CITATION: R. v. Singh, 2017 ONSC 6540
COURT FILE NO.: CR-16-1538-00AP
DATE: 20171101
CORRECTED: 20171129
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MAJESTY THE QUEEN
James Palangio and Christina Sibian, for the Appellant
Appellant
- and -
GURDEV SINGH
Richard Posner, for the Respondent
Respondent
HEARD: November 18, 2016
CORRECTED
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice
at Brampton, ON, delivered March 30, 2016]
BARNES J.
INTRODUCTION
[1] On March 30, 2016, Justice Ready of the Ontario Court of Justice, acquitted the Respondent of one count of operating a motor vehicle while having consumed alcohol such that his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 milliliters of his blood, contrary to section 253(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. The Crown appeals the acquittal. I have granted the appeal and ordered a new trial. These are my reasons.
ISSUES
[2] The Crown submits that the trial judge committed the following errors: (1) erred in law and in fact by misapprehending the evidence; (2) erred in law by speculating on the evidence; (3) erred in law in the interpretation and application of s. 258(c) of the Criminal Code; and (4) the learned trial Judge made findings of fact not supported by the evidence.
[3] The material filed and the submissions of the parties raise the following issues: (1) is uncertainty of measurement required by law? (2) does uncertainty of measurement constitute evidence “tending to show” pursuant to section 258(1)(c) of the Criminal Code?
BACKGROUND FACTS
[4] On March 4, 2014, a police officer saw the Respondent leaving a liquor store with a bottle of alcohol in his hand. The officer watched him walk to his vehicle, start the vehicle, and drive out of the parking lot. The police officer conducted a traffic stop a short distance away.
[5] The Respondent told the police officer that he had been drinking two hours prior. The officer detected a strong odor of alcohol coming from the Respondent’s breath. The officer also observed that his eyes were red-rimmed, watery, and that his face was flushed. At 9:10 p.m., the police officer read the Respondent the Approved Screening Demand (ASD). The Respondent made three attempts to provide a breath sample into the road-side screening device. On his third attempt, he provided a proper sample and registered a “fail” result.
[6] The Respondent was arrested for having a blood alcohol concentration over 80 mg. He was given his right to counsel, read the breath demand, and taken to the police station for further breath testing. A qualified breath technician tested samples of the Respondent’s breath. He used the Intoxilyzer 8000C, an approved instrument under the Criminal Code.
[7] The breath technician testified that the instrument was in proper working order. He operated it in accordance with his training and the manufacturer’s specifications. The technician said he conducted both a diagnostic and calibration check (the breath test protocol). He explained that if the approved instrument was not in working order, it would show error codes or the calibration checks would be outside the 96 mg of alcohol in 100 mL of blood range.
[8] The technician explained that the calibration check registered 96 mg of alcohol in 100 mL of blood and was within the acceptable range. He said he also conducted a self-test, which accurately recorded a zero result as he had no alcohol in his system. He testified that the operating temperature of the approved instrument was 34°C.
[9] The Respondent provided his first sample at 9:51 p.m. The sample produced a result of 146 mg of alcohol in 100 mL of his blood. At 10:13 p.m., the Respondent provided his second sample, which registered 140 mg of alcohol in 100 mL of blood.
[10] The trial court heard from a number of witnesses, including two expert witnesses. Dr. Robert Langille, from the Centre for Forensic Sciences (CFS), testified for the Crown. Mr. Ben Joseph, a former toxicologist with the CFS, was a defence witness.
[11] The trial judge concluded that uncertainty of measurement was required by law. The approved instrument provided no evidence about the uncertainty of measurement for the Respondent’s test results. The trial judge concluded that without this measurement she could not determine whether the approved instrument was functioning properly when the Respondent was tested. Therefore, the trial judge concluded that she had a reasonable doubt about the accuracy of the instrument used in the test.
[12] The crux of this appeal stems from the trial judge’s reliance on Mr. Joseph’s testimony on the importance of uncertainty of measurement.
POSITION OF THE PARTIES
[13] The Crown submits that the trial judge acquitted the Respondent because she had a reasonable doubt on two issues: (1) the uncertainty of measurement of the instrument; and (2) Mr. Joseph’s evidence regarding the COBRA data. The Crown submits neither of these concerns is sufficient on its own to raise a reasonable doubt about the proper functioning of the approved instrument. Therefore, the trial judge erred in her conclusions on both issues, and the Respondent’s acquittal cannot stand.
[14] The Appellant submits that the trial judge also erred in finding that uncertainty of measurement was a legal requirement, and that this value had to be evident on the face of the records before the records could be relied on to show that the approved instrument was in proper working order. The Crown argues these conclusions led the trial judge to disregard evidence that the instrument was in proper working order at the time of the Respondent’s breath tests.
[15] The Appellant submits that the trial judge also erred in finding that uncertainty of measurement constitutes “evidence tending to show”. In reaching this conclusion, the trial judge relied on the evidence of Mr. Joseph, which at most did not establish anything beyond the mere possibility of the instrument malfunctioning during the Respondent’s breath tests. “Evidence tending to show” must raise real doubts regarding the functioning and operation of the instrument during the Respondent’s actual test. The evidence failed to do so. The Crown argues the Respondent’s acquittal cannot stand because there was no “evidence tending to show” capable of rebutting the presumptions in section 258 (1)(c) of the Criminal Code.
[16] The Respondent submits that Mr. Joseph explained that measurement uncertainty is an important concept in the scientific study of measurement. Mr. Joseph testified that measurement uncertainty has been accepted in scientific literature as a necessary quality standard in the context of forensic alcohol testing. In support, Mr. Joseph referred to publications of the National Institute of Standards and Technology (NIST) and the National Academy of Sciences (NAS).
[17] Mr. Joseph explained that uncertainty of measurement is a requirement of the International Standards Organisation (ISO). The CFS is required to comply with ISO standards. Pursuant to ISO 17025, every quantitative test conducted in the forensic laboratory must be accompanied by a statement of measurement uncertainty.
[18] The Respondent submits that the trial judge’s comment that uncertainty of measurement is required by law was followed immediately by reference to ISO standards and standards for forensic laboratory accreditation. He submits that the trial judge understood that forensic test results that are not accompanied by statements of measurement of uncertainty, do not accord with international standards of forensic science. Therefore, the trial judge’s comment that uncertainty of measurement is required by law is a minor misstatement.
[19] The Respondent submits it was proper for the trial judge to conclude, based on Mr. Joseph’s testimony, that it was improper for the police to maintain and operate an approved instrument while oblivious to the instruments measurement uncertainty. The trial judge was correct in concluding that the failure to maintain and operate the approved instrument, with knowledge of its measurement uncertainty, constituted “evidence tending to show” that the approved instrument was not properly operated and maintained. The Respondent submits that such evidence was sufficient to rebut the presumption of accuracy set out in section 258(1)(c) of the Criminal Code.
[20] In addition, the trial Judge accepted Mr. Joseph’s evidence that the historical records of the approved instrument revealed significant aberrations in the performance of the approved instrument. The failure of the police to document the cause of the aberrations and the corrective action taken raised the real possibility that the instrument was not functioning properly. The Respondent argues this fact alone is sufficient to rebut the presumption of accuracy. Therefore, there is no need for appellate interference with the trial judge’s decision.
LAW
[21] The impugned conduct of a person charged with the subject offence, is operation of a motor vehicle with a blood alcohol concentration (BAC) of over 80 mg of alcohol in 100 mL of the person’s blood. The Crown has the burden to prove the following elements of the offence beyond a reasonable doubt: (1) that the person was operating or had care and control of the motor vehicle, regardless of whether it was in motion or stationary; and (2) the person had at that time consumed alcohol in such a quantity that the blood alcohol concentration in the person’s blood was over 80mgs: section 253(1)(b) of the Criminal Code.
[22] An accused’s BAC is only admissible as conclusive proof, if the Crown satisfies the following preconditions enumerated in section 258(1)(c ) of the Criminal Code, beyond a reasonable doubt: (1) that the sample was provided pursuant to a section 254(3) demand; (2) the sample was taken “as soon as practicable”; (3) the first sample was taken no later than two hours after the alleged offence; (4) each sample was provided directly into an approved instrument; and (5) the approved instrument was operated by a qualified technician.
[23] The Crown can put this evidence before the court through (1) viva voce evidence from a qualified breath technician; or (2) proof via a Certificate. To rely on a Certificate, the Crown must prove that the prerequisites set out in section 258(1)(g) of the Criminal Code have been satisfied and the accused was given reasonable notice as required under section 258(7) of the Criminal Code. Proof must be beyond a reasonable doubt: R. v. Ware, [1975] O.J. No. 705 (C.A.), at paras. 13-14; R. v. Lightfoot, 1981 CanLII 47 (SCC), [1981] 1 S.C.R. 566, at pp. 574-575.
[24] Section 258(1)(c) creates two presumptions: the presumption of accuracy and the presumption of identity. The presumption of identity deems that the BAC of the accused, at the time of testing, constitutes conclusive proof of the accused’s BAC at the time of the alleged offence. Section 258(1)(d.1) of the Criminal Code also creates a presumption of identity. The presumption of accuracy deems the BAC of the accused at the time testing to be accurate, subject to statutorily permissible evidence to the contrary: 258(1)(c); section 258(1)(d.1); R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] S.C.J. No. 57, at paras: 6, 15, 21.
[25] The accused can rebut the presumption of accuracy by leading evidence tending to show any of the following: (1) that the approved instrument was malfunctioning or was operated improperly; or (2) that the malfunction or improper operation affected the accused’s blood alcohol concentration. The purpose of such evidence is to raise a reasonable doubt that the approved instrument was functioning properly and/or was operated properly at the time of the subject test. In effect, in the presence of such doubt, the test results cannot be deemed to be accurate and cannot be relied on: section 258(1)(c); St-Onge, at para. 41.
[26] The type of evidence that will qualify as evidence tending to show is constrained by the statutory scheme enacted by Parliament. Evidence to the contrary cannot be interpreted in a manner that defeats the statutory scheme. Parliament has chosen to make a distinction between approved instruments and ordinary instruments: R. v. Moreau, 1978 CanLII 162 (SCC), [1979] 1 S.C.R. 261, at pp. 271-273.
[27] Moreover, Parliament has approved breath test instruments that have been subjected to rigorous evaluation. Parliament has approved these instruments on the basis that the breath tests they generate are reliable. This was acknowledged by the Supreme Court in St-Onge, at para. 34 (see also para. 35):
The reliability of the Breathalyzer tests was explicitly mentioned in the abstract of Hodgson’s report:
The scientific basis for evidential breath alcohol testing is well-established. Experiments derived from the recognized scientific law in physics have proven the scientific validity of breath analysis to determine alcohol concentration in the blood. Instruments designed to measure breath alcohol content are based on technology that is capable of producing scientifically sound results. Like Canada, any country that embarks on evidential breath alcohol analysis subjects these instruments to a rigorous evaluation process. These processes determine whether the instruments meet the scientific standards for accuracy, precision, reliability, and specificity. [p.83]
[28] The scientific evidence, on which Parliament relied when enacting the statutory scheme, indicates that “if the instrument functions properly, and all the relevant procedures are followed, the results should be reliable”: see St-Ong, at para: 34, 35, 38. The Alcohol Test Committee of the Canadian Society of Forensic Science (the Committee) has made a series of recommendations on the “procedures to be followed by technicians who operate the instruments and verify that they are properly maintained”: St-Ong, at para. 25. These procedures include a breath test protocol, which is described at para. 25 of St-Ong as follows:
The Committee states that before collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct a system blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard must be changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer’s technical specifications. According to the Committee, the calibration and maintenance of instruments are essential “to the integrity of the breath test program” (p.14).
[29] In R. v. Ocampo, 2014 ONCJ 440, [2014] O.J. No. 3960, at paras. 47- 65, Justice Tuck-Jackson provides a step by step description of how the breath test protocol is executed when using an approved instrument. This description is aptly summarised by Justice Kenkel in Impaired Driving in Canada, 4th edition (2015), LexisNexis Canada, at p. 28-29 as follows:
A system blank test clears the instrument and ensures there is no residual alcohol from prior tests. At the same time the rooms ambient air is tested to ensure that there is no alcohol in the room air that would contaminate the subject tests. If alcohol is found in the room, there is an ambient fail registered. No test is permitted until the ambient air is cleared.
The approved instrument then performs a series of internal diagnostic checks to ensure that it is in proper working order.
Prior to testing the accused, the approved instrument is itself tested in the calibration check where it is required to analyze a sample from a known alcohol standard provided by an independent laboratory. It must give the correct reading within 10% of the known target value (100mgs) of that standard.
A further air blank test is conducted to remove the results of the calibration tests.
A further diagnostic check is done to ensure the approved instrument is in proper working order prior to the accused’s test.
The accused then provides a first suitable sample which is tested by the approved instrument.
The test is purged via another air blank.
There is a wait of 15 minutes before the second breath test is conducted to guard against the presence of mouth alcohol at the time of the first test and to ensure the reliability of the first test.
The approved instrument runs another internal diagnostic check.
The approved instrument is again tested against a known external standard in a second calibration check and it must return the result within 10% of the known value.
Another air blank is run and a further diagnostics check is done.
The accused must then provide a second sample which is tested by the approved instrument.
As a final quality check, the results of the two breath tests are compared. If they differ by more than 20 mg/100 mL, a third test sequence is engaged. Where a third sample is taken, the qualified technician should testify in person at trial.
[30] The reliability of the approved instrument is further described at page 28 of Impaired Driving in Canada, as follows:
While any machine or approved instrument can fall into error, the protocol ensures reliability by requiring the approved instrument to pass diagnostic checks and a calibration check before each of the two subject samples. For the instrument to produce faulty readings that would propel someone under 80 mg to readings above the legal limit, it will have to pass nine diagnostic checks, pass the calibration test by providing the correct result when analyzing the known external sample, then fall into error when the subject provides a sample, but then subsequently pass the further diagnosis checks, somehow correct the analytical error and provide the correct results when analyzing the known external sample, then fall back into error, but only when the subject provides the second sample. Note that the two subject tests errors could not be random as the subject test results have to be in good agreement. Often, breath technicians conduct a “self-test” prior to this sequence that would provide further evidence that the approved instrument was providing an accurate result.
[31] The instruments approved by Parliament produce scientifically sound and reliable breath test results, as long as they are maintained and operated properly. Thus, the approved instruments are not infallible. Human error cannot be discounted. Test results can be inaccurate where the machines are not maintained and/or operated properly. The accused can rebut the presumption in this section by showing that the instrument was not properly maintained or is operated improperly: St-Onge, at para. 26. This is explained by the Supreme Court of Canada in St-Onge, at paras. 38, 41:
…. According to the scientific evidence on which Parliament relied, if the instrument functions properly, and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it.
It should also be mentioned that the new provisions did not make it impossible to disprove the test results. Rather, Parliament has recognized that the results would be reliable, only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or the test process. What the new provisions require is that evidence tending to cast doubts on the reliability of the results relate directly to such deficiencies.
[32] The evidence tending to show that there might be deficiencies in the instruments or test process must not simply show that a deficiency is possible. The evidence must raise a real doubt that the instrument was not functioning properly and/or not operated properly. The standard of proof is beyond a reasonable doubt: St- Ong, at paras. 16, 53; R. v. Crosthwait, 1980 CanLII 182 (SCC), [1980] 1 S.C.R. 1089, at pp. 1101.
ANALYSIS
- Is “uncertainty of measurement” required by law?
[33] The trial judge erred when she concluded that uncertainty of measurement is required by law. Uncertainty of measurement is not required by law.
[34] Mr. Joseph defined the term “uncertainty of measurement” by referencing this definition in a 1994 NSIT publication:
The result of the measurement is only an approximation or estimate of the value of the specific quantity subject to measurement, that is, the measurement, and thus the result is complete only when accompanied by a quantitative statement of its uncertainty.
[35] The trial judge misapprehended the evidence when she concluded that the experts, Mr. Joseph and Dr. Langille, had testified that uncertainty of measurement was required by law. Only the perquisites prescribed by Parliament in sections 258(1)(c) and section 258(1)(c)(ii)-(iv) are required by law: R. v. Ware, [1975] O.J. No. 705 (C.A.), at paras. 13-14; R. v. Lightfoot, at pp. 574-575.
[36] In effect, the trial judge read in a technical requirement into section 258(1)(c) that is not supported by the language used by Parliament. This is an error: Lightfoot, at pp.574-575.
- Does uncertainty of measurement constitute evidence tending to show, pursuant to section 258(1)(c)?
[37] Mr. Joseph’s evidence on the effect of the absence of a value for uncertainty of measurement is speculative. It does not raise a real doubt about whether the instrument used for the Respondent’s breath test was functioning properly at the time of the subject tests. Thus, this expert evidence does not meet evidentiary threshold of proof beyond a reasonable doubt, which is required to satisfy the statutory perquisite of “evidence tending to show” necessary to rebut the presumptions.
[38] The qualified breath technician testified that prior to testing the Respondent’s breath sample, he conducted the breath test protocol. The approved instrument passed this test and he concluded that the instrument was in proper working order. Dr. Langille explained that information revealing the COBRA data was not a determinant of whether or not the approved instrument was functioning properly at the time of the subject test. In his view, what was more important was whether the machine passed the breath test protocol. The machine passed the breath test protocol in this case; therefore, it was functioning properly.
[39] The trial judge did not accept Dr. Langille’s evidence, which she is entitled to do on a reasoned basis. The error in this case stems from the trial judge’s acceptance of evidence that is speculative in nature. The trial judge accepted and relied on Mr. Joseph’s evidence. Mr. Joseph’s evidence is the linchpin on which the Respondent’s acquittal is based.
[40] Mr. Joseph testified that he examined the historical data, including the COBRA data relating to the approved instrument. He said the COBRA data contained a host of aberrant calibration checks. He testified that some of these checks may be benign or trivial. However, he argued that some of these checks may be indicative of a catastrophic fatal problem with the instruments and/or its accessory equipment. In other words, a more serious failure affecting the functioning of the instrument may be possible.
[41] Mr. Joseph had no information regarding the causes or corrective actions taken to address any aberrations revealed by the historical data. On the basis of this lack of information, and in the face of evidence that the breath protocol was executed and passed, he concluded that the instrument was possibly unreliable. He also concluded that the absence of a value for uncertainty of measurement indicated that the instrument was possibly unreliable. In fact, a careful examination of all of his evidence reveals that at most his evidence was careful and logical speculation that the machine was possibly unreliable.
[42] A careful review of the evidence leads to the conclusion that Mr. Joseph sought to displace the impact of the successful breath test protocol on the basis of pure speculation. Mr. Joseph’s evidence was speculative, and as such, insufficient to raise real doubt about whether the instrument was functioning improperly.
[43] There must be a rational and objective connection between the deficiencies identified and how the instrument is maintained or operated. This requires evidence casting doubt on how the instrument was actually maintained and operated for the subject test in question, to rise above the speculative. The evidence must rise above mere speculation to create a real doubt that the instrument was maintained or operated improperly at the time of the subject tests.
[44] The practical effect is that evidence tendered to rebut the presumption which is speculative in nature is insufficient to rebut the presumption. Mr. Joseph’s speculative evidence was insufficient to displace other evidence before the trial judge that the approved instrument was maintained and operated properly at the time of the Respondent’s breath tests.
[45] Mr. Joseph’s evidence is speculative, and thus, cannot constitute proof beyond a reasonable doubt that at the time of the Respondent’s breath tests, the instrument was maintained or operated improperly. In the result, uncertainty of measurement does not constitute “evidence tending to show”.
[46] The trial judge relied on speculative evidence that cannot raise a reasonable doubt. In the result, the acquittal is set aside. A new trial shall take place at the Ontario Court of Justice. Parties shall attend at the set date courtroom at the Ontario Court of Justice, Brampton, Ontario on October 23, 2017.
Barnes J.
Released: November1, 2017
Corrected: November 29, 2017
CITATION: R. v. Singh, 2017 ONSC 6540
COURT FILE NO.: CR-16-1538-00AP
DATE: 20171101
CORRECTED: 20171129
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
GURDEV SINGH
Respondent
CORRECTED REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON., delivered March 30, 2016]
Barnes J.
Released: November 1, 2017
Corrected: November 29, 2017