Court File and Parties
COURT FILE NO.: CR-19-24-AP
DATE: 20200507
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SAMUAL AFRIYIE
Appellant
Counsel:
Richard G. Floyd, for the Crown
Charles Shortt, for the Appellant
HEARD at Napanee: 6 March 2020
On appeal from the conviction entered at Napanee by Justice Geoffrey Griffin of the Ontario Court of Justice on 25 June 2019.
REASONS FOR DECISION
MEW J.
[1] In 2018, Parliament enacted significant changes to the criminal law relating to impaired driving offences. Bill C-46 – An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, C. 21 – introduced revisions intended, according to the Department of Justice, “to make the law more comprehensible, by simplifying and modernizing the drafting, eliminating some provisions that are unnecessary, and introducing some new provisions” with the overall intention of making “the investigation and prosecution of impaired driving offences simpler”.
[2] The provisions of Bill C-46 in issue on this appeal came into effect on 18 December 2018.
[3] Samual Afriyie was charged with operating a motor vehicle after having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[4] Although Mr. Afriyie was charged under s. 253(1)(b) of the Criminal Code in force at the time of the alleged offence, his trial did not commence until 14 June 2019. It is therefore what has been termed a “transitional” case, and as such, governed by certain transitional provisions contained in s. 32(2) of Bill C-46.
[5] The trial judge found Mr. Afriyie guilty on the “over 80” charge. He was fined $1,250 and prohibited from driving for one year. He appeals against his conviction.
[6] The issue on this appeal involves the application of the transitional provisions and, in particular, whether the facts established by the Crown engage both the “presumption of identity” provided for in s. 258(1)(c) of the former Criminal Code provisions and the presumption of accuracy contained in the new s. 320.31(1) of the Criminal Code, which was introduced by Bill C-46; and, if they do not, whether the Crown has otherwise met its evidentiary burden of proving the appellant’s guilt.
[7] The facts are straightforward.
[8] A minor motor vehicle collision took place between a vehicle operated by Mr. Afriyie and another vehicle at approximately 6:25 a.m. on 13 November 2018 on the Highway 401 off-ramp in Napanee at County Road 41.
[9] A police officer in attendance detected signs of alcohol consumption by Mr. Afriyie and made a roadside breath demand. That sample registered a “fail” on the roadside device. Mr. Afriyie was arrested, informed of his right to counsel, cautioned and a breath demand was made. He was taken to the local police detachment and subsequently provided two samples of breath registering 188 and 186 milligrams of alcohol in 100 millilitres of blood.
[10] The appellant was charged and served with a copy of a certificate of qualified breath technician.
[11] The qualified breath technician, P.C. Woodburn, testified that he began setting up the approved instrument, an Intoxilyzer 8000C, at 7:03 a.m. He conducted a calibration check and a quality assurance check. He then tested the alcohol standard and found it to be within a working range at 98 milligrams of alcohol in 100 millilitres of solution. The solution had been changed two days earlier by another qualified breath technician, P.C. Bresard. Prior to taking breath samples from Mr. Afriyie, P.C. Woodburn was satisfied that the breathalyser was working properly.
[12] The former s. 258(1)(c) created the a “presumption of identity”, the effect of which was to presume that an accused’s blood alcohol level at the time of the offence was the same as the time of testing. This presumption was engaged if the Crown could satisfy the following requirements:
a. That a breath demand had been made pursuant to s. 254(3) of the Criminal Code;
b. That each sample had been taken as soon as practicable after the time of the offence;
c. That the first sample had been taken no longer than two hours after the time of the offence;
d. That each sample was taken no less than 15 minutes apart;
e. That each sample was received directly into an approved container or an approved instrument;
f. That the container or instrument was operated by a qualified technician; and
g. That the analysis of each sample was made by means of an approved machine operated by a qualified technician.
[13] As explained in R. v. Brar, 2019 ONCJ 399, at para. 19, in cases prosecuted before the December 2018 amendments, a filing of the certificate of a qualified breath technician satisfied the statutory pre-conditions to the presumption of accuracy.
[14] There is no dispute between the parties that the requirements of s. 258(1)(c) were met in this case.
[15] However, for cases heard since the C-46 amendments came into force, consideration must also be had to the requirements of s. 320.31(1):
If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.
[16] In the present case, whilst a certificate of qualified technician was filed, and Constable Woodburn testified that he had assured himself that the alcohol standard was within limits and had been changed by Constable Bresard, there is no certification of an analyst of the concentration of alcohol in the alcohol standard used by Constable Bresard. The only evidence before the trial judge in that regard was the testimony of PC Woodburn that:
… the alcohol standard was within limits and it had been changed by Constable [Bresard], who is a qualified … breath technician known to me, a little over two days prior, and it was within working limits at that point in time. The quality assurance checks on the calibration check came up at 98 milligrams of alcohol in 100 millilitres of solution and that is within the working limits for the Intoxilyzer 8000C. It was alcohol standard manufacturer Laboratoire Atlas Inc., lot number 27KF and it was within its limits for use.
[17] The certificate filed was a “Certificate of a Qualified Technician” in a standard form as used prior to the C-46 reforms. The form makes reference to the alcohol standard used, and the lot number. But it does not say when or by whom the standard was certified.
[18] In Brar, the court explained, at para. 19, that something more is now required, either in the form of a certificate from an analyst or viva voce evidence concerning the analyst’s certification of the alcohol standard.
[19] The trial judge, having noted that PC Woodburn was a qualified breath technician said this:
He testified that he did the various testing that must be done for the readings to be achieved accurately and that he was satisfied that the machine was working properly. He testified to some extent with respect to the alcohol solution that was used and … I am satisfied that the Crown in this case has established what is required to be established pursuant to s. 320.31(1) …
[20] The trial judge made reference to the decision of Justice Kenkel in R. v. McRae, 2019 ONCJ 310. In that case, Justice Kenkel found that the Crown had proved each of the requirements of s. 320.31 and then listed the evidence that had been adduced by the Crown, including a finding that the breath technician had checked the certification for the alcohol standard that had been used.
[21] The Crown argues that the finding of the trial judge in the present case, namely that PC Woodburn had “testified to some extent with respect to the alcohol solution that was used” is a finding of fact which should be accorded in an appropriate degree of deference.
[22] While the findings of the trial judge should indeed be accorded due deference, the trial judge’s “testified to some extent” characterisation of PC Woodburn’s evidence cannot mask the fact that there was no certification of analyst. Furthermore, PC Woodburn does not say that he spoke to PC Bresard, that he reviewed a certificate or other written record or how he verified the concentration of alcohol in the alcohol standard that he used.
[23] I therefore find that the Crown has not met its burden of establishing that before each sample was taken, the qualified technician conducted a system blank test the result of which satisfied the requirements of s. 320.31.
[24] That, however, does not end the matter.
[25] The Crown relies on the decision of Madam Justice G. Roberts of this court in R. v. Wu, [2019] O.J. No. 5000 (SCJ). In that case, the sole ground of appeal was whether the Crown was required to prove that the statutory prerequisites of s. 320.31(1) of the Criminal Code had to be met in order for the results of breath tests to be admissible and found reliable. There, as in the present case, it had been argued that the Crown was required, in order for the results of the breath tests to be found reliable, to establish that the target value of the alcohol standard used for the calibration check had to have been certified by an analyst.
[26] Roberts J. noted that s. 320.31(1) of the Criminal Code sets out an evidentiary shortcut providing that the results of breath tests are accurate if the criteria enumerated in the section are met. However, these criteria are not elements of the offence of “over 80” or prerequisites to the admissibility or reliability of breath tests at common law. The evidentiary shortcut, if available, avoids the need for the Crown to adduce testimony from a breath technician. However, it still remains open to the Crown to prove the offence by the alternative “common law” route of calling the breath technician.
[27] To similar effect, in R. v. Bahman, 2020 ONSC 638, André J. held, at para. 14, that the presumption of accuracy of the testing process does not depend solely on the existence of a certificate of an analyst but could also be proven by viva voce evidence of an Intoxilyzer technician.
[28] In Wu, the Crown had led evidence from the breath technician that the system calibration check had showed a result which was within the tolerance of the standard that the technician was using. In addition to identifying the standard (as did PC Woodburn), the calibration test done on the instrument used showed “that the certified suitable alcohol standard used to test the accuracy and calibration of the instrument was 100 milligrams of alcohol in 100 millilitres of blood”.
[29] The difficulty in the present is that the best evidence of the suitability of the alcohol standard solution is that another technician is said to have changed the standard two days previously and found it to be within working limits at point in time. There is no documentation to confirm this. PC Woodburn did not test the breathalyzer by means of an alcohol standard himself and the transcript of his testimony does not disclose how he had informed himself what PC Bresard had done.
[30] I accept, as Roberts J. held in Wu, that it is open to the Crown, even in circumstances where it cannot avail itself of the evidentiary shortcut in s. 320.31(1), to adduce evidence to prove the offence by calling a breath technician. But the technician must still be able to provide a satisfactory assurance of the concentration of the standard against which the device is tested.
[31] In McRae, as well as in another case referred to in McRae, namely R. v. Porchetta, 2019 ONCJ 244, there was evidence that the breath technician had viewed the certificate of analyst and there was some evidence that the solution was certified. Such evidence was lacking in Brar. It was also lacking in R. v. Faulds, unreported, 24 September 2019, Ontario Court of Justice (Green J.) Both of those cases resulted in acquittals.
[32] The requirements of s. 320.31(1)(a) are not onerous. If an appropriate certificate could not have been obtained and filed, PC Bresard could possibly have been called. Yet instead, while PC Woodhouse referred to PC Bresard, we do not even know whether PC Woodhouse informed himself by speaking to PC Bresard, reviewing some note or record, or otherwise. As a consequence, the record was not sufficient to establish all of the requirements set out by Parliament in order for the Crown to rely on the presumption of accuracy. Nor was the Crown able to meet its evidentiary burden by other means, in the absence of being able to rely upon that presumption.
[33] In summary, I accept, as did the trial judge, that the breathalyser technician satisfied himself that the machine was working properly. However, the evidence concerning the certification of the alcohol standard before PC Woodhouse administered the tests to Mr. Afryie is insufficient to enable the Crown to meet its burden of proof.
[34] I would therefore allow the appeal and set aside the conviction.
Graeme Mew J.
Released: 7 May 2020
COURT FILE NO.: CR-19-24-AP
DATE: 20200507
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SAMUAL AFRIYIE
Appellant
REASONS FOR DECISION
On appeal from the conviction entered at Napanee by Justice Geoffrey Griffin of the Ontario Court of Justice on 25 June 2019
Mew J.
Released: 7 May 2020