Court File and Parties

Date: June 22, 2018

Information No.: 17-34824

Ontario Court of Justice

Her Majesty the Queen

v.

Darshak Shah

Reasons for Judgment

Before the Honourable Justice M.S.V. Felix

on June 22, 2018, at Oshawa, Ontario

Appearances

M. Hill – Counsel for the Crown

J. Smart – Counsel for Darshak Shah

Friday, June 22, 2018

Reasons for Judgment

Felix, J. (Orally):

I. Introduction

[1] The defendant is charged with impaired operation and "over 80" arising out of a police investigation on April 30th 2017.

[2] The defendant was travelling southbound on Lakeridge Road from Uxbridge. A civilian witness was travelling directly behind him. This witness contacted the police based on observations of the defendant's driving that led him to believe that the defendant was impaired.

[3] The defendant was investigated, arrested, and required to provide breath samples into the Intoxilyzer 8000C instrument resulting in tests of 84 milligrams of alcohol in 100 milliliters of blood and 95 milligrams of alcohol in 100 milliliters of blood.

[4] "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.": R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.), aff'd, [1994] S.C.J No 51 (S.C.C.). The prosecution has established the defendant's guilt beyond a reasonable doubt on the impaired operation due to alcohol.

[5] The more controversial issue is the defendant's liability for "Over 80".

[6] The lowest concentration determined by the analyses of the defendant's samples was 84 milligrams of alcohol in 100 milliliters of blood. The truncated result of 80 milligrams of alcohol in 100 milliliters of blood would not be "Over 80". The prosecution did not file a Certificate of Analysis in this case. Presumably, such a document would not have proven the charge of "Over 80". Instead, the prosecution called the qualified breath technician to provide viva voce evidence that the defendant's lowest sample was 84 milligrams of alcohol in 100 milliliters of blood.

[7] For the reasons that follow, the defendant is found not guilty of "Over 80".

II. Over 80

[1] The prosecution argues that the Criminal Code does not require truncation as a precondition to the admissibility of breath readings.

[2] The prosecution argues that it is free to rely on the evidentiary shortcut provided by the Certificate of Analysis or call viva voce evidence (or both) in order to establish guilt. There is no "evidence to the contrary" in this case. As such, the unchallenged viva voce evidence from the qualified breath technician that the specific reading was 84 milligrams of alcohol in 100 milliliters of blood establishes guilt beyond a reasonable doubt.

[3] Defence counsel submits that the prosecutorial approach works an obvious unfairness and that the Court should harbor a doubt because of the practice of truncation. In doing so, defence counsel concedes that the defence position was not premised on an "attack on the instrument". Defence counsel argues that qualified breath technicians are trained to interpret actual readings into a truncated result and the result in this case should be interpreted in the same fashion, particularly given the low reading. Defence counsel noted that the prosecution deliberately avoided proceeding on the Certificate of Analysis because it would necessarily result in an acquittal. The prosecution sought to avoid this approach by calling viva voce evidence.

III. Analysis

A. "Unfairness"

[4] Defence counsel submits that the approach of the prosecutor resulted in an unfair approach to the defendant.

[5] A number of cases have discussed the proper role of the Crown Attorney. The Crown Attorney is no ordinary litigant. As explained by the Supreme Court of Canada in R. v. Boucher, [1955] S.C.R 16, 110 C.C.C. 263 (S.C.C.):

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[6] The Crown Attorney has no "specific interest in winning or losing, but it does have an interest in placing the relevant facts before the court for a determination on the merits": R v. Regan, 2002 SCC 12, at para. 228.

B. The Charter

[7] Notwithstanding the allegation of unfairness, no Charter issue was raised in this case. No allegation of oblique motive or abuse of process was addressed by defence counsel. During submissions, defence counsel ultimately submitted that the conduct of the Crown Attorney was not actionable via the Charter. I agree.

[8] I agree with the submission of the Crown Attorney that an "Over 80" may be prosecuted by way of Certificate of Analysis, viva voce evidence, or both. I agree with the submission of the Crown Attorney that the prosecution is not obligated to prove the "Over 80" by way of the evidentiary shortcut and may resort to viva voce evidence to establish the readings.

[9] The Court arguably has jurisdiction to examine the impugned conduct notwithstanding the lack of Charter application. The Court's trial management power might provide jurisdiction to review prosecutorial trial tactics or conduct given the current approach to prosecutorial discretion: See Rosenburg J.A.'s analysis in R. v. Felderhof, [2003] O.J. No 4819 (C.A.) at paras 53-54 and R. v. Anderson, 2014 SCC 41, at paras 35-36.

[10] In the end, I do not believe that defence counsel's assertion of unfairness is actionable.

C. The Evidence of the Qualified Breath Technician

[11] The qualified breath technician appeared to be an officer of some experience, but had only been qualified as a breath technician for approximately three years. There was no challenge to his qualifications.

[12] This officer had his CFS manual (and speculatively, I might assume, the recommendations of the Alcohol Test Committee) visibly in front of him in the witness box. Neither the prosecution nor defence sought to examine him in detail concerning the CFS procedures contained within.

[13] The Crown Attorney did not file the Certificate of Analysis presumably prepared by this witness. The Crown Attorney did not file the printout generated by the instrument per s. 258(1)(f.1) of the Criminal Code indicating the precise results generated by the instrument.

[14] The qualified breath technician was focused on the issue of truncation by both counsel. He explained that he had been trained and instructed to engage in the practice of truncation during his initial training that led to his certification and his re-qualification training. The training was performed by scientists at the Centre for Forensic Science and their accompanying police officer instructors. The instruction to truncate results was documented in the CFS manual. The qualified breach technician understood that all breath technicians were trained in the exact same manner. He always truncated results. There had never been a case where he reported the results without truncating.

[15] The qualified breath technician was not asked specifically whether there was a good rationale for reporting the results of breath samples differently depending on whether the results were provided orally or reduced to writing. He was not asked to explain whether reporting one result on a Certificate of Analysis, (a truncated result), and a different result orally, (the actual reading), was in agreement with his training and experience. Given the qualified breath technician's evidence that truncation was mandatory, this line of questioning was relevant to his evidence overall. The failure to address this issue contributed to my doubt.

[16] The qualified breach technician was quite obviously alert to the issue of truncation given the questions of counsel. To be blunt, he understood that the Crown Attorney's questions were designed to simply rely on the result generated by the instrument. Notwithstanding this approach, the qualified breath technician was crystal clear, professional, and forthright, he always truncates results. It had been such a long and established practice that he could not even remember the underlying rationale for truncation.

[17] The officer testified that the truncated readings in this case were 90 and 80 milligrams of alcohol in 100 milliliters of blood. He specifically testified that the lower reading was 84 truncated to 80 milligrams of alcohol in 100 milliliters in blood.

D. Findings

[18] I make the following findings based on the record at trial:

a. The qualified breath technician was trained to truncate results by the CFS scientists and the instructing police officers;

b. The practice of truncation is not optional but mandatory according to the training and instruction from the CFS;

c. All qualified breath technicians have been trained to truncate results;

d. There has never been a circumstance where this qualified breath technician failed to truncate the results; and,

e. A reading of 84 milligrams of alcohol in 100 milliliters of blood provides a truncated result of 80 milligrams of alcohol in 100 milliliters of blood.

[19] On this record alone I have a doubt that must be resolved in favor of the defendant.

[20] The simple fact is that the qualified breath technician's considered evidence was to employ the mandated practice of truncation. I accept the qualified breath technician's evidence as to truncation even though he could not explain the rationale.

[21] The crux of the matter is I do not understand, nor can I endorse, the rationale for proffering the viva voce evidence at 84 milligrams of alcohol in 100 milliliters of blood when the Certificate of Analysis would have truncated results. Notwithstanding the attempt by the prosecution to avoid providing evidence of the truncated result, the qualified breath technician was forthright in testifying that 84 milligrams of alcohol in 100 milliliters of blood must be truncated to a result of 80 milligrams of alcohol in 100 milliliters of blood.

[22] In no way, shape, or manner, am I endorsing a defence approach that amounts to an indirect attack on the functioning or the accuracy of the instrument. There was no challenge to the instrument. My reasonable doubt resides in the forthright evidence of the qualified breath technician, not the instrument. The qualified breath technician is the experienced and trained individual performing these tests every day. I found the qualified breath technician to be a credible witness.

[23] Based on his evidence I am satisfied that the result of 84 should be truncated to 80 as explained by the breath technician. For that reason, within the four corners of the record before me, I have a reasonable doubt that the defendant was "Over 80" at the time of operation.

[24] A criminal trial for "Over 80" is not simply a contest between a person and a machine. If there is doubt it must be resolved in favor of the defendant. It is axiomatic that the criminal justice system is not concerned with convictions at the expense of important principles.

E. The Limits of Judicial Notice

[25] In addition to my findings based on the evidence at trial I find support in other sources.

[26] Notwithstanding the record presented, the Court is not required to abandon everyday experience in deciding cases. The court is not required to "un-ring the bell" of a multitude of criminal law experiences involving truncation over two decades. That being said, when the Court relies on information outside of the four corners of the record, such "judicial notice" is to be cautiously exercised.

[27] First, it is an indisputable truth that drinking and driving prosecutions occupy a significant portion of litigation every day in the Ontario Court of Justice. While truncation is not mandated in the Criminal Code, it is an everyday phenomenon in "Over 80" cases. Ordinarily the prosecution relies on the statutory shortcut and the truncated results recorded in the Certificate of Analysis unless there is an issue with the admissibility of the certificate, or the qualified breath technician has some other relevant evidence to provide. As described by the qualified breath technician in this case, the practice of truncation is a long established procedure.

[28] I know that truncation is an established part of training and procedure for all qualified breath technicians whether or not the CFS manual was filed as an exhibit.

[29] I know that the Alcohol Test Committee is an expert body focused on the providing recommendations to the Federal Minister of Justice about alcohol testing. The reports and recommendations of the committee, if not notorious to criminal lawyers and judges dealing with drinking and driving cases, are very well known, and are even published online. I know for a fact that the Alcohol Test Committee mandates the practice of truncation.

[30] I know from many other cases and experience that truncation is focused on fairness to the defendant. The simple truth is that results are rounded down by dropping the last numeral in the instrument result. Truncation has always been focused on ensuring that the interpretation of results does not prejudice the defendant. For example, consider the body of litigation around the issue of when third samples are recommended. Courts have largely endorsed truncation because of the scientific rationale provided and because its use does not prejudice the interests of the defendant.

[31] I am prepared to take judicial notice that the Alcohol Test Committee and the CFS mandate truncation and that the purpose of truncation is to support the accuracy of the results of the instrument by rounding down (or changing the third digit on the instrument readout to zero) in a manner that does not prejudice the interests of the defendant.

[32] The scope of judicial notice varies depending on the purpose: R. v. Spence, 2005 SCC 71, at para. 60. The prosecution did not dispute or challenge the practice of truncation in this case. The Crown Attorney simply sought to use tactics to avoid the impact of truncation. Judicial notice of the Alcohol Test Committee and the CFS position on truncation and the rationale for truncation is not: "...necessarily laced with supposition, prediction, presumption, perception and wishful thinking.": Spence, at para. 63.

[33] Finally I should address two factors that I have not relied upon. Defence counsel relies on R. v. Moorhouse, 2003 ABPC 218 (P.C.), a non-binding decision that comprehensively documents the practice of truncation and the rationale for it. The record before the Court in Moorhouse is not before this Court. I cannot take judicial notice of the record presented in Moorhouse. No expert opinion evidence has been presented in this case to explain the practice of truncation.

[34] The Crown bears the burden of proof in a criminal trial. If the approach of the qualified breath technician with respect to truncation was not appropriate or justified, the prosecution could have sought an adjournment to call expert opinion evidence on the issue.

F. Conclusion: "Over 80"

[35] As a final word, in this rarified environment of prosecuting an "Over 80" reading based on the lowest result of 84 milligrams of alcohol in 100 milliliters of blood, if there is no longer a need for qualified breath technicians to truncate results, the prosecution should call expert opinion evidence to address this issue given the prevalence of the practice and the training provided by the CFS to all qualified breath technicians.

[36] If the Intoxilyzer 8000C is immune from the margin of error often assumed in past cases, once again, expert opinion evidence should be presented on the issue. Qualified breath technicians are still truncating the results reported by this instrument on a daily basis.

[37] Finally, if the rationale for the practice of truncation, originating with the Borkenstein Breathalyzer models, was sourced in the subjective estimate of the third digit (as believed by Nadelle J. in R v. Mosley, [1998] O.J. No 2148) and this is no longer an issue on the Intoxilyzer 8000C, then, expert opinion evidence should be presented on the issue. Furthermore, training by the CFS should be adjusted.

IV. Impaired Operation

[38] The civilian witness was operating a motor vehicle behind the defendant's motor vehicle for approximately 25 minutes, southbound on Lakeridge Road out of Uxbridge all the way to Taunton Road. I may take judicial notice that this is some 20 kilometers of travel.

[39] The unchallenged evidence of the civilian witness included:

a. That the vehicle demonstrated intermittent high speed and then slowing;

b. That the vehicle had its high beam headlights on;

c. That the vehicle was swerving in the road, involving maneuvering the vehicle onto the gravel shoulder of the road;

d. That the vehicle was swerving in the road, involving well over half of the defendant's vehicle crossing the dividing double yellow line;

e. That the vehicle swerved in and out of its lane when three or four northbound vehicles approached, swerving back in its lane as the oncoming vehicles approached; and,

f. That some of the drivers coming northbound flashed their high beam headlights at the defendant's vehicle.

[40] The witness became concerned that the driver was impaired and contacted the police via 911.

[41] The arresting officer was dispatched because of the information provided by the civilian witness. He set up on Lakeridge near Taunton. He observed the defendant's vehicle headlights to be swerving from a distance as he proceeded southbound. He could also see two sets of other headlights following the first set of headlights, those of the defendant, that were not swerving at all as they progressed southbound.

[42] The arresting officer observed swerving within the lane as the vehicle approached his position. He executed a U-turn and maneuvered behind the defendant's motor vehicle. He approached the defendant's vehicle and the defendant appeared startled to see him. He noted a can of beer in the car. The defendant had an odor of alcohol on his breath. His eyes were glassy and bloodshot. When he walked to the rear of the vehicle the defendant appeared unsteady on his feet and put his hand on the car for support. I accept that the defendant was wearing flip flops. I also accept that during the booking process the defendant did not depict problems with his balance. He was not unsteady on his feet during the investigation at the station.

A. Analysis

[43] Defence counsel argued that the evidence does not meet the test for proof beyond a reasonable doubt and relies primarily on the limited indicia consistent with the consumption of alcohol.

[44] Learned Judges have addressed this common scenario more eloquently and efficiently than I. In R. v. Clement, 2011 ONSC 1119 (S.C.A.), Kershman J. efficiently captured the guidance of Hill. J, Durno J. and Spies J. on this issue at paragraphs 12, 17, and 18:

12 "In my view, the trial judge did not misapprehend the evidence as set out above. March J. followed the reasoning of Durno J. in R. v. Kumric, [2006] O.J. No. 4886 (Ont. S.C.J.), as follows:

1 "This appeal raises the question of whether a conviction for impaired driving requires evidence of physical manifestations of impairment. The investigating officer described the appellant's erratic driving. When stopped, the appellant had the odor of alcohol on his breath and admitted consuming a few beers. He exhibited no other physical indicia of impairment or consumption. At trial, he admitted having five beers within four hours of driving. While admitting and explaining some of the erratic driving, he denied other aspects of the officer's evidence. The trial judge rejected his evidence, and convicted him of impaired operation of a motor vehicle.

6 The appellant told the officer he had had a few beers. The officer detected the odour of alcohol coming from his breath, but noted no other indicia of impairment. The appellant was arrested and charged with impaired operation. Breath samples provided at the station were excluded from evidence.

22 The trial judge found that physical symptoms were not an essential element of the offence of impaired driving. The appellant contends it is. I disagree.

23 While in virtually every impaired driving prosecution the arresting officer or civilians give evidence about the "usual signs of impairment'; slurred speech, unsteadiness on the feet, bloodshot eyes etc., there is nothing to prevent a trial judge from finding guilt in their absence. The trial judge is required to look at all of the evidence and determine if the Crown has established the offence to the degree of certainty required in a criminal prosecution. Where there are no or few overt signs of impairment, a trial judge could conclude that their absence led to a reasonable doubt because of the absence of evidence.

R. v. Lifchus (1997), 118 C.C.C. (3d) 1 at para. 36 and 39. That is not the same as saying that the absence of overt signs must lead to a reasonable doubt.

24 It is also important to note that the offence is impairment of the ability to operate a motor vehicle, which has been described by Hill J. in R. v. Censoni (2001), 22 M.V.R. (4th) 178 (S.C.J.), as follows:

"Furthermore, it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like."

26 There is no authority I am aware of that would support the contention that reduced ability to perform complex tasks, whether impacting on perception, field of vision, reaction time or response time, judgment, regard to the road and the like, must be accompanied by overt symptoms of impairment. No doubt, it almost invariably is. Where there is evidence which could support a finding that the driver's ability to perform those tasks was reduced, and evidence he or she consumed some alcohol, it is open to the trier of fact to conclude that the driver's ability to drive was impaired by the consumption of alcohol."

17 I agree with Durno J. at paragraph 30 of R. v. Kumric, supra, when he says:

"I do not read Sigh [sic] as authority that there must be overt physical indicia of impairment before conviction can be entered. Indeed, LaSage J. found that perhaps the smell and bad driving might be sufficient. Rather, it appears that the trial judge did not direct his mind to all of the evidence including that which told against the finding. Here the trial judge addressed the issue directly finding overt symptoms of impairment. Having done so, he was required to and did assess all of the evidence to determine if the Crown had established the case beyond a reasonable doubt."

18 As stated by the Crown, Durno J.'s reasoning in R. v. Kumric, supra, was followed by Spies J. in R. v. Nagaratnam, [2007] O.J. No. 4047 (Ont. S.C.J.) as follows:

62 As Justice Durno observed in R. v. Kumric, supra, sitting as an appellate judge on a Summary Conviction Appeal, Sigh [sic] is not authority that there must be overt physical indicia of impairment before a conviction can be entered. Indeed, LeSage J. found that perhaps the smell of alcohol and bad driving might be sufficient. In Kumric, Durno J. commented:

While in virtually every impaired driving prosecution the arresting officer or civilians give evidence about the "usual signs of impairment"; slurred speech, unsteadiness on the feet, bloodshot eyes, etc., there is nothing to prevent a trail judge from finding guilt in their absence. The trial judge is required to look at all the evidence and determine if the Crown has established the offence to the degree of certainty required in a criminal prosecution. Where there are no or few overt signs of impairment, a trial judge could conclude that their absence led to a reasonable doubt because of the absence of evidence. ... That is not the same as saying that the absence of over signs must lead to a reasonable doubt. (at para.23)

His Honour rejected the appellant's explanatory evidence in regard to the driving he admitted. He then found the other bad driving had occurred, bad driving for which there remained no innocent explanation from the defence. When that evidence was coupled with evidence of consumption, it was open to the trial judge to find as he did, that the appellant's ability to operate a motor vehicle was impaired by the consumption of alcohol at least to a slight degree. Once the appellant's explanations were rejected and the other bad driving evidence unexplained, it was open to the trial judge to reasonable conclude the appellant was simply a terrible driver, or that his ability to operate a motor vehicle was impaired. ... The verdict must be a reasonable verdict, not the only reasonable verdict. (at para.31)

[45] For the reasons I have indicated, I am satisfied of the defendant's guilt beyond a reasonable doubt.

V. Possession of Marijuana

[46] Defence counsel simply submitted that there was insufficient evidence of possession. He did not provide any substantive argument in support of this submission. He did not provide any case law. These submissions were of little assistance to the Court.

[47] The prosecution must prove knowledge, possession, and control of the marijuana. The investigating officer found three packages of marijuana in the center console of the defendant's car. The packages were described as follows:

Sour Diesel: 2.03 grams noted on the package but the weight of the actual content was 1.5 grams.

Girl Guide Cookie: 2.01 grams on the label, on the package, and 1.5 grams inside.

Bubba Pink: 2.05 grams noted on the package, containing 1.2 grams inside.

[48] The obvious conclusion is that each package did not contain the full portion of marijuana indicated on the package assuming the package was labelled properly.

[49] One of the investigating officers smelled marijuana in the car.

[50] There were no other occupants in the car. The defendant, as is his right, has not testified. The center console was easily accessible to the defendant.

[51] I am satisfied beyond a reasonable doubt that the defendant had knowledge, in addition to the possession and control, over the marijuana. The defendant had possession of the car and the drugs were easily accessible to him. He is found guilty of possession of marijuana.

Released: June 22, 2018