Court File and Parties

Court File No.: 14-04210: Central East Region-Newmarket Date: 2015-06-10 Ontario Court of Justice

Between: Her Majesty the Queen — And — Felipe Morales-Sanchez

Before: Justice Peter C. West

Evidence heard on: April 21, 2015 Reasons for Judgment Delivered on: June 10, 2015

Counsel:

• Mr. B. McCallion for the Crown
• Mr. J. Rabinovitch for the accused, Felipe Morales-Sanchez

WEST J.:

Introduction

[1] On May 24, 2014, Mr. Morales-Sanchez was charged by York Regional Police with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with greater than 80 milligrams of alcohol in 100 millilitres of blood.

[2] On April 21, 2015, Mr. Morales-Sanchez entered pleas of not guilty to both charges and a trial was commenced. The Crown called three witnesses: P.C. Dan Poeta, an assisting officer, Sgt. Timothy Kuttschrutter, the investigating officer, and P.C. Linda Newman, the qualified breath technician. Mr. Morales-Sanchez did not call any evidence on behalf of the defence. There were no Charter arguments raised by the defence.

[3] The defence argued the evidence led by the Crown did not prove beyond a reasonable doubt Mr. Morales-Sanchez's ability to operate a motor vehicle was impaired by the consumption of alcohol. Further, Mr. Rabinovitch submitted the breath readings introduced by the Crown were unreliable and could not be relied upon, because Mr. Morales-Sanchez had vomited only five minutes before providing his first breath sample into the Intoxilyzer.

[4] Mr. McCallion, for the Crown, argued there was an abundance of evidence to support Mr. Morales-Sanchez's ability to operate a motor vehicle was impaired by the consumption of alcohol. Mr. McCallion submitted the two readings contained in the Certificate of Analysis, Exhibit 1, should be accepted as accurate and therefore, as no evidence to the contrary was called by the defence, the Crown had proven this charge beyond a reasonable doubt.

[5] After hearing oral argument from both counsel I reserved judgment to June 10, 2015.

Factual Background

[6] On May 24, 2014, Sgt. Kuttschrutter was a patrol supervisor operating a marked York Regional Police Chevy Tahoe SUV. At 2:56 a.m., he was westbound on Steeles Avenue approaching Islington Avenue in the City of Vaughan. There is a plaza on the north-east corner of Islington and Steeles. He observed a 4-door red car leaving the area of Sharkey's Bar and Grill in an eastbound direction. He watched the car driving towards an exit at the rear of the plaza onto Fruili Court. The officer turned into the plaza parking lot from Islington and began to drive towards the red car. The red car made a left turn into a parking spot in front of a building. He observed the car almost mount the sidewalk curb before it stopped abruptly. Sgt. Kuttschrutter testified he thought the car was going to drive up onto the sidewalk and strike the building because of the speed it was travelling and the impact which occurred when the front tires hit the curb. It did not mount the curb.

[7] As the officer approached the red car he observed the headlights to still be on and the rear reverse lights came on, although the car did not move. Sgt. Kuttschrutter pulled behind the car and exited his SUV. As he came around his truck to walk to the driver's side of the red car he observed the red car was now off, the headlights and taillights were off and the car was not running.

[8] As the officer approached the driver's side the driver's door opened and the accused person exited. As the driver exited the car he stumbled and caught himself. The accused took two steps and stumbled again but fell down at this point. He landed on all fours, on his knees and his hands on the pavement beside the driver's side of his car. He also dropped his keys onto the asphalt and he picked them up as he slowly got to his feet.

[9] The officer was standing in front of the accused and he could detect an odour of an alcoholic beverage as well as the odour of burnt marihuana coming from his body. The officer further observed his eyes were watery and bloodshot. There was red conjunctiva at the lower edge of his eyes. The accused's face was flushed around the cheek area below his eyes. The officer also noted a two or three inch mark on the accused's golf shirt that looked to be vomit.

[10] When the officer engaged Mr. Morales-Sanchez in conversation he detected the odour of alcohol to be coming from the area of his mouth. The marihuana odour was coming from Mr. Morales-Sanchez's clothing or on his body.

[11] At 2:57 a.m., the officer formed the opinion Mr. Morales-Sanchez's ability to operate a motor vehicle was impaired by the consumption of an alcoholic beverage. As a result he placed the accused under arrest for impaired operation. The officer handcuffed the accused to the rear and placed him in a seated position on the sidewalk curb beside his car. He advised Mr. Morales-Sanchez of his right to counsel and also cautioned him. He then read Mr. Morales-Sanchez a breath demand.

[12] After he was read the breath demand, the accused advised the officer he did not want to do the breath test and expressed concern he would have to provide a blood sample. At no time did the officer say anything to Mr. Morales-Sanchez about his having to provide a blood sample. The breath demand was made at 3:04 a.m. Sgt. Kuttschrutter did not have a cage in his SUV so he contacted dispatch to request a marked police cruiser attend the scene to transport Mr. Morales-Sanchez. While he was waiting for the police cruiser to attend, he observed the accused "nodding off" or falling asleep while he was seated on the sidewalk.

[13] P.C. Poeta arrived on scene at 3:12 a.m. He observed Mr. Morales-Sanchez in custody and handcuffed to the rear. He was advised by Sgt. Kuttschrutter the accused was under arrest for impaired operation. Sgt. Kuttschrutter further advised the accused was very intoxicated and was feeling nauseous in his stomach. P.C. Poeta did a pat down search and then placed him into the rear of his cruiser. Mr. Morales-Sanchez then asked P.C. Poeta to open the rear door so he could vomit.

[14] P.C. Poeta then read the accused a secondary caution. The rear door was open. P.C. Poeta testified he believed Mr. Morales-Sanchez was very intoxicated. The accused vomited outside onto the pavement several times before the officer was able to close the door and drive to 4 District police station. P.C. Poeta was not able to depart for 4 District until 3:27 a.m. when Mr. Morales-Sanchez advised he no longer felt like vomiting. P.C. Poeta testified he was able to detect alcohol on Mr. Morales-Sanchez's breath, on his person and on his clothes.

[15] Sgt. Kuttschrutter followed P.C. Poeta and they arrived at 4 District at 3:38 a.m. Mr. Morales-Sanchez was paraded before the booking staff sergeant and then placed in a cell at 3:42 a.m. Sgt. Kuttschrutter observed Mr. Morales-Sanchez to be a bit unsteady on his feet when he walked him to the cell which was across from the breath room. After the breath technician, P.C. Linda Newman requested Mr. Morales-Sanchez be brought to the breath room, Sgt. Kuttschrutter observed Mr. Morales-Sanchez making slow movements in his walking from the cell to the breath room. When he took Mr. Morales-Sanchez from the cell to the breath room he observed the accused walk into the door frame and hit it with his shoulder. When he was walking back to the cell, Sgt. Kuttschrutter observed Mr. Morales-Sanchez swaying side to side and his movements were slow.

[16] After receiving Mr. Morales-Sanchez back from P.C. Newman, Sgt. Kuttschrutter received a Certificate of a Qualified Technician. Mr. Morales-Sanchez signed this document as did Sgt. Kuttschrutter. The Certificate was marked as Exhibit 1. Sgt. Kuttschrutter testified he received two copies of the Certificate and he compared them with each other and found them to be true copies.

[17] P.C. Newman, the qualified breath technician, testified Mr. Morales-Sanchez was turned over to her at 4:10 a.m. Prior to this, at 4:05 a.m., P.C. Newman attended the cell Mr. Morales-Sanchez was in and read him the refusal statement as he had refused to come from the cell to the breath room as he did not want to provide a breath sample. She explained the penalty of refusing to provide a sample and Mr. Morales-Sanchez changed his mind and agreed to provide a sample of his breath.

[18] P.C. Newman testified she believed Mr. Morales-Sanchez was sick in the cell before she had him brought to the breath room. Sgt. Kuttschrutter provided his grounds for the arrest. P.C. Newman had performed the calibration checks before attending the cell area. She did a self-test in the presence of the accused at 4:11 a.m. She followed the training she received. As a result of the steps she took in preparing the Intoxilyzer 8000C, she was satisfied the instrument was in proper working order.

[19] She testified she operated the instrument pursuant to her training. P.C. Newman read Mr. Morales-Sanchez the breath demand at 4:14 a.m. She testified the accused was sick in the breath room when she read the demand at 4:14 a.m. He vomited in a garbage can. P.C. Newman testified the instrument was ready at 4:12 a.m. to receive a sample of breath but she waited for approximately 15 minutes because Mr. Morales-Sanchez had vomited and she wanted to make sure there was no mouth alcohol in his mouth. The first sample was taken at 4:19:46 a.m. Mr. Morales-Sanchez provided a sample of his breath directly into a mouth piece that was removed from a plastic wrapper and put onto the breath tube which goes directly into the Intoxilyzer 8000C.

[20] The first sample was 150 mg of alcohol in 100 ml of blood. P.C. Newman testified the sample of breath received was suitable for analysis. She made observations of Mr. Morales-Sanchez's appearance, coordination and demeanour. There was a strong odour of alcohol. His speech was slurred, his face was flushed, his eyes were watery and bloodshot, he was cooperative and polite and he vomited several times in the breath room. When she observed him walking from the cell to the breath room he appeared unsteady and stumbling. She made similar observations when he returned to the cell from the breath room.

[21] The second sample of breath was taken at 4:43:19 a.m. He used the same mouthpiece. It did not appear to be obstructed or damaged in any way. The second sample result was 136 mg of alcohol in 100 ml of blood.

[22] P.C. Newman testified that she waited the appropriate time to clear mouth alcohol. She believed she also gave him some water between the two samples. She had no reason to believe there was anything but just a breath sample.

[23] P.C. Newman was shown Exhibit 1 and she identified those portions of the document she had filled out.

[24] In cross-examination P.C. Newman agreed Mr. Morales-Sanchez vomited just before entering the breath room at approximately 4:05 a.m. She believed Mr. Morales-Sanchez was sick again during the reading of the breath demand at 4:14 a.m. but she testified she would have to review the video to be sure when he was sick. She testified she was sure Mr. Morales-Sanchez vomited between the two samples. She then testified she would have to review the video but that is her recollection.

[25] She testified she would have to review the video because as per her procedure she would wait 10 to 15 minutes before taking a sample. She did not write down the times Mr. Morales-Sanchez was sick. She waits this period of time because her training taught her there is a concern about mouth alcohol in respect of regurgitation and vomiting. The presence of mouth alcohol could affect the reliability of the samples that are taken and consequently might give a reading that is not accurate.

Analysis

[26] As indicated above, the defence did not raise any Charter arguments in this case. The defence concedes Sgt. Kuttschrutter had reasonable and probable grounds to arrest Mr. Morales-Sanchez for impaired operation. The issue is whether the Crown has been able to prove beyond a reasonable doubt that Mr. Morales-Sanchez's ability to operate a motor vehicle was impaired as a result of the consumption of alcohol.

[27] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, 78 C.C.C. (3d) 380 affirmed , [1994] 2 S.C.R. 478; Graat v. The Queen, 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell, 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[28] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[29] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Cesoni with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[30] In my view, the Crown has proven the charge of impaired operation beyond a reasonable doubt based on the following evidence. I found all three police officers to be reliable witnesses. The observations of each officer who dealt with Mr. Morales-Sanchez at different times were consistent in terms of his unsteadiness and balance.

[31] Sgt. Kuttschrutter's attention was first drawn to Mr. Morales-Sanchez's car as a result of seeing him driving in a plaza parking lot at approximately 3:00 a.m., in close proximity to Sharkey's Bar and Grill. When the officer turned his marked SUV cruiser into the parking lot and began driving towards Mr. Morales-Sanchez's car, Mr. Morales-Sanchez quickly pulled into a parking spot and struck the sidewalk curb with some force, such that Sgt. Kuttschrutter thought the car was going to mount the curb and run into the building. When he pulled his cruiser behind the red car its headlights were still on, it was running and the back-up lights came on indicating the driver had put the car in reverse but it did not move. Given the time of the night there was no reason for Mr. Morales-Sanchez to abruptly turn into a parking spot. The manner he drove into the parking spot also indicates his perception or field of vision was impaired by his consumption of alcohol, which Sgt. Kuttschrutter became aware of when he detected the odour of an alcoholic beverage coming from Mr. Morales-Sanchez's mouth.

[32] The officer came out of his police SUV and walked to the driver's side of the red car to speak to the driver. As he approached the driver's side he observed the car was now turned off and the lights were out. The driver, Mr. Morales-Sanchez had already exited the car, was walking towards the officer when he stumbled but was able to regain his balance so he did not fall. Mr. Morales-Sanchez then took another two steps, stumbled again and fell to his knees and hands. He dropped his keys. Mr. Morales-Sanchez slowly got to his feet. It is my view, these observations also demonstrate that Mr. Morales-Sanchez's balance and perception were impacted by his consumption of alcohol.

[33] When Sgt. Kuttschrutter spoke to the driver he could detect an odour of an alcoholic beverage coming from the driver's breath and he also noted the smell of burnt marihuana coming from the driver's person and clothes. His eyes were bloodshot and watery. There was a redness or conjunctiva around the edges of Mr. Morales-Sanchez's eyes. His face was flushed. There was a two or three inch stain of vomit on the front of his shirt. As a result of those observations, Sgt. Kuttschrutter placed Mr. Morales-Sanchez under arrest for impaired operation. These observations are commonly referred to by officers as indicia of impairment.

[34] When the officer read Mr. Morales-Sanchez the breath demand from the back of his notebook and asked if he understood, Mr. Morales-Sanchez expressed concern he was going to have to provide a blood sample. Nothing had been said by the officer about Mr. Morales-Sanchez providing a blood sample. In my view, this query by Mr. Morales-Sanchez reflects confusion on his part due to his consumption of alcohol.

[35] While waiting for a marked YRP police cruiser to come to the scene Mr. Morales-Sanchez was seated on the sidewalk curb and was nodding off with his eyes closed and head bowed. This conduct was in spite of his being under arrest and handcuffed to his rear.

[36] After being placed into P.C. Poeta's police cruiser Mr. Morales-Sanchez asked the officer to open the passenger door as he was going to be sick to his stomach. Mr. Morales-Sanchez vomited three or four times onto the pavement.

[37] P.C. Poeta testified Mr. Morales-Sanchez was very unsteady on his feet when he walked him to his police cruiser. His equilibrium seemed to be off and he was stumbling when he walked. There was a strong odour of alcohol coming from his breath, his person and his clothes. When he spoke he was slurring his words. He did not respond quickly to questions P.C. Poeta asked him, his responses were slow or he did not respond at all. The officer did not record specifics of the conversation he had with Mr. Morales-Sanchez as he drove him to the police station.

[38] When Sgt. Kuttschrutter went to retrieve Mr. Morales-Sanchez from the cell to bring him to the breath room, Mr. Morales-Sanchez was unsteady on his feet and banged his shoulder into the door frame as he exited the cell. His movements were also slow when he walked from the cell to the breath room. He was swaying side to side as he walked.

[39] The qualified breath technician, P.C. Linda Newman, made the following observations of Mr. Morales-Sanchez, while he was in her presence. There was a strong odour of alcohol coming from him, his speech was slurred, his face was flushed, his eyes were bloodshot and watery and he vomited several times, in his cell and in the breath room. He was unsteady on his feet and stumbled or lost his balance when he was walking from the cell to the breath room and back to the cell. Her observations of unsteadiness and stumbling are consistent with both Sgt. Kuttschrutter and P.C. Poeta's observations of Mr. Morales-Sanchez as he walked at the scene, to the police cruiser and in the police station.

[40] Based on the totality of the evidence it is my view the Crown has proven the offence of impaired operation beyond a reasonable doubt. There is more than sufficient evidence proving Mr. Morales-Sanchez's ability to operate a motor vehicle was impaired as a result of his consumption of alcohol. Consequently, he is found guilty of that charge.

[41] With respect to the charge of operating a motor vehicle with greater than 80 mg of alcohol in 100 ml of blood, the Crown submitted he was relying on the Certificate of Analysis of the Qualified Technician to prove the charge beyond a reasonable doubt.

[42] Prior to the 2008 amendments to the Criminal Code in respect of drinking and driving offences, s. 258(1) provided for two basic presumptions. The presumption of accuracy provided that where certain procedures prescribed by statute were followed, the breath technician's certificate as to BAC would be presumed accurate, in the absence of evidence to the contrary. The presumption of identity provided that, again, where certain pre-requisites were met, a BAC exceeding 80 mg of alcohol in 100 ml of blood at the time of testing is proof of the accused's blood alcohol content at the time of driving or care and control in the absence of evidence to the contrary.

[43] Regardless of whether one was challenging the presumption of accuracy or the presumption of identity, in order to rebut the presumption, evidence would have to be adduced to raise a reasonable doubt as to whether the accused's BAC exceeded the legal limit as at the time of driving. (See R. v. Gibson, 2008 SCC 16, [2008] S.C.J. No. 16, at para 50)

[44] In July 2008, the Tackling Violent Crime Act amended s. 258(1) of the Criminal Code. This amendment was aimed essentially at eliminating the defence created by R. v. Carter, 19 C.C.C. (3d) 174. The amendments provided that where the Crown satisfied the pre-requisites to prove the elements of the offence under the statutory scheme, only evidence tending to show (i) the approved instrument malfunctioned or was operated improperly; (ii) the malfunction or operator error produced the results exceeding the legal limit; and (iii) the accused's BAC was under 80 at the time of the offence could raise a reasonable doubt as to guilt.

[45] After the 2008 amendments, s. 258(1)(c) provided:

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

(i) [Repealed without coming into force 2008, c. 20, s. 3.]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

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

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

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things—that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[46] In October 2012, the Supreme Court of Canada released concurrent decisions in R. v. Dineley, 2012 SCC 58, [2012] S.C.J. No. 58 and R. v. St.-Onge Lamoureux, 2012 SCC 57, [2012] S.C.J. No. 57 dealing with the constitutionality of the 2008 amendments. Madam Justice Deschamps, speaking for the majority of the Supreme Court of Canada in St-Onge Lamoureux, supra, concluded that the second and third requirements of s. 258(1)(c) could not be justified on a Constitutional analysis. Where the Crown is able to satisfy the presumptions and rely on the Certificate of Analysis as proof, it remains open to an accused to raise a reasonable doubt as to the reliability of the results by identifying a defect in either the testing or operation of the instrument.

[47] In St-Onge Lamoureux, supra, Madam Justice Deschamps states at paragraphs 38, 41, 45, 46 and 47:

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.

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]

45 The scientific data presented at the time of the enactment of the new provisions show that Parliament intended to do more than simply adjust the wording that had been interpreted in Boucher. Apart from the theoretical difficulties involved in assessing the credibility of the accused on the basis of test results that are presumed to be accurate, returning to a Carter defence would make it impossible to meet Parliament's objective. Absent statutory provisions to the effect that the results are to prevail, judges would still be faced with the problem the amendments were actually intended to solve. If the testimony of the accused concerning his or her consumption of alcohol were accepted, it could raise a reasonable doubt about the reliability of the test results despite the fact that it has now been shown that the success rate of this defence is hard to justify in light of the scientific reliability of the instruments. It was appropriate for Parliament to enact provisions that would spare the prosecution the burden of tendering evidence of scientific reliability in every case.

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]

[48] At para. 52, Justice Deschamps provided an example of the type of evidence that would be insufficient to raise a reasonable doubt about the operating or functioning of the Intoxilyzer 8000C. She stated:

52 At this step in the defence process, it must be accepted that the judge will not consider evidence showing a connection between a deficiency and the determination that the blood alcohol level of the accused exceeded the legal limit unless the accused has already proved that the instrument was malfunctioning or was operated improperly. At this stage, if the arguments made by the defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument, and the defence must fail. 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. [Emphasis added]

[49] Justice Deschamps continues at para. 53:

53 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.

[50] In the case before me, the defence called no evidence. The only evidence dealing with the operation of the Intoxilyzer 8000C came from P.C. Newman, the qualified breath technician. Her evidence indicated she had done the calibration and diagnostic checks of the Intoxilyzer 8000C approved instrument she was operating. She did a self-breath test in the presence of Mr. Morales-Sanchez to demonstrate how to provide a sample. The result of her self-test was zero. She was satisfied the approved instrument was in proper working order.

[51] The defence asked no questions of the breath technician respecting the operation of the Intoxilyzer 8000C. P.C. Newman testified the two samples provided by Mr. Morales-Sanchez were samples suitable for analysis. In cross-examination she testified the results of the diagnostic, calibration and self-tests she performed told her the instrument was in fact in proper working order.

[52] The only issue raised by the defence was whether there was any mouth alcohol in Mr. Morales-Sanchez's mouth as a result of his vomiting prior to the two breath tests. The single piece of evidence respecting this issue was from P.C. Newman, the qualified breath technician, who testified in-chief and cross-examination that her training caused her to wait 15 minutes after a subject vomits before taking a sample of breath into the approved instrument because of the possibility of the presence of mouth alcohol.

[53] Mr. Morales-Sanchez vomited in the breath room into a garbage can and P.C. Newman testified she waited 15 minutes to make sure there was no mouth alcohol in his mouth. She testified in-chief, "We waited the appropriate amount of time to clear mouth alcohol. And I also, I believe, between samples, gave him some water. And – so I see no reason to believe there was anything but just a breath sample." In cross-examination there was the following exchange between defence counsel and P.C. Newman:

Q. You read both the primary and secondary cautions to him?

A. Correct.

Q. Between those two cautions, he is physically ill again?

A. I believe it was during the breath demand.

Q. During the breath demand?

A. I believe so.

Q. Okay. At 4:14?

A. That's correct.

Q. Sorry, I said the caution, I meant the demand. So at 4:14 you re-did the demand?

A. The demand.

Q. While you were reading the demand…

A. I believe he was sick at that time.

Q. Okay.

A. I'd have to review the video, but I believe it was at that time.

Q. But you are sure he was sick in the room because that's when he got – vomited.

A. I know for sure he was sick between the samples.

Q. Okay.

THE COURT: Between?

A. Between giving the first sample and the second.

Q. Second sample. You believe he was sick as well in the room while you're giving the demand?

A. I'd have to review the video actually.

Q. That's your – that's your recollection right?

A. That's my recollection.

Q. Okay.

A. But I'd have to review the video to be sure. Because as per my procedure I would wait an additional 10 to 15 minutes before giving the first sample.

Q. And then between samples, he's sick another time.

A. He's sick between samples, yes.

Q. What time is he sick?

A. I didn't write it down, but it was during the Alcohol Influence Report, and I did the Alcohol Influence Report at 4:20.

[54] Despite P.C. Newman indicating she would have to review the breath room video to be sure when Mr. Morales-Sanchez vomited, while he was in the breath room, neither the defence nor the Crown played the video. Consequently, I am left with a possibility Mr. Morales-Sanchez vomited at 4:14 a.m. when the breath demand is being read to him by P.C. Newman and then the first sample was taken at 4:19 a.m. This is obviously less than 15 minutes after Mr. Morales-Sanchez possibly vomited. P.C. Newman indicated to defence counsel she would have to review the breath room video to be sure when Mr. Morales-Sanchez vomited. P.C. Newman also testified she followed her procedure and training in taking the two breath samples and it was her belief the two samples were proper samples and the two breath readings produced by the Intoxilyzer 8000C were reliable. She testified she saw no reason to believe there was anything other than Mr. Morales-Sanchez's breath going into the approved instrument.

[55] Further, by not playing the video of the breath room, I am left to speculate as to what time Mr. Morales-Sanchez vomited. Clearly the video would be the best evidence as to when these events occurred, yet the defence chose to rely on P.C. Newman's viva voce evidence, which she qualified as not being sure of unless she reviewed the video. It is my view it would be improper for me to speculate as to the specific times Mr. Morales-Sanchez vomited when he was at the police station.

[56] In every other reported decision I have found relating to mouth alcohol affecting the breath samples provided into an approved instrument by an accused, the defence has led evidence from the accused, a toxicologist and in some cases a medical specialist, who provided evidence of the accused's medication: an inhaler, or medical condition: gastro esophageal reflux disorder (GERD) or acid reflux. Examples of those decisions are R. v. Coffey, [2013] O.J. No. 1621 (Ont. C.J., Maund J.) (acid reflux or GERD); R. v. Mirzazadah, [2014] O.J. No. 3232 (Ont. C.J., De Filippis J.) (acid reflux or GERD); R. v. Ketler, [2013] O.J. No. 3081 (Ont. C.J., Campbell J.), affirmed 2014 O.J. No. 3551 (Ont. Sup. Ct., Campbell J.); R. v. Woodworth, [2013] O.J. No. 3444 (Ont. C.J., Forsythe J.); R. v. So, 2014 ABCA 451, [2014] A.J. No. 1442 (Alta. C.A.) (burping by accused); R. v. Desjarlis, [2015] O.J. No. 1251 (Ont. C.J., Dean J.) (lack of yearly maintenance with no evidence how this would affect instrument's reliability); and R. v. Alper, [2015] O.J. No. 1773 (Ont. C.J., Adamson J.) (officer's lack of knowledge of maintenance history did not raise doubt as to reliability of approved instrument).

[57] No evidence was called by the defence to raise a "real" doubt concerning the reliability and accuracy of the breath readings because of the presence of mouth alcohol. A number of decisions have held the "possibility" of the breath reading result being affected does not raise a doubt as to the functioning and proper operation of the instrument.

[58] As referred to above, in St-Onge Lamoureux, the Supreme Court held "the mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results" (see para. 52). It must do more than raise the possibility of malfunction or operator error (see para. 53). Consequently, the evidence must raise a real doubt as to whether the test results are reliable (see paras. 38, 41, and 53). The doubt must not be trivial or frivolous. The Supreme Court of Canada in that case also held that the defence generally needed an expert to demonstrate that the instrument was malfunctioning or improperly operated to clear this threshold (see para. 47).

[59] By electing not to call a toxicologist, I find the defence has left me in the position of having to speculate what effect, if any, mouth alcohol would have had on the reliability of the Intoxilyzer 8000C. It is my view, the mere possibility this would affect the reliability of the two readings in this case is not sufficient to raise a doubt as to whether the Intoxilyzer 8000C malfunctioned or was being operated improperly. In a number of the decisions referred to above, the defence or Crown toxicologist testified the presence of mouth alcohol would have triggered the slope detector, which would have invalidated the breath sample. No expert was called by the defence and it would not be appropriate for me to take judicial notice of evidence heard in other cases.

[60] Consequently, I find that the evidence does not tend to show that the approved instrument was malfunctioning or was operated improperly. Consequently, I am satisfied beyond a reasonable doubt that the breath test readings in this case are reliable. Therefore, Mr. Morales-Sanchez will be found guilty of the charge of operating a motor vehicle when his BAC was greater than 80 mg of alcohol in 100 ml of blood.

Released: June 10, 2015

Signed: "Justice Peter C. West"