Court File and Parties

Ontario Court of Justice

Date: 2016-06-30

Court File No.: Sudbury 13-133705

Between:

Her Majesty the Queen

— and —

Christine Portelance

Before: Justice John D. Keast

Heard on: December 10, 15, 2014, April 8, 10, July 7, 8, November 24, December 7, 8, 2015 – Written Submissions completed in May 2016

Reasons for Judgment released on: June 30, 2016

Counsel:

• Leonard Kim, for the Crown
• P. Berk Keaney, for the accused Christine Portelance

KEAST, John D. J.:

1: OVERVIEW

Charges and Issues

[1] Christine Portelance is charged, that on October 22, 2013, while she had the care and control over her motor vehicle, her ability to operate such was impaired by alcohol. She is also charged with care and control over her motor vehicle while her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] This case raises many questions and issues. What level of evidence is required to establish the ability to operate a motor vehicle is impaired by alcohol? What is the reliability of the device utilized to obtain breath samples, indicating the blood alcohol concentration? Is Ben Joseph, a forensic toxicologist, a properly qualified expert witness, as to the reliability of the Intoxilizer 8000C, which is the device utilized in Canada, to determine blood alcohol concentration?

Facts

[3] In the early morning hours of October 22, 2013, Jasen Rowat was driving his large tractor trailer truck northbound in the centre lane on Highway 144, which consists of two paved lanes in each direction, in the town of Chelmsford, Ontario, which is within the City of Greater Sudbury.

[4] Through his left side view mirror, Mr. Rowat observed behind him the headlights of Ms. Portelance's vehicle, a Hyundai Accent. It was moving rapidly towards his truck. He expected her vehicle to go around him in the adjacent lane. He was driving slower than she was.

[5] Instead, she drove with a hard impact into the back of his tractor trailer. At impact, the vehicle did a nose dive, causing the back wheels of the tractor trailer to come off the ground slightly. The impact caused her vehicle to veer and spin to the left across the two southbound lanes and come to rest against the southbound curb.

[6] Mr. Rowat stopped immediately and observed the car for one minute. Anticipating injuries he called 9-1-1 and requested an ambulance. The Portelance vehicle sustained major damage. The front windshield was broken. There was considerable glass inside the vehicle. One tire was completely flat. Both airbags deployed. The vehicle was inoperable.

[7] Mr. Rowat approached Ms. Portelance and said "What were you doing, what were you thinking?" She said she did not want to get into trouble.

[8] Ms. Portelance went back into her vehicle, started it up and was trying to put it into gear, with the intention of driving it. She attempted to activate the vehicle for the next 3 to 3½ minutes.

[9] Of significance, Mr. Rowat smelled alcohol on the breath of Ms. Portelance.

[10] In due course the ambulance and police arrived. Jessee Corbeil, an ambulance paramedic, made observations of Ms. Portelance. He first noticed her standing outside her car. She did not have any obvious injuries. He put her inside the back of the ambulance to further assess her. He asked her many questions. At times she seemed confused and had a difficult time answering simple questions, for example, her date of birth and home address. At times she was slurring her speech. She indicated awareness of being in a significant accident with significant damage to her car.

[11] Of significance Ms. Portelance indicated she had consumed alcohol. Mr. Corbeil observed a strong odour of alcohol emanating from her.

[12] The investigating police officer was Sergeant Jean-Marc St. Jacques of the Ontario Provincial Police. He first encountered Ms. Portelance in the back of the ambulance. He observed an odour of alcohol on her breath. There was slightly slurred speech and blood shot eyes. She lost her balance as she exited the ambulance.

[13] Ms. Portelance failed the approved screening device test, which is a breath testing device used at the roadway, to assist police in gathering evidence to determine blood alcohol concentration.

[14] Ms. Portelance was given her right to counsel. She was asked if she wishes to call a lawyer and she initially said "no", but she wanted to call her brother, which she eventually did. She was asked again if she wished to call a lawyer. She says "no" and then she replied "I want to call my lawyer", but she never provided the name of any specific lawyer. She was shown a list of lawyers. With no specific lawyer indicated, the officer called the legal aid duty counsel number. She received legal advice and gave no indication she was dissatisfied with such.

[15] While in the police cruiser on the way to the police station for the breath tests, Ms. Portelance made several comments about the number on the seat belt. This struck the officer as confusing and bizarre.

[16] David Hamilton of the Greater Sudbury Police Service was the breath technician. He was utilizing an Intoxilizer 8000C device. He conducted three quality assurance tests prior to conducting the actual breath tests. He was satisfied the machine was in proper working order. He took two breath tests. The first was at 3:52 a.m., and the result was 201 milligrams of alcohol in 100 millilitres of blood. The second test was taken at 4:14 a.m. and the result was 203 milligrams of alcohol in 100 millilitres of blood.

Time of Care and Control and Operation

[17] The accident took place at 2:09 a.m. After waiting one minute, Mr. Rowat called 9-1-1 and shortly after he observed Ms. Portelance enter her vehicle and attempt to drive it over a 3 ½ minute period. Her actual driving then, in addition to 2:09 a.m. would have also taken place in the approximate range of 2:11 a.m. to 2:14 or 2:15 a.m.

[18] The first breath test would have been within two hours of the actual operation of her vehicle. The second breath test would have been on the cusp of the actual operation of the vehicle when she attempted to re-engage it after the accident. It cannot be said with any precision that she was actually operating her vehicle at 4:14 a.m. which is the time of the second breath test. It may or may not be slightly outside the two hour limit. Accordingly, the Crown engaged a forensic toxicologist to conduct calculations as to the blood alcohol concentration during a given time range of operation.

The Law on Impaired Operation or Care and Control

[19] The leading decision on the standard of evidence required to demonstrate impairment is R. v. Stellato, of the Ontario Court of Appeal, 78 C.C.C. (3d) 380, 12 O.R. (3d) 90, January 7, 1993.

[20] There had been confusion in the law up to that point in 1993, wherein some cases suggested, the Crown must prove a driver's conduct demonstrated a marked departure from that of a normal person. Paragraph 10 of Stellato states as follows:

"It is not an offence to drive a motor vehicle while 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. Courts must therefore take care when determining the issue not to apply tests which assume or imply the tolerance that does not exist in law…If there is sufficient evidence before the court to prove that the accused's ability to drive was even slightly impaired by alcohol, the judge must find him guilty." (All underlining in this decision is my emphasis)

[21] The proper standard is not a marked departure from the norm. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[22] The Stellato test continues to be the law in this province as confirmed by the Ontario Court of Appeal in R. v. Moreno-Baches, (2007) ONCA 258.

[23] In applying the legal standard, consideration must be given to the extensive scientific research on impaired ability to operate a motor vehicle. James Rajotte, an experienced forensic toxicologist with the Centre of Forensic Sciences in Ontario, both in his written report and extensive trial evidence, summarized that research.

[24] In his April 9, 2015 expert report, Mr. Rajotte states:

"The operation of a motor vehicle requires the integrity of a variety of sensory, motor and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. The degree of impairment produced by alcohol is dependent upon the blood alcohol concentration. Under controlled experimental conditions, impairment of divided attention tasks has been reported at blood alcohol concentrations as low as 15 milligrams of alcohol in 100 millilitres of blood. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood, and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance."

[25] Further, in his evidence, Mr. Rajotte stated:

"It's been stated in research…that to drive effectively one must first of all see a situation developing, see something in the distance to actually recognize it,…recognize what it is, come up with a motor plan to deal with that situation, and then effectively derive a motor plan to safely manoeuvre or negotiate what that situation is. Now it's also been stated with alcohol and with increase in blood alcohol concentration, it takes longer to actually perceive a situation first of all, so to see it and then recognize it takes longer. It takes longer to execute a motor response, so actually to negotiate it."

[26] In relation to the effect of alcohol on a person's ability to follow for example a truck on the highway, Mr. Rajotte stated:

"A scientific term for following would be critical tracking, so you're tracking your car, your maintaining distance from the other vehicle, maintaining speed and critical tracking is actually negotiating to adjust your speed and distance with the speed of that other vehicle and the distance in between your car and that other one."

[27] In considering the difference between visible and obvious signs of intoxication on one side versus the impairment of one's ability to operate a motor vehicle, Mr. Rajotte stated:

"Impairment has been loosely defined as a decreased ability to perform a task. That's a very broad definition and in terms of driving, it's a decreased ability to drive. So to actually perform the task related to driving. Intoxication would be the outward physical signs, or observable effects of a drug. In drug impaired driving, the term intoxication is different in respect to alcohol, the drug is alcohol. So alcohol related intoxications – the outward physical signs of impairment due to the presence of alcohol. So there is a difference. There is a distinction. Impairment is, again cognitive, which involves brain areas, information processing, being able to divide your attention and to judge and your risk taking ability, which are more cognitive based functions, higher brain areas, thought requirements, versus intoxication which is more psycho-motor, your ability to actually walk or talk. There is action of the mind but also of the muscles throughout the body."

[28] In dealing with the issue of a person being impaired in the operation of a motor vehicle but yet having little or no observable signs of intoxication, Mr. Rajotte indicated:

"It's dependent on the person and their experience with alcohol. It's dependent on the blood alcohol concentration that they have. It's also dependent on what they're doing. There's research that shows that people in emergency rooms and trained police officers, two populations that interact with intoxicated individuals fairly regularly, who have had training on what to look for and assess intoxication, or even people with blood alcohol concentrations exceeding 200 milligrams of alcohol in 100 millilitres of blood, have been deemed to be not intoxicated by these highly trained people who are actually observing for signs of intoxication … So some people can tolerate high levels, but intoxication, being able to walk straight, being able not to sway, being able to speak very capably, is quite different from being able to drive, which again is a higher brain area function."

Analysis of Impaired Operation and Care and Control

[29] In determining Ms. Portelance's ability to operate or have care and control over her vehicle, being impaired by alcohol, consideration must be given to three areas of evidence.

[30] Firstly, there is the evidence as to her drinking. She admitted to alcohol consumption. Four people observed alcohol emanating from her breath or her person. Some of the evidence indicated a strong odour of alcohol.

[31] Secondly, there is the accident itself. The impact of alcohol on her ability to operate her vehicle, is an overwhelming factor as to whether her ability to operate the vehicle was impaired by alcohol.

[32] Ms. Portelance was not faced with a difficult driving function; in fact it was quite routine. Though she was in darkness, she was in the town of Chelmsford, on one of its main streets. Presumably, there would be some lighting so she would have some reference points. The visibility and road conditions were good.

[33] Since she was going faster than the truck, it would have been easy to manoeuvre around the truck by going into the curb lane. Her headlights should have made the truck clearly visible. She misjudged her speed relative to the truck's speed. This misjudgment was a significant error. She did not simply hit the truck…she slammed into it with considerable force. She had to be significantly disoriented in order for this to happen.

[34] She failed to appreciate she had the option of turning into the curb lane and passing the truck. It would appear her peripheral vision was not functioning, or her cognitive assessment had shut down, depriving her of the simple solution of changing lanes.

[35] The third area of evidence to be considered is her post accident functioning. There were some signs of confusion and poor judgment. There is some evidence of slurred speech and stumbling once she exited the ambulance. Some of her functioning would suggest poor judgment or bizarre functioning. Her efforts to drive away after the accident demonstrated poor judgment. It was obvious the vehicle was inoperable.

[36] Her comments about the seatbelt were bizarre, calling into question the consistency of her judgmental functioning.

[37] However, post-accident, overall, Ms. Portelance was functioning reasonably well. For the most part she was aware of what was going on around her. She was aware she had been in a significant collision. She was able to answer most of the questions of the paramedic. Most of her speech was not slurred. Most of her walking was fine. She understood the police investigative process and was appropriately responsive to directions and commands.

[38] The only rational cause of this accident, is the horrendous misjudgment by Ms. Portelance, occasioned by the significant influence of alcohol on her ability to operate the motor vehicle.

[39] Her reasonably good post-accident conduct is given little if any weight. I am not surprised at her reasonably good presentation. The cognitive and skill level required post-accident, is much different compared to the cognition and skill required to operate a motor vehicle, which is a much higher cognitive and skill level.

[40] I am satisfied beyond a reasonable doubt that her ability to operate or have care and control of her motor vehicle was impaired by alcohol. There is a finding of guilt.

The Law on Challenging the Reliability of Breath Instruments

[41] The defence called an alleged expert witness, Ben Joseph, a toxicologist; to raise a reasonable doubt as to the reliability of the test results of the blood alcohol concentration produced by the Intoxilizer 8000C, the instrument used to perform the breath tests on Ms. Portelance. This instrument is used throughout Canada.

[42] To understand the factual factors in play, regard must be given to the law on raising reasonable doubt as to reliability of test results. The Criminal Code has a presumption of accuracy of test results. Ms. Portelance seeks to rebut the presumption of accuracy.

[43] The starting point is the Supreme Court of Canada decision in R. v. St-Onge Lamoureux [2012] SCC 57. It is sufficient for an accused to rebut the presumption of accuracy of breath samples taken by an Intoxilizer, by eliciting evidence that the breath readings were unreliable because the instrument was not properly maintained or was operated improperly. It is not sufficient for an accused to raise a possibility that the instrument malfunctioned or was improperly operated.

[44] How then does an accused obtain such evidence? Documents such as operating manuals, performance checks and maintenance records have been provided to the accused in response to disclosure requests. A major issue here is defining the scope of the information to be provided. These records are then utilized to challenge the reliability of particular results. In this case, extensive records were provided of the historical functioning of the instrument, and also the functioning of the instrument post Ms. Portelance's test results. A correlation is being argued from the historical data of the instrument to the actual functioning of the instrument on the date in question.

[45] It is not enough for an accused to demonstrate the instrument may not have been properly maintained in the past; there must be a nexus from any such deficiency to a doubt about the specific breath readings in issue. In R. v. Lam, [2015] OJ No. 1697 Ont. S.C.J. paragraph 31, the Court states:

"That is because 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".

[46] In summary, there must be a clear link between an alleged problem with the instrument and the actual breath testing in dispute. Establishing a generic problem is not sufficient.

2: THE EVIDENCE OF BEN JOSEPH

[47] The accused asserts Ben Joseph, a toxicologist, is an expert to provide scientific evidence about the operation, maintenance and functioning of the Intoxilizer 8000C used in Ms. Portelance's case.

[48] The basis for his evidence is an evaluation of historical and maintenance records of this instrument, including the analysis of COBRA data. COBRA refers to the Computer On-Line Breath Records Archive. Each Intoxilizer 8000C has historical records, including information about error records and information relating to each subject test performed by the instrument. These instruments perform hundreds of functions, not just actual breath tests, but many associated functions in the breath test process.

[49] Though Ms. Portelance provided her breath samples on October 22, 2013, Mr. Joseph evaluated data on this instrument from June 2012 to September 2015.

[50] He reviewed this large pool of data and found several functioning errors, including calibration errors, none of which errors occurred on the date and time of the functions associated with Ms. Portelance's tests. Despite no errors in the breath test process for Ms. Portelance, Mr. Joseph concluded that the Intoxilizer 8000C was not properly maintained and thus a real doubt existed about the reliability of the results of Ms. Portelance's tests.

[51] Mr. Joseph has two theories that appear to overlap with each other. The first theory is 'uncertainty of measurement'. This means all scientific instruments have some margin of doubt or uncertainty and such uncertainty can be measured and quantified.

[52] Secondly, there is the theory of 'drift', which means over time, instruments and devices drift from the manufacturer's standards and operational expectations. In short, the wear and tear on an instrument impacts its reliability.

Analysis of the Evidence of Ben Joseph

[53] I do not accept the evidence of Ben Joseph. I do not accept his ultimate contention that there is a real doubt as to the accuracy and reliability of Ms. Portelance's breath tests.

[54] The Intoxilizer 8000C and its companion Simulator is a complex and sophisticated instrument. Like anything of a mechanical nature there are a myriad of reasons why the instrument may periodically malfunction. What is important is the scientific experts on this instrument are well-aware of malfunctioning causation.

[55] The police officers who operate these instruments are specially trained and certified. They too are well-aware of all aspects of malfunctioning. Their training manuals and other related materials review malfunctioning factors. During actual training, they are intentionally given malfunctioning messages and taught how to troubleshoot to rectify errors, so that the actual breath tests are conducted properly.

[56] Before a person is subject to breath tests, these instruments go through a quality assurance process, which is designed to ensure proper functioning of the instrument during an actual breath test sequence.

[57] These quality assurance tests are performed automatically by the instrument. In fact, unless all the preconditions to proper breath testing are completed, the instrument itself will not allow the operator to take a breath test. A printout is produced by the instrument as to the quality assurance process. Further, the operator is trained to troubleshoot any errors and to remedy them.

[58] The COBRA data on all other functions of this instrument, other than the day of Ms. Portelance's breath tests, is not relevant to the accuracy of Ms. Portelance's breath tests.

[59] There is no context to the error messages displayed by COBRA data. No opinions can be given without understanding the causation of historical error messages and what was done to remedy them. Error messages are an expectation in the operation of this instrument. It is also an expectation that any malfunctioning will be remedied. Mr. Joseph did not give any evidence as to the context of any of these error messages.

[60] It is not even known from the COBRA data whether any historical errors involved an actual person being tested. Historical errors do not equate to current functioning analysis. Without proper context of these errors, there is no nexus to suggest a real doubt as to the reliability of Ms. Portelance's tests. Mr. Joseph's opinion is nothing but rank and reckless speculation. To give an example as to why context is important, the Crown called evidence as to five calibration check errors on May 7, 2014, well after Ms. Portelance's tests. In the troubleshooting process, the qualified breath technician discovered a screw cap not properly affixed to the Simulator thermometer. The problem was remedied and the instrument became properly operational to conduct valid breath tests.

[61] There are several examples of calibration check errors which confront a breath technician. These include:

a) The head space above the alcohol solution is too cold;

b) There is a chip in the jar;

c) The lid to the jar is loose;

d) The alcohol test solution may have to be changed;

e) The tube that connects the Simulator to the Intoxilizer may not be connected properly; or

f) There may be a high amount of alcohol in the breath room air.

[62] Most of these error issues can be resolved through the troubleshooting efforts of the breathalyser technician – i.e. waiting for the head space to heat up, tightening loose lids or connections, replacing the alcohol standard solution, or ventilating the room. In some situations, such as the chip in the jar, the instrument will be sent out for servicing. It will not be used to conduct actual breath tests until the issue is rectified.

[63] There is a further reason, at the scientific level, as to why COBRA and other such related information, is not determinative of the specific functioning of an instrument on a drinking and driving suspect.

[64] The Canadian Society of Forensic Science established the Alcohol Test Committee (ATC) in 1967. This committee is comprised of several scientists and forensic toxicologists, wherein their views and conclusions are strongly scientifically supported. The ATC has two major functions. Firstly, it insures that breath testing equipment meets rigid specifications through the development of standards and evaluation procedures. Secondly, the ATC publishes standards and procedures for the use of such instruments in the field.

[65] The ATC is also the principal scientific advisor to the Federal Department of Justice in relation to the scientific and technical aspects of breath testing. This advice is necessary because the Criminal Code mandates that only approved devices may be used in drinking and driving investigations.

[66] The ATC is well aware of the issues raised by Mr. Joseph. The ATC takes the position that historical data provides no information about the proper functioning of an instrument at the time of a current test on a drinking and driving suspect. It states in part:

"Records relating to periodic maintenance or inspections, cannot address the working status of an approved instrument at the time of a breath test. The required quality control information which must be reviewed to assess the working order of an approved instrument is produced during the subject breath testing procedure." (Canadian Society of Forensic Science, Alcohol Test Committee Recommended Best Practices for a Breath Alcohol Testing Program May 4, 2014 page 11)

Is Ben Joseph a Qualified Expert?

[67] Mr. Joseph is a forensic toxicologist. For many years he was employed by the Centre for Forensic Science in the province. On many occasions he has given evidence for the Crown as to the operation and functioning of the Intoxilizer 8000C instrument and blood alcohol concentrations.

[68] However, in the context of this trial, the nature of his evidence is materially different from his evidence in the past. In the past he has been properly qualified as an expert witness in certain areas. Thus, is he still qualified as an expert to give the evidence he gave in this trial?

[69] Because of practical aspects and timing in this trial, a formal voir dire was not held to determine threshold admissibility as to the intended evidence of Mr. Joseph. We proceeded with the evidence of Mr. Joseph without consent as to whether or not he was a properly qualified expert.

[70] The leading cases setting out the principles for the admissibility of expert evidence are R. v. Mohan, [1994] 2 SCR 9; and White Burgess Langille Imman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 SCR 182.

[71] Expert opinion evidence is presumptively inadmissible. In this situation, on a voir dire, the onus is on the defence to satisfy the court that Mr. Joseph's evidence should be admitted. This requires a two-step determination. First, the court must be satisfied that the proposed evidence is:

a) Logically relevant;

b) Necessary;

c) Not contrary to an exclusionary rule; and

d) Proffered by a properly qualified expert.

If the proposed evidence satisfies these criteria the court then embarks upon the second step, which is to weigh the probative value of the evidence against the cost of its admission. This involves an assessment of the reliability of the evidence. Since the proposed evidence consists of alleged novel science or of a novel application of established science, the court must carefully scrutinize the evidence to ensure that the opinion has a sufficiently reliable foundation to warrant admission in a trial.

[72] For a number of reasons, had a formal voir dire been conducted in this matter, I would have rejected the evidence of Ben Joseph. He is not a properly qualified expert to provide evidence on the subject matter put forward.

[73] Mr. Joseph's primary theory, connecting historical data to an actual current breath test, is not logically relevant; and therefore does not meet this Mohan factor for admissibility. The only nexus between COBRA data and the current test is pure conjecture. Mr. Joseph knows that there are many remedial measures in response to error messages but appears to have little common sense understanding that errors can be rectified, and therefore a current test is reliable.

[74] As to Mr. Joseph's theories on 'uncertainty of measurement' and 'drift', these would not be admitted into evidence because they are not logically relevant. I found his evidence in these areas to be confusing, misleading, lacking in precision and simplistic. He did not appear to have any direction as to how a breath technician could take into account 'uncertainty of measurement'. Also, his comments on an airplane engine and an 'airplane black box', are not helpful. I cannot compare the two. It struck me he has not thought through these theories past a superficial level.

[75] Mr. Joseph's opinions on 'uncertainty of measurement' and 'drift' are not shared by the two authoritative bodies in Ontario, the Alcohol Test Committee and the Centre for Forensic Science. Those bodies make it clear the reliability of a given test focuses on the entire testing process of a given individual being subjected to breath tests.

[76] Mr. Joseph has not conducted empirical research into any of these areas. He has not written any research papers. There has been no independent testing of his theories. His theories have not been peer reviewed. He does not point to any authoritative journal or scientific research to support his opinions.

[77] His opinions are novel science with a flimsy foundation. He has strenuous personal views in the face of an avalanche of contrary evidence.

[78] In considering this matter, I have reviewed two recent decisions from the Ontario Court of Justice. In R. v. Singh, [2016] OJ No. 2288, Mr. Joseph's was accepted as an expert. Justice Ready accepted large parts of his evidence and found a real doubt existed as to the reliability of the breath tests. The accused was acquitted. I do not agree with the reasoning in this case.

[79] The second case I reviewed was R. v. Tonkin, [2016] ONCJ 360, of Justice C. Ann Nelson released June 17, 2016. I found this case to be persuasive. I accept the reasoning and the conclusions.

Impact of R. v. Jackson 2015 ONCA 832, [2015] OJ No. 6274 (Ont.C.A.)

[80] A thorny issue in these cases intending to challenge the reliability of the breath test, is what kind of documents, materials or information may be relevant during the course of any such challenge. A large part of that answer has now been provided by Justice David Watt's decision in the Ontario Court of Appeal.

[81] Jackson was released after Ben Joseph gave his evidence but before the Crown called reply evidence on the issue of the COBRA data. In a nutshell, Jackson shuts down the COBRA data theory and argument. Had Jackson come out earlier, then this issue would not have played out in this trial. In fact, Jackson is binding on trial courts in Ontario and the COBRA data defence can no longer go forward.

[82] In essence, Justice Watt indicated, in the context of a disclosure application appeal, that an accused was not entitled to disclosure of third party records consisting of historical records of Intoxilizer service records, usage and calibration records and COBRA data for periods before and after an individual's breath tests. The reason these records were not disclosed was because these records were not likely relevant to the issue of the Intoxilizer maintenance or operation. Likely relevant is the threshold test before third party records must be disclosed. There can be no question that the likely relevant standard is a much lower threshold than the logical relevant standard which is the test for trial admissibility. As Justice Nelson says in Tonkin:

"If the records are not even sufficiently relevant to be disclosable to defence, how can information derived from them be relevant to the defendant's effort to rebut the presumption of accuracy? It is ironic, indeed that the very records used by Mr. Joseph to formulate his opinions regarding Ms. Tonkin's breath tests would not have been disclosed to defence after the Jackson case."

3: THE CHARGE

The .08 Charge

[83] As already indicated, Officer Hamilton, the breath technician took two breath tests registering 201 and 203 respectively. The second test was probably two to three minutes over the two hour time frame. Officer Hamilton performed all of the pre-test functions properly. I am satisfied on his evidence the breath test results were reliable and valid.

[84] James Rajotte, the Crown forensic toxicologist, reviewed the work product of Officer Hamilton, including the printout from the instrument. He was satisfied that the quality assurance checks were appropriately conducted. In his examination of the record he was satisfied the breath tests were reliable and valid. I accept his evidence.

[85] Because the second breath test was outside the two hour limit for the presumption of accuracy, Mr. Rajotte also provided evidence as to the blood alcohol concentration at the time of driving. He concluded at the time of driving that Ms. Portelance's blood alcohol concentration would have been between 200 milligrams to 240 milligrams of alcohol in 100 millilitres of blood.

[86] The defence contends the Crown cannot rely on the presumption of accuracy of the breath tests because they were not taken as soon as practicable. There was indeed delay in taking the tests, but a large part of the delay was caused by the investigating officer's efforts to implement Ms. Portelance's right to counsel. The defence argues she gave a clear and unequivocal waiver of her right to counsel and therefore the investigating officer should not have spent so much time on that issue. I do not agree with the defence contention. Ms. Portelance was equivocal in relation to her right to counsel. Her one answer was contradictory. She said "no" and then she said she wanted to call "my lawyer". Faced with ambiguity, Sgt. St. Jacques prudently pursued Legal Aid duty counsel to assist her.

[87] However, that issue is mute. The calling of Mr. Rajotte to provide a read-back as to the blood alcohol concentration would override the issue.

[88] Accordingly, for all the reasons provided, I am satisfied beyond a reasonable doubt that Ms. Portelance operated her Hyundai Accent with a blood alcohol level exceeding 80 milligrams in 100 millilitres of blood. She is found guilty of the offence.

[89] Having found Ms. Portelance guilty of both offences as charged; under the Kineapple principle the over 80 charge is stayed.

Released: June 30, 2016

Signed: "Justice John D. Keast"