilt of the accused where the only evidence before him or her consists of the test results.

[Emphasis added]

[53] At paragraph 37, in part, and at paragraph 38, in whole, Justice Deschamps states:

[37] …The accused must now raise a doubt that the instrument was functioning or was operated properly.

[38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument is rationally connected with Parliament's objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it.

[Emphasis added]

[54] At paragraph 41 she goes back to the word maintained:

[41] …Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

[Emphasis added]

[55] And at paragraphs 46 and 47 she states:

[46] I accordingly conclude that requiring evidence aimed at establishing that the instrument malfunctioned or was operated improperly satisfies the minimal impairment test.

[47] What remains to be determined is whether the advantages of this requirement outweigh its disadvantages. For this, it is necessary to examine the consequences of the measure. The limits that flow from the requirement have a significant effect on the defences available to the accused, as it is now more difficult to rebut the presumptions. The evidence to be adduced is more complex. The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. However, it should be borne in mind that the Carter defence also required the accused to retain an expert.

[Emphasis added]

[56] At paragraph 52 she cites with approval from the Supreme Court's decision of R. v. Crosthwait:

The facts of Crosthwait, [1980] 1 S.C.R. 1089, provide a good illustration of this. In that case, the accused had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of the solution before making the analyses. The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results.

[Emphasis added]

[57] In the case before me defence counsel has referred to the passages where Justice Deschamps has used the word maintained to support its argument that a lack of maintenance can be used to rebut the presumption. To demonstrate that there has been a lack of maintenance he points to the evidence that no annual maintenance has been done on the intoxilyzer since August 5, 2010. He does not point to any evidence nor has provided any evidence to show how that fact has caused the instrument to function or operate improperly. In other words he simply submits that the lack of yearly maintenance alone should cause this court to have a reasonable doubt about that the instrument was functioning or operated properly. To support that position he points to the recommendations of the ATC that yearly inspections be performed and that the evidence of the breath technicians was that his training led him to believe yearly inspections of the instruments were to occur. (He also points to the evidence that the breath technician could not explain why five calibration checks were needed. For the time being I am only dealing with the lack of maintenance issue.)

[58] When one reads Justice Deschamps decision entirely it is clear to me that the Supreme Court has not struck out the word malfunction (or derivatives thereof) and changed it to maintained (or derivatives thereof) within sections 258(1)(c) or (d.01). It is made clear in the decision that the lack of maintenance may be relevant and admissible evidence. However, in my view the defence is required to go beyond just showing that there was a lack of maintenance to showing that the lack of maintenance raises a real doubt about the intoxilyzer functioning or being operated properly at the time of the accused breath tests.

[59] I note that defence counsel often referred to annual, or yearly "maintenance", when in fact the ATC recommended yearly "inspections" (see Part V, paragraph A of the Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee (2009)).

[60] Maintenance and inspection are two different things. The ATC recommended interval for inspections is one year. The ATC does state that some instruments may require additional preventative maintenance which may be performed at the field level but there is no time period recommended. Further it is a recommendation, not a requirement. As the Supreme Court in St-Onge Lamoureux indicated, Parliament chose not to adopt the recommendations in their legislation. The Court went on to give the decision it did, setting out key principles for trial courts to apply.

[61] To say that an instrument has not been properly maintained is different from saying the instrument has not been inspected yearly (as recommended by the ATC). Something can be inspected or have an examination without ever having maintenance of a part occur. One can simply inspect an instrument and decide that no maintenance is required. I do not equate not having a yearly inspection with not being properly maintained. For example, an accused might point to a part of the instrument that was identified as needing repair or replacing, but such repair or replacing not being done or done incorrectly. That would then equate to not being properly maintained. And as a result, the instrument may have malfunctioned and therefore a reasonable doubt may exist regarding the functioning of the instrument. In my view, that is the lack of maintenance to which the Supreme Court is referring. That is, that the lack of maintenance caused the instrument to malfunction, not simply that the recommended yearly inspection was not done. That may cause some curiosity or cause some pause, but without any evidence pointing to how the lack of a yearly inspection impacted the functioning of the instrument or it being operated properly, the court would only be speculating as to the impact it had.

[62] Of interest is what the Alberta Court of Appeal in the case of R. v. So, 2014 ABCA 451, [2014] A.J. No. 1442 had the following comments to say about manuals which set out procedures and recommendations regarding breath tests:

42 With respect to the appellant's reliance on Bernshaw and Crosthwait for the proposition that manuals of the sort excerpted into evidence here are authoritative, we accept that in both of those cases such information was received into evidence. In each case the manual was accorded the weight considered due in the circumstances. In neither case, however, did the Court hold that such manuals are authoritative in the sense urged upon us by the appellant, that whatever such a manual says ought to be done or must be done or should not be done becomes mandatory before the Crown can rely on the presumptions. If that were so, the drafters of such manuals would be exercising the power our constitution bestowed exclusively on Parliament.

With Respect to the Number of Calibration Checks

[63] In this case I do not have any evidence that provides a nexus to the fact that there were five calibration checks to the intoxilyzer not functioning or not being operated properly. It is interesting to me that defence counsel in their submissions stated the officer had to perform five calibration checks to ensure that the instrument was acting reliably. That is precisely the point. It is not necessary that everything go smoothly or perfectly during every step of the procedure. Sometimes something may go wrong causing a breath technician to have to perform an additional step or correct a mistake, to take a third test, to start over, etc. And of course it could simply be that he made a mistake when writing down that he did five calibration checks. It is not surprising given the passage of time between the offence date and the date of the officer's testimony that he does not have a memory as to why he wrote five calibration checks in the calibration log. The most important thing is whether ultimately the intoxilyzer was functioning properly and operated properly at the time the tests were performed. The breath test records have been filed as an exhibit. They show that four calibration checks were performed in total. The calibration checks were all in the appropriate range. The test records reveal that all the diagnostic checks and internal standards were passed. The sum of the tests and checks leaves no room for a reasonable doubt to be held, absent some evidence of malfunction or operator error. The test records show that the Intoxilyzer used at the time of the accused tests was functioning and operated properly. There is nothing on the face of the test records to indicate otherwise. The fact that the officer wrote five calibration checks in the calibration log has not caused me to have a reasonable doubt about the intoxilyzer functioning or being operated properly, in light of the test records and as a result of his other testimony surrounding the functioning and operating of the intoxilyzer. I accept the evidence of Officer Harmon that the instrument was in proper working order at the time of the accused's testing.

[64] At paragraph 52 (cited earlier), Justice Deschamps provided an example of the type of evidence that would be insufficient to raise a reasonable doubt about the functioning of the intoxilyzer. For ease of reference I reproduce it again here, in part:

The facts of Crosthwait, [1980] 1 S.C.R. 1089, provide a good illustration of this. In that case, the accused had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of the solution before making the analyses. The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results.

[65] And further at paragraph 53, Justice Deschamps states:

Thus, it is necessary to proceed on the basis that the accused must not simply show that a deficiency is possible, but raise a real doubt that the instrument was functioning or operated properly. In short, if Parliament's objective was to eliminate frivolous cases, that objective would be achieved through the assessment of the evidence by the trier of fact.

[66] When one considers the Supreme Court's ruling in its entire context, I am of the view that the Supreme Court was acknowledging the reliability of the breath tests analyzed by an approved instrument unless the evidence establishes a real doubt, which is to say a reasonable doubt, that the instrument malfunctioned or was operated improperly. The fact that Justice Deschamps used the words "maintained properly" at times, rather than malfunctioned, does not alter my view.

Conclusion on Exceed Charge

[67] In conclusion, the evidence before this court falls short of establishing the intoxilyzer used in this case malfunctioned or was operated improperly. No reasonable doubt has been raised in my mind that the device functioned or operated improperly. Therefore, the Crown is able to rely on the presumption found in s. 258(1)(c) and I therefore find the Crown has satisfied its burden on count two, the exceed charge.

Impaired Charge

[68] In order to secure a conviction for impaired driving the Crown is not required to prove a specific level of impairment. Evidence that establishes any level of impairment of the ability to drive caused by alcohol is sufficient proof of the offence (see R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff'd , [1994] 2 S.C.R. 478).

[69] In this particular case, the evidence of impairment given by the arresting officer can be summarized as follows:

• The accused fell asleep in his car at an intersection.
• Despite the driver immediately behind honking the horn it seemed to have no effect on the accused. He remained asleep.
• When the arresting officer approached the vehicle he observed the accused slumped over, with his head on his right shoulder.
• The officer knocked loud on the vehicle, asked questions and called out for approximately 30 to 45 seconds before getting a response.
• The accused was unable to open the window when requested to do so.
• It took the accused a few attempts to open the door of the vehicle.
• Extremely strong smell of alcohol wafting out of the vehicle when the door was opened.
• The accused eyes were red and glossy, almost glossed over.
• His movements were very slow.
• The officer asked the accused for I.D. and instead of providing I.D. the accused tried to stand up out of car despite the vehicle still being in drive.
• When the accused was told to turn vehicle off, he totally missed keys when he reached for them. It took him four tries to grab the keys. When he did turn the vehicle off, he left the vehicle in drive.
• The officer smelled a very strong odour of alcohol emanating from his breath.
• As the accused was attempting to stand, he lost his balance and it looked to the officer like he was about to fall. The accused had to grab the vehicle to hold himself up.
• The officer felt he had to keep hold of the accused when he was escorting him so he wouldn't fall and hurt himself.

[70] The breathalyzer technician observed the following symptoms of impairment:

• The accused speech was slurred outside the breath room, and slow inside the breath room.
• The technician smelled a slight odour of alcohol on the accused breath.
• The accused moved slowly when he got up, walked slowly and deliberately.
• The accused eyes were glossy, bloodshot and droopy.
• The accused had trouble focusing on the person speaking to him.

[71] During cross-examination, different theories were put to both officers as possibilities for the symptoms they observed, including the bright lights of the officers vehicle and flashlight, the accused being just awakened from sleeping, the accused normal mannerism of speaking (talking through clenched teeth), and the accused eyelids being naturally droopy. Defence counsel also pointed to the lack of confirmation of the symptoms on the video recording of the breath test.

[72] While to some degree these alternative theories may explain some of the symptoms, the totality of the symptoms observed by the officers have satisfied me beyond a reasonable doubt that the accused ability to operate his motor vehicle was at least slightly impaired by the previous consumption of alcohol. After reviewing the video of the breath room my conclusion did not change. I agree that the symptoms observed by the arresting officer are not observed on the video. The breath room is a small area with not much opportunity to observe the accused in comparison to the opportunity the officer at the scene had or the technician had before entering the breath test room. Both officers were in position to observe the symptoms they observed and their evidence I accept. In the face of their evidence the accused evidence has not caused me to have a reasonable doubt. While he may have been fatigued, I am satisfied that alcohol consumption was the main reason for him falling asleep at the wheel, having difficulty being awakened, his lack of coordination and many of the other symptoms observed by the officers such as red and glossy eyes, lack of coordination and the other physical indicia of impairment which he exhibited. I reject his defence that his consumption of alcohol had no effect on him nor does his evidence leave the court in reasonable doubt.

Conclusion on Impaired Charge

[73] The case for impaired operation presented by the Crown is compelling and they have has established beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by the consumption of alcohol. The accused will also be found guilty on count one.

Further Observations

[74] During submissions the court had an exchange with counsel regarding whether or not the Supreme Court in St-Onge Lamoureux was indicating that the defence must call expert evidence to raise a reasonable doubt about the functioning or proper operation of the approved instrument. That inquiry or exchange was as a result of Justice Deschamps stating at paragraph 47:

What remains to be determined is whether the advantages of this requirement outweigh its disadvantages. For this, it is necessary to examine the consequences of the measure. The limits that flow from the requirement have a significant effect on the defences available to the accused, as it is now more difficult to rebut the presumptions. The evidence to be adduced is more complex. The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. However, it should be borne in mind that the Carter defence also required the accused to retain an expert.

[Emphasis added]

[75] It was not necessary for me to address that issue when coming to a conclusion in this case. I do note that the Alberta Court of Appeal's decision in So, supra, answers the issue at paragraph 16:

The "evidence tending to show" need not come from an expert; it can come from a Crown witness.

Released this 12th day of March, 2015

Justice Lloyd Dean