R. v. Lam, 2015 ONSC 2194
CITATION: R. v. Lam, 2015 ONSC 2194
COURT FILE NO.: 71/14
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BILL LAM
COUNSEL:
Lori Hamilton, for the Crown, Appellant
Peter Lindsay, for the Respondent
HEARD: March 13, 2015
REASONS FOR JUDGMENT
R.F. Goldstein J.
[1] It is very rare that counsel, and especially Crown counsel, asks a mere summary conviction appeal judge to over-rule the Supreme Court of Canada. In the judicial order of things the Superior Court is rather closer to the bottom than to the top. But that is what the Crown asks me to do in this case. The Crown wishes me to revisit portions of the Supreme Court’s leading decision on drinking and driving. In R. v. St. Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 the Supreme Court referred to an accused person’s ability to raise a reasonable doubt based on issues with the operation and maintenance of a breath machine (I add the emphasis). The problem, as the Crown sees it, is that s. 258(1)(c) of the Criminal Code does not mention maintenance, only operation.
[2] The Crown says that, as a result, St. Onge created some confusion. Some trial judges grappling with its consequences agree. The Alcohol Test Committee, or ATC, published a paper after St. Onge was released. The Crown says that the ATC trying to clear up confusion created by the ruling. The Crown says that the publication of this paper constitutes new evidence that allows me to re-visit the use of the term “maintenance” in the St. Onge decision: Attorney General of Canada v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at paras. 42-44. In Bedford, the Supreme Court of Canada indicated that a lower court may revisit an issue decided by a higher court where there is a significant change in the circumstances or the evidence. The Crown says that an accused person should not be permitted to raise a reasonable doubt based on the failure by the police to maintain a breath machine in accordance with the recommendations of the ATC.
[3] The Crown also says that as a result the trial judge misapprehended the evidence.
[4] Mr. Justice Knazan of the Ontario Court of Justice, the trial judge, was aware of the paper – it was entered as an exhibit at the trial: R. v. Lam, 2014 ONCJ 247. This was otherwise a routine case: Mr. Lam was speeding; he was pulled over; the officer smelled alcohol on his breath; he failed the roadside screening test; he was taken to the station; he provided two breath samples, both of which confirmed driving with a blood alcohol concentration, or BAC, above the limit. The trial judge found, based on maintenance records and the evidence of a defence expert, that there was a reasonable doubt about the proper operation of the machine. He acquitted Mr. Lam. The Crown says that this was a misapprehension of the evidence because improper maintenance should not be a basis upon which a reasonable doubt can be raised.
[5] I disagree with the Crown that the post-St. Onge position paper constitutes new circumstances or evidence. I will not be re-visiting St. Onge. That said, and with great respect to the trial judge, whose reasons were detailed and thorough, I find that he erred. He misapprehended the evidence by finding that the failure of the police to conduct a yearly inspection of the Intoxylizer amounted to improper maintenance and – without more – cast doubt on the reliability of the results. For the reasons that follow, the appeal is allowed and a new trial is ordered.
TRIAL AND JUDGMENT
1. Evidence of the Police Officers
[6] Just before midnight on September 8, 2008 Constable Gomes clocked Mr. Lam driving 146 km/h. Constable Gomes pulled him over. He went to Mr. Lam’s car. He made the usual demand for Mr. Lam’s documents. He also smelled alcohol on Mr. Lam’s breath. He asked Mr. Lam if he had been drinking. Mr. Lam replied: “a few drinks.” He said he had been drinking beer. Constable Gomes demanded that he provide a breath sample for a roadside screening device. After several attempts, Mr. Lam registered a fail. Constable Gomes arrested him and transported him to the OPP Toronto Detachment. Mr. Lam gave two samples of his breath to Constable Simpson, a qualified breath technician. Both samples registered a blood alcohol concentration, or BAC, of 110 milligrams of alcohol in 100 millilitres of blood.
[7] The police used an Intoxilyzer 500C to measure Mr. Lam’s BAC. Sergeant Zelasko was the administrative sergeant at the OPP Toronto Detachment. His duties included overseeing the maintenance of the detachment’s Intoxilyzer 5000C. He testified that the Inoxilyzer 5000C had been sent for annual maintenance on July 3, 2007. It was returned on August 10, 2007. Mr. Lam was tested on September 9, 2008, which was more than a year after the machine was serviced. The Intoxilyzer was sent for its next annual maintenance on October 2, 2008 and returned on December 24, 2008.
[8] The Intoxilyzer was sent to a company called Mega-Tech in Edmonton, Alberta. Mega-Tech did the maintenance work. The Mega-Tech sales order form detailed the work that had been done. The sales order also noted that: “Unit at some time has been flooded.”
2. The Alcohol Test Committee
[9] The Canadian Society of Forensic Science established the ATC in 1967. The ATC has two major functions: first, it ensures that breath-testing equipment “meets rigid specifications through the development of standards and evaluation procedures.” Second, the ATC publishes “standards and procedures for the use of such equipment in the field.”
[10] The ATC is also the principle scientific advisor to the Department of Justice in relation to the scientific and technical aspects of breath testing. This advice is necessary, because the Criminal Code mandates that only approved devices may be used for roadside screening and for BAC analysis. The ATC’s advice to the Department of Justice is eventually translated into the list of approved devices.
[11] The ATC publishes standards and procedures for breath test programs. Standards and procedures were published in the Canadian Society Of Forensic Science Journal in 2003 and 2009, as well as the 2012 position paper. The Supreme Court in St. Onge referenced the 2003 and 2009 papers.
3. Evidence of the Expert Witnesses
[12] Ismail Moftah testified as a defence expert. He is a qualified toxicologist. He worked at the Center for Forensic Sciences for 26 years. He said that he had concerns about the Intoxilyzer used to test Mr. Lam’s BAC. He noted that the maintenance was done beyond the one-year interval recommended by the ATC. Mr. Moftah also examined the Mega-Tech sales order. He was particularly concerned that the flooding was significant. Mr. Moftah’s opinion was that the Intoxilyzer was not operated properly because of the maintenance issue. He could not be sure that the results were reliable.
[13] The Crown called Dr. Darryl Mayers in reply. Dr. Mayers is also a qualified toxicologist. He has been a member of the ATC since 2008. He testified that the critical information in determining whether the Intoxilyzer was working properly were the test records. Each time the Intoxilyzer is used it is tested, and the machine keeps a record. Although he was not an expert in the maintenance of the machine, he was aware that flooding could affect the result. If the Intoxilyzer had been flooded and not been purged, the technician would not have been able to perform the test. This was because the machine would have given a failure message when it was tested. Dr. Mayers’s opinion was that the Intoxylizer was working properly when samples of Mr. Lam’s breath were taken. Dr. Mayers conceded that other expert toxicologists could legitimately come to a different conclusion.
[14] Both expert witnesses conceded that they were not experts in the maintenance of the Intoxylizer, although both obviously knew a great deal about it.
4. Justice Knazan’s Judgment
[15] The trial judge identified the key question in the case as whether the breath test results were accurate or whether there was evidence that raised a reasonable doubt about whether the Intoxylizer was operated improperly. In other words, did Mr. Lam rebut the presumption of accuracy?
[16] The trial judge thoroughly analyzed the St. Onge decision. He noted that s. 258(1)(c) does not mention maintenance, but only improper operation as something that can give rise to a reasonable doubt about the functioning of the Intoxylizer. The implication of the judgment was that the Supreme Court had extended the meaning of “improper operation” to include “improper maintenance”.
[17] The trial judge noted Dr. Mayers’s opinion that the failure to send the machine for annual maintenance did not cast doubt on the reliability of the results. He also noted Dr. Mayers had said that the flooding was not relevant because if the machine were malfunctioning due to flooding it could not have accepted the breath samples.
[18] The trial judge found as a fact that the Intoxylizer was not properly maintained because it had not been sent for annual maintenance. Since the accused need only call evidence tending to cast doubt on the reliability of the results, he found that Mr. Lam had rebutted the presumption of accuracy. He acquitted him.
ANALYSIS:
[19] This appeal raises two issues: first, is the 2012 ATC position paper new evidence or a new circumstance? And second, in the circumstances of this case, did the trial judge err by misapprehending the evidence?
1. Is there new evidence or a new circumstance to justify revisiting St. Onge?
[20] The Criminal Code was amended in 2008 to eliminate the so-called “Carter Defence”. An accused person could testify that he or she had not consumed alcohol, or had consumed much less alcohol than what would have been required to show a high reading. If believed, that testimony could raise a reasonable doubt about the accuracy of a breath machine: R. v. Carter (1985), 19 C.C.C. (3d) 344 (Ont.C.A.).
[21] In St. Onge the Supreme Court found that part of s. 258(1)(c) of the Criminal Code infringed presumption of innocence enshrined in s. 11(d) of the Charter of Rights. The Section said that in order to rebut the presumption of accuracy, an accused person had to:
show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
[22] The Court found that the first requirement was saved as a reasonable limit under s. 1 of the Charter. The Court severed the second and third requirements. An accused person need only call evidence tending to show that the approved instrument was malfunctioning or operated improperly.
[23] Thus, the Crown remained entitled to rely on the “presumption of accuracy”: the presumption that the BAC set out in the certificate of the breath analyst was accurate.
[24] The Supreme Court went on to interpret improper operation to include improper maintenance. Deschamps J., for the Court, stated at para. 26:
Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(c) and s. 258(1)(d.01), since the accused can rebut the presumptions by showing that the instrument was not properly maintained or operated.
[25] The Crown argues that circumstances and evidence have changed: Bedford, at paras. 42-44. The Crown says that the 2012 position paper was a response to the St. Onge decision:
Notwithstanding the long acceptance of breath alcohol testing by the judiciary, Canadian courts have recently faced increasingly technical submissions regarding the science and validity of breath alcohol testing.
[26] Quite simply, I don’t think that the position paper can be read as a response to St. Onge. The footnote to that passage states:
Such applications are the result of restrictions on “evidence to the contrary” in Bill C-2, the Tackling Violent Crime Act (2008), which essentially requires that there be evidence tending to show instrument malfunction or operator error in order to contradict the BAC produced by the AI.
[27] The Crown specifically relies on these passages from the 2012 position paper to argue that the ATC “shut the door” on the ability of an accused person to raise the issue of improper maintenance:
In most cases the AI will automatically produce a printed record that supplies much of the information enumerated above. In some instances the required information may reside in other documents or records. The ATC does not provide specific guidance as to how these supplementary documents be retained, only that the data are available to allow for the formation of a considered scientific opinion about the performance of the AI at the time of the analysis of a subject’s breath tests.
Review of these specified requirements is sufficient to assess the accuracy and reliability of a subject’s breath test results. Deviations from the Operational Procedures recommended by the ATC would be recognizable by reviewing the materials outlined above… [Emphasis added]
[28] In my respectful view, the position paper is meant to deal with the consequences of the St. Onge decision at the trial level. As I mentioned earlier, the Supreme Court was aware that the ATC published standards and procedures papers in 2003 and 2009. I do not think the 2012 paper can be read as attempting to respond to the scientific correctness (or otherwise) of the St. Onge decision. I say this because the 2012 paper goes on to say:
Specifically, there has been much debate as to what information is scientifically required to properly assess the working order of an AI… Thus, the objective of this publication is to clearly define what information is sufficient to adequately assess the performance of an AI at the time of subject breath testing. [Emphasis added]
[29] Both the 2003 and 2009 papers included the following disclaimer:
It must be recognized, however, that consistent with other quality assurance practices all standards do not necessarily have a direct bearing on the result, only on the overall quality system that is in place. As such, the standards and procedures contained herein are intended as recommendations to encourage the development of a quality system or best practices within a breath test program. They are not to be considered as required elements of proof additional to those already provided in the Criminal Code. [Emphasis added]
[30] The 2012 paper stated:
Records relating to periodic maintenance or inspections cannot address the working status of an AI at the time of a breath test procedure and are intentionally absent from the requirements listed above. Thus, while a failure to adhere to such quality assurance mechanisms could lead to an instrument malfunction, this occurrence will be detectable by the quality control tests done during the breath test procedure… [Emphasis added]
[31] I have reviewed of the 2003 and 2009 papers, as well as 2012 position paper. I simply cannot agree with the Crown that the 2012 paper can be interpreted to cast scientific doubt on St. Onge. That is because St. Onge itself makes it clear that an accused person must link the improper operation or the failure to maintain the breath machine directly to an unreliable result. In other words, it is not enough to simply say: “the machine wasn’t maintained properly”. An accused person must be able to say: “the machine wasn’t maintained properly, and it led to a problem with the machine.” As I discuss next, this was the error by the trial judge. This aspect of the appeal is dismissed.
2. Did the trial judge err by misapprehending the evidence?
[32] The trial judge said this:
… I conclude that the evidence that the accused must adduce need only raise a doubt that the machine was operated properly and that will necessarily cast doubt on the reliability of the results. The accused need not go farther and show that the deficiencies did affect the reliability of the results. The last sentence “what the new provisions require is that evidence tending to cast doubt on the reliability of the results related directly to such deficiencies” does not mean that the accused must raise a doubt as to the proper operation of the instrument and a further doubt about the reliability of the results. It is the improper operation of the instrument that raises a doubt about the reliability because the court has said “the results will be reliable only” if the instruments are maintained properly. [Emphasis added]
[33] Thus, the trial judge agreed that Mr. Lam was able to raise a reasonable doubt based on issues with the maintenance of the machine. The trial judge found that the Intoxylizer was not maintained within the one-year period. It was therefore operated improperly. This, he found, was enough to cast doubt on the reliability of the results.
[34] With great respect, the trial judge seems to have elevated a recommendation for yearly inspections into a rule. The suggestion that an inspection on something less than a yearly basis amounts to improper maintenance is to take a recommendation and give it the force of law. This is not what the ATC says and it is contrary to at least one appellate authority: R. v.So, 2014 ABCA 451 at para. 42. The one-year inspection recommendation is not a limitation period.
[35] Regrettably, this led the trial judge to err by finding that a freestanding violation of inspection recommendations is enough, by itself, to raise a reasonable doubt. This is contrary to the words of St. Onge at para. 41:
It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies. [Emphasis added]
[36] In other words, there must be a link. Neither of the experts in this case could make that link. See also So at para. 36.
[37] In my respectful view, the trial judge also misapprehended the evidence. Dr. Mayers, the Crown’s expert, said that neither the failure to send the machine for annual maintenance nor the flooding could have affected the test results. The trial judge rejected that evidence on the grounds that Dr. Mayers was conlating the terms “malfunctioning” and “operated improperly”. He acknowledged that Dr. Mayers was highly knowledgeable very professional, and careful to restrict his opinion that the machine was operating properly based on his examination of the test records. Although there was no evidence that Constable Simpson had operated the machine improperly, that did not end the matter. The trial judge’s view was that Constable Simpson was operating an instrument that was improperly maintained.
[38] The trial judge preferred the evidence of Mr. Moftah. He was certainly entitled to do that, but I believe that he did so because he misapprehended the nature of the ATC recommended standards and procedures. The trial judge stated:
Mr. Lam has shown that the instrument that Officer Simpson used had not been sent for annual inspection for over 13 months when he provided his breath samples into it. Annual inspection is the ATC’s recommendation. Mr. Moftah worked for the Centre for Forensic Sciences for 26 years. His expertise was not contested by the Crown and it is his opinion that non-compliance with the recommendation is improper maintenance. He goes further and gives the opinion that non-compliance with the maintenance recommendations amounts to improper operation.
[39] Dr. Moftah’s opinion was not that the improper operation cast doubt on the results, but rather that failure to comply with the inspection recommendation amounted to improper operation. Improper operation is a legal concept under s. 258(1)(c). This opinion was therefore a conclusion of law, at least in part (as the trial judge recognized). The problem was that it was an erroneous conclusion of law.
[40] In R. v. Ketler, 2014 ONSC 4344, [2014] O.J. No. 3551 the accused allegedly used an asthma inhaler. He testified that the inhaler he used contained alcohol. The inhaler might have had an alcohol mist, leading to a large amount of mouth alcohol, which might have led to error. The operator permitted the accused to use his inhaler but did not wait 15 minutes to let the mouth alcohol dissipate. The trial judge was sceptical that the accused actually had used an inhaler containing mouth alcohol and did not find the accused credible. Even though the operator had failed to wait 15 minutes, the trial judge was satisfied from the expert evidence that the slope detector of the machine would have corrected for mouth alcohol, had there been any. The trial judge found that the breath technician did not follow the recommended procedures but that there was no operator error. S.K. Campbell of this Court, the summary conviction appeal judge, did not accept the defence argument that the trial judge erred. The failure to follow the 15-minute recommendation did not cast a real doubt on the reliability of the results.
[41] In R. v. Desjarlis, 2015 ONCJ 137 the breath machine had been inspected two years prior to use. The technician calibrated the machine and performed all of the self-tests required. The trial judge rejected the defence argument that the failure to inspect at a yearly interval gives rise to a real doubt that the breath instrument malfunctioned or was operated improperly.
[42] In this case there was evidence that the Intoxylizer had flooded at some point. There was no evidence, however, to specifically tie the flooding to a malfunction cast doubt on Mr. Lam’s breath readings. Even Mr. Moftah, the defence expert, did not make that link. Mr. Mofta could go no further than to say that the machine was operated improperly because it had not been sent for regular maintenance (notwithstanding that the recommendation is for inspection). He could not say that this failure cast doubt on the results except in a very general sense. That is where the trial judge misapprehended the evidence. That misapprehension was central to the trial judge’s reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at para. 93 (C.A.).
[43] I ask – rhetorically –if Mr. Lam had been arrested on August 9, 2008 rather than September 9, 2008 would that really have made a difference? The doubt must not be trivial or frivolous, but must be a real doubt that the machine was functioning or operated improperly: St. Onge, at paras. 52-53.
DISPOSITION
[44] The appeal is allowed and a new trial is ordered.
R.F. Goldstein J.
Released: April 7, 2015