Court File and Parties

Court File No.: Newmarket Court File No. 14-06229 Date: 2015-12-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Carol McGee

Before: Justice M. Misener

Counsel:

• K. Stewart, for the Crown
• L. Adler, for the accused

Judgment

Released on December 8, 2015

MISENER J.:

[1] Introduction

Carol McGee is charged with operating a motor vehicle while the concentration of alcohol in her blood exceeded the legal limit. She has challenged the admissibility of the results of her breath tests. The defence submits that the officer did not have reasonable grounds to make the demand for her breath samples. The defence also submits that there is evidence tending to show that the breathalyser instrument was operated improperly so that the presumption of accuracy does not apply and there is no reliable evidence of her blood alcohol concentration.

The Evidence

[2] Initial Stop and Observations

P.C. Williamson was the first witness for the Crown. At about 1:00 a.m. on August 7, 2014, he was travelling westbound on 16th Avenue in Markham when he noticed an SUV turn out of a side street in front of him. He followed it and noted that its speed was fluctuating inappropriately. He activated his emergency equipment and the SUV pulled over and stopped.

[3] Approved Screening Device Demand

P.C. Williamson approached the driver's side. Ms. McGee was alone in the SUV. The officer noted that she had very watery eyes and he could smell an odour of alcohol coming from her. Ms. McGee admitted to having consumed some wine two hours earlier. As a result of his observations and the admission of consumption, the officer made an Approved Screening Device (ASD) demand. When asked by the Crown to articulate the reason for the ASD demand, P.C. Williamson answered: "I had a suspicion that she had consumed alcohol and was driving".

[4] ASD Calibration and Results

The officer testified that the approved screening device was last calibrated on August 3, 2014 by Badge #1918. In cross-examination, he testified that he got the date of last calibration from a sticker on the ASD. The defence showed him the test records for the ASD. He agreed that there was no record of the device having been calibrated on August 3, 2014 and that the record showed that an accuracy test had been performed on August 5, 2014. In re-examination, P.C. Williamson testified that he believed the ASD was in proper working order. Ms. McGee registered a fail on the ASD and was arrested for over 80 operation of a motor vehicle as a result.

[5] Breath Testing by Qualified Technician

In due course, Ms. McGee was turned over to the qualified technician, P.C. Suzana. She provided two samples of her breath into an approved instrument which generated truncated readings of 140 and 120 milligrams of alcohol in 100 millilitres of blood. The Crown seeks to rely on the Certificate of the Qualified Technician to establish the concentration of alcohol in Ms. McGee's blood at the time of driving. The Crown also called the qualified technician.

[6] Technician's Qualifications

P.C. Suzana has been a qualified technician since May, 2012. He had performed approximately 150 breath tests using an Intoxilyzer 8000C prior to testing Ms. McGee's breath samples.

[7] Initial Setup and Diagnostic Check

P.C. Suzana testified that he arrived at 5 District at 1:16 a.m. to perform the breath tests. At that time, the Intoxilyzer 8000C was in stand-by mode and the simulator was turned off. He testified that ordinarily the simulator is left on so that it is warm. He said that he activated the Intoxilyzer and turned on the simulator as soon as he entered the breath room. He checked the lot number of the alcohol standard and determined that it was not expired and had been changed on August 4, 2014.

[8] Diagnostic Test Procedure

He performed a diagnostic check. He testified the instrument goes through a series of tests and indicates either a pass or a fail. In this case, the test result was a pass. In cross-examination, he acknowledged that he walked to the breath room door and spoke with another officer while the instrument was performing the diagnostic test. In his opinion it was not necessary for him to sit in front of the instrument while it performed the test since he did nothing more than push a button to start the test and receive a printout at the end of it. As he understood it, he was only required to be in the breath room during the subject test phase.

[9] Calibration Check and Simulator Warm-up

After the diagnostic test, the instrument performed a calibration check. P.C. Suzana testified that the purpose of the calibration check is to ensure that the alcohol standard is within the appropriate range of 90 to 110 mg %. In this case, the calibration check at 1:28:40 resulted in a reading of 84 mg%. P.C. Suzana testified that in his opinion, the 84 mg% reading occurred because he had not waited long enough for the simulator to warm up before he started that calibration check. The simulator had been on for only 9 minutes and the headspace was cold. In cross-examination, he also admitted that while he looked at the printout from that calibration check when it came out of the printer, he did not notice that the result was 84 mg%. He testified that he first noticed that result when he was reviewing the printout in preparation for trial. Had he noted that the result was outside the acceptable range, he would have performed another calibration test to ensure a result within the acceptable range before he proceeded to the subject test phase. He agreed that he did not follow the procedure in which he had been trained when he performed the calibration test too early and failed to perform it again after the result was outside the acceptable range.

[10] Self-Test

P.C. Suzana performed a self-test of his own breath at approximately 1:35 a.m. and obtained a reading of zero. He also admitted that he did not check that self-test result at the time it was printed.

[11] Confidence in Instrument Reliability

Despite having failed to check the results of the first calibration check and his self-test, he testified that he was satisfied that the Intoxilyzer 8000C was in proper working order when it tested Ms. McGee's breath samples. He held this opinion because the Intoxilyzer automatically runs two more diagnostic tests and one more calibration check before each subject test. His examination of the subject test record satisfied him that the readings were reliable because the calibration checks results were 98 and 99 respectively, both of which are in the proper range, and because the two readings from Ms. McGee are in good agreement.

[12] Subject Test Record

The test record card from the testing of Ms. McGee's breath samples was filed as an exhibit. It provides the following information:

Air Blank 000 mg% at 01:40:24
Diagnostic Test Passed at 01:41:04
Air Blank 0000 mg% at 01:41:31
Simulator Temp 34.00 degrees Celsius
Calibration Check 098 mg% at 01:42:16
Air Blank 000 mg% at 01:42:50
Diagnostic Test Passed at 01:43:30
Air Blank 000 mg% at 01:43:57
Subject Test 147 mg% at 01:46:35
Air Blank 000 mg% at 01:47:15
Air Blank 000 mg% at 02:04:41
Diagnostic Test Passed at 02:05:21
Air Blank 000 mg% at 02:05:48
Simulator Temp 33.99 degrees Celsius
Calibration Check 099 at 02:06:44
Air Blank 000 mg% at 02:07:16
Diagnostic Test Passed at 02:07:56
Air Blank 000 mg% at 02:08:23
Subject Test 127 at 02:09:03
Air Blank 000 mg% at 02:09:41

[13] Omissions in Alcohol Influence Report

The qualified technician was also cross-examined about omissions in the Alcohol Influence Report which he prepared during the testing procedure. When he recorded the lot number of the standard alcohol solution he wrote #20311E, omitting one digit when he should have recorded #201311E. When he recorded the result of the external calibration check, he wrote "84 mg" when he should have written 84 mg/100ml. He did not record the number of calibration checks since the alcohol standard solution was changed. He testified that he did not believe it was necessary to record this information, nor was it required by his training, because the instrument will lock out if the alcohol standard solution is used more than 50 times. He did acknowledge that there is a place on the Alcohol Influence Report to record that information.

[14] Temperature Monitoring and Cell Phone

It was also put to the qualified technician that he did not look at the simulator to monitor the temperature while Ms. McGee provided breath samples. He disagreed and testified that the temperature indicator was right in front of him as he tested Ms. McGee and that he was looking right at it. He pointed out the temperature indicator on the video which appears to be right in front of him as he takes the samples. The qualified technician acknowledged that he had his cell phone in the room lying on the desk right in front of the instrument throughout the breath testing procedure. He said that he was not aware of any impact that a cell phone signal may have on the instrument. He also said that he knew Ms. McGee had been chewing gum before she began the breath test procedure. He was not aware of any impact of gum chewing on breath tests because he does not know of any gum containing alcohol.

[15] Defence Expert Evidence

The defence called Mr. Kupferschmidt who was qualified as an expert in the proper operation of the ASD and the Intoxilyzer 8000C. Mr. Kupferschmidt took issue with the maintenance and operation of both the screening device and the Intoxilyzer.

[16] ASD Maintenance Concerns

In terms of maintenance of the ASD, he testified that the Alcohol Test Committee recommends that the ASD be calibrated every 31 days. The York Region Police records show that the ASD was last inspected before the testing of Ms. McGee on August 5, 2014. At that time, it passed an accuracy test and was not calibrated. As I understood Mr. Kupferschmidt's evidence, that means that the device was run against a simulator and a result between 90 and 110 was received. Mr. Kupferschmidt testified that in his opinion, an accuracy test was insufficient to ensure the device was in proper working order and that it should be calibrated every 31 days minimum. The wording of the Alcohol Test Committee is as follows: "The calibration of the approved screening device shall be checked by a screening device calibration technician with an alcohol standard at least every 31 days". When he was asked whether this referred to an accuracy test or a calibration, he said that in his opinion, it referred to a calibration but he conceded that it was "subject to interpretation".

[17] ASD Operation Concerns

In terms of the operation of the ASD, Mr. Kupferschmidt testified that the reliability of the test was affected by the failure of the arresting officer to perform a self-test.

[18] Intoxilyzer Maintenance Concerns

Mr. Kupferschmidt testified that he had concerns about the proper maintenance of the Intoxilyzer 8000C as well. He noted that the ASD and the approved instrument were both last checked using standard alcohol solution from the same lot (Lot # 201311E). He testified that if the same alcohol simulator were used to test the accuracy of both instruments, then it was possible that the solution had expired. However there was no evidence even suggesting that the same simulator had been used.

[19] Service Records Review

The Intoxilyzer was inspected annually and the last inspection occurred about 10 months prior to Ms. McGee's tests. Mr. Kupferschmidt testified that he examined the service records for the Intoxilyzer from April 2011 to October 2014 and that he had concerns that calibration check values did not meet specifications on 28 occasions. These records were not filed.

[20] Improper Operation of Intoxilyzer

Mr. Kupferschmidt was very critical of the manner in which the breath technician operated the Intoxilyzer. The first calibration check was performed improperly. The technician should have waited for 15 minutes for the simulator to warm up and, after obtaining a calibration test result of 84 mg%, he should have checked the tubing, the simulator head and the seal and then performed another calibration test rather than relying on the quality assurance controls associated with the two subject tests.

[21] Purpose of Calibration Check

The defence filed excerpts from the Intoxilyzer Training Aid. The purpose of the calibration test is set out as follows: "The external calibration check is a critical component for verifying the accuracy of the Intoxilyzer 8000C. The calibration check is also one of the many QA measures that demonstrate the proper working order of the instrument. A calibration check within the expected target range provides the Qualified Technician with scientific confidence that any breath tests performed on the instrument will be an accurate measurement of BAC".

[22] October 2014 Inspection Results

Mr. Kupferschmidt testified that his concern about the improper calibration test was increased by his review of the inspection records of the instrument. He testified that a calibration check performed on the instrument in October 2014, two months after Ms. McGee's tests, using a 50 milligram solution (which tests the accuracy of readings at the low end) resulted in readings of 37 and 38. The results should have been in the 45 to 55 range.

[23] Additional Operational Concerns

The qualified technician's failure to perform a proper initial calibration test was not the only concern identified by Mr. Kupferschmidt. In his opinion, the technician should not have left the room while the instrument ran its internal diagnostic checks and he should have inspected the printouts as they were produced.

[24] Temperature Monitoring Requirements

Mr. Kupferschmidt also testified that in his opinion the video showed that the officer did not look at the temperature display during the first subject test. He testified that the officer is required to check the temperature and see that it reads 34.0 plus or minus 0.2 to ensure reliable results.

[25] Gum Chewing Concerns

He testified that the gum in Ms. McGee's mouth before the test procedure commenced was concerning, not because gum would affect the results, but because Ms. McGee volunteered that she had gum in her mouth. Mr. Kupferschmidt opined that the technician's failure to notice her gum caused a concern that the technician was not properly observing Ms. McGee to ensure no burping or regurgitating. In cross-examination, he agreed that he did not observe anything concerning in that regard on the video although he said the video was of poor quality for the purpose of seeing Ms. McGee closely.

[26] Cell Phone Interference Concerns

He testified that the presence of the officer's cell phone in the breath room was potentially problematic because although both the ASD and the Intoxilyzer have technology to shield against radio interference, he was unable to say that such technology was foolproof. He testified that the Alcohol Test Committee recommends that no radio transmitters be in the breath room.

[27] Expert Opinion on Reliability

Mr. Kupferschmidt was asked to provide an opinion as to whether or not the results of the testing of Ms. McGee's breath samples were reliable. He testified that reliability has to do with the whole testing process. In his opinion, an operator must comply with all of the procedures recommended by the Alcohol Test Committee or the results of the tests are not scientifically reliable. In this case, not all of the procedures were followed properly and therefore, in his opinion, the results are not scientifically reliable.

[28] Cross-Examination on Test Results

In cross-examination, Mr. Kupferschmidt agreed that the printouts from the testing of Ms. McGee's breath showed that the alcohol simulator was within the appropriate range for the two subject tests with readings of 34 degrees and 33.99 degrees respectively, and that the readings were in good agreement with each other according to the standards of the Alcohol Test Committee.

The Issues

Section 8 Charter Analysis

[29] Reasonable Grounds for ASD Demand

The first issue raised by the defence is whether or not the arresting officer had the requisite suspicion to make the ASD demand. The issue arises because the officer testified that he had a suspicion that she had "consumed alcohol" rather than a suspicion that she had "alcohol in her body".

[30] Officer's Knowledge and Reasonable Suspicion

I am satisfied that the officer knew that he must suspect that the driver has alcohol in her body at the time of driving and not simply suspect that she consumed alcohol at some point in the past. The presence of an odour of alcohol and her admission of consumption of wine two hours earlier gave him that suspicion and it was reasonable.

[31] ASD Calibration and Self-Test Issues

The next issue is whether the arresting officer was entitled to rely on the ASD fail given the following facts: there was an error in his evidence as to when the ASD was last calibrated and there was no evidence that he performed a self-test or used the device during his shift before testing Ms. McGee.

[32] Officer's Reasonable Satisfaction with Device

The only requirement is that the officer be reasonably satisfied that the device is working properly. The officer who uses an ASD need not know when the last calibration actually occurred. Nor must the Crown establish that he performed a self-test. In this case, the officer checked the calibration sticker on the device to confirm it was properly calibrated before using it. The fact that he made a mistake either in his notes or in his testimony concerning the precise date does not cause me to reject his evidence that he checked the calibration. There is no evidence that the officer had any concerns about the operation of the ASD during its use and there is nothing in the evidence to suggest that he should have had such concerns. I am satisfied that the officer's confidence that the device operated properly to provide a reliable reading was reasonable in all the circumstances.

[33] Section 8 Conclusion

I am satisfied that there was no breach of Ms. McGee's rights under Section 8 of the Charter.

The Presumption of Accuracy

Applicable Law

[34] Criminal Code Section 258(1)

The starting point for an analysis of the applicable law is Section 258(1) of the Criminal Code which provides that the results of breathalyser tests are conclusive proof of a motorist's blood alcohol concentration in the absence of evidence tending to show all of the following things:

1. That the approved instrument was malfunctioning or operated improperly
2. That the malfunction or improper operation resulted in a determination that the blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood and
3. That the concentration of alcohol in the accused's blood would in fact have been under 80 mg in 100 ml at the time of the offence

[35] St-Onge Lamoureux and Constitutional Interpretation

In St-Onge Lamoureux, the Supreme Court of Canada dealt with a challenge to the constitutionality of this section and held that, as written, it violated the presumption of innocence. The Court read down the Section so that the results of the breath tests are conclusive in the absence of evidence tending to show that the instrument was malfunctioning or operated improperly. The Court made it clear that evidence "tending to show" is a reasonable doubt standard. As well the Court stated that proper operation includes proper maintenance.

Does Evidence of Malfunction or Improper Operation Alone Rebut the Presumption?

[36] Plain Reading of Section 258

What is left of the section on a plain reading indicates that if there is evidence tending to show that the instrument malfunctioned or was operated improperly, then the presumption of accuracy is rebutted and the readings are not evidence of the accused's BAC. In R. v. McCullaugh, Mr. Justice Boucher had a reasonable doubt concerning the proper breath testing procedure due to an ambient fail result. He held that the presumption of accuracy was therefore rebutted and there was no evidence of the breath results.

[37] R. v. So - Obiter Support

Support for the view that evidence tending to show malfunction or improper operation is enough to rebut the presumption of accuracy can be found in certain passages of the decision of the Alberta Court of Appeal in R. v So. In fairness, the Court of Appeal in that case did not find that the defence had succeeded in adducing evidence tending to show improper operation and so these are only obiter comments:

Question 2: If the evidence of the failure to comply with the direction in the Manual is evidence "tending to show" improper operation of the approved instrument, is such evidence sufficient to rebut the presumption that the analysis results are conclusive proof of the accused's blood-alcohol content or must an accused also adduce evidence that such improper operation could have affected the accuracy of the analysis as proof of the accused's blood-alcohol content?

[46] It is not necessary to address this second question in view of our decision on the first. Nevertheless, in our view if an accused satisfies the test described above, such that there is before the court "evidence tending to show ... that the approved ... instrument was operated improperly", then nothing more is required of an accused to rebut the presumptions. The Crown then would have to prove commission of the offence without reliance upon the statutory presumptions.

[38] R. v. So - Reliability Link Required

Other passages in R. v. So appear to support the view that not only must there be evidence tending to show a malfunction or improper operation, there must also be evidence that the results of the tests were affected by the deficiency before the presumption is rebutted. In So, the improper operation identified by the defence was the technician's failure to wait 20 minutes with the subject under observation to ensure that no mouth alcohol was present. The defence alleged that this was a failure to follow a procedure of the Calgary Police Service. The Court found that there was no evidence of any risk of mouth alcohol actually being present in the case before it. Therefore there was no improper operation:

[47] To rebut the statutory presumptions an accused must establish to the reasonable doubt standard: (a) a deficiency in the functioning or operation of the instrument; and (b) that the deficiency directly related to the reliability of the breath test results.

[48] The appellant failed to raise a reasonable doubt on both (a) and (b) above, that there was "evidence tending to show ... that the approved instrument was ... operated improperly". Therefore the appeal is dismissed.

[39] Ontario Summary Conviction Appeal Court Approach

Summary Conviction Appeal Courts in Ontario have held that more is required than a reasonable doubt that the instrument was operated properly. Sometimes this further requirement is expressed by saying that there must be a link to reliability and at other times it is expressed by saying that the malfunction or improper operation must be more than speculative. In either case, what is required is a showing that the malfunction or improper operation had an effect on the reliability of the results.

[40] R. v. Rickett - Maintenance and Reliability Link

In R. v. Rickett, Mr. Justice Thomas held that there must be evidence showing that the improper operation affected the reliability of the results. The Court found that the police had failed to meet the proper standard of maintenance because the Intoxilyzer was not inspected. Nevertheless, Mr. Justice Thomas found that the defence had failed to adduce evidence tending to show that the absence of maintenance actually resulted in a deficiency in the instrument used in that case. A mere possibility was not sufficient to raise a reasonable doubt about the reliability of the results.

[41] R. v. Lam - Direct Link to Unreliable Result

Similarly in R. v. Lam, Mr. Justice Goldstein sitting as a Summary Conviction Appeal Court endorsed the view that the defence not only must show evidence of improper operation but also must show that the deficient operation affected the reliability of the results. He stated at para 31:

St-Onge itself makes it clear that an accused person must link the improper operation or the failure to maintain the breath machine directly to an unreliable result. In other words, it is not enough to simply say:" the machine wasn't maintained properly". An accused person must be able to say:" the machine wasn't maintained properly, and it led to a problem with the machine.

[42] R. v. Rienguette - Failure to Verify Temperature

In R. v. Rienguette, Mr. Justice Gordon, sitting as a Summary Conviction Appeal Court, found that the breathalyzer technician failed to operate the instrument properly because, at the time of testing the accused, the technician was not in the practice of periodically verifying the accuracy of the temperature gauge on the simulator by inserting a thermometer into the device through a port designed for that very purpose. His Honour went on to find that the failure did not cast doubt on the reliability of the breath test results because the evidence from the expert and the breath technician confirmed that the readings were nevertheless reliable.

[43] R. v. Crosthwait - Supreme Court Guidance

The Supreme Court of Canada's decision in R. v. Crosthwait supports the view that evidence of malfunction or improper operation is not sufficient to rebut the presumption. That case was decided under the previous "evidence to the contrary" provisions. In Crosthwait, the qualified technician failed to check the ambient temperature which was a procedure required by the instrument's manual. The Supreme Court held that this deficiency itself was not enough to establish evidence to the contrary unless there was evidence that the failure may have affected the results. The Court held:

Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum.

Where Malfunction or Improper Operation is Raised, Who has the Burden on the Issue of Reliability of the Results

[44] Division in the Courts

In the wake of St-Onge, the Courts have been divided as to who has the burden on the issue of the reliability of the results. In R. v. Lam, Mr. Justice Goldstein put the burden on the defence to link the malfunction or improper operation "directly to an unreliable result". In R. v. Rienguette, Mr. Justice Gordon appears to put the burden on the Crown to show that the results are reliable despite the deficient operation.

[45] Burden Shifts to Crown

There is support in other jurisdictions for the view that the burden should shift to the Crown to show reliability once a doubt about the proper functioning or operation of the instrument is raised. For example, in R. v. By, a Saskatchewan summary conviction appeal, Mr. Justice Barrington-Foote held that the only obligation on the defence is to adduce evidence tending to show a malfunction in or improper operation of the breathalyser instrument. He found that there is no suggestion in St Onge that the defence must adduce evidence linking the deficiency to a potential inaccuracy in the breath test results, as opposed to a burden on the Crown to prove an absence of such a link. The judgment in St-Onge supports the view that the burden shifts to the prosecution to save the presumption of accuracy once the evidence tends to show malfunction or improper operation. At paragraph 57 of St-Onge Madam Justice Deschamps writes:

…The scheme that has existed since the statutory amendments came into force is designed to require the prosecution to adduce technical evidence to counter an attempt to rebut the presumption of accuracy or the first presumption of identity. An accused who produces evidence to rebut one of these presumptions will do so by calling an expert, and the prosecution will have to call a technician, and possibly an expert. As a result, being the party that has to prove that there is no connection after the accused has adduced evidence to show that the instrument malfunctioned or was operated improperly does not impose a significant additional burden on the prosecution.

[Emphasis added]

[46] Proper Allocation of Burden

Requiring the Crown to establish that the results are reliable when there is evidence of malfunction or improper operation properly places the ultimate burden on the state to satisfy the Court that the readings are accurate. Given the importance of accurate breath tests, the testing procedure is properly built on multiple redundant safeguards. A review of the cases makes it clear that not every failure to follow recommended procedures for the maintenance and operation of breath testing instruments is fatal to reliability. However, given the significant evidentiary advantage of the presumption, evidence tending to show malfunction or improper operation puts the onus on the prosecution to establish reliability.

Application of the Law

Improper Maintenance and Operation of the Intoxilyzer

[47] Findings of Improper Operation

I find that the qualified breath technician improperly operated the instrument in the following ways:

1. He performed the external calibration check too soon after turning on the simulator. He should have waited 15 minutes for it to warm up. Instead he performed the calibration check after only 9 minutes;

2. He failed to review the printout from the external calibration check and in failing to review it, he failed to notice that the result of 84 mg% was outside the acceptable range of 90-110 mg%;

3. He should have performed a subsequent external calibration check after the result of 84 mg% to obtain a result within the acceptable range;

4. He failed to review the printout from the self-test of the instrument.

[48] Monitoring During Initial Tests

I do not find that the times that he went away from the instrument are themselves a cause for concern. As I read it, the direction in the Training Aid that the officer must monitor the testing procedure refers to the subject breath tests. Having said that, the technician's failure to pay attention during the initial tests when combined with his failure to review the test printouts causes a real concern that he did not properly monitor the initial diagnostic and calibration tests.

[49] Radio Frequency Interference

I do not accept Mr. Kupferschmidt's evidence that radio frequency may have interfered with the subject tests. I find that opinion to be speculative in light of his evidence that the Intoxilyzer 8000C is equipped with protective hard and software.

[50] Gum Chewing

The fact that the technician did not notice that Ms. McGee had gum in her mouth until she took it out does not cause me concern regarding burping or regurgitation. There is no evidence that either occurred here.

[51] Temperature Monitoring

I find that the breathalyzer technician monitored the temperature indicator during the subject tests. His back is turned to the camera, the indicator is right in front of him and I accept his evidence that he did so, as he pointed out as he watched the video in court.

[52] Maintenance of the Intoxilyzer

I am not satisfied that there is evidence tending to show that the Intoxilyzer was improperly maintained. Mr. Kupferschmidt had a number of criticisms of the York Region Police Service maintenance. He expressed a concern that the alcohol standard solution may have been used too often. I find this concern to be speculative. While the solution to test the ASD and the Intoxilyzer came from the same lot there is no evidence that the same simulator was used to test both. Mr. Kupferschmidt testified that his examination of the downloaded data from service records covering the period from April 2011 to October 2014 revealed 28 occasions on which the calibration checks resulted in values that did not meet specifications. He did not testify as to how many total calibration checks were done in this period, how far outside the range the results were or whether any further tests were completed, making it impossible to assess the impact of this number. He refers in his testimony to his report which provides that "ostensibly, there appeared to be 28 occasions where the calibration check values did not meet specifications..." Mr. Kupferschmidt testified that the instrument was inspected annually and that Ms. McGee's tests were not performed outside the one year period of its last inspection. Having considered all of the materials filed by the defence and the evidence of Mr. Kupferschmidt I do not have a doubt that the instrument used to test Ms. McGee's breath was properly maintained.

[53] Crown's Burden on Reliability

Having found improper operation, I must consider whether or not the Crown has satisfied me that the results of the testing of Ms. McGee's breath are nevertheless reliable.

[54] Evidence on Reliability

The evidence I have on that issue is the testimony of Mr. Kupferschmidt, the testimony of the qualified technician, the excerpts from the CFS Intoxilyzer Training Aid and Ms. McGee's subject test record.

[55] Expert Opinion on Strict Compliance

Mr. Kupferschmidt testified that in his opinion the results are not "scientifically reliable" because the procedures of the Alcohol Test Committee were not followed. When asked to give an opinion as to the reliability of the results in this case, he answered that reliability has to do with the testing process and unless all of the procedures for proper testing are followed the result is not reliable. His opinion does not assist me because it tells me only that the results are not scientifically reliable due to a failure to adhere to all of the procedures designed to ensure scientific reliability. The case law which binds me makes it clear that strict compliance with the Alcohol Test Committee recommendations is not required for results to be considered reliable.

[56] Technician's Explanation and Subject Test Record

The qualified breath technician testified that in his opinion the results of the breath tests are reliable notwithstanding his admitted failure to follow proper operation procedure because the printouts of the two tests demonstrate that the instrument passed two diagnostic tests and one calibration check before each subject test, and the results of the readings are in good agreement. In cross-examination, Mr. Kupferschmidt confirmed that the results of the two tests are in good agreement with each other and that the temperature of the simulator was within the proper range for both subject tests. Importantly, the qualified breath technician was able to explain why the result of the first calibration check was outside the range: the headspace was too cold. His explanation makes sense in light of the timing of that test and the information in the Intoxilyzer Training Aid concerning potential causes of low readings. It also makes sense in light of the record of the subject tests where 10 minutes later, which is to say after sufficient time elapsed for the simulator to warm up, a calibration check at 1:42 a.m. produced a result within the proper range. Another subsequent calibration check at 2:06 a.m. also produced a result within the proper range.

[57] Subject Test Record Analysis

The subject test record reveals nothing of concern. The air blank tests results are all 000 % mg, demonstrating the absence of any potentially-contaminating alcohol in the environment. The simulator temperature was within the acceptable range of 34 degrees Celsius plus or minus 0.2 degrees: the readings were 34 degrees Celsius and 33.99 degrees Celsius for each subject test. The instrument passed all diagnostic tests. The two calibration checks were within the appropriate range with results of 098 and 099 mg%. The two subject tests were 23 minutes apart and the results are in good agreement with each other.

[58] Conclusion on Reliability

The technician's explanation of the improper external calibration check and the subject test record satisfy me that, notwithstanding the deficiencies in the operation of the instrument, I have no doubt that the results of the tests are reliable. The presumption of accuracy has not been rebutted. The results of the breath tests are admitted in evidence.

[59] Verdict

The Crown has proven its case beyond a reasonable doubt. Accordingly I find Ms. McGee guilty.

Signed: "Justice M. Misener"

Released: December 8, 2015