ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
WILHELM WOLFERT
Appellant
K. Hull, for the Crown
M. Sandler, for the Appellant
HEARD: March 10, 2014
On Appeal of the Judgment of The Honourable Mr. Justice J.J. Douglas
dated March 5, 2013
HEALEY J.
Nature of the Appeal
1This is an appeal against Mr. Wolfert’s conviction for the offence of operation of a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood. He seeks an order setting aside the conviction and entering an acquittal, or the alternative, a new trial.
The Facts
2The evidence heard at trial that is relevant to this appeal was as follows:
On December 10, 2011 the appellant was stopped as part of a RIDE program set up by the South Simcoe Police Service. Officer David Phillips, who stopped the appellant’s vehicle as part of the RIDE program, testified that he smelled alcohol emanating from Mr. Wolfert and asked him to step out of the vehicle. He also noted that the appellant had glossy eyes. Immediately thereafter, Officer Phillips made a roadside breath demand and explained to the appellant how to use the Approved Screening Device. The appellant complied with the demand, and the roadside breath device registered a fail. Mr. Wolfert was arrested for operation of a motor vehicle while over 80, and was transported to an RIDE truck location.
The RIDE truck was an ambulance that had been converted to its present use, and provided a cramped working area.
Officer Phillips is a Qualified Technician who had been certified on January 29, 2011, and had less than a year of experience on the night of the appellant’s arrest. Once at the RIDE truck he began to prepare the approved instrument, the intoxilyzer 8000C. He conducted a calibration check, a diagnostic check, a printer check and a self-check. He was satisfied that the approved instrument was working properly and was ready to receive a sample of breath, and able to produce an accurate result of the appellant’s blood alcohol content.
After the appellant exercised his right to counsel, the breathalyzer testing commenced. At 12:23 a.m., Officer Phillips began to enter data into the intoxilyzer and began the testing sequence. At 12:28 a.m. he explained the breathalyzer testing procedure to the appellant. The appellant provided a sample of breath into the intoxilyzer, and a reading of 171 milligrams of alcohol per 100 millilitres of blood was received.
At 12:47 a.m. a second test procedure was commenced and a second sample was obtained at 12:54 a.m.. This test indicated a blood alcohol level of 133 milligrams of alcohol per 100 millilitres of blood. Officer Phillips explained how the appellant made three attempts to provide a sufficient sample during the second testing procedure, and that insufficient breath samples were obtained the first two times. On the third attempt, the appellant provided a sample that registered with the intoxilyzer.
With respect to the deficiencies in providing the air samples during the second testing procedure, Office Phillips determined that he should reject the test due to a purportedly insufficient breath sample even though the machine did not record an “invalid sample”, which it will do, according the manual, “if the subject attempts to provide a sample but is unable to meet instrument requirements for a sufficient breath sample”.
At trial it was the position of the Crown that no reliance should be placed by the court on the first or second samples because of the difference of greater than 20 milligrams between the readings. Additionally, Officer Phillips testified that he was not satisfied that the second test was suitable or accurate.
Officer Phillips moved on to a third test, and at 12:55 a.m. the machine registered an air blank which cleared the air provided in the previous sample. Seventeen minutes later, at 1:12:39, the intoxilyzer indicated that there was an “ambient fail”. Such a reading meant that the alcohol vapour in the room exceeded 10 milligrams of alcohol per 100 millilitres of blood.
It was Officer Phillips’ evidence that the ambient fail occurred during the intoxilyzer re-test procedure after the second test. However, the ambient fail registered approximately 18 minutes after the recording of the second reading at 133 milligrams. Officer Phillips agreed that five minutes was the usual time required for the intoxilyzer to reset. To explain the delay, Officer Phillips claimed that Mr. Wolfert put a mint into his mouth during this time interval, however, such event was not recorded in his notebook. In his notebook he wrote “begin third test, ambient fail. Accused very strong odour of alcohol, ventilate truck, begin again”.
After the ambient fail registered, Officer Phillips tried to clear the air by running an exhaust fan that was in the vehicle. He could not remember if he changed the mouth piece on the intoxilyzer, which he subsequently learned could be the cause of an ambient fail. He did not remove Mr. Wolfert from the area, but he testified that the appellant “wasn’t near the breath tube, breathing directly into the breath tube”. The appellant’s position in the RIDE program vehicle did not change in respect to his proximity from the air tube when the ambient fail occurred and during the time that Officer Phillips ran the exhaust fan. The manual indicates that “an ambient fail message can occur if the test subject moves too close to the external breath tube during the air blank. Point one, relocate the subject away from the breath tube, ventilate the room and recommence testing”. Approximately 1.5 minutes after the ambient fail registered, Officer Phillips was satisfied that he had cleared the ambient air from the truck. No ambient fails were recorded from 1:13:06 onward.
At 1:18 a.m., Officer Phillips received a sample of breath which indicated a blood alcohol level of 148 milligrams of alcohol. Prior to that, an air blank had been registered at 1:15:28, a diagnostic test passed at 1:16:04, another air blank registered at 1:16:31, a third air blank at 1:17:50 and a diagnostic test passed at 1:18:26.
A further series of air blanks and positive diagnostic tests were received prior to the final sample being taken at 1:40:13, which indicated a blood alcohol level of 144 milligrams of alcohol.
Officer Phillips considered the last two samples to be suitable. At trial, the Certificate of Qualified Technician was tendered and marked as Exhibit 1.
Reasons for Judgment
3The appeal focuses on the following portion of the trial judge’s Reasons:
For the following brief reasons I find that I cannot conclude that there is evidence before me tending to show all or any of the following: That the approved instrument was malfunctioning, or that the approved instrument was operated improperly, and that these one or more issues resulted in the determination that the blood alcohol content of the accused was less than 80 milligrams of alcohol per 100 millilitres.
I appreciate, of course, that the Supreme Court of Canada has modified the appropriate interpretation of Section 258 so as to conform it to constitutional and minimum standards, but not in my view to the extent of undermining the heavy statutorily imposed evidentiary burden on the accused to undermine himself, as it were, the viability of the test results held against him.
In my view, at the end of the day the evidence of the investigating officer as to the propriety of the testing process is effectively unchallenged, and might I say, unchallengeable.
Law
4The standard of review for an appeal made under s. 813 of the Criminal Code was summarized by Danyliuk J. in Greenough v. The Queen, 2013 SKQB 208 at paras. 13 to 16 as follows:
- The powers of an appellate court in ss. 683 to 689 of the Criminal Code are, in the main, made apposite to summary conviction appeals. See s. 822(1) of the Criminal Code. Defendants’ appeals are governed by ss. 686(1) and (2). Under those sections, a defendant’s appeal may be allowed where:
(a) the verdict is unreasonable and cannot be supported by the evidence;
(b) is based on a wrong decision on a question of law;
(c) on any ground, if it is shown there was a miscarriage of justice.
In such cases, the appellate court may order a new trial or order that a verdict of acquittal be entered.
When factual grounds are engaged, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, could reasonably reach the verdict: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; and R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51 (QL); and R. v. Bigsky, 2006 SKCA 145, [2007] 4 W.W.R. 99 at para. 74. The appellate court should not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (QL).
On a question of law, the standard is correctness, and the appellate court should intervene if the decision is correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred: R. v. Shepherd, 2007 SKCA 29, [2007] 4 W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469, 286 Sask. R. 154.
5The appellant argues that the trial judge erred in law by:
requiring the appellant to demonstrate that the improper operation and/or malfunctioning of the approved instrument resulted in a determination that his blood alcohol level was over 80 in order to overcome the presumption of accuracy in s. 258(1)(c) of the Criminal Code, contrary to the ruling of unconstitutionality by the Supreme Court of Canada in R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 (“St-Onge”);
the trial judge erred in law by requiring the appellant to satisfy “a heavy statutorily imposed evidentiary burden” to determine the viability of the test result; and
the trial judge erred in law by relying on the results of the first two breath tests to satisfy himself that the appellant’s blood alcohol level exceeded 80.
6The appellant’s counsel further argues that these legal errors culminated in the trial judge failing to assess the credibility or reliability of the technician, and failing to consider whether the objective irregularities in the breathalyzer procedure raised a reasonable doubt as to the reliability of the breath test results.
Analysis
7I concur with both counsel that the trial judge’s statement of the burden on the appellant found at page 95 of his Reasons went beyond the constitutionally permissible burden described at para. 59 of St-Onge.1 Despite that, I conclude that the appeal should fail because no substantial wrong or miscarriage of justice has occurred, because the evidence considered by the trial judge was reasonably capable of supporting the conviction.
8In particular, the trial judge’s statement of the “heavy statutorily imposed evidentiary burden” is irrelevant, because there was no evidence to support a finding that there was a malfunction or improper operation of the instrument during the third and fourth testing sequences, from which the results on Exhibit 1 derive. Accordingly the trial judge did not have to weigh evidence of such malfunction or improper use in relation to the third and fourth testing sequence, and accordingly his statement that the “evidence of the investigating officer as to the propriety of the testing process is effectively unchallenged, and might I say unchallengeable” is correct on the evidence. There is evidence, as the Crown conceded at trial and on this appeal, to raise a reasonable doubt about the reliability of the results of the first and second testing procedures. However, there was no evidence raised by the appellant in relation to the third or fourth sequence that could raise a reasonable doubt. The testing sequence showed that any alcohol vapour in the machine itself or in the truck that could affect the readings was sufficiently eliminated from the time of the air blank reading at 1:15:28 and onward. The readings of 148 and 144 were taken a full six and twenty-eight minutes later. The evidence of Officer Phillips with regard to potentially not changing the air tube is irrelevant given that there was no ambient fail following the one that registered at 1:12:39. There was no evidence that running the exhaust fan for the period in question was insufficient; the fact that there was no further ambient fails would indicate to the contrary. Finally, the appellant’s counsel attempted to make an argument regarding the elimination rates, using the results of the first test as the benchmark, to argue that the appellant would have to be eliminating outside of the accepted range of ten to twenty milligrams of alcohol per hour, contrary to the reasons of the trial judge at page 100. Given the rejection of the evidence of the first test result of 171 by both counsel at trial, it is an error to use that initial test as the benchmark at trial or on appeal. However, again, nothing turns on this as the trial judge was correct in his ultimate determination at page 100 of his Reasons that “there is simply no evidence or hint to suggest that the investigating officer’s conclusion as to sample suitability and testing is thereby wrong”, with respect to last two samples relied upon for the conviction.
9The final ground of appeal is that the trial judge failed to assess the credibility and reliability of Officer Phillips’ testimony in light of the irregularities in the testing procedure. Again, there were no irregularities shown with respect to the final two testing sequences. However, the trial judge did not consider the officer’s to be unchallenged evidence. He remarked at page 98 of his Reasons that “his evidence while closely challenged in cross-examination was not really shaken”. I conclude therefore, that the earlier remark at page 95 of his Reasons that is relied on by the appellant on this appeal, being that “the evidence of the investigating officer as to the propriety of the testing process is effectively unchallenged, and might I say unchallengeable”, addressed his ultimate conclusion which was that there was no evidence to suggest the blood alcohol content was measured incorrectly by machine malfunctioning or improper operation of the intoxilyzer.
10If the trial judge’s words “all test results” in the final paragraph of his Reasons was meant to include all four tests as opposed to just the last two, which is debateable, his reference to “all tests” being above the prescribed .08 is of little significance given that the two on which Exhibit 1 was based were unchallenged readings that exceeded the limit.
11For the foregoing reasons the appeal is dismissed.
HEALEY J.
Released: March 14, 2014