Court File and Parties

Court File No.: Orangeville 0611-998-19-151

Date: February 13, 2020

Ontario Court of Justice

Central West Region

Between:

Her Majesty the Queen

— and —

Camerin Cousins-Tremblay

Before: Mr. Justice Richard H.K. Schwarzl at Orangeville

Heard on: January 8 and 23, 2020

Reasons released on: February 13, 2020

Counsel:

Ms. Christina Lynch for the Crown

Mr. Robert Wulkan for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In the small hours of the morning of February 2, 2019 the Defendant, Camerin Cousins-Tremblay, was driving a pickup truck in such a fashion as to catch the attention of a police officer who pulled the Defendant over to investigate. As a result of that investigation, the Defendant was charged with two criminal offences: impaired driving and driving with excess blood alcohol concentration, contrary to sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

[2] A trial was held on both counts. With respect to the impaired driving charge, the issue is whether or not the prosecution has met its high standard of proof. As for the driving with excess blood alcohol concentration charge, the issue is whether the prosecution has established the statutory prerequisites so as to rely on the Certificate of Qualified Technician to prove the Defendant's blood alcohol concentration.

2.0: THE IMPAIRED DRIVING CHARGE

2.1: Positions of the Parties

[3] The defence submits that while the evidence of impairment meets the level of probable grounds, it does not equate to proof beyond a reasonable doubt. The defence asserts that the driving evidence was modest and in any event ambiguous given the Defendant's emotional state at the time. They further submit that the totality of the physical evidence as well as the Defendant's statements at the police station raise a reasonable doubt regarding his ability to operate a conveyance safely.

[4] The prosecution argues that on the entirety of the evidence it has proven beyond a reasonable doubt that the Defendant was too intoxicated by alcohol to drive safely. They argue that the whole of the evidence demonstrates culpable impairment at or beyond the required threshold of "to any degree" as set out in section 320.14(1)(a) of the Criminal Code.

2.2: Analysis

[5] For the reasons I will explain, I find that the Crown has proven beyond a reasonable doubt that the Defendant's ability to operate a conveyance was impaired due to the consumption of alcohol.

[6] By and large, the Defendant displayed few outward signs of intoxication. His speech was clear, he responded to questions immediately and appropriately. He performed the mental acuity tests very well[1]. He was a little tipsy when doing the heel-to-toe test, but his pants were loose and this may explain his balance issues at that time. Otherwise, his balance was good. The investigating officer, P.C. Janaway, testified that when he pulled him over, the Defendant was upset and crying, apparently due to the loss of a relationship with a woman. The Defendant's driving between Riddell Road, Orangeville and 5th Line Amaranth, some 5 kilometers or so, involved a wide left turn from Riddell Road westbound on County Road 109. But for one modest period, his speed was relatively consistent. While on County Road 109, the driver's side wheels of the Defendant's motor vehicle twice hit the line separating the lanes. The Defendant's driving was not perfect, but nor was it conspicuously bad. P.C. Janaway said that he was only convinced that the Defendant was impaired after he failed the approved screening device test. He acknowledged but for the fail, he would not have arrested the Defendant for any crime.

[7] However, taking the evidence as a whole, I am convinced the Defendant was impaired by alcohol to drive to any degree. I come to this conclusion for several reasons. First, even though the Defendant's red eyes were possibly from crying when pulled over at 3:00 a.m., he stopped crying at that point, yet his eyes were red rimmed and glassy more than an hour later at the station. Second, he had the strong odour of alcohol on his breath. Third, he missed his nose once during the finger-to-nose test. Fourth, his statements made to the qualified breath technician, P.C. Mulligan, are inculpatory. Together, the totality of the evidence proves impairment by alcohol to "any degree."

[8] With respect to his statements given to the police, several of them stand out to prove his impairment. When asked to describe the route he drove, the Defendant said he went north on B-Line to County Road 109 whereas in fact he went north on Riddell Road which is where P.C. Janaway first noticed him. B-Line is straighter, less populated, darker than Riddell Road. Riddell Road is controlled by a traffic light at its intersection with County Road 109, whereas B-Line is not. His error demonstrates that his perception of immediate events was poor. When asked when he last occupied the seat of his motor vehicle he replied, "midnight or 2:00 a.m." but then said he started driving "1:30 to 2:00". Again, this reflected his poor perception of the events and of time. He gave inconsistent accounts of how much he drank. First he said he had 3 to 4 pints, then he said 4 to 5 beers. When asked how much he normally drinks he said a 6-pack of beer and that tonight he drank "the same as usual." When asked how much alcohol it takes for him to feel its effects, he said "7 or 8" yet when asked why he drove home after taking a cab from the bar to his friend's house he stated "I tried to call to get a ride home from my mom and everyone but I couldn't get one. This was my last resort." Lastly, when asked to evaluate the effects of alcohol on his ability to drive on a scale of 0 (no effect) to 10 (unable to drive) the Defendant rated himself as "3 or 4."

[9] It was argued by the defence that the Defendant's self-evaluation was unreliable due to its inconsistency with his other statements regarding the effects of alcohol. I disagree. The overarching message the Defendant clearly conveyed was that he knew he had too much to drink and that he knew he shouldn't have been driving because of it.

[10] I am satisfied beyond a reasonable doubt that the Defendant's statements together with the whole of the other evidence prove he was impaired by alcohol to drive to "any degree." While acknowledging that the degree of his impairment by alcohol was slight, it was nevertheless real and culpable.

[11] The Defendant will be found guilty of count 1, impaired driving.

3.0: THE EXCESS BLOOD ALCOHOL CONCENTRATION CHARGE

3.1: Positions of the Parties

[12] The Defendant submits that the prosecution cannot rely on the Certificate of Qualified Technician because they failed to prove compliance with the prerequisites set out in section 320.31, Criminal Code. They argue non-compliance for two reasons. First, that the first blow by the Defendant which the qualified breath technician found unsuitable counts as a sample within the meaning of that section and thus the failure of the officer to perform system and calibration checks rendered the next, or first suitable, sample in violation of the statute. Second, that there was no reliable evidence of the target value of the alcohol standard solution used in this case. For either or both of these reasons, the defence submits that the prosecution cannot rely on the Certificate of Qualified Technician. There being no expert evidence, they submit there is no admissible evidence of the Defendant's blood alcohol concentration.

[13] The Crown submits that the evidence firmly established that all elements of section 320.31 have been proven and the Certificate of Qualified Technician is admissible to prove the Defendant's blood alcohol concentration. The Crown agrees that if it has not shown that it has fulfilled the necessary statutory prerequisites, it cannot rely on the Certificate of Qualified Technician.

[14] The only relevant evidence given on these issues came from the qualified breath technician, P.C. Mulligan.

3.2: The effect of a terminated breath sample viz. section 320.31, Criminal Code

[15] Section 320.31 of the Criminal Code states:

320.31 (1) If samples of a person's breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person's blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted 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;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[16] P.C. Mulligan prepared Exhibit 1, the Certificate of Qualified Technician, and he was responsible for the creation and production of the Breath Test Records, Exhibit 5. Mulligan adopted as true the contents of the Certificate of Qualified Technician.

[17] P.C. Mulligan's evidence and the documents show the following relevant chronology.

[18] At 3:21 a.m. a test of the simulator was successful, using an alcohol standard solution made by Alcohol Countermeasure Systems, lot number 201704C (Exhibits 1 and 5).

[19] At 3:23 a.m., the approved instrument passed all diagnostic tests (Exhibit 5).

[20] At 3:24 a.m. P.C. Mulligan conducted a successful self-test with the approved instrument, being an Intoxilyzer 8000C (Exhibit 5).

[21] Between 3:36 and 3:40 a.m. P.C. Mulligan conducted air blank and calibration checks as required. There was also a diagnostic check that recorded a "pass". At 3:41:45 a.m., the Defendant blew into the approved instrument. P.C. Mulligan determined that this blow was not suitable for analysis and terminated it before it was analyzed. The approved instrument recorded this as an "Unsuitable Sample" (Exhibit 5). At 3:43:07 a.m. and following another air blank test, but not another calibration check, the Defendant blew again into the approved instrument. The officer deemed it suitable and analyzed it using the approved instrument. The result of what the approved instrument recorded as a "Subject Test" was 153 milligrams of alcohol per hundred millilitres of blood.

[22] Between 4:02 and 4:04 a.m. P.C. Mulligan performed air blank and calibration checks as required. There was also another diagnostic test which registered a "pass" (Exhibit 5). At 4:05:23 a.m. the Defendant blew into the approved instrument again. P.C. Mulligan deemed it a suitable sample and analyzed it using the approved instrument. The result of what the approved instrument recorded as another "Subject Test" was 146 milligrams of alcohol per hundred millilitres of blood.

[23] It was P.C. Mulligan's evidence that at all times the approved instrument was operating properly and operated by him in accordance with his training.

[24] P.C. Mulligan agreed that while the Defendant blew three times into the approved instrument, he was firm that only the two subject tests were suitable breath samples. He terminated the initial one because the Defendant was not applying enough pressure and he was not constant in blowing. The officer explained that between the aborted blow and the first suitable sample no calibration check or diagnostic test were done because there was no need since the aborted sample was not analyzed. There was no evidence to suggest otherwise.

[25] The argument was made that section 320.31(1)(a) requires air blank and calibration checks before each sample, regardless of whether or not that sample was rejected as unsuitable. It was also argued that the checks have to be done immediately prior to each check. With respect, I cannot agree with either of these well-crafted submissions.

[26] Section 320.31 must be read in its entirety and in context. The section clearly speaks to the admissibility of the results of analyzed samples, that is to say suitable samples that are tested. Rejected, aborted, or terminated samples are not, by definition, analyzed and as such yield no results. In this case, the first blow was rejected as unsuitable and was not analyzed. It did not produce a result, let alone one which was forensically admissible or even relevant. Perforce, this means that the rejected sample, not having been analyzed, is taken out of the equation when deciding if section 320.31 has been complied with.

[27] Having found that the terminated sample was not a breath sample within the meaning of the statute, I also reject the submission that the air blank and calibration checks must be conducted immediately before a suitable breath sample is obtained. With respect to the first subject test, the calibration check was done at 3:38:42 a.m., being four and a half minutes prior to the first subject test and an air blank was completed at 3:42:22, being 45 seconds before the first subject test. These checks were clearly done before the first subject test was analyzed. Similarly, prior to the second subject test a calibration check was done at 4:02:47 a.m. nearly three minutes in advance and an air blank at 4:03:23 a.m. was conducted a full minute prior to the second subject test. Both subject tests were preceded by valid calibration checks and air blank tests. Both subject tests complied with the section in this regard. Had parliament decided that those checks be done immediately prior to the subject tests to meet the requirements of section 320.31(1)(a) it would have said so.

[28] If the defence is correct that air blank and calibration checks have to be done before every breath sample, including rejected ones then it would also be true that waiting at least 15 minutes as set out in section 320.31(1)(b) would be necessary between a rejected sample and a suitable sample. However, this is not the case because, as stated, an unsuitable sample is not a sample subject to the statutory prerequisites. No evidence and no authorities were given to support such a notion.

[29] For these reasons, the first defence argument fails.

3.3: The alcohol standard solution issue

[30] With respect to the issue of whether there is evidence in this case that the results of the calibration checks were within 10% of the target value of an alcohol standard that is certified by an analyst, I believe there is for the following reasons.

[31] The qualified breath technician adopted as true the statement in his Certificate of Qualified Technician that the alcohol standard had a target value of 100 milligrams of alcohol per hundred millilitres of blood, was certified by an analyst, as identified as Alcohol Countermeasure Systems with a lot number of 201704C.

[32] He testified that he was trained that alcohol standard solutions used in the approved instrument contain 100 milligrams of alcohol per hundred millilitres of solution.

[33] P.C. Mulligan also gave evidence that although he doesn't personally know the target value of the alcohol standard solution he used, he relied on his training and the documentation that came with it. He wasn't sure whether or not that documentation included the target value.

[34] Relying on the reasons set out in R. v. Flores-Vigil, 2019 ONCJ 192, the defence submits the facts in that case are very similar to those here. In that case, the court found that in the absence of direct evidence it disagreed that the Crown had established the target value of the alcohol standard solution. With respect, I am not persuaded that the reasons in Flores-Vigil should be followed by me. Rather, I find the reasons set out in R. v. Chuck, [2019] O.J. No. 2773 (O.C.J.), convincing on this issue and I adopt them[2]. Those reasons state:

13 I agree with Justice Parry in Flores-Vigil that the word "calibrate" means to test or adjust a tool or instrument against a known standard. Accordingly, a calibration check that yields a certain result is meaningless unless the value of the standard is known.

14 However, there is more than one way that a fact can be "known". It could be set out in the analyst's certificate itself -- and I understand that the new analyst's certificates put in use after December 18 2018 include a statement regarding the concentration. Or it could be "known" as part of the qualified technician's training. Such is the case here. His training taught him that the standard alcohol solutions certified by the CFS for Ontario always contain a concentration that produces a target value of 100 plus or minus 10. A calibration check that produces a reading of 99, as in this case, is therefore a meaningful check of the machine's accuracy.

15 It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. I suspect that only a small percentage of what one "knows" is gained from firsthand experience or personal verification. At some point any hearsay concern dissipates and a witness may testify as to learned knowledge.

16 In this exact context courts have permitted qualified technicians to testify over hearsay objections as to the suitability of solutions used in breath testing machines: see R. v. Porchetta, [2019] O.J. No. 1985 and authorities cited therein particularly R. v. Ware (1975), 30 C.R.N.S. 308 (Ont. C.A.) and R. v. Harding (1994), 17 O.R. (3d) 462 (C.A.). See also R. v. Lightfoot, [1981] 1 SCR 566.

17 In the same way, in my opinion, the technician may testify as to what he has learned about the alcohol concentration and target values of the solutions that are used: R. v. Does, [2019] O.J. No. 1924. That evidence was given by the technician in this case and established what was required to give rise to the presumption of accuracy.

[35] In this case, the Certificate of Qualified Technician sets out the target value. P.C. Mulligan, despite not having personal knowledge was entitled to rely on his training that the target value of the alcohol standard solution was 100 milligrams of alcohol per hundred millilitres of blood/solution. All of the calibration checks were within 10% of 100 mg.

[36] I am well satisfied that the Crown has demonstrated compliance with section 320.31. The Certificate of Qualified Technician is admissible evidence of the Defendant's blood alcohol concentration. As a result, he will be found guilty beyond a reasonable doubt of count 2, the charge of driving with excess blood alcohol.

4.0: CONCLUSIONS

[37] For the reasons set out above, the Defendant, Camerin Cousins-Tremblay, is found guilty of both impaired driving and driving with excess blood alcohol concentration.

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice

Footnotes

[1] The tests he did well were (a) reciting the alphabet from a to z, and (b) counting backwards from 25 to 0.

[2] Chuck, and the case of Porchetta relied on by the court in Chuck, have both been widely adopted and applied in courts across Ontario, Alberta, and Quebec. The ratio decidendi of Chuck were adopted with approval by Andre, J in the Summary Conviction Appeal of R. v. Bahman, 2020 ONSC 638, which is a binding appellate authority on this Court.