ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : SC 54/12
DATE : 20121219

RE: Her Majesty The Queen v. Daliang Xuan

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL: Stephania Fericean , for the Crown, respondent

Thomas M. Hicks , the accused, appellant

HEARD: November 23, 2012

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[ 1 ] The appellant, Daliang Xuan, was tried by the Honourable Madam Justice M. Bloomenfeld of the Ontario Court of Justice on charges of impaired driving and operating a motor vehicle with a blood alcohol level over 80 mgs. The offences were alleged to have been committed on December 3, 2010. The trial proceeded over the course of three days. The Crown’s evidence consisted of testimony from the arresting police officer, an expert forensic toxicologist, and a qualified breath technician. The appellant called no evidence.

[ 2 ] In the result, on April 17, 2012, the trial judge delivered Reasons for Judgment finding the appellant guilty of both offences. The finding of guilt in relation to the “over 80” charge, however, was stayed at the request of the Crown. On the “impaired driving” charge, the appellant was convicted and sentenced to a fine of $1,400.

[ 3 ] The appellant now appeals against his conviction. The appellant claims that the verdict reached by the trial judge is unreasonable. The appellant also contends that trial judge misapprehended the evidence as to the possibility that the Intoxilyzer 8000C instrument, used in analyzing the appellant’s breath samples, was not properly functioning and may have yielded inaccurate and unreliable results. The appellant further argues that the trial judge erred in effectively reversing the burden of proof with respect to the issue of whether the Intoxilyzer was functioning properly.

B. The Factual Background

1. The Roadside Investigation and Arrest

[ 4 ] The appellant was observed by the police exiting the parking lot of a karaoke bar at 3:23 a.m. on December 3, 2010. Officers with the Toronto Police Service who were conducting a mobile R.I.D.E. program in the area randomly stopped the appellant’s vehicle.

[ 5 ] Constable Anthony Moffat testified that, when he approached the appellant’s vehicle, he detected an obvious odour of alcohol on the appellant’s breath, and the appellant admitted that he had consumed “a little bit” of alcohol during the evening. Having formed a reasonable suspicion that the appellant’s ability to operate a motor vehicle was impaired by alcohol, Constable Moffat demanded that the appellant provide a breath sample into an approved roadside screening device. The appellant’s breath sample registered a “fail.” The appellant admitted having consumed his last drink just 20 minutes earlier.

[ 6 ] The appellant was then arrested and advised of his right to counsel. Constable Moffat then demanded that the appellant provide suitable samples of his breath into an approved instrument for purposes of analysis, and demanded that the appellant accompany him for that purpose. While they were in the scout car together, the officer observed additional indicia of impairment in the appellant, including slurred speech, bloodshot eyes, a very flushed red face, and repetitious comments by the appellant.

2. Providing Breath Samples to the Qualified Breath Technician

[ 7 ] The appellant was ultimately transported to the 41 Division station. After going through the booking procedure and speaking privately on the telephone with duty counsel, the appellant was turned over to Constable Fogg, a qualified breath technician.

[ 8 ] Constable Fogg also made observations as to indicia of impairment in the appellant. More particularly, he noted that the appellant had urinated in his pants, emitted the odour of an alcoholic beverage on his breath, possessed a “flushed” face, and had glassy and bloodshot eyes. Constable Fogg thought that the fact that the appellant had urinated in his pants was a “major indicator” of alcohol impairment in the appellant.

[ 9 ] According to Constable Fogg, during the course of his involvement with the appellant that night, the following events transpired:

• When he arrived at the station, Constable Fogg performed a number of diagnostic checks and tests on the Intoxilyzer 8000C instrument, and determined that it was properly calibrated and functioning properly and accurately.

• At 5:07 a.m., the appellant was brought into the breath room and, after Constable Fogg entered the relevant background data regarding the appellant into the instrument, the appellant was given instructions as to how he was required to blow through the mouthpiece. The appellant then made several unsuccessful attempts to provide a suitable breath sample. It appeared that the appellant was initially blowing but then obstructing the mouthpiece with his tongue or teeth. He was not providing the steady sample that was required. Constable Fogg then re-instructed the appellant as to how he was obliged to blow into the mouthpiece.

• At 5:17 a.m., the appellant successfully provided a breath sample that revealed a blood alcohol level of 208 mgs.

• However, at 5:18 a.m., as the appellant was leaving the breath room, the Intoxilyzer displayed a “purge fail” message. The breath technician immediately noticed that he had forgotten to remove the appellant’s mouthpiece from the instrument after the first sample. Constable Fogg explained that when the Intoxilyzer tried to purge the alcohol from the appellant’s sample, by drawing in fresh air from the room, it was unable to do so because the appellant’s used mouthpiece was still on the instrument. Once Constable Fogg removed the appellant’s mouthpiece from the instrument, the Intoxilyzer successfully registered a “blank” air analysis as required. In these circumstances, however, the “purge fail” exception message prevented the breath technician from continuing with a second sample in the usual way. Instead, Constable Fogg had to start over again with the appellant.

• Subsequently, the appellant was returned to the breath room, and Constable Fogg re-entered the relevant background data regarding the appellant into the instrument. After several unsuccessful attempts where, again, the appellant seemed to either stop blowing too soon or block the mouthpiece, at 5:40 a.m., the appellant provided a suitable breath sample that revealed a blood alcohol level of 193 mgs.

• Later, after several similarly unsuccessful attempts, at 6:02 a.m. the appellant provided another suitable breath sample that revealed a blood alcohol level of 176 mgs.

• Constable Fogg testified that each of the appellant’s three breath samples that produced results from the Intoxilyzer were “good” samples in that each sample was a sufficiently deep air lung sample. He did not note any variation in the quality of the three samples provided by the appellant, and the Intoxilyzer indicated only that each of the three breath samples met the “minimum acceptable parameters” of a suitable breath sample.

3. The Testimony of the Expert Forensic Toxicologist

[ 10 ] Patricia Solbeck, a forensic toxicologist with the Centre of Forensic Sciences, was qualified as an expert in the absorption, distribution, and elimination of alcohol in the body, and the effects of alcohol on people. She was also qualified as an expert in the theory and operation of the Intoxilyzer 8000C approved instrument.

[ 11 ] Ms. Solbeck testified that, when properly calibrated and in proper working order, and operated by a qualified breath technician, the Intoxilyzer 8000C produces accurate and reliable results of a person’s blood alcohol level at the time of the testing. Various studies and scientific literature in this particular field of forensic toxicology support the accuracy and reliability of this particular instrument. Moreover, after examining the various documents and printouts generated in connection with the use of the Intoxilyzer 8000C to analyze the appellant’s breath samples on December 3, 2010, Ms. Solbeck testified that, in her opinion, this particular Intoxilyzer appeared to be “properly calibrated and in proper working order at the time of the tests.” In those circumstances, Ms. Solbeck testified that the results produced by the Intoxilyzer in this case were “reliable.”

[ 12 ] Ms. Solbeck testified that, based on these Intoxilyzer readings, and assuming that the appellant had an alcohol elimination rate within the forensically accepted normal range of 10-20 mgs. of alcohol per hour, the appellant would have had a blood alcohol level of somewhere within the range of 175 to 225 mgs. of alcohol at 3:22 a.m., when the appellant was observed operating his vehicle. Ms. Solbeck noted that her assumption about the appellant’s alcohol elimination rate provided her with a “conservative” projection as to the appellant’s likely blood alcohol concentration at the time of his driving.

[ 13 ] Ms. Solbeck testified that, after describing the general effects of the consumption of alcohol on an individual’s ability to operate a motor vehicle, in her opinion the impairment of a person’s ability to operate a motor vehicle “becomes significant” when the person has a blood alcohol concentration of 50 mgs.

[ 14 ] Ms. Solbeck testified that the measurements provided by scientific instruments such as the Intoxilyzer were all subject to some potential variability.

[Text continues exactly as in the source.]

Kenneth L. Campbell J.

RELEASED: December 19, 2012