Court Information

Ontario Court of Justice

Date: 2015-06-17

Between:

Her Majesty the Queen

— AND —

Carlos Alvarez-Restrepo

Before: Justice R. Shandler

Heard on: May 11, 2015

Reasons for Judgment released on: June 17, 2015

Counsel

I. Shaikh — counsel for the Crown

V. Semyonov — counsel for the defendant Carlos Alvarez-Restrepo

Shandler J.:

A. Introduction

[1] Mr. Alvarez-Restrepo was charged with driving while his blood alcohol level exceeded the legal limit contrary to s. 253(1)(b) of the Criminal Code. He was stopped during a R.I.D.E. check and admitted to having consumed alcohol that evening. He was given a roadside screening test which he failed and was arrested for driving "over 80." At the station, he provided breath samples into an approved instrument which were analyzed at 165 mg of alcohol in 100 ml of blood and 164 mg of alcohol in 100 ml of blood respectively.

[2] The Crown is precluded in this case from relying on the presumptions of identity and accuracy which provide that the blood alcohol content at the time of driving is identical to the presumptively accurate readings secured by the approved instrument. The Crown cannot benefit from either presumption since the first breath sample was secured beyond the two hour limit that must be satisfied pursuant to section 258(1)(c)(ii) before the presumptions operate.

[3] The Crown called testimony from a qualified toxicologist who provided her opinion that the readings secured by the approved instrument are reliable and that based upon those readings and additional hypothetical assumptions, the defendant's blood alcohol content at the time of driving would have been between 160 and 200 mg of alcohol in 100 ml of blood.

[4] The defendant testified and gave evidence of his alcohol consumption that evening. That evidence, if accepted and combined with an explanation by the toxicologist of the implications of that consumption evidence, would make the defendant's blood alcohol content below the legal limit at the time of driving.

[5] The defence relies on the defendant's evidence of drinking to raise a reasonable doubt as to the accuracy of the readings secured by the approved instrument. The issues in this case are as follows:

• Is the Carter defence still available to an accused where the presumptions are not in place; and,
• If available, does the Carter defence in this case raise a reasonable doubt, taking into account all of the evidence.

B. The Background

[6] On September 8, 2014, officers set up a R.I.D.E. stop at around midnight on Caledonia Road and Schell Avenue in Toronto. At approximately 1:55 am, Officer Wilson saw a blue van approaching north on Caledonia coming towards the R.I.D.E. stop. The officer signalled for the van to come forward and to stop. The defendant fumbled putting the vehicle into park, causing the vehicle to roll forward a little bit, but was then able to put the vehicle into park. The defendant's window was halfway down and Officer Wilson noted the smell of alcohol right away and later, during the course of their conversation, he also noted that the defendant's eyes were glossy. Officer Wilson asked the defendant if he had any alcohol that night and the defendant replied "4 shots." Officer Wilson asked when, and the defendant replied "20 minutes ago."

[7] Officer Wilson asked the defendant for his driver's license and noted that the defendant fumbled through his wallet to get his driver's license. He asked the defendant to accompany him to the scout car and at 2:01 a.m. he gave the defendant a lawful demand for a sample of his breath into an approved screening device (ASD). The ASD was a Draeger Alcotest 6810 that had been last tested in August 14, 2014. At 2:02 a.m., the defendant provided a sample into the ASD which registered a "fail."

[8] That fail provided Officer Wilson with the reasonable grounds to believe that the defendant was committing an alcohol driving offence. The rest of the evening is not in issue. The chronology is as follows:

• At 2:02 a.m., Officer Wilson arrested the defendant for driving over 80.
• At 2:04 a.m., Officer Wilson read the defendant his rights to counsel and caution. No issue is taken with the contents of these statements which were understood by the defendant and who advised that he didn't have a lawyer. The officer advised the defendant he could talk to a lawyer at the station.
• At 2:16 a.m. or approximately 21 minutes after the defendant was initially stopped at the R.I.D.E. program, the defendant was transported directly to 32 Division.
• At 3:01 am, the defendant was paraded at 32 Division. The officer did not note the time they arrived at 32 Division but noted that there was time spent entering information into the Versadex system.
• After being paraded and being given the opportunity to talk to duty counsel, the defendant was brought before a qualified breath technician at 3:44 a.m.

[9] Officer Versteeten was the qualified breath technician who set up the approved instrument and satisfied himself that it was calibrated and operating properly. At 3:58 a.m., the defendant provided the first sample of his breath which was analyzed at 165 mg of alcohol in 100 ml of blood. At 4:17 a.m., the defendant provided the second sample of his breath which was analyzed at 164 mg of alcohol in 100 ml of blood.

[10] Marie Elliott is a toxicologist who has been with the Centre for Forensic Sciences since 2003. On consent, she was qualified as an expert in the operation and maintenance of the Intoxilyzer 8000C and Alcotest 6810 as well as the absorption, distribution and elimination of alcohol which are factors necessary to provide a "read back" of the blood alcohol concentration (BAC) from the time of the testing to the time of the driving.

[11] She testified that based on a truncated Intoxilyzer 8000C reading of 160 mg of alcohol in 100 ml of blood at 3:58 a.m., the projected BAC at 1:55 a.m. would be between 160 and 200 mg of alcohol in 100 ml of blood, based on the four hypothetical assumptions. She also reviewed the test results of the defendant's breath samples from the Intoxilyzer 8000C and testified that, based on those tests, the instrument was calibrated and in proper working order.

[12] In cross-examination, she was presented with a hypothetical based on the defendant's drinking pattern which he gave later in evidence. Ms. Elliott testified that if an individual consumed four shots of vodka — for a total of between 75 – 80 millilitres of 40 percent alcohol — within one hour beginning at midnight and finishing at 1:00 a.m. with fifteen minutes between each shot, that individual would have a BAC of between 0 and 20 mg of alcohol in 100 ml of blood.

[13] The defendant testified that he was at a strip club near Dufferin and Eglinton where he has been a regular twice a month for several years. He testified that he was there by himself that evening and that he had four shots of Grey Goose vodka. The defendant brought a shot glass from the strip club that he testified was the same size as the shot glass used to serve him drinks. That shot glass held roughly 20 ml of liquid. The defendant testified that he had ordered four drinks before 1:00 when the bar closed. He finished his last drink after 1:00 and then left the club to drive home.

[14] In cross-examination, it was established that the defendant had been on a patio outside his home along with other tenants that evening for some three to four hours. He denied having anything to drink prior to going to the club just before midnight. He denied being a regular drinker and said that he normally drinks only when there is some kind of celebration. He would typically only have one or two drinks but on this occasion, he had four. The defendant did acknowledge that he didn't know exactly how much alcohol was in each of his drinks but he relied on the fact that the club measured their drinks into shot glasses, like the one that he got from the club and brought to court.

C. Analysis

1. Is the Carter Defence Still Available?

[15] In 2008, Parliament amended the drinking and driving provisions to preclude strict reliance on the Carter defence. In R. v. St-Onge Lamoureux, 2012 SCC 57, the Supreme Court of Canada found that Parliament was justified in requiring that any evidence adduced to cast doubt on the test results be directed at the functioning or operation of the instrument. The Court agreed with Parliament's determination that the estimated BAC arrived at by consumption and elimination evidence — the so-called Carter defence — was insufficiently reliable on its own to challenge the accuracy of breathalyzer results.

[16] Where the parties disagree is on the state of the law for a case where the breath readings were taken outside of the two hour limit. The Crown submits that section 258(1)(d.01) should be interpreted to negate any challenge to the readings using Carter-type evidence. Section 258(1)(d.01) provides as follows:

for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of

(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed;

[17] The defence submits that because the presumptions contained in s. 258(1)(c) are not in play, then s. 258(1)(d.01) does not apply and there is no bar to relying on Carter-type evidence to challenge the readings. The testimony of the accused concerning his alcohol consumption, combined with an explanation by a toxicologist of the implications of that consumption, is evidence to the contrary sufficient to raise a doubt about the results of the breathalyzer test.

[18] I agree with the defence where s. 258(1)(c) is not otherwise engaged — as here, where the first test is not taken within the two hours — then there are no limitations on what evidence may be relied upon to raise a reasonable doubt. Carter evidence is admissible because the proscription in s. 258(1)(d.01) applies only where the presumptions in s. 258(1)(c) are engaged: see R. v. Rickett, 2015 ONSC 1890 at para. 109, R. v. Meranger, 2013 ONCJ 567 at para. 11.

2. Does the Carter defence in this case raise a reasonable doubt?

[19] Although a Carter defence is available, it may well be difficult to raise a reasonable doubt absent evidence tending to cast doubt on the reliability of the breathalyzer results. This was noted by our Court of Appeal at the inception of the Carter defence.[1] Those reservations were also noted by the Supreme Court of Canada who stated that the "success rate" of the accused's subjective recollection as to his alcohol consumption "is hard to justify in light of the scientific reliability of the instruments", provided that the instruments are operated and maintained properly. The reliability of breathalyzer tests was summarized in a 2006 report prepared for the Department of Justice by Brian T. Hodgson, a forensic toxicology consultant, also noted by the Supreme Court of Canada:

The scientific basis for evidential breath alcohol testing is well established. Experiments derived from a recognized scientific law in physics have proven the scientific validity of breath analysis to determine alcohol concentration in the blood. Instruments designed to measure breath alcohol content are based on technology that is capable of producing scientifically sound results. Like Canada, every country that embarks on evidential breath alcohol analysis subjects these instruments to a rigorous evaluation process. These processes determine whether the instruments meet the scientific standards for accuracy, precision, reliability and specificity.[2]

[20] The Supreme Court also noted the many reports which have shown the testimony of accused persons regarding their alcohol consumptions to be unreliable.[3]

[21] With those cautions in mind, I turn to the evidence.

[22] The defendant's evidence was straightforward: he went to a strip club where he had four shots of vodka roughly fifteen minutes apart between midnight and one a.m. He went first to the bar and got a shot of vodka which he took to his table. The remaining drinks he had while sitting at a table watching the entertainment. He drank his vodka with ice, finishing the last drink shortly before getting into his car and driving home. He believed each shot was approximately 20 ml based on his measurement from a shot glass from the club that he brought to court.

[23] The defendant had nothing to drink earlier in the day even though he was outside on a patio with other tenants from the home as the landlord does not allow his tenants to drink on the patio. The defendant acknowledged, however, keeping both vodka and whiskey in his apartment.

[24] It was based on this version of events that Ms. Elliott offered the opinion that the defendant's BAC would have been no higher than 20 milligrams of alcohol in 100 millilitres of blood at the time he was pulled over.

[25] I note that there is no confirming evidence for the defendant. He was drinking alone in the club and he does not have a receipt for the drinks he ordered that evening. I also note that on the defendant's own evidence, he does not drink normally and when he does, he only has one to two drinks. The defendant was drinking, on his own account, twice the amount of alcohol he normally does when he goes out. He was drinking while watching strip dancers. It is possible in those circumstances that he is simply mistaken as to the number of drinks he had or the amount of alcohol that was in those drinks. While the defendant denies this, it is possible that his memory is mistaken and that his higher than normal consumption of alcohol impacted on his recollection.

[26] In addition, the defendant's evidence is being proffered against evidence that contradicts his version of events; specifically, the blood alcohol readings produced by the Intoxilyzer 8000C and the evidence of Ms. Elliott, coupled with the evidence of the qualified breath technician, to the effect that those readings could not have been attained on the defendant's version of events.

[27] Ms. Elliott testified that when properly operated by trained individuals, the Intoxilyzer 8000C provides accurate and reliable blood alcohol readings. She also testified that the Intoxilyzer test record generated for the defendant's breath samples confirms that the machine was operating properly. All of the diagnostic checks were conducted, including a calibration test. She testified that the Intoxilyzer was calibrated and in proper working order and that there was no indication of any improper operation. She testified that the two subject test results were in good agreement with each other, providing scientific confidence in the result. Her evidence on this point was not challenged in any way.

[28] Officer Versteeten is the qualified breath technician who took the breath samples from the defendant. He satisfied himself that the instrument was calibrated and in proper working order. He had no reason to doubt the reliability of the test. The samples furnished were suitable for analysis and the waiting time between tests was honoured. His evidence as to the operation of the instrument, other than some specific timing issues, was not challenged in any way.

D. Conclusion

[29] In this case, I have credible and reliable expert evidence that the Intoxilyzer 8000C when in proper working order and operated properly produces reliable results. I also have evidence that the Intoxilyzer 8000C was in proper working order and operated properly in this case. I have no evidence of any errors or problems caused either by the operator or the machine. And I have compelling evidence that if the readings in this case are accurate, the defendant's blood alcohol level was over the legal limit at the time of driving.

[30] The defendant's evidence of consumption is inconsistent with this expert evidence. His evidence is dependent both on his subjective recollection of drinking and assumptions about the size of the drinks he was served. He testified that he typically drinks only when there is a celebration and even then, only one to two drinks. There was no explanation as to why he was drinking that night albeit he acknowledged drinking twice his normal consumption. He assumed each drink was the equivalent of a shot glass measuring at approximately 20 ml., which I note is substantially less than a one ounce shot glass which would be the equivalent of 28.5 ml. There is significant room for error here in either the defendant's recollection of the number of drinks he had or the amount of alcohol that was in those drinks.

[31] I have considered all of the evidence together and conclude that I do not believe the defendant's account of his consumption of alcohol those evenings. Nor am I left in a reasonable doubt by it.

[32] I do believe beyond a reasonable doubt the testimony of the qualified breath technician and the expert such that the defendant's blood alcohol exceeded the legal limit when he was operating a motor vehicle in the City of Toronto on September 9, 2014. I find the defendant guilty as charged.

Released: June 17, 2015

Signed: "Justice Shandler"

Footnotes

[1] R. v. Gilbert (1994), 92 C.C.C. (3d) 266 (Ont. C.A.) at p. 280.

[2] R. v. St-Onge Lamoureux, 2012 SCC 57 at paras. 34 – 35.

[3] Ibid., 2012 SCC 57 at paras. 45, 72 – 74.