CITATION: R. v. Machado, 2018 ONCJ 257

DATE: April 18, 2018

COURT FILE No.: Brampton16-15340

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MARIO VELASQUEZ MACHADO

Before Justice Paul F. Monahan

Heard on March 15, 2018

Released on April 18, 2018

Mr. J. Kingdon......................................................................................................... for the Crown

Mr. B. Starkman ……………………………………………………………………. for the defendant

MONAHAN J.:

OVERVIEW AND INTRODUCTION

[1] Mr. Velasquez Machado is charged that on or about December 1, 2016 that he operated a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Criminal Code.

[2] The defence brought a Charter application which was heard at trial on a blended basis on consent. In final argument, the defence conceded that its Charter application could not succeed and it was withdrawn.

[3] The evidence in the case was heard on March 15, 2018. The Crown called two witnesses: the arresting officer whose evidence really has no bearing on the one issue in the case and the breath technician, Constable Douglas Holmes. The defence called no evidence.

[4] In the course of final argument the defence sought an adjournment to further research the case law and to have the opportunity to put relevant case law before the Court. The adjournment was granted. Subsequent to the adjournment, both the Crown and the defence forwarded further relevant case law to the Court which has been considered in formulating these reasons.

[5] I will state and explain the sole issue in the case below.

Issue: Has the Crown established that it can rely on the presumption of identity contained in section 258 (1)(c)?

[6] The issue of whether the Crown can rely on the presumption of identity turns on the implications of an “ambient fail” generated by the Intoxilyzer 8000C (the “Intoxilyzer”) during the testing procedure. The defence says that the breath technician failed to follow the requirements dictated by the manual of the Intoxilyzer and that as a result the presumption cannot be relied upon. The Crown submits, among other things, that the manual was followed but that even if it was not followed, the actions of the breath technician do not call into question the reliability of the results and that the presumption can be relied upon by the Crown.

[7] None of the facts were contested. It is common ground that the Intoxilyzer, as part of its normal preparation for taking a breath sample, will first test the air in the breath room through a procedure known as an “air blank”. An ambient fail message will occur when the difference between the vapours in the sample chamber taken as part of the air blank is more than 10 mg/100 ml higher than the baseline measurement obtained before the pump was activated. This language is drawn from the Intoxilyzer manual from the Centre of Forensic sciences. The cover page and a single page of the manual concerning an ambient fail message was introduced into evidence on consent.

[8] In simple terms, Officer Holmes explained that the air blank test involves the Intoxilyzer testing the air in the room to make sure that the quantity of alcohol in the air in the room, if any, will not interfere with the proper functioning of the machine during the breath sample testing.

[9] Prior to the ambient fail which occurred in this case, the Intoxilyzer did four air blank tests all of which were satisfactory meaning that there was no significant amount of alcohol in the air in the room. These were all done before the defendant was in the breath room.

[10] At approximately 5:40 AM, the defendant was in the breath room and seated next to the Intoxilyzer. The breath hose into which a person blows when they are providing a breath sample into the Intoxilyzer was wrapped around the top of the machine with the open end of the hose pointing close to the defendant. The Intoxilyzer did a further air blank test which lasted about 21 seconds. For the first approximately 15 seconds of that air blank test, the hose was pointed towards the defendant as it was wrapped around the top of the device as indicated above. At about 15 seconds into the air blank test, Constable Holmes pulled the open end of the hose away from the defendant. The pump then stopped in the normal course as part of the air blank test and an ambient fail result was generated by the machine.

[11] Officer Holmes testified that he was surprised when the ambient fail occurred as he didn’t think the defendant was giving off a strong odour of alcohol. He thought that the situation could be remedied by simply continuing to keep the hose away from the defendant and then seeing if the device would do a proper air blank test. The Intoxilyzer then successfully did four more air blank tests at 5:44:31 AM; 5:45:38 AM; 5:47:04 AM; and 5:48:10 AM. All air blank tests were successful which meant to Officer Holmes that the device was operating properly and that there was no significant amount of alcohol in the air in the room. Thereafter, the first breath sample test was obtained from the defendant at 5:51 AM and registered 159 mg of alcohol in 100 ml of blood. Almost immediately thereafter at 5:51:39 AM, another successful air blank test took place.

[12] In connection with the second breath sample provided by the defendant, the Intoxilyzer ran another series of tests and four successful air blanks were obtained at 6:10:50 AM; 6:11:57 AM; 6:13:19 AM; and 6:14:26 AM. Again, these results indicated to Officer Holmes that the device was functioning properly and the testing could proceed. A second breath sample was then obtained from the defendant at 6:15:08 AM and it registered 156 mg of alcohol in 100 ml of blood.

Legal Principles and Analysis

[13] Section 258(1)(c) of the Code provides, in part, as follows:

(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; (emphasis added)

[14] The Supreme Court of Canada has held that s. 258(1)(c), as initially proclaimed in force, infringes s. 11 (d) of the Charter, the right to be presumed innocent until proven guilty. The reason is that it exempted the prosecution from having to establish the guilt of the accused beyond a reasonable doubt before the accused was called upon to respond: see R. v. St. Onge, 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 85. The Supreme Court of Canada has held further that once s. 258(1)(c) is read down so that the evidence tending to show point need only show that the instrument was malfunctioning or was operated improperly, then this section constitutes a reasonable limit under section 1 of the Charter: see St. Onge at para. 101.

[15] The terms “evidence tending to show” and “evidence to the contrary” (which appeared in an earlier statutory version of s. 258(1)(c)) speak to the same standard of proof that must be met by the accused to rebut the presumption of identity in s. 258(1)(c). They both mean evidence sufficient to raise a reasonable doubt: St. Onge, supra at para. 16.

[16] The defence submits that evidence has been adduced “tending to show” that the Intoxilyzer was “operated improperly”, thereby meeting the defence’s onus under section 258 (1) (c) to raise a reasonable doubt and that as a result the Crown cannot rely on the presumption of identity. In particular, the defence points to the Intoxilyzer manual excerpt which was introduced in evidence. That manual excerpt provides in part as follows:

“Action: an ambient fail message can occur if the test subject moves too close to the external breath tube during the air blank.

• Relocate the subject from the breath tube

• ventilate the room

• re-commence testing of the subject

a continuous purge can also be initiated through the keyboard menu using the “Esc Esc A” command”

[17] Part of the issue in this case flows from whether the breath technician had to do one or more of the foregoing steps set out in the manual (i.e. in particular whether he had to relocate the subject and\or ventilate the room). The defence submits that the breath technician failed to take either of the steps set out in the manual and that, as a result, the instrument was “operated improperly” and the presumption of identity cannot be relied upon.

[18] Officer Holmes testified that he did effectively relocate the subject from the breath tube because for part of the time when the air blank was being taken which generated the ambient fail the tube was pointing towards the defendant. Officer Holmes took the breath tube away about 15 seconds into the 21 second sequence. He then kept it away from the defendant for the further air blank tests and in that sense Officer Holmes says he “relocated the subject” because the defendant was no longer breathing into the tube. Officer Holmes agreed that he didn’t take extra steps to ventilate the room but he said the room was quite well ventilated in any event.

[19] The Crown submits that the reference to relocating the subject away from the breath tube and ventilating the room are not mandatory directions or requirements. In the alternative, to the extent that they are mandatory and the failure to follow them demonstrates that the machine was “operated improperly” within the meaning of section 258 (1) (c), then the Crown submits that it is not sufficient for the defendant to establish that, or raise a reasonable doubt about whether, the machine was operated improperly. The Crown submits that the defence must link the improper operation to the reliability of the results. In this regard, the Crown refers to R. v. Lam, [2015] O.J. 1697 where Justice Goldstein of the Superior Court stated in part at para 31 that:

“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”. As I discuss next, this was the error by the trial judge.” (emphasis added)

[20] Similarly, the Crown relies upon R. v. Rienguette, [2015] O.J. No. 4647 leave refused (2016), 97 M.V.R. (6th) 177 (C.A.) wherein Justice Gordon of the Superior Court states at paragraph 32 and 37-38 that in order to rebut the presumption of identity, the failure to operate the approved instrument properly must cast reasonable doubt on the reliability of the results.

[21] I note that leave to appeal the decision of Justice Gordon in Rienguette was refused by the Ontario Court of Appeal. In particular, in refusing leave the Court of Appeal stated as follows at para 10 :

“In any event, the trial judge was entitled to find that the failure to verify the simulators internal thermostat using an N.I.S.T. thermometer, the secondary mean, did not raise a reasonable doubt about the reliability of the breath tests.”(emphasis added)

[22] There is some debate in the case law as to whether the onus is on the defendant to show both that the machine was operated improperly and to link that improper operation to the reliability of the results. Justice Goldstein in Lam is clear that the onus is on the defendant to do both. Justice Misener of this Court in R. v. McGee, [2015] O.J. 6550 at paras 44-46 suggests that the Supreme Court in St. Onge said that where the defence shows that the machine has malfunctioned or been improperly operated, the Crown must establish that the results are reliable notwithstanding the malfunction or improper operation. The Court of Appeal in Rienguette at para 10 is unclear on the onus point but may be implicitly suggesting that Justice Misener’s approach is the correct one as the Court of Appeal in Rienguette refers to the fact that the evidence of two Crown witnesses, the breath technician and the expert, confirmed the accuracy and reliability of the breath tests.

[23] Applying the law to the case at bar, in my view, the Intoxilyzer manual excerpt dealing with an ambient fail does not impose mandatory requirements that must be followed. There was no obligation to move the subject away from the breath tube and ventilate the room. These are merely suggestions from the manual as to how to ensure that the device is not interfered with by alcohol in the air around the device or machine. A similar approach was taken by Justice Goldstein in Lam at para 34 where he indicates that a recommendation in the manual in that case did not acquire the “force of law”. It was nothing more than a recommendation.

[24] In this case at bar, as it happens, I agree that Constable Holmes did take steps to move the defendant away because he had already moved the breath tube away from the defendant and he kept it away from him. While he didn’t take specific steps to ventilate the room, he said that the room was well ventilated. He didn’t need to turn a fan on or open the door as he might have done. The room ventilated itself. Importantly, as Officer Holmes testified, the Intoxilyzer would not be able to subsequently conduct the air blanks successfully if the room was not properly ventilated. The officer testified that if the room was not properly ventilated he would continuously obtain ambient fails and he would have to take the instrument out of service. The opposite occurred in this case namely that the Intoxilyzer repeatedly obtained successful air blanks. This fact demonstrated that the ventilation in the room was acceptable and that the breath samples readings generated by the Intoxilyzer relating to the breath samples obtained from the defendant were reliable.

[25] In short, I am of the view that the manual as concerns this issue is not mandatory and that even if it was mandatory it does not specify as to how to satisfy those two provisions (i.e. relocating the subject and ventilating the room). I am further satisfied that in this case, Constable Holmes did satisfy those provisions by keeping the tube away from the defendant and allowing the room to ventilate itself. In this case, we have a breath technician with more than 20 years of experience. He followed his training and experience in ensuring that the device was operated properly. In my view, it would be incorrect to approach this case by looking at one single message from the Intoxilyzer namely the ambient fail and then to point to a single page in the manual to suggest that somehow the device was not operated properly. When one looks at section 258 (1)(c), it is dealing with the entire process for the taking of the two breath samples. In my view, what the Court must do is look at the entire testing procedure including the tests done up until the first sample and the tests done between the first sample and the second sample. If one does that in this case one sees a single ambient fail prior to the first sample and then four proper air blanks indicating that the device was operating properly just before the first breath sample and then another four successful air blanks demonstrating that the device was operating properly for the second breath sample. The testing procedure followed confirms that there was no significant alcohol in the air in the room that could cause a problem with the breath testing.

[26] Further, the cases of Lam and Rienguette, both of which are summary conviction appeals binding on me, make it clear that to the extent that it can be said that the Intoxilyzer was operated improperly, the Court must consider whether the improper operation brings into question the reliability of the results.

[27] The question of whether the defendant has the onus to link the improper operation to the reliability of the results or whether the Crown must prove the reliability of the results in the face of an improper operation does not matter in this case. That is because it is clear to me that on any view of the evidence, there can be no reasonable doubt about whether the device was operated properly or whether the results were reliable. Even if it could be said that the device was not operated properly because, for example, the officer did not take extra steps to ventilate the room, there can be no doubt that any failure in this regard does not call into question the reliability of the results. The numerous successful air blank tests done both before and after the first and second breath samples make it clear that there was no material interference from any alcohol in the air in the room with the breath samples taken from the defendant. I accept Officer Holmes’s evidence that, based on his training and experience, he considered that the breath samples taken from the defendant were reliable. In my view, the evidence is overwhelming in this regard. This evidence considered in light of the Lam and Rienguette cases is a complete answer to the points raised by the defendant.

CONCLUSION

[28] There is no dispute that the other requirements under s. 258(1) (c) were met in this case. The only issue was the “operated improperly” point and I have determined that issue above. The presumption of identity applies and there will be a finding of guilt on the over 80 charge.

Released: April 18, 2018

Justice Paul F. Monahan