Court Information

Ontario Court of Justice

Date: February 13, 2020

Court File No.: 18-3705

Parties

Between:

Her Majesty the Queen

— and —

Claude Dupuis

Judicial Officer and Counsel

Before: Justice Robert S. Gee

Heard on: December 9, 2019

Reasons for Judgment released on: February 13, 2020

Counsel:

• Anthony Minelli — counsel for the Crown
• Bruce Daley — counsel for the accused

Reasons for Judgment

Gee J.:

Introduction

[1] The accused, Claude Dupuis, was charged November 14, 2018 with both Impaired and having more than 80 mg of alcohol in 100 mL of his blood while operating his motor vehicle.

[2] This was a two-witness trial. Both witnesses were OPP officers called by the Crown. The first was the investigating officer Brennan Brown, the second was the qualified breath technician, Jason Jewkes.

[3] Prior to trial the defence filed an Application alleging breaches of the accused's s. 8, 9 and 10(b) Charter rights. Following the conclusion of the evidence, Mr. Daley, with his usual candour and fairness, abandoned the Application for Charter relief.

[4] Mr. Daley has identified two issues remaining in the case, one for each charge.

Issues

[5] First, in relation to the excess blood alcohol charge, due to changes in this area of law subsequent to the accused's charges, the Crown is now required pursuant to s. 320.31(1)(a) of the Criminal Code to prove during the breath sampling procedure, the approved instrument performed a calibration check, the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst. In this case, the defence contends the Crown failed to prove the target value of the alcohol standard, which would ultimately mean the Crown is not entitled to rely on the results of the analysis of the accused's breath samples.

[6] The second issue relates to the Impaired charge. The witnesses testified about their observations of the accused that if believed could lead to a finding that his ability to operate his motor vehicle was impaired by alcohol. However, there was also evidence that Mr. Dupuis had a head injury approximately 10 years ago and he had fallen the day before his arrest. The defence argues this could account for the observations of the police and as such, I am urged to find when the evidence is viewed in its entirety, I should be left with a reasonable doubt as to the accused's impairment by alcohol.

[7] For the following reasons, I agree with the defence on the first issue, but not the second. As such the Over 80 charge as it was then known, will be dismissed but there will be a finding of guilt on the Impaired Operation charge.

Analysis of the Over 80 Charge

Legal Framework

[8] The law in relation to drinking and driving offences was changed in December 2018. To rely on the presumption of accuracy in excess blood alcohol cases, the Crown must now prove several things set out in s. 320.31(1). As noted, one of the things the Crown must prove is that before each breath sample, the approved instrument must perform a calibration check and produce a result that is within 10% of the target value of an alcohol standard. The defence contends the Crown in this case has failed to prove what the target value of the known sample that was used during the breath sampling of Mr. Dupuis.

[9] The changes to the law in this area were meant to recognize that when operated properly, approved instruments provide highly accurate and reliable results. The changes were also meant to make the evidentiary procedures required to prove the results of the breath samples, more streamlined and efficient.

Court's Approach to Proof of Target Value

[10] In regard to the issue in this case, that is the target value of the known sample, courts have been generous as to what constitutes sufficient proof. It is clear hearsay evidence whether through officer training or experience gained on the job is enough to prove the target value of the standard solution. The officer could also testify they reviewed the certificate provided by the analyst that certified the standard solution used. See: R. v. Yip-Chuck, 2019 ONCJ 367, R. v. Paradzayi, 2019 ONCJ 599, R. v. Caputo, 2019 ONCJ 846 and R. v. Eden, 2019 ONCJ 680.

Evidence Regarding Target Value

[11] In his evidence in chief, the qualified breath technician, Jason Jewkes testified that the target value of the standard solution was 100 mg of alcohol in 100 ml of solution, the alcohol standard was manufactured by Calwave and the lot number was 20805. He indicated he was aware this was the target value because "it has a certificate of analysis" (Transcript page 25). However, it is not clear what certificate the officer was referring to, whether it be the certificate of the analyst for the standard solution, the Qualified Breath Technician's Certificate or the material printed out by the approved instrument during the sampling procedure.

[12] The documentary material produced by the officer and tendered at trial was comprised of four documents described by the officer as the breath test report, the self breath test report, the calibration check report and the diagnostic test report. The calibration check report sets out that Calwave was the manufacturer of the alcohol standard solution and the lot number.

[13] However, Mr. Daley was able to get the officer to admit under cross examination, that the target value for the standard solution was not indicated in any of these four documents. He also admitted that as such he could not have gotten the target value of the standard solution that he testified to in chief from these documents. The only other evidence he offered as to his knowledge of what is needed to be proved since the recent changes to the law, came from his involvement in an OPP discussion group, but there was no mention by him of this issue being discussed in that forum.

Court's Finding on Target Value

[14] In this case I am left with the officer's assertion that he obtained from the certificate of analysis the target value of the solution. However, this testimony was undermined by the cross examination of Mr. Daley. Even though he is most likely correct as to the target value, the court needs some evidentiary foundation for this assertion, even if, as noted earlier, that foundation is laid through hearsay. Here I do not have even that. Without proof of the value of the known standard, the calibration check is meaningless and as such there is no proof before me it was within 10% of the target.

[15] The result of this is that I am unable to rely on the results of the breath samples and there being no other evidence as to Mr. Dupuis blood alcohol concentration. This charge will be dismissed.

Analysis of the Impaired Operation Charge

Officer Observations

[16] In relation to the Impaired charge, Brennan Brown, was the officer who responded to the initial call from a concerned citizen about a possible impaired driver on highway 403 in Brant County. He responded to this call and eventually caught up to the vehicle that was later determined to be operated by Mr. Dupuis.

[17] When he located the vehicle, it was still travelling eastbound on highway 403. As he followed, he observed the vehicle travelling at speeds between 40 to 50 km/h which are well below the speed limit of 100 km/h. At first it was straddling the line dividing the right slow lane and the left passing lane. At one point it swerved hard over the fog line which made Officer Brown think it was pulling over. However, it then corrected and pulled back into the slow lane eventually exiting the highway at Rest Acres Road. The vehicle then pulled over to the shoulder prior to Officer Brown activating his emergency equipment.

[18] After it pulled over, Officer Brown approached the vehicle and made in addition to the driving observations noted above, the following additional observations that ultimately led him to form the opinion Mr. Dupuis' ability to operate the motor vehicle was impaired by alcohol:

• As he approached, Mr. Dupuis was struggling to get something from his left front pocket, which later turned out to be his wallet;
• When he spoke, Mr. Dupuis was slurring his words, specifically he slurred the word "wallet" when asked what he was reaching for in his pocket and the word "Woodstock" when asked where he was coming from;
• An odour of alcohol was detected on Mr. Dupuis breath;
• As he was dealing with his wallet, several cards fell into his lap and as he looked for his driver's licence, he shuffled through the cards, passing his driver's licence at least twice before locating it;
• Mr. Dupuis admitted consuming a glass of wine at lunch;
• His eyes appeared glassy and his pupils large; and
• He was unsteady on his feet and put his hand on his car to steady himself after he exited it.

[19] Officer Jewkes testified he also made several of the same observations of Mr. Dupuis. He stated during his dealings with Mr. Dupuis that his speech was slightly slurred, he appeared unsure or unsteady while sitting in the chair during the breath sampling procedure and that his face was flushed.

Legal Test for Impairment

[20] In a case such as this, what the Crown needs to prove is that there was some degree of impairment, from slight to great, in the accused's ability to operate a motor vehicle. See: R. v. Stellato, [1994] S.C.J. No. 51. Slight impairment to operate a motor vehicle relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. See: R. v. Censoni, [2001] O.J. No. 5189.

Defence Argument Regarding Medical History

[21] In this case, Officer Jewkes also happens to be a drug recognition officer. During the breath sampling procedures, he asked Mr. Dupuis if he was ill or sick and Mr. Dupuis indicated he had a head injury 10 years ago and had fallen the day before. Officer Jewkes noticed Mr. Dupuis' pupil sizes were different. His left pupil was 5 millimetres and his right was 6 millimetres. Officer Jewkes then did a tracking test to gauge Mr. Dupuis' ability to track an object with his eyes which he passed. It was then that Mr. Dupuis also advised Officer Jewkes he was able to move his eyes independently of each other and he demonstrated it by keeping one eye still and while he moved the other around. He also asked Mr. Dupuis if he wanted to go to the hospital, and he declined.

[22] Upon his release, the police called and had Mr. Dupuis transported to the hospital in any event to have him checked out as a precautionary measure. There is no evidence before me what the results of any examination of him may have been.

Court's Finding on Impairment

[23] The observation of Mr. Dupuis testified to by Officers Brown and Jewkes were not challenged and I accept their evidence. The defence contends considering his fall the day before, I ought to have some doubt that the signs of impairment were the result of alcohol. However, keeping in mind the test noted above and the entirety of the evidence, I am satisfied that notwithstanding he may have fell, that Mr. Dupuis ability to operate his motor vehicle was impaired by alcohol. He exhibited very poor driving, his speech was affected as was his balance. His fine motor skills appeared compromised when retrieving his wallet and his driver's licence. Additionally, he admitted to consuming alcohol and the odour of such was detectible on his breath.

[24] As for the fall, he did not seek medical attention the night before, he did not ask for medical attention when offered and his eyes tracked well. Other than the variation in pupil size there is nothing to indicate there was any ongoing effect from the fall and this itself considering the entirety of the evidence, has not left me with a reasonable doubt. I am satisfied that Mr. Dupuis' ability to operate his motor vehicle that night was impaired by alcohol. As such a finding of guilt will be made on this charge.

Released: February 13, 2020

Signed: Justice R. S. Gee J.