Ontario Court of Justice

Date: December 5, 2019

Between:

Her Majesty the Queen

— and —

Mussie Araya

Before: Justice R. Maxwell

Heard on: September 20 and 23, 2019

Reasons for Judgment released on: December 5, 2019

Counsel:

• E. Winocur, for the Crown
• A. Zaitsev, for Mr. Araya

MAXWELL J.:

I. Overview

[1] Mr. Mussie Araya is charged with impaired operation of a motor vehicle, contrary to s. 253(1) of the Criminal Code, and operating a motor vehicle while the concentration of alcohol in his body exceeded 80mg of alcohol in 100ml of blood, contrary to s. 253(1)(b) of the Criminal Code. The charges arise out of a traffic stop on July 13, 2018 in downtown Toronto.

[2] Mr. Zaitsev, on behalf of Mr. Araya, brought an application for exclusion of the breath readings, alleging breaches of Mr. Araya's rights under s. 8, 9 and 10(b) of the Charter of Rights and Freedoms.

[3] The case proceeded as a blended hearing. I heard the evidence pertaining to the Charter breaches blended with the evidence relating to the trial issues.

[4] The Crown called the investigating officer, PC Poge, the qualified breath technician, PC Troung, and Dr. Darryl Mayers of the Centre for Forensic Sciences. Defence did not call any evidence.

[5] On the Charter application, Mr. Zaitsev argues that the breath samples taken into the approved instrument were not taken "as soon as practicable" as required by s. 254(3) of the Criminal Code, violating s. 8 and 9 of the Charter. He also argues that the police did not provide Mr. Araya with access to counsel "without delay", in violation of s. 10(b) of the Charter. He seeks an order excluding the evidence of the breath readings under s. 24(2) of the Charter.

[6] Further, he argues that the Crown failed to prove that the breath test results are admissible and reliable because the Crown failed to call evidence to satisfy each of the prerequisites set out in s. 320.31(1) of the Criminal Code in order to rely on the presumption of accuracy.

[7] Finally, he argues that the Crown has not established, beyond a reasonable doubt, that Mr. Araya's ability to operate a motor vehicle was impaired by alcohol.

II. Background Facts

[8] The background to this matter can be briefly summarized.

[9] On July 13, 2018 at 10:17pm, PC Poge was travelling on the Don Valley Parkway when he approached a merger point where the Don Valley Parkway meets the Gardiner Expressway. As he travelled in the outer most lane, he observed a pick-up truck traveling in the left lane.

[10] As they approached the merger point, where the roadway goes from two lanes to four, PC Poge observed a silver Acura, coming from the Lakeshore Blvd East ramp, pull in front of the pick-up truck. The truck hit the brakes. PC Poge observed that the tail lights of the silver Acura were not illuminated. The Acura continued to drive across the lanes, all the way to the outer most lane, where PC Poge was driving.

[11] PC Poge observed that the silver Acura had been travelling on the Lakeshore Blvd East ramp much slower than the posted speed limit of 90 km per hour. He paced the vehicle at 62 km/hr. There was no traffic ahead of the silver Acura.

[12] As he paced the vehicle, PC Poge testified that it swayed from side to side, nearly striking the north guard rail and travelling on, or very close to, the lane lines while swerving within the lane. He observed the Acura to brake for no apparent reason.

[13] PC Poge's scout car was equipped with an in-car camera which recorded the driving before the stop. The in-car camera was marked as an exhibit on the trial.

[14] At 10:18pm, PC Poge stopped the vehicle and spoke to the sole occupant, the driver, who was later identified as the defendant, Mussie Araya.

[15] PC Poge testified that Mr. Araya appeared nervous and somewhat agitated. As PC Poge spoke to him, he kept his eyes forward and appeared reluctant to look in his direction. PC Poge observed Mr. Araya's eyes to be red and dilated and that he had a blank expression on his face.

[16] PC Poge asked Mr. Araya for his licence and registration. Mr. Araya provided the registration but advised PC Poge, when he repeated his request for his licence, that he left his licence at home. In the course of the conversation, PC Poge detected an odour of alcohol coming from Mr. Araya's breath. PC Poge asked Mr. Araya how much he had to drink. Mr. Araya responded that he had 2-3 beers approximately 3 to 4 hours prior.

[17] Based on the admission of alcohol consumption and the smell of alcohol, PC Poge formed a reasonable suspicion that Mr. Araya had alcohol in his body. At approximately 10:25pm, he made a demand for a sample of his breath into an approved screening device. Mr. Araya provided a sample of his breath into the approved screen device which registered a "fail" result.

[18] At 10:30pm, PC Poge placed Mr. Araya under arrest for over 80mg operation of a motor vehicle. At 10:33pm, he read Mr. Araya his rights to counsel from the back of his memo book. Mr. Araya indicated he wished to speak to duty counsel. At 10:34pm, PC Poge read Mr. Araya a demand for a sample of his breath into an approved instrument.

[19] Mr. Araya was placed in the back of PC Poge's cruiser. The in-car camera video captures Mr. Araya seated in the backseat of the cruiser, occasionally swearing.

[20] The in-car camera experienced a technical malfunction and, as a result, the time period in which PC Poge gave Mr. Arya his rights to counsel, caution and demand did not record properly, but counsel concedes that the informational component of rights to counsel was provided at the roadside.

[21] From 10:34pm to 10:46pm, PC Poge entered information about Mr. Araya's arrest into the computer system in his scout car in order for the information to be available once they arrived at the station. He also waited for a second scout car to arrive to arrange a tow of Mr. Araya's car. Counsel did not raise any issues with respect to this period of time.

[22] At 10:46pm, PC Poge and Mr. Araya departed the area for 41 Division, the closest breath testing station. Taking the shortest route, they arrived at 41 Division at 11:05pm.

III. Issues on the Charter Application

A. Were Mr. Araya's breath samples into an approved instrument taken "as soon as practicable"?

1. The Evidence

[23] There is uncontested evidence from PC Poge that he and Mr. Araya waited in his scout car in the sally port of 41 Division from 11:05pm until 11:40pm, some 35 minutes. PC Poge testified to bringing Mr. Araya into the booking hall at 11:40pm and this time was confirmed by the booking video, which was marked as an exhibit on the trial.

[24] PC Poge testified that, on arrival, the sally port was occupied due to another individual being booked in at the station. He testified they were waiting for the sally port to open up. However, he also stated he "could not speak" to what was going on in the booking hall, and that it was only his belief that someone was being booked in ahead of Mr. Araya.

[25] He testified, on cross-examination, that there was only one car ahead of his and that he had no knowledge of why the booking would be taking so long or what was going on in the station. There was no evidence that PC Poge made any inquiries about what was happening in the station, or the cause of the delay. There is no evidence within the recording from the booking hall to explain the 35 minutes of delay. There was no other evidence called to explain the delay at or within the station which would account for the 35 minutes of delay.

[26] The booking video reflects that Mr. Araya was finished with the booking process at 11:47pm. During the seven-minute booking process, Mr. Araya was given his rights to counsel again. Mr. Araya had a phone in his property. He was asked if there were any phone numbers within the phone which he wanted to retrieve, but Mr. Araya declined.

[27] In examination in chief, PC Poge testified that he escorted Mr. Araya into an interview room at 11:56pm and called duty counsel for Mr. Araya at 11:57pm. He testified that he has no independent recollection of making the call immediately after Mr. Araya was booked in, however it is his standard practice to place a call to duty counsel as soon as a detained person has been booked in. He also testified that he makes time notations within his memo book by checking the time on his phone.

[28] However, in cross-examination, he testified that he was mistaken when he stated that he called duty counsel at 11:57pm, which would have been 10 minutes after Mr. Araya was booked into the station. He testified that he must have call duty counsel at 11:47pm (and mistakenly wrote the time in his memo book as 11:57pm) because it is his standard practice to place a call to duty counsel as soon as the booking process is complete.

[29] Duty counsel Mr. Brockman called the station back at 12:04am and spoke with Mr. Araya.

[30] At 12:13am, Mr. Araya was escorted into the breath room to provide a first sample of his breath. On entry to the breath room, Mr. Araya advised that his call with duty counsel had been cut off. Therefore, at 12:16am, PC Poge placed a call to duty counsel again.

[31] At 12:19am, Mr. Brockman called back, but unfortunately, the phone booth was occupied by someone else.

[32] At 12:34am, Mr. Brockman called back again but the phone booth was still in use.

[33] At 12:36am, the phone booth became available. Duty counsel called again at 12:39am, however it was not Mr. Brockman. PC Poge assumed Mr. Araya wished to speak to the same duty counsel he had spoken to before, Mr. Brockman. He therefore requested Mr. Brockman specifically return the call. PC Poge accepted that he did not ask Mr. Araya if that was his request, nor did Mr. Araya specifically state that he wished to speak to Mr. Brockman only.

[34] At 12:45am, Mr. Brockman called back and Mr. Araya spoke further with him from 12:46am to 12:53am.

[35] At 12:53am, Mr. Araya was escorted back to the breath room. He then needed to use the washroom. He was taken back out of the breath room at 12:59am and returned to the room at 1:01am.

[36] At 1:05am, Mr. Araya provided his first breath sample into the approved instrument.

2. Applicable Law

[37] In this case, Mr. Zaitsev takes issue with the length of time it took to carry out the demand for breath samples into the approved instrument. He has challenged the police conduct through a section 8 Charter application.

[38] There are a number of trial decisions which have found that a failure to comply with the "as soon as practicable" requirement set out in s. 254(3) is a breach of s. 8 of the Charter: R. v. Nascimento-Pires, [2016] O.J. No. 1342 (Ont. C.J.), at para. 4; R. v. Egeli, 2015 ONCJ 271 (Ont. C.J.), at para. 52; R. v. Dumont, 2014 ONCJ 47, [2014] O.J. No. 571 (Ont. C.J.), at para. 17; R. v. McLeod, [2011] O.J. No. 4118 (Ont. C.J.), at paras. 44-45.

[39] I agree with the principle expressed by Paciocco J. as he then was, in R. v. Ruck, 2013 ONCJ 527 (Ont. C.J.), at para. 53 concerning the reason for the "as soon as practicable" requirement in s. 254(3):

Another reason for the "as soon as practicable" requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The "as soon as practicable" requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.

[40] In R. v. Li, [2005] O.J. No. 7023 (Ont. S.C.), at para. 5, Justice Spies held that a failure to obtain breath samples "as soon as practicable" amounts to a breach under s. 8 of the Charter since all the requirements for a proper demand have not been met.

[41] As Mr. Zaitsev noted, and as Justice Fiorucci helpfully analyzed in R. v. Fancey, 2018 ONCJ 657 (Ont. C.J.), at paras. 28-53, there is a conflicting line of authorities which have rejected the argument that the Charter is engaged when the police fail to obtain a breath sample "as soon as practicable".

[42] These authorities, generally, do not interpret the "as soon as practicable" requirement in s. 254(3) as a statutory obligation which can attract Charter scrutiny. The courts which have rejected the notion that the "as soon as practicable" requirement in s. 254(3) can attract Charter scrutiny have, in general, held that the s. 8 prohibition against unreasonable search and seizure is addressed by the "reasonable grounds" requirement in s. 254(3), and that the requirement in s. 254(3) that the subject provide breath samples "as soon as practicable" exists only to allow the Crown to avail itself of the s. 258(1)(c) presumption of identity: R. v. Mawad, 2016 ONSC 7589, [2016] O.J. No. 6810 (Ont. S.C.).

[43] In this case, Ms. Winocur for the Crown did not contest the general proposition that failure to comply with the "as soon as practicable" requirement under s. 254(3) can engage Charter scrutiny. I am of the view that, where a Charter application is brought, the defence can properly challenge the time it takes to make or carry out a demand for samples of breath into an approved instrument as a breach of s. 8 of the Charter.

[44] As such, the burden is on the Crown, having been put on notice through a section 8 Charter application that the warrantless search is being challenged, to prove the demand was made and samples taken as soon as practicable on a balance of probabilities.

[45] The meaning of "as soon as practicable" is well established. It means that the tests are taken within a reasonably prompt time under the circumstances. As soon as practicable does not mean as soon as possible. There is no requirement that the Crown call evidence to explain every minute of the investigation. The breath samples, however, have to be taken within a reasonably prompt period of time.

[46] To assess the reasonableness of the time, consideration of the entire chain of events, rather than a piecemeal approach to the evidence, is required. The Court of Appeal for Ontario, in R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), at para. 13, noted that "[i]n deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test."

[47] While the Crown is not required to provide a detailed explanation of what occurred during each minute of the time the defendant is in custody, lengthy periods of delay require an explanation: R. v. Letford, [2000] O.J. No. 4841 (Ont. C.A.), at para. 18; R. v. Dzaja, 173 OAC 14 (Ont. C.A.); R. v. Carriere, 2010 SKPC 118, at paras. 60-61.

3. Analysis

[48] The evidence establishes that a total of 2 hours and 35 minutes elapsed from the time Mr. Araya was arrested to the time he provided his first breath sample. The defence takes issue with the 35-minute period which elapsed between Mr. Araya's arrival at the station at 11:05pm, and the time he entered the booking hall at 11:40pm.

[49] For the period of time in question, I find that there is no evidence to explain what occurred between 11:05pm and 11:40pm. On the evidence which was presented, there is no more than an assertion, without evidence to support it, that Mr. Araya was not processed sooner because there was another person being booked in ahead of him.

[50] At its highest, PC Poge testified that there was another vehicle in the sally port of the station. I find that he assumed another prisoner was being booked in, but there was no evidence that this was, in fact, the case. There was no evidence of what caused the delay.

[51] Moreover, there was no evidence that PC Poge made any inquiries about what was happening inside the station, or checked to see how long they would be delayed, or looked into the possibility of going to another station.

[52] The issue was also not addressed once Mr. Araya was brought into the booking hall, as there is no discussion between the booking sergeant and PC Poge as to what was happening before Mr. Araya was brought into the booking hall. No further evidence was called to explain the delay. In particular, while the Crown referenced the possibility of calling the booking sergeant to give evidence, he was not called as a witness.

[53] Mr. Zaitsev argues that there is a further 10-minute period of unexplained delay between 11:47pm, when Mr. Araya's booking was complete, and when duty counsel was called, which he argues, was at 11:57pm.

[54] There was certainly conflict in PC Poge's evidence concerning when he placed a call to duty counsel. On the one hand, he testified that he confirmed the times he noted in his memo book based on the clock on his phone, which tends to favour an inference that he did not mistakenly note an incorrect time of 11:57pm in his memo book. On the other hand, he testified that his standard practice is to call duty counsel immediately following the booking process, and that he would have made a note if he delayed calling duty counsel for 10 minutes.

[55] I do not need to make a finding on whether PC Poge called duty counsel at 11:47pm or 11:57pm because, ultimately, the 35 minutes of delay before the booking process took place is, on its own, a significant period of unexplained delay, quite apart from the possible further 10 minutes of delay.

[56] In my view, while the Crown does not need to account for every minute that an accused person is detained, a period of 35 minutes of delay requires an explanation in order to ensure that a citizen is not detained longer than is reasonably needed for the state to obtain evidence: R v. Deruelle, [1992] 2 SCR 663, at para. 15. There is an absence of evidence to explain this period of delay.

[57] The Crown has failed to establish, on a balance of probabilities, that the police complied with the requirement that the seizing officer acted as soon as practicable to affect the seizure of Mr. Araya's breath samples. Therefore, the Crown has failed to establish that the warrantless seizure was lawful. I find there has been a breach of Mr. Araya's right to be secure from unreasonable search and seizure under s. 8 of the Charter, and that Mr. Araya was arbitrarily detained under s. 9 of the Charter.

B. Were Mr. Araya's Rights under s. 10(b) of the Charter breached?

1. The Evidence

[58] The facts which are relevant to the alleged s. 10(b) breach are set out above.

2. The Applicable Law

[59] Section 10(b) of the Charter imposes two obligations upon the police. The first requires that police advise a detained person of his or her right to retain and instruct counsel without delay. The second requirement is that, where a detained person asserts his right to counsel by asking to speak to a lawyer, the police must make steps to implement that right without delay.

[60] As noted earlier, there is no issue that the police complied with the first requirement, the informational component of s. 10(b) of the Charter, in giving Mr. Araya his rights to counsel. The issue is whether, once Mr. Araya indicated a wish to speak to a lawyer, did the police take steps to facilitate his contact with counsel without delay?

3. Analysis

[61] I accept the evidence that Mr. Araya was provided with his rights to counsel at approximately 10:33pm and he indicated he wished to speak to duty counsel. Thereafter, from 11:05pm, when PC Poge arrived at 41 Division with Mr. Araya, and 11:40pm when he was paraded before the staff sergeant, Mr. Araya sat in PC Poge's cruiser.

[62] There is evidence, based on the booking video, that Mr. Araya had a cell phone. Indeed, he was asked whether he wanted to access numbers from it once he was inside the booking hall.

[63] There was ample opportunity for Mr. Araya to consult with counsel during this 35-minute period. He had a phone, he wished to speak to duty counsel, PC Poge had the phone number for duty counsel from the back of his memo book, and Mr. Araya was in the back of the police cruiser. These conditions would have allowed Mr. Araya the opportunity to have a private conversation with duty counsel.

[64] If PC Poge delayed calling duty counsel until 11:57pm, then there would be an additional 10 minutes of delay in implementing Mr. Araya's rights to counsel. However, as indicated above, even without this period of time, I conclude that Mr. Araya's Charter rights were breached by the 35 minutes of delay. The additional 10 minutes of delay, if there was a further delay in contacting counsel, does not impact my finding of a breach, nor does it materially impact on my assessment of the breaches under s. 24(2) of the Charter.

[65] There was no explanation offered by PC Poge for why no efforts were made to facilitate Mr. Araya's contact with counsel during the 35-minute period of delay. I find, therefore, that Mr. Araya's rights under s. 10(b) of the Charter to retain and instruct counsel without delay were also violated.

C. Should the Breath Samples be Excluded under s. 24(2) of the Charter?

[66] Turning to whether the breath test results should be excluded under s. 24(2) of the Charter, the Supreme Court of Canada established, in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the framework for the analysis. The overarching question is whether admission of the evidence would bring the administration of justice into disrepute.

[67] The first prong of the analysis, the seriousness of the breach, requires an examination of the police conduct and a determination of where it fits on a spectrum, from a mere technical breach, at one end, to bad faith violations at the other: R. v. Jennings, 2018 ONCA 260, at para. 26.

[68] In this case, the actions of PC Poge, in failing to facilitate Mr. Araya providing breath samples as soon as practicable, and failing to facilitate his access to counsel without delay, engaged fundamental constitutional rights under ss. 8, 9 and 10(b) of the Charter. More could, and should, have been done to ensure Mr. Araya's samples were taken as soon as practicable and that his right to retain and instruct counsel was implemented without delay.

[69] That being said, while I have found multiple breaches, the breaches all arise from the same period of time and the officer's singular failure to take action for a 35-minute period. Moreover, there is no suggestion that the officer acted in bad faith, or that he was intentionally or wilfully blind to Mr. Araya's rights. There is no dispute that PC Poge had grounds to stop Mr. Araya, make the demand for a sample of his breath into the approved screening device, and ultimately make a demand for a sample of his breath into the approved instrument.

[70] In all the circumstances, the conduct of PC Poge is closer to a "technical breach" than a bad faith violation and falls on the lower end of seriousness on the spectrum. The first factor favours inclusion.

[71] Turning to the second line of inquiry, the impact of the breach on Mr. Araya's interests, I find that the impact on Mr. Araya was minimal.

[72] The impact of the breaches was that Mr. Araya was delayed from speaking with counsel and providing his breath samples. He did, however, have an opportunity to fully consult counsel before the samples were taken. No evidence was taken from him, and no interrogation conducted, until he had the opportunity to exercise his right to counsel. As such, there was no evidence obtained as a result of the s. 10(b) breach.

[73] Further, the evidence of the breath samples would have been taken irrespective of the breaches and, in that sense, would have been lawfully discoverable.

[74] It is well-accepted that the taking of breath samples is minimally intrusive. In R. v. Manchulenko, 2013 ONCA 543, at para. 100, Justice Watt observed, citing Grant at para. 111, that as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted. He further referred to, "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness": See also R. v. Guenter, 2016 ONCA 572, at para. 98.

[75] The impact of the breaches on Mr. Araya were minimal in this case. The second factor favours inclusion.

[76] Finally, turning to the third factor of society's interest in adjudicating the case on its merits, the breath test results are real, reliable evidence which are essential to the Crown's case.

[77] I agree with the counsel's submission that we must bear in mind the extraordinary powers given to the state under the impaired driving provisions of the Criminal Code and that police non-compliance with statutory and constitutional requirements must be scrutinized seriously in order to maintain the public's confidence in the administration of justice.

[78] However, taking into consideration the reliable and essential nature of the evidence, the overall conduct of the police, the seriousness of the breaches being on the low end of the spectrum, and the impact on Mr. Araya, I am satisfied that the inclusion of the evidence would not bring the administration of justice into disrepute.

[79] The application for exclusion of the breath readings pursuant to s. 24(2) of the Charter is therefore dismissed.

IV. Issues on the Trial

A. Is the Crown required to prove that the statutory prerequisites of s. 320.31(1) of the Criminal Code have been met in order for the results of the breath testing to be admissible and found reliable?

[80] Mr. Zaitsev argues that, in order for Mr. Araya's breath test results to be admissible and be found reliable, the Crown must prove all the statutory prerequisites set out under the new legislative provisions in s. 320.31(1) of the Criminal Code governing the presumption of accuracy.

[81] In this case, he argues that the Crown has failed to prove one of the prerequisites for the statutory presumption of accuracy, specifically, that the result of the system calibration check was within 10% of the target value of an alcohol standard that is certified by an analyst.

[82] Ms. Winocur argues that she does not seek to rely on the evidentiary shortcut set out in s. 320.31(1) and is, therefore, not required to prove all the prerequisites set out in s. 320.31(1). Rather, she relies on the evidence of the breath technician and the toxicologist to prove the admissibility and reliability of the breath readings.

[83] The leading authority on this issue is the decision of R. v. Wu, 2019 CarswellOnt 15534 (Ont. S.C.), where on summary conviction appeal, Justice Roberts reviewed the terms of s. 320.31(1) and addressed the issue of whether the Crown can prove the admissibility and reliability of breath readings at common law, without resort to the evidentiary shortcut created through s. 320.31(1).

[84] Justice Roberts noted, at para. 8, that the enumerated criteria in s. 320.31(1) of the Criminal Code are not elements of the offence of "over 80", nor are they prerequisites to the admissibility or reliability of breath tests at common law.

[85] Rather, s. 320.31(1) of the Criminal Code provides an evidentiary shortcut to proving the admissibility and reliability of breath test results in that, where the prerequisites are met, the defendant's blood alcohol concentration is conclusively proven to be the blood alcohol concentration established by the approved instrument. In other words, the Crown can rely on the rule of conclusive proof if it proves the eight prerequisites set out in s. 320.31(1). It eliminates the need for the Crown to call viva voce evidence from the breath technician.

[86] However, as Justice Roberts went on to find, at para 12, s. 320.31(1) of the Criminal Code did not alter the basis upon which, in common law, the Crown can establish the admissibility and reliability of breath readings. Section 320.31(1) did not change what the Crown needs to prove in order to establish that the breath tests are admissible and reliable at common law, should the Crown choose not to (or if the Crown is unable to) prove the prerequisites under s. 320.31(1) and rely on the "rule of conclusive proof".

[87] Therefore, I find that the Crown is not required to prove all the prerequisites set out in s. 320.31(1) of the Criminal Code where, as in this case, the Crown is not relying on the evidentiary shortcut, or the "rule of conclusive proof", created by the section. It remains open to the Crown to establish the admissibility and reliability of the breath readings by calling viva voce evidence through the breath technician and, where necessary, the toxicologist.

B. Has the Crown established the admissibility and reliability of the breath test results?

[88] In this case, the Crown called the breath technician, PC Troung. There is no dispute that PC Troung is a qualified breath technician under the Criminal Code. He also testified that on July 13, 2018, he was operating the Intoxilyzer 8000c which is an "approved instrument" as defined in the Criminal Code.

[89] PC Troung testified to doing three quality assurance checks - a diagnostic check, a system calibration test, and a self-breath test - to ensure the machine was properly calibrated and in proper working order.

[90] The machine passed all the quality assurance checks. In particular, the self-breath test came back as 0 mg of alcohol in 100ml of blood, consistent with the fact that he had not consumed alcohol. The system calibration check returned a result of 97 mg of alcohol in 100mg of blood, which is within 10% of the target value of the alcohol standard certified. PC Troung was satisfied it was in proper working order before the first breath test was administered.

[91] He repeated the three quality assurance checks and was again satisfied the machine was in proper working order before the second breath test was administered.

[92] He further testified that Mr. Araya provided two samples of his breath into the approved instrument, both of which were suitable for analysis.

[93] The first breath sample was taken at 1:05am which produced a reading of 146mg of alcohol in 100ml of blood. The second breath sample was taken at 1:27am which produced a reading of 142mg of alcohol in 100ml of blood.

[94] The Certificate of Analysis, which PC Troung confirmed accurately reflected the particulars of the testing on Mr. Mussie, and his breath test results (truncated), was marked as an exhibit on the trial.

[95] None of PC Troung's evidence concerning his qualifications, the proper functioning of the machine, the taking of the breath samples, or the results recorded, was challenged in cross-examination. I accept his evidence.

[96] Dr. Darryl Mayers from the Centre for Forensic Science was qualified as an expert on the operation of approved instruments, including the Intoxilyzer 8000c, the absorption and elimination rates of alcohol in the human body, and the calculation of blood alcohol concentration in the human body.

[97] As the readings were taken outside of 2 hours from the time of the offence, Dr. Mayers did a "read back" of the breath test results. He concluded that, between 10:00pm and 10:30pm, Mr. Araya's blood alcohol concentration would have been between 145mg of alcohol in 100ml of blood and 200mg of alcohol in 100ml of blood.

[98] Based on the evidence of PC Troung and Dr. Mayers, I am satisfied that Mr. Araya's breath readings are admissible. PC Troung, a qualified breath technician, was operating an approved instrument, the Intoxilyer 8000c, which he determined to be in good working order. As Justice Roberts stated, citing with approval, Justice MacDonnell's ruling in R. v. McCarthy, 2013 ONSC 599 (Ont. S.C.), at para. 22:

Measurements performed by a scientific instrument or device are admissible at common law if the court is satisfied that the instrument or device was capable of making the measurement in question, that is was it in good working order, and that it was properly used at the material time [citation omitted]. Having regard to Parliament's designation of the Intoxilyzer 8000c as an 'approved instrument' – 'an instrument of a kind that is designated to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person – the first of those requirements is easily satisfied. The viva voce evidence of a qualified technician will normally suffice to establish the other two.

[99] I am also satisfied, beyond a reasonable doubt, that the breath test results are reliable. PC Troung's evidence was unchallenged that the Intoxilyzer 8000c was in good working order. He completed three quality assurance tests before each sample was taken to satisfy himself that the machine was in good working order.

[100] While PC Troung did not give specific evidence that he checked the alcohol standard solution that day, the certificate of analysis, which he authored and which he confirmed was accurate, noted the alcohol standard solution that was suitable for use with the Intoxilyzer and the alcohol standard number.

[101] Moreover, as the Court of Appeal for Ontario held in R. v. Harding, 17 O.R. (3d) 462 (Ont. C.A.), at para. 16, it is enough for a technician to testify that he or she tested the breathalyzer by means of an alcohol standard and found it to be in good working order. Unless there is reason to question it, the breath technician need not testify about the suitability of the alcohol standard used.

[102] I am satisfied that PC Troung carefully and thoroughly engaged in checking the Intoxilyzer 8000c to ensure it was operating properly. There is nothing to suggest he did not use the Intoxilyzer 8000c properly when he took Mr. Araya's breath samples.

[103] I therefore find that the breath readings are admissible and reliable and, when coupled with the uncontradicted evidence of Dr. Mayers, provide proof, beyond a reasonable doubt, that Mr. Araya was operating his motor vehicle when the concentration of alcohol in his blood exceeded 80mg of alcohol in 100ml of blood.

C. Does the evidence establish, beyond a reasonable doubt, that Mr. Araya's ability to operate a motor vehicle was impaired by alcohol?

[104] It is not necessary for the Crown to prove any particular degree of impairment by alcohol, as long as the evidence establishes that the defendant's ability to operate a motor vehicle is impaired by alcohol to some degree: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed.

[105] PC Poge testified to Mr. Araya's manner of driving. I found some of his characterizations of Mr. Araya's driving to be somewhat exaggerated. For example, he described Mr. Araya's vehicle as "cutting off" the pick-up truck, causing the truck to brake abruptly. Having viewed the in-car camera footage, Mr. Araya changed lanes, first putting on his indicator light. This manoeuvre put him in front of the pick-up truck and the pick-up truck appears to have braked. I would not describe it as Mr. Araya "cutting off" the pick-up truck, nor would I say that the pick-up truck hit the brakes "abruptly".

[106] However, I do find that there were aspects of Mr. Araya's driving which deviated from normal driving. I accept PC Poge's evidence that Mr. Araya was driving unnecessarily slowly, traveling 62 km/hr in a posted 90km/hr zone. In the video, he appeared to brake unnecessarily when there was no traffic in front of him. The video also demonstrates that Mr. Araya's vehicle did weave slightly out of its lane on more than one occasion and, at a point, veered out of his lane in the direction of the guardrail. I do not accept PC Poge's evidence that Mr. Araya nearly struck the guardrail, but I do accept there were unexplained deviations from normal driving.

[107] PC Poge smelled alcohol coming from Mr. Araya's breath when he spoke with him at the roadside. PC Troung also smelled alcohol coming from Mr. Araya when he was brought to the station for his breath samples.

[108] Further, I accept Dr. Mayers' opinion that a person's ability to divide his/her attention and react, key components of driving, becomes impaired with as little as 15 mg of alcohol in 100ml of blood, and that a person with a blood alcohol concentration in the range of 145-200mg of alcohol in 100ml of blood would have their ability to operate a motor vehicle impaired by alcohol.

[109] Based on the totality of the evidence, and bearing in mind that any impairment by alcohol which impacts a driver's ability to operate a motor vehicle is sufficient to establish the offence, I am satisfied, beyond a reasonable doubt, that Mr. Araya's ability to operate a motor vehicle was impaired by alcohol.

V. Conclusion

[110] I find Mr. Araya guilty on both counts.

Released: December 5, 2019

Justice Rita J. Maxwell