Court Information

Information No.: 09 326

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

James Barta

Before: Justice Lloyd Dean

Trial Evidence Heard: January 31, February 1, 2011; January 31, 2013; November 14, 2014; and January 6, 2015

Counsel:

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

Reasons for Judgment

DEAN J.:

Introduction

[1] My written reasons here follow a summary of my decision which was given orally on April 9, 2015.

[2] This matter has a long history. There are several different reasons for that long history, including a lengthy third party application and ruling, waiting for the Supreme Court's ruling in R. v. St-Onge Lamoureux, 2012 SCC 57, co-ordinating counsels' schedules, my schedule and witness's schedules. The relevant evidence heard in this case follows.

Evidence

[3] The court first heard from a civilian witness, Mohammed Daaboul. Mr. Daaboul testified that on February 8th, 2009 at 4:00 a.m. he was eastbound on Grand Marais here in the city of Windsor when his vehicle was "t-boned" by the vehicle the accused was operating. The accused had failed to stop for a stop sign at the intersection of Grand Marais and Lillian. Mr. Daaboul's vehicle was struck on the driver's side. He indicated he hit his head on the passenger side and bounced back to the driver's side. There was smoke in his car and it was hard to breathe. He kicked the passenger side door open and fell out of his car. He tried to get up but fell back down. He managed to crawl around his car. He was dizzy and in pain. He dialed 911. The accused approached him and said "I'm sorry, I slipped on ice." Mr. Daaboul testified he smelled a very strong odour of alcohol on the accused and described the accused as very drunk. He testified he told the accused to get away from him because he was drunk. Mr. Daaboul described the roads as clear. He described the entire driver's side of his vehicle as being caved in, almost to the centre as a result of the collision. Although he suffered no broken bones he nonetheless suffered significant injuries throughout his body and was still suffering from them at the time of his testimony.

[4] Officer Kent Rice testified that he and his partner, Officer Dumar, arrived on scene at 4:26 a.m. An ambulance was already on scene attending to Mr. Daaboul. Officer Rice observed the damage to both vehicles. After speaking to Mr. Daaboul, Officer Rice approached the accused. While speaking to the accused, Officer Rice detected a strong odour of alcohol on his breath. He described the accused's speech as heavy and somewhat slurred. He observed the accused's eyes were red and glossy. He described the accused as taking short strides when walking and it seemed to him that the accused was trying to maintain his balance. At approximately 4:30 Officer Rice formed the opinion the accused was impaired due to the prior consumption of alcohol and he placed the accused under arrest.

[5] Officer Rice testified it was 41° Fahrenheit at the time. The roads were wet. There was no snow or ice on the road. He observed no skid marks on the road and indicated no other vehicles had difficulty at the intersection while he was on scene.

[6] Officer Vishal Kumar testified when he arrived on scene with Officer Rice he observed that both vehicles involved in the accident had sustained heavy damage. He observed the accused eyes to be glossy and detected an odour of alcohol on his breath. He also observed the accused to be unsteady on his feet. It was Officer Kumar's opinion that the accused was showing some signs of intoxication and Officer Kumar's opinion was that the accused's ability to operate a motor vehicle was impaired by alcohol.

[7] Officer Kristina Gilboe, the qualified breath technician, testified that at 4:44 a.m. she was informed that she was needed to conduct a breath test. When she was introduced to the accused, she observed the accused's eyes to be red and detected a strong odour of previously consumed alcohol coming from his breath. The accused provided two suitable samples of his breath into the instrument that was being used, an Intoxilyzer 5000C. The results of the tests were 174 and 175 milligrams of alcohol per 100 millilitres of blood.

[8] While completing the Alcohol Influence Report, Officer Gilboe asked the accused several questions which were answered by the accused voluntarily. The accused acknowledged he had a couple of beers between "8:00 p.m. and midnight or 1:00 a.m." He also indicated he was not injured.

[9] During cross-examination Officer Gilboe testified she had changed the alcohol standard used in the instrument the day prior to the test conducted on the accused.

[10] During her cross-examination Officer Gilboe was shown a Certificate of Annual Maintenance. The date on the certificate was stated as September 27, 2006. It was conceded by the Crown this was the date of the last maintenance done on the intoxilyzer used in this case prior to Mr. Barta's tests on February 8, 2009. She conceded that as a result of her training she was aware there was an expectation that the instrument would receive yearly maintenance.

[11] Officer Gilboe testified she conducted a series of tests to confirm the instrument was in proper working order and she was satisfied the instrument was in proper working order and was getting an accurate reading when she conducted Mr. Barta's breath tests.

[12] Officer Gilboe's evidence is that she referred to a binder, which would have been on a counter next to the instrument, to determine when the alcohol standard solution was last changed prior to Mr. Barta's tests. She did not concern herself with how many calibration checks were done with that alcohol standard solution prior to Mr. Barta's tests. She testified it was her practice to simply ensure the instrument was in proper working order, the alcohol standard solution was within seven days and the instrument had been calibrated properly. If that is the case then she will get an accurate reading from the instrument. Officer Gilboe confirmed that she does not rely upon any prior calibration or maintenance logs.

[13] During re-examination Officer Gilboe stated if there was a problem with the test she would get an indication from the instrument that there was an error of some sort. She did not receive any indication of an error occurring.

[14] Officer Gilboe testified she observed no injuries on Mr. Barta and he was asked during the completion of the Alcohol Influence Report if he was ill or had received a bump on the head. He answered no to both questions.

[15] On January 6, 2015, the court heard the evidence of Dr. Robert Langille, who was called on behalf of the Crown and who defence counsel admitted could be qualified as an expert to give an opinion in the areas he did in this case. Dr. Langille is employed by the Ontario Centre of Forensic Sciences (CFS) and is also a member of the Alcohol Test Committee (ATC). His affidavit, curriculum vitae, a letter he prepared addressed to a member of the Crown attorney's office and an eight page document titled CFS Intoxilyzer 5000C Information were filed collectively as exhibit eight in the proceedings.

[16] Dr. Langille testified that prior to October 1, 2009, the CFS did not make any recommendations to police services regarding the requirement to track the number of calibration checks that had been conducted each week per bottle of alcohol standard solution.

[17] Dr. Langille was asked to assume that more than 50 calibration checks were done within the 26 hour period between when Officer Gilboe had changed the alcohol standard solution and Mr. Barta's test. He was asked to give his opinion about how that would affect the reliability of the readings. It was Dr. Langille's opinion that any calibration checks within the week of the solution having been changed would not have affected the alcohol standard solution's ability to check the calibration of the instrument and confirm or identify a problem. It was his opinion that the solution used during Mr. Barta's test was capable of checking the calibration and determining the working status of the instrument. He testified that if the calibration checks were found to be within the acceptable range of 90 to 110 then the instrument was in proper working order at the time of Mr. Barta's test.

[18] Dr. Langille also pointed to the Alcohol Standard Calibration Log (Exhibit No. 5) and pointed out that eight days later (after February 7th) the alcohol standard solution was changed again and the results of the calibration checks were within the accepted range, indicating that the calibration of the instrument had been maintained throughout and beyond the period of Mr. Barta's tests.

[19] Dr. Langille was asked about maintenance and what impact it had, if any, if the instrument had last had annual maintenance in 2006. He testified the recommendation of the ATC is that an annual inspection be completed, which is different from maintenance. He then went on to testify about the specific instrument used to test Mr. Barta's blood alcohol level, the Intoxilyzer 5000C. He indicated because of the design of the instrument when it was introduced to Ontario in the 1980's the CFS had no recommendation for maintenance – only, maintenance as required. He indicated many of the instruments used by the CFS and police services went years without needing any parts replaced or any maintenance. The procedure of testing the calibration of the instrument each and every time by means of an external alcohol standard solution is one of the key procedures to ensuring the instrument is in proper working order at the time of each subject's breath tests.

[20] Dr. Langille further testified he had seen numerous instruments that have gone numerous years without having any work done on them and, they have remained in proper working order. It was his opinion the fact that an instrument went for three years without any maintenance does not mean the instrument had problems with it. Dr. Langille testified what is more important is the tests and checks of the instrument that were done at the time of each subject's breath tests. Those tests and checks are informative of the working status of the instrument. It was Dr. Langille's opinion that the maintenance history is not germane to determining whether or not an instrument is in proper working order after a particular maintenance and/or inspection has been performed. He indicated the maintenance history is not reviewed by the toxicology section of the CFS when determining, on each individual case basis, whether an instrument was in proper working order. He further stated this not only pertains to breath testing instruments it pertains to every single instrument used at the CFS. What are looked at are the quality controls that are run during each and every test to determine at that point whether that instrument was in proper working order at the time the analysis is made.

[21] Mr. Barta was the only witness called by the defence. He testified that he was out that evening at a friend's house and was on his way back home. He stated he had drunk only two beers that entire evening, both between 8:00 p.m. and midnight at a friend's house. He testified his alcohol consumption had no impact on his driving ability. It was his evidence that he tried to stop at the stop sign but slid through the intersection because the road was wet and icy and it was cold and struck the other vehicle. The impact of the collision caused the air bags in his vehicle to deploy. As a result the dust from the airbags got in his eyes and throat. He also indicated his nose was bleeding a bit and he had quite the headache. He testified he had driven five blocks away from his friend's house to get to that intersection and he had no difficulty driving. He did not recall if at the police station his eyes were red and glossy but indicated they were itchy, runny and irritated from the dust from the airbag deployment. When asked by his counsel to comment on the suggestion that his ability to operate his motor vehicle was impaired, Mr. Barta first stated, "I don't think I was impaired". And then within seconds said "I don't believe I was impaired at all". During cross-examination the accused testified he thought he was fine and could make it home safely.

[22] As part of the Defence case the court received an expert's report (exhibit nine) of Dr. Michael Ward, dated December 23, 2009. The report indicated that Mr. Barta would have had to consume 8.4 cans (473 millilitres each) between 8:00 p.m. and midnight to reach 170 mg of alcohol/100 ml of blood at the time of testing. If what Mr. Barta's evidence about his alcohol consumption is accurate Dr. Ward's evidence is that Mr. Barta's blood alcohol concentration would have been below 80 mg of alcohol/100 ml of blood at the time of the accident.

Position of the Parties

Defence Position

Count One - Impaired Driving

[23] To support his position that the Crown has failed to meet its burden on the impaired driving charge defence counsel points to the testimony of the accused as a whole which includes the accused evidence regarding his consumption of alcohol and the effect that amount of consumption had on his ability to drive. As well, counsel pointed to the report of Dr. Ward to support counsel's position that if I believed the accused's testimony about his consumption of alcohol then the accused blood alcohol level would be such that his blood alcohol level would support the position that he was not impaired. Therefore, if I accept the accused's evidence then the accused should be acquitted on count one.

Count Two - Exceed

[24] With respect to the exceed charge, defence counsel suggest the court should have a reasonable doubt as to the reliability of the intoxilyzer instrument used to determine the accused's blood alcohol level.

[25] Defence counsel first points to the calibration log, exhibit number five, to support its position. Defence counsel argues that Officer Gilboe was presented with exhibit five and although the officer believed the calibration levels shown on the exhibit related to the accused, the date of the calibrations was stated as February 7th, not February 8th (the date of the occurrence). Defence counsel submits Officer Gilboe acknowledged that as a result of the exhibit indicating the calibrations related to the date of February 7th, there was no way she could link exhibit five to the accused and his breath tests.

[26] Defence counsel also argues that Officer Gilboe initially indicated there were two calibration checks performed by the instrument during Mr. Barta's breath test, although the norm is three. Defence counsel acknowledges that the officer did eventually indicate there were three calibration checks performed, but she did not seem to appreciate or acknowledge any impact the overall number of calibrations done by the solution used on the reliability of the solution to measure the accused's blood alcohol level. Defence counsel submits the officer indicated she did not calculate the number of calibrations that had been performed by the solution prior to conducting the tests on Mr. Barta. And further, acknowledged that she did not in any way rely upon any maintenance logs. That is to say, she did not make herself aware of any information contained within the maintenance log prior to conducting the tests on the accused. It is defence counsel's position that because Officer Gilboe could not indicate the number of calibrations done by the solution prior to Mr. Barta's test had not exceeded the recommended 50 calibrations this, along with the other evidence heard, should cause the court to have a reasonable doubt about the reliability of the intoxilyzer at the time of Mr. Barta's tests.

[27] In addition, defence counsel also points to exhibit seven which indicates the last time maintenance was done on the intoxilyzer used to record Mr. Barta's blood alcohol level was September 27, 2006 – approximately two years and four months prior to Mr. Barta's tests. Defence counsel argues it is recommended that there be annual inspections and maintenance if necessary. Defence counsel further points to the evidence given by Officer Gilboe that the training manual indicates the maintenance was to be done yearly.

[28] Defence counsel relies on the report of Dr. Michael Ward, not for so called "evidence to the contrary" for the purposes of showing the intoxilyzer functioned or operated improperly, nor that the samples were performed improperly, which is prohibited by s. 258 (1) (d.01) of the Criminal Code. Rather he indicates he is relying on it to cast doubt as to the reliability of the instrument which he argues the ruling in St-Onge Lamoureaux, supports when it referred to an accused person calling evidence in whatever way is possible to raise a doubt in the trier of facts mind about the reliability of the instrument.

Crown Position

[29] With respect to count one, impaired driving charge, the Crown acknowledges that the court will have to assess the accused's evidence regarding the amount of alcohol he consumed prior to driving and the effect of that consumption on his ability to operate his motor vehicle. However, the Crown points out, that evidence will have to be assessed in the light of the other evidence in the case.

[30] The Crown submits the manner of driving was careless and affected by bad judgment, resulting in an accident which is an indication of impaired judgment and that the alcohol consumption affected his driving adversely.

[31] With respect to count two, exceed charge, the Crown points to Officer Gilboe's evidence that she changed the solution (alcohol standard) some twenty-six hours before Mr. Barta's test were performed.

[32] The Crown submits that a common sense inference can be drawn that the number of calibration checks which would have occurred from the time Officer Gilboe changed the solution to the time of Mr. Barta's test (twenty-six hours later) would not have exceeded 50, or more than 100. The Crown points to Dr. Langille's evidence, regarding the calibration checks and their significance, to support the Crown's position that Officer Gilboe not knowing the number of calibration checks which had occurred with the solution prior to Mr. Barta's test should not raise a reasonable doubt about the reliability of the intoxilyzer used.

[33] With regard to the maintenance of the intoxilyzer, the Crown's position is that while a maintenance or quality assurance program is important, the important thing to determine is whether or not the instrument was working properly at the time of the tests.

[34] The Crown also argues that any "evidence to the contrary" evidence cannot be used for the purpose of s. 258(1) (d.01) of the Code to displace the presumption that the Crown is relying on.

Analysis

The Exceed Charge

[35] The Crown in this case relies on the presumptions found in s. 258 (1) (c) of the Code. 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.

Maintained vis-à-vis Malfunctioned

[36] 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 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.

[37] In the recent case of R. v. Desjarlis (written reasons released March 12, 2015) I considered the difference between the term "maintained" and "malfunctioned". I do not wish to repeat the full analysis here. My view has not changed. I refer readers of this judgment to my full analysis of this issue in Desjarlis.

[38] What constitutes "evidence tending to show"? Madam Justice Deschamps, writing for the court in St-Onge Lamoureux, stated at paragraph forty-one, 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]

[39] While Justice Deschamps may have used the word maintained, the word maintained is not used by Parliament. Parliament used the word malfunction (or a derivative thereof). 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. And as I said in my ruling in Desjarlis, that may be more the fault of the reader than the writer.

[40] As I said at paragraph fifty-eight of my decision in Desjarlis:

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.

[41] In the case before me defence counsel points to the lack of annual maintenance (and other evidence) to support its position that a reasonable doubt should be raised in the court's mind about the reliability of the intoxilyzer used to measure Mr. Barta's blood alcohol level. He points to the evidence that no annual maintenance has been done on the intoxilyzer since September 27, 2006 – approximately two years and four months prior to Mr. Barta's tests.

[42] As I said at paragraph sixty and sixty-one of my decision in Desjarlis:

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.

[43] The training manual referred to by defence counsel was entered into evidence as exhibit seven. It is a manual that was prepared by the CFS. Under the headings "Maintenance of the Intoxilyzer 5000C" (p. 8-1, paragraph 8.1.1) and "Preventative Maintenance Inspection" (p. 8-2, paragraph 8.1.2) it states:

MAINTENANCE OF THE INTOXILYZER 5000C

All Intoxilyzers 5000Cs are inspected by qualified personnel employed by the Canadian distributor of the instrument to ensure that they are calibrated and in proper working order prior to delivery of instrument to ensure that they are calibrated and in proper working order prior to the delivery of instruments to the end user. The Intoxilyzer is a very robust instrument that suffers minimal downtime under normal usage in the field. Virtually no routine maintenance is required, however, the following actions by qualified Intoxilyzer technicians will help to prevent downtime and maintenance repair costs.

PREVENTATIVE MAINTENANCE INSPECTION

A preventative maintenance inspection (PMI) is designed to maximize the likelihood that the instrument will be calibrated and in proper working order when required for breath testing in the field. … It is recommended that an Intoxilyzer receive a PMI annually as part of an overall quality assurance programme. The absence of such an inspection, however, does not mean that the instrument is either improperly serviced or that it cannot be relied upon to produce accurate and reliable readings of an individual's BAC.

[Emphasis added]

[44] As indicated in the training manual, it is an annual preventative maintenance inspection and not annual maintenance that is recommended. Further, that annual inspection is not an absolute requirement, it is a recommendation.

[45] Defence counsel does not point to any evidence nor has provided any evidence to show how the fact that the intoxilyzer had not been inspected or received annual maintenance since September 27, 2006 caused the instrument to function or operate improperly at the time of Mr. Barta's tests. He simply submits that the lack of yearly inspections and maintenance should cause this court to have a reasonable doubt that the instrument was functioning or operated properly. To support that position he points to the evidence given by Officer Gilboe that the training manual indicates the maintenance was to be done yearly.

[46] At paragraph fifty-two of the St-Onge Lamoureaux decision, 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. She stated, in part:

The facts of Crosthwait, 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.

[47] And further at paragraph fifty-three, 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.

[48] As I said at paragraph sixty-six of my ruling in Desjarlis, in part:

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.

With Respect to the Number of Calibration Checks

[49] Ultimately the most important thing is whether 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 three 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. Further, the Certificate of Qualified Technician filed as an exhibit indicates that the qualified technician, Officer Gilboe, ascertained the instrument to be in proper working order. The calibration log filed as exhibit five indicates when the Alcohol Standard solution was last changed before the accused's breath test. The date shown is February 7, 2009, the day before accused tests. The log does not show how many calibration checks were done from the time the standard was changed until the accused's tests. But I agree with the Crown's position, a common sense inference can be drawn that the number of calibration checks which would have occurred from the time Officer Gilboe changed the solution to the time of Mr. Barta's test (twenty-six hours later) would not have exceeded 50, or more than 100. To get to that number of calibration checks would mean sixteen to thirty-three drivers would had to have been arrested in that twenty-six hour time period. That figured is arrived at by allowing for three calibration checks (as occurred in this case) for each person tested. Even if one allowed for an error occurring in the procedure which led to up to five calibration checks for each subject arrested, to reach the 50 to 100 number of calibration checks would be between ten to twenty subjects. In a twenty-six hour period that is highly unlikely.

[50] Again referring to the training manual entered as exhibit seven. Under the heading "Alcohol Standard Test or Calibration Check", at page 7-7 it states:

The alcohol standard solution in the simulator is to be changed at least weekly. It must also be changed if the result of the calibration check is outside of the acceptable range of 90 to 110 mg/100 mL and there is no apparent reason (i.e., simulator temperature not correct or constricted tubing).

[51] The alcohol standard solution was changed the day before Mr. Barta's test. In the training manual, applicable at the time of Mr. Barta's test, there is no mention that the solution should be changed after a certain number of calibration checks have been completed. As noted in Dr. Langille's evidence that recommendation did not become part of the training until October of 2009, eight months after Mr. Barta's tests. Even then, Dr. Langille's opinion was that within the week of the solution being changed what was most important was that the calibration checks done at the time of a subject tests, and whether those checks fell within the appropriate range. If so, the alcohol solution being used was capable of producing accurate results. In the case before this court the calibration checks fell within the appropriate range.

[52] Further, in the training manual under the heading "Calibration (Alcohol Standard) Logs", it states:

A calibration log or alcohol standard log, which provides a record of the calibration of the instrument, should contain at least the following minimum information.

• the serial number and location of the instrument • the date that the alcohol standard was changed • the manufacturer, lot number and expiry date of the new alcohol standard • the simulator temperature during and the result of the calibration check performed immediately after the standard was changed • any observations made during the changing of the standard • the name and/or badge number of the individual who changed the standard

[53] The Calibration Log filed as exhibit five contained that information.

Conclusion on Exceed Charge

[54] My assessment of the evidence heard and received in this case regarding the functioning and operating of the intoxilyzer, including the exhibits filed, the evidence of Officer Gilboe and the evidence of Dr. Langille's surrounding the significance of the number of calibration checks performed prior to an individual being tested, has caused me to be satisfied beyond a reasonable doubt that the intoxilyzer functioned properly and was operated properly during the testing of the accused.

[55] 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.

The Impaired Driving Charge

[56] 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, aff'd ).

[57] In this particular case, the collective evidence of impairment given by the Crown's witnesses can be summarized as follows:

• the accused failed to stop for a stop sign and struck another vehicle
• a strong or very strong odour of alcohol was detected on the accused breath
• the accused was described as very drunk
• speech as heavy and somewhat slurred
• short strides when walking and it seemed to him that the accused was trying to maintain his balance
• the accused eyes appeared to be glossy
• unsteady on his feet
• results of the tests were 174 and 175 milligrams of alcohol per 100 millilitres of blood

[58] The case for impaired operation presented by the Crown is compelling. The totality of the symptoms observed by the Crown witnesses has 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. In the face of the evidence called by the Crown the accused evidence has not caused me to have a reasonable doubt. Both Mr. Daaboul and Officer Rice testified there was no snow or ice on the road. Officer Rice testified the temperature was forty-one degrees Fahrenheit which certainly supports a finding that there would be no snow or ice on the roads. Officer Rice also testified there were no skid marks on the road. I am satisfied that alcohol consumption was the main reason for him failing to stop at the stop sign causing the motor vehicle accident. I reject his evidence that his consumption of alcohol had no effect on him nor does his evidence leave the court in reasonable doubt. Although I would come to the conclusion I have without the accused test results being considered, given the readings of the breath tests which I have found as reliable I am even more convinced the accused ability to operate his motor vehicle was impaired at the relevant time. I note that in the past it was considered improper for a court to rely on the breath test readings in so evidence to the contrary cases (see R. v. Boucher, 2005 SCC 72), but given the ruling in St-Onge Lamoureux I see no reason why once I determine beyond a reasonable doubt that the instrument used to measure the accused blood alcohol level functioned and operated properly why I cannot use those results (along with any other evidence) in assessing the accused evidence surrounding his consumption of alcohol and whether the accused ability to operate his vehicle was impaired by that consumption.

[59] The accused will also be found guilty on count one.

Released this 16th day of April, 2015

Justice Lloyd Dean