Ontario Court of Justice

Date: August 28, 2019

Court File No.: Brampton 18-04861

Between:

Her Majesty the Queen

— and —

Leonard Paradzayi

Before: Justice S. Caponecchia

Heard on: June 3, 2019

Judgment released on: August 28, 2019

Counsel:

• A. Nigro, counsel for the Crown
• B. Daley, for the Defendant

Caponecchia J.:

1. Overview

[1] The defendant is charged with driving with excess blood alcohol (over 80). Officers Bansal and Raganauth of Peel Regional Police stopped the defendant on the night of April 21, 2018 as part of a stationary RIDE spot check. Mr. Paradzayi failed a roadside screening test at 9:35 PM and was arrested. At the station he provided two samples of his breath into an approved instrument. His first sample at 10:27 PM registered 160 mg of alcohol per 100 mL of blood. His second sample of breath at 10:49 PM resulted in a reading of 150 mg of alcohol per 100 mL of blood.

[2] The defence initially applied to have the breath samples and test results excluded under s. 24(2) of the Charter for alleged breaches of s. 8 and s. 10. At the end of a blended voir dire, Mr. Daley, with his usual candour and efficiency, appropriately abandoned the Charter motion.

[3] The defence focused on two arguments in this case:

1. The Crown cannot rely on the presumption of identity in s. 258 of the Criminal Code because that section has been repealed. Mr. Daley urged the court to rely on Burstein J.'s decision in R. v. Shaikh, which held that the presumption of identity in former s. 258 of the Criminal Code does not survive its repeal. Without that presumption, the Crown cannot prove the applicant's blood alcohol concentration at the time he was driving.

2. Relying on the decision in R. v. Flores-Vigil, the defence argues that the Crown has not established that the Intoxilyzer tests are accurate.

[4] The Crown urges this court to adopt the prevailing judicial opinion that runs contrary to Shaikh. With respect to the Flores-Vigil issue, the Crown's position is that there is ample evidence before this court to establish the test results are accurate.

Issue #1: The Presumption of Identity – A.K.A. The Shaikh Issue

[5] This argument has been routinely referred to as the Shaikh issue. The overwhelming weight of authority has rejected the analysis in Shaikh, and instead has held that the presumption of identity in former s. 258 of the Criminal Code applies to allegations such as this case that pre-date the amendments to the Criminal Code.

[6] I am grateful to my colleagues for all their learned analysis on this issue. I echo the observation made by expressed by Justice Rahman in the case of R. v. Patel. That is, much judicial ink has been spilled on this issue by my colleagues. Like Justice Rahman, I do not propose to use anymore. I adopt and accept the reasoning in those cases, including Justice Latimer's decision in R. v. McAlorum, and Justice Duncan's decision in R. v. Yip-Chuck. It is my opinion that the Crown can rely on the presumption of identity in s. 258 of the Criminal Code.

Issue #2: Presumption of Accuracy – A.K.A. The Flores-Vigil Issue

[7] The new legislation provides that the new presumption of accuracy applies in transitional cases. For the Crown to rely on the presumption of accuracy it must establish the preconditions contained in s. 320.1(1)(a). This section provides that before each sample is taken, the qualified technician conduct a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst.

[8] The new legislation therefore requires the Crown to prove that each subject test was preceded by a calibration check against a standard alcohol solution. In Flores-Vigil the Court held that the Crown must prove that the solution was one tested and certified by an analyst but also that the solution so certified contains an identified concentration of alcohol that should produce a certain target result when introduced into the Intoxilyzer – if that machine is working properly. A calibration check that yields a certain result is meaningless unless the value of the standard is known.

[9] Mr. Daley urged this court to follow the Flores-Vigil case. According to Mr. Daley there is no admissible evidence of the target value of the alcohol standard solution used in this case.

[10] In this case, unlike Flores-Vigil, an analyst's certificate was presented in evidence certifying that the solution was suitable for use in the Intoxilyzer. It did not, however, reveal the concentration of alcohol in that solution. This evidence came from Cst. Feasby, a Qualified Breath Technician.

[11] Cst. Feasby testified about the process he employed to ensure the approved instrument he was using was in proper working order. He explained the numerous tests he conducted on the instrument prior to taking both samples of Mr. Paradzayi's breath. The process including a system calibration test, all of which satisfied him the instrument he used in this case to take Mr. Paradzayi's would yield accurate results.

[12] In addition to the officer's viva voce evidence, a Certificate of a Qualified Breath Technician was made Exhibit 1. Cst. Feasby certified that the samples were taken using an approved instrument which he ascertained to be in proper working order by means of an alcohol standard solution that was suitable for use, identified as Laboratoire Atlas IN, Lot No. 75IH. The Certificate of an Analyst for the alcohol standard solution Lot 75IH was also tendered in this case as Exhibit 2. An analyst for the purpose of section 258 of the Criminal Code certified that the solution used in this case was suitable for use. Neither Exhibit 1 or 2 indicates the target value of the solution is 100 mg of alcohol. This evidence came from Cst. Feasby who testified that as part of his training he was aware that the alcohol standard solution is certified only if it has a target value of 100 mg of alcohol. He acknowledged he did not test the solution himself. The officer also explained that the calibration tests he conducted using the Standard Alcohol Solution in this case yielded results of 98 mg, well within the allowable 10 mg variance. This was also evident on the test record card, which was filed as Exhibit 3.

[13] As I did with the Shaikh issue, I will rely on the weight of the authority on this issue. Specifically, Justice Duncan's decision in Yip-Chuck at paras. 14-17. Justice Duncan held that the Crown may establish the pre-conditions set out in s. 320.31(1)(a) of the Criminal Code through viva voce evidence, including hearsay. The Crown did so here. I accept Cst. Feasby's evidence. He is a Qualified Breath Technician, qualified to operate the approved instrument used in this case. He clearly explained why he knew the alcohol standard solution he used had a target value of 100 mg of alcohol and why the result he obtained when conducting his calibration checks were within 10% of the target value, as required by s. 320.1(1)(a). I am therefore satisfied, beyond a reasonable doubt, that the pre-condition at issue for the presumption of accuracy to apply have been established and Mr. Paradzayi's readings are accurate.

Conclusion

[14] The case has been proven. The applicant's breath samples results of 160 and 150 mg of alcohol in 100 mL of blood were far over the legal limit. Mr. Paradzayi is therefore found guilty.

Released: August 28, 2019

Justice S. Caponecchia