Court File and Parties

Ontario Court of Justice

Date: February 1, 2017

Court File No.: Ottawa 14-0122

Between:

Her Majesty the Queen

— and —

Steven LeBlanc

Before: Justice P. K. Doody

Heard on: December 13, 2016 and January 5, 2017

Reasons for Judgment released on: February 1, 2017

Counsel:

• S. Goldfarb, counsel for the Crown
• D. Smith, counsel for the defendant

Judgment

DOODY J.:

Part 1: Over .08 Charge

(a) Overview

[1] Steven LeBlanc is charged that on September 4, 2014 he drove with more than 80 mg of alcohol in 100 ml of blood and was in possession of cannabis resin, contrary to s. 253(1)(b) of the Criminal Code and s. 4(1) of the Controlled Goods and Substances Act. I propose to deal with each offence separately.

[2] It is common ground that:

(a) Mr. LeBlanc was stopped in a RIDE program while driving a Honda Accord;

(b) Cst. Rodrigues of the O.P.P. formed a reasonable suspicion that he had alcohol in his body as a result of smelling alcohol on his breath and observing that his eyes were red and glassy;

(c) he forthwith gave him a proper demand for a sample of his breath into an approved screening device;

(d) Mr. LeBlanc provided a suitable sample of his breath which registered a "fail" on the approved screening device;

(e) Cst. Rodrigues then formed reasonable and probable grounds to believe that Mr. LeBlanc had been operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood, arrested him for that offence, and gave him a proper demand that he provide a sample of his breath for analysis;

(f) he gave two samples of his breath directly into an approved instrument operated by a qualified technician as soon as reasonably practicable, with the first sample less than two hours after the time of driving and at least a fifteen minute interval between samples; and

(g) that an analysis of each sample was made by a qualified technician.

[3] Nor is it contested that the two readings from the Intoxilyzer were 149 and 120 milligrams of alcohol in 100 millilitres of blood, or that the certificate of analysis showed the two readings to be 140 and 120 milligrams of alcohol in 100 millilitres of blood.

[4] No Charter issues are raised by the defence.

[5] The only issue raised by the defence is that there is some evidence "tending to show … that the approved instrument was malfunctioning or was operated improperly" and that as a consequence the Crown is not allowed to rely on the presumption in s. 258(1)(c)(iv) that the defendant's blood alcohol level was as determined by the instrument. The defence says that because the two readings varied by 29 milligrams (149 and 120) the standard practice is to take a third reading and, in the absence of a third reading, the Crown cannot rely on the readings.

(b) The Evidence

[6] Cst. John Leaver has been an officer with the Ontario Provincial Police since 1996 and a certified breath technician since 2011. He is certified only to operate the Intoxilyzer – he has never used the Borkenstein Breathalyzer, the instrument used in the past. He testified that when he was trained to become an Intoxilyzer technician he learned that the Center for Forensic Science recommends, and the O.P.P. policy is, that readings be truncated – that is, rounded down to the nearest tenth – before the certificate is prepared. Thus, readings of 149, 145, and 141 will all be shown on the certificate as 140. He was also taught that if the instrument reading ends in a "0", no truncation is necessary.

[7] He testified that he was also taught, and it is the practice of the O.P.P., that if the two truncated samples differed by 30 milligrams or more, a third test is to be carried out. The determination of whether a third test needs to be done is made after the results are truncated. In this case, the two readings of 149 and 120, after truncation, were 140 and 120. It was his evidence that, as a result, they were in "good agreement" and there was no need to do a third test.

[8] He testified that he did not know the reason for this practice – either truncation or the third test. He was asked whether he agreed that the practice existed to give the benefit of the doubt to the accused person. He said he had no opinion on that.

[9] He would not agree that the practice produced anomalous results – for example, pre-truncation readings of 119 and 148 (a difference of 29 milligrams) would produce truncated readings of 110 and 140, with a third test required by the policy, while pre-truncated readings of 120 and 149, with the same difference of 29 milligrams, would produce truncated readings of 120 and 140, with no third test required by the policy.

[10] The sum total of the evidence of Cst. Leaver is that he acknowledged that there was a policy of truncating the readings, comparing the truncated results, and then administering a third test if the truncated results differed by 30 milligrams or more, but not administering a third test if the truncated results differed by less than 30 milligrams. He provided no evidence from which it could be concluded that two results which differed by any amount were an indication that there may have been an error in one of the readings.

(c) The Law

[11] The defence relies on two cases: R. v. Mosley, [1998] O.J. No. 2148 (O.C.J.) and R. v. Henning, [2007] O.J. No. 5725 (O.C.J.)

[12] In Mosley, the two readings from the Intoxilyzer were 158 and 130 mg of alcohol in 100 ml of blood. The technician had been taught, and it was the policy of the Ottawa Police Force, to truncate the readings by reading them down to the lower number with a "0" at the end – in effect, always reading the third digit as a 0. Nadelle J. wrote:

7 Where the results of the analyses differ by more than 20 milligrams, it has long been the custom to do a third test. This procedure has been taught to all Breathalyzer and Intoxilyzer technicians and is contained in their training manuals and literature provided the individual technicians. A difference in excess of 20 milligrams is a tip-off or a warning to the technician that the machine may not be operating properly, or that the breath sample provided was inadequate, and a third test must be done. Indeed, on the Intoxilyzer printout, a specific direction to that effect is contained.

8 When the Breathalyzer machine -- in this area, usually a Borkenstein -- was in use, the technician had to observe a pointer moving across a scale, which, because of the way it was marked, could only be accurate to two digits. Any third digit was an estimate by the technician. Because of the inaccuracy of the third-digit readings, the third digit was rounded down or truncated, so that, for example, .158 became .15. This practice was unsuccessfully challenged in the courts. The courts consistently upheld the practice of truncation.

9 In R. v. Goosen (1985), 35 M.V.R. 145, a Manitoba Queen's Bench decision, upheld on appeal by the Manitoba Court of Appeal on October 11th, 1995, at page 151 of the Manitoba Queen's Bench decision, Glowacki, J., stated:

• "A reading to the third digit is only an estimate and more accurate than the instrument is capable of giving. Surely, in strictly construing the section, it must mean the results must be as accurate as the Instrument can give, and this is what is provided."

10 All of the cases dealing with the rounding down or truncating down concern Breathalyzer machine readings and are of little assistance in the case at bar. In my view, cases such as R. v. Hanson (1990), 18 M.V.R. (2d) 172, Ontario Court of Appeal, and R. v. Baert (1986), 43 M.V.R. 183, are of no assistance when dealing with the Intoxilyzer machine, which provides a three-digit printout and does not require an estimate of the third digit by the technician. With the Intoxilyzer, there is simply no need to truncate. The results to which section 258 refers are the three-digit printout.

11 Constable Rozich simply indicated that this policy of truncating the readings was the policy of the police force and was in conformity with his instructions on the use of the Intoxilyzer. The actual difference between the two breath tests taken in this case was 28 milligrams, well in excess of the 20-milligram tolerance that would make the readings acceptable to the technician. By truncating the .158 reading to .150, Constable Rozich brought the readings into the acceptable range.

12 If one were simply to truncate as a matter of policy, it leads to absurd and logically unsupportable results. For example, if the readings were .150 and .129, that is a difference of 21 milligrams; truncated, the readings would be .15 and .12, a difference of 30 milligrams. In this situation, Constable Rozich testified he would perform a third test because the readings are now outside the acceptable level of tolerance. This leads to the untenable and unexplainable position that if the readings are actually 28 milligrams apart, no third test will be done, but if the readings are actually 21 milligrams apart, a third test will be taken. This, in my view, is totally illogical.

13 The policy of truncating down, according to Constable Rozich, is there to give the benefit of the doubt to the accused; yet, in the case at bar, it does exactly the opposite. It benefits only the prosecution by bringing the difference down to an acceptable tolerance level.

14 As I have indicated previously, when dealing with the Intoxilyzer, the results that section 258 of the Criminal Code refers to are the three-digit printout, Constable Rozich's opinion that the breath samples were suitable or that the Intoxilyzer was operating properly does not have a proper basis in fact. A third test should have been done. Indeed, in all cases where the difference exceeds 20 milligrams without truncation, a third test should be given, or expert testimony called by the Crown if it seeks to rely on these readings. There is simply no justification for truncation when using the Intoxilyzer, and if truncation does take place, it can lead to the absurd results mentioned earlier.

15 I am not satisfied that the breath tests are accurate, and I therefore have a reasonable doubt on the section 253(b) count.

[13] In Henning, Getliffe J. referred to Mosley and held that there was a "protocol" which had been reached which was "not really in question" that requires that a third test be done when the difference between the readings, before they were truncated, exceeded 20 milligrams. He also held that he could take judicial notice, as a result of the evidence given before him on many occasions from an expert toxicologist, that a question as to the accuracy of the readings arose if there was such a discrepancy, and that a third test was required in such circumstances.

[14] The Crown relied on R. v. Macleod, 2009 ONCJ 619. In that case the Intoxilyzer readings were 137 and 114 before truncation, and 130 and 110 after. The defence submitted that a third sample should have been taken because the difference exceeded 20 milligrams, relying on standards recommended by the Canadian Society of Forensic Scientists. A forensic toxicologist employed by the Centre of Forensic Science gave expert evidence on, among other things, issues relating to the functioning and operation of the Intoxilyzer 5000C. It was his evidence, accepted by Lalande J., that a third test was not necessary when the truncated results differ by only 20 milligrams. He had no concerns about the reliability or accuracy of the readings provided. Lalande J. distinguished Mosley on the basis that Nadelle J. did not have expert evidence that two tests which differ by only 20 milligrams after truncation are reliable.

[15] The statutory language at the time these three cases were decided is different from the present wording. At that time, paragraph 258(1)(c) read:

… evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses.

[16] In 2008, Parliament amended the Criminal Code. Paragraph 258(1)(c) is as follows:

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

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

(i) [Repealed before 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;

[17] In R. v. St-Onge Lamoureux, 2012 SCC 57, the Supreme Court of Canada held that the words printed in bold type in the section quoted in the preceding paragraph offend the presumption of innocence guaranteed by s. 11(d) of the Charter of Rights and Freedoms and cannot be justified under s. 1. Consequently, the section must be read as if those words do not appear in it. A trial court is bound by the presumptions of accuracy and identity set out in the provision unless there is evidence "tending to show … that the approved instrument was malfunctioning or was operated improperly".

[18] The Supreme Court also made clear in the St-Onge Lamoureaux decision that the words "evidence tending to show" in sub-paragraph 258(1)(c)(iv) mean "evidence which raises a reasonable doubt".

(d) Analysis

[19] The question, then, is whether there is evidence that the 29 milligram difference between the first and second readings raises a reasonable doubt that the Intoxilyzer was functioning properly or was operated properly. In my view, there is no such evidence.

[20] Cst. Leaver gave no such evidence – he believed that there was no need for a third reading because proper procedure required that the results be truncated before comparison. In any event, he did not know why a third test would be required even if the truncated readings did differ by 30 milligrams.

[21] No such evidence was led by the defence.

[22] Even with the clear incongruity that a third sample is required by the policy, on Cst. Leaver's evidence, if the two samples were 119 and 148, and no third sample required when the two samples are 120 and 149, I am left with no evidence "tending to show … that the approved instrument was malfunctioning or was operated improperly".

[23] Nor can I take judicial notice that the difference between the two readings raises a reasonable doubt. As the authors of Sopinka, Lederman and Bryant's The Law of Evidence in Canada (4th edition) write at p. 1318, judicial notice can be taken of facts which are so notorious as not to be the subject of dispute among reasonable persons or capable of immediate and accurate demonstrations by resorting to readily accessible sources of indisputable accuracy. The evidence of the expert witness relied on by Lalande J. in Macleod show that this is not a subject which meets that test.

[24] Consequently, the statutory presumption set out in s. 258(1)(c) applies and the results of the analyses is conclusive proof that the defendant's blood alcohol level at the time he was driving was 120 milligrams of alcohol in 100 ml of blood.

[25] There will be a finding of guilt on the over 80 charge.

Part 2: Possession of Cannabis Resin Charge

(a) Overview

[26] On the possession of cannabis resin charge, there is no question that when the defendant was searched following his arrest that Cst. Rodrigues found a rolled up ball of what was subsequently analyzed and determined to be 4.1 grams of cannabis resin. The defendant knew that the drug was in his pocket.

[27] His defence is that he was in "innocent possession" of the drug because he had grabbed it off the table earlier that day when a visitor to his home pulled it out. He testified that he did so in order to prevent his son from seeing it, and that he intended to destroy it but forgot about it until he was arrested.

(b) The Law

[28] The Ontario Court of Appeal recognized in R. v. Chalk, 2007 ONCA 815, at paragraph 23, that a person who exercises control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one's own control is not guilty of criminal possession. The Court of Appeal relied on the decision by Green J. of this court in R. v. Loukas, 2006 ONCJ 219, in which he held that convicting someone who is in possession of contraband in the strict sense, but with no blameworthy state of mind or conduct, would overreach the purpose underlying the criminal prohibition against possession. Doherty J.A. wrote at paragraph 25 of Chalk:

There are cases where an individual has the requisite control and knowledge, but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person's ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather than to possess. … I do not think that criminal liability should attach to that kind of brief, "innocent" possession….

[29] Where there is an air of reality to the defence, the Crown must negate the claim beyond a reasonable doubt. The duration and circumstances of control of an illicit substance are factors that impact on the credibility of a defence of innocent possessory purpose. (Loukas, paragraph 17)

[30] Where the defendant has provided evidence which, if believed, would result in a finding of innocent possessory purpose, the principles set out by the Supreme Court of Canada in R. v. W. (D.) must be followed. If I believe the defence evidence, I must acquit. If I do not believe the defence evidence but, after considering it in the context of all of the evidence, I am left with a reasonable doubt as to the accuracy of the defence evidence, I must acquit. Finally, I must still acquit if I am not convinced of his guilt beyond a reasonable doubt by the evidence I do accept.

(c) Analysis

[31] The only evidence on the defence of innocent possessory purpose came from the defendant. My decision must, therefore, turn on my assessment of his credibility on this issue.

[32] The defendant's evidence as to the events of that day was not entirely clear. He testified that an acquaintance, who he did not know very well, was at his place playing guitar. He said he took out the hashish, and rolled part of it into a joint. The defendant's son walked into the room and the defendant grabbed "it" and put it in his pocket. When asked how big it was, he made a circle a bit bigger than a dime with his thumb and index finger. This raises the question, neither asked nor answered, of what happened to the joint.

[33] The defendant testified that when he grabbed the drugs, he kicked his acquaintance out and has not spoken to him since.

[34] When asked for more details about his acquaintance, he testified that he was someone he met through someone else that plays bass guitar and sings. He was asked for his name, and said that his first name was Adrian but he could not recall his last name.

[35] He was asked when his acquaintance had arrived, and said "around one or two". He testified that he stayed until the incident with the hashish happened, an hour and a half to two hours later.

[36] He testified that his acquaintance was "around 40 or so" and he had met him only two or three times, briefly. When asked where he had met him, he said he had met him once around the South Keys Walmart and another time in the same neighbourhood of South Keys, but did not say where.

[37] The evidence I have just described was given on December 13, 2016. The defendant's evidence was not complete on that day. The trial resumed on January 5, 2017.

[38] On that day, the defendant contradicted the evidence he had given on the first day.

[39] He testified, during examination in chief, that the person who brought the drugs was "an old buddy from high school" who he had not seen for a long time. He testified that he intended to "chuck it out in the garbage or toilet or whatever" but had not thought that far ahead.

[40] On the first day of the trial, the defendant testified that when the officer searching him on his arrest pulled the hashish out of his pocket, he said "ah shit I forgot about that, I meant to throw it out". This statement is a prior consistent statement. However, spontaneous exclamations made by an accused person upon or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purpose of showing the reaction of the defendant when first confronted with the accusation, provided the defendant testifies, as he did here.

[41] Cst. Rodrigues, who found the hashish when he arrested the defendant, was not asked by defence counsel if the defendant had said anything when confronted with the hashish. Crown counsel submitted that this was a breach of the rule in Browne v. Dunn. It was not. The rule in Browne v. Dunn, which is not an airtight rule, requires only that witnesses whose credibility will be impeached by later contradictory evidence be given an opportunity to provide an explanation for that evidence. Defence counsel was not seeking to impeach Cst. Rodrigues' credibility. Consequently, he was under no obligation to put to him that he expected that the defendant would testify that he had provided the officer with an innocent explanation for his possession of the hashish. (R. v. Kovacevik, 2017 ONSC 193, at paragraph 49) The failure to do so does not have an effect on my assessment of the defendant's credibility.

[42] The inconsistencies between the evidence given on the first day of trial and the second, some 3 weeks later, however, do have an effect on that assessment. There is a significant difference between having met a person only 2 or 3 times (and being unable to say just where 2 of those occasions took place) and becoming reacquainted with an old high school buddy. There is also a significant difference between having met someone through someone else (unnamed) who plays guitar, and having met that person and having met that person at high school and been a buddy with him there. Both those accounts cannot be true.

[43] Nor is it likely that a person would be unable to remember the last name of an old high school buddy.

[44] These inconsistencies give me significant reason to doubt the credibility of the defendant's evidence.

[45] The defendant admitted that he had no plan as to how he was going to get rid of the hashish – that he had not thought that far ahead.

[46] Furthermore, the defendant had the hashish, on his own evidence, for approximately ten hours before it was found. If he had intended to destroy it, he had ample opportunity to do so.

[47] Both of these things cast doubt on the credibility of his evidence that, from the time he came into possession of the hashish, he intended to destroy it.

[48] The statement to the police upon his arrest is, if I conclude that he made it, evidence which would support his credibility. I note, however, that he did not testify that he said to the police officer that the hashish was not his, or that he had taken it from a buddy to destroy. His evidence was that he said that he had forgotten about it and meant to throw it out – a much more generic exculpatory statement than he testified to before me.

[49] For all of these reasons, I do not believe the defendant's evidence that he was in possession of the hashish only so that he could destroy it. Nor am I left with a reasonable doubt. I conclude that the Crown has proven beyond a reasonable doubt that the defendant was in possession of the hashish, and not for an innocent purpose.

[50] There will be a finding of guilt on the possession count.

Released: February 1, 2017

Signed: Justice P. K. Doody