R. v. Zimmerman, 2012 ABQB 600

Court of Queen ’ s Bench of Alberta Citation: R. v. Zimmerman, 2012 ABQB 600 Date: 20121001 Docket: 090635582S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Kevin Zimmerman Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an appeal by Kevin Zimmerman from his conviction for driving while his blood alcohol concentration exceeded 80 milligrams per 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . At trial, Mr. Zimmerman sought to challenge the constitutional validity of the 2008 amendments to s. 258(1) requiring more than evidence of consumption to rebut the presumption of accuracy of the breathalyzer test. [ 2 ] The learned trial judge did not deal with this issue, finding instead that Mr. Zimmerman's evidence of consumption was not

[ 2 ] The learned trial judge did not deal with this issue, finding instead that Mr. Zimmerman's evidence of consumption was not credible and did not in itself raise a reasonable doubt about the accuracy of the breathalyzer results. Essentially, the trial judge held that he did not need to deal with the constitutional issue because even if the amendments were invalid, Mr. Zimmerman had not rebutted the presumption under s. 258(1) as it existed before the amendments in 2008. On the finding that Mr.

Zimmerman's best case scenario was that the amendments be struck down thus restoring the availability of the " Carter "defence, Mr. Zimmerman had not made out the Carter defence on the evidence before him. [ 3 ] Mr. Zimmerman argues that the trial judge erred by failing to deal with the constitutional arguments, and that he erred in his assessment of Mr.

Zimmerman's evidence as to consumption, which he says should have created a reasonable doubt. [ 4 ] He also argues that the evidence at trial raised a reasonable doubt as to the accuracy of the test results because the Crown had not proven the suitability of the standard alcohol solution used to test the breathalyzer machine. [ 5 ] Mr. Zimmerman seeks a new trial. [ 6 ] The trial judge gave an oral decision after reserving decision and receiving written submissions from counsel. The transcription of his reasons is appended to this decision as Appendix 1. Background [ 7 ] Police received a call from Mr.

Zimmerman's wife that his truck had been stolen. Constable Fisler saw the truck and stopped it. When he checked the licence plate, he noted that Mr. Zimmerman had outstanding warrants. Mr.

Zimmerman was placed in the back of the police car to be questioned about the outstanding warrants. [ 8 ] Constable Fisler first searched the truck and found a three-quarter full open bottle of vodka tucked between the centre console and the passenger seat, as well as a cup of juice that smelled of liquor. [ 9 ] When Constable Fisler returned to the police vehicle, he noted "a waft of alcohol" when he opened the partition between the front and back of the car, although acknowledged that he had not noticed any of the typical signs of alcohol impairment before he placed Mr.

Zimmerman into his police car, and he had not initially smelled any alcohol on Mr. Zimmerman's breath. A roadside demand was given, relying on the alcohol found in Mr. Zimmerman's vehicle and the smell of alcohol when Mr. Zimmerman was in the confined space of the back of the police car. Mr. Zimmerman complied with the demand, and failed. [ 10 ] Mr. Zimmerman was arrested, and given a breathalyzer demand. Mr. Zimmerman agreed, and was taken to the Barrhead detachment for the test. The test was done by Constable Torraville, after Mr. Zimmerman had consulted with counsel. After the testing, Mr.

Zimmerman told Constable Torraville that he had consumed six ounces of alcohol. [ 11 ] Mr. Zimmerman had requested Constable Torraville to take his temperature. That was refused on the basis that Mr. Zimmerman was not displaying or voicing any health concerns. The Crown also acknowledged that Constable Torraville did not offer to allow Mr. Zimmerman to have a blood sample or breath sample taken for his own purposes. [ 12 ] The test results indicated that Mr. Zimmerman's blood alcohol concentration was 180 milligrams per 100 millilitres of blood. [ 13 ] At trial, the Crown called its case. The issues raised by Mr.

Zimmerman were: 1. The Crown failed to prove that the breathalyzer had been properly calibrated with a suitable standard alcohol solution to ensure that it was functioning properly;

2. The amendments to s.258(1) are invalid pursuant to sections 7 and 11(

d) of the Canadian Charter of Rights and Freedoms, so itis still possible to rebut the presumption of accuracy by adducing credible evidence of consumption; and 3. The evidence of Mr. Zimmerman and his expert, Dr. Jerry Malicky, constituted credible evidence that the breathalyzer readingswere inaccurate (the "Carter" defence). Grounds of Appeal [14] Mr. Zimmerman argues that: 1. The trial judge erred in admitting the certificate of analysis without proof that the standard alcohol solution ("SAS") wassuitable; 2.

The trial judge erred in relying on Sergeant Dodds' evidence on the SAS because Sergeant Dodds did not have personal knowledge about the solution used, and Sergeant Dodds had no personal knowledge as to whetherthe qualified technician who administered the breath test followed his training in this case; 3. The trial judge erred in relying on the certificate of analysis when there was evidence raising a reasonable doubt about the SASsuitability, which rebutted the presumption of accuracy; 4. The trial judge erred in drawing an adverse interest from Mr.

Zimmerman's failure to tender his notes of alcohol consumptionat trial; 5. The trial judge erred in finding the suitability of the SAS was irrelevant once the prerequisites in R. v. Hruby, (1980), 1980ABCA 20 , 11 Alta. L.R. (2d) 347 (C.A.), had been met; and 6. The trial judge erred in not hearing the constitutional challenge and in not providing adequate reasons for why he did not do so. [15] The Crown's response to the grounds of appeal are: 1. SAS suitability is not a precondition to the certificate of analysis being admissible.

The trial judge found that the SASsuitability had been proven beyond a reasonable doubt, in any event; 2. The trial judge was entitled to consider Sergeant Dodds' evidence about how the Barrhead detachment handled their stock ofstandard alcohol solutions. Further, it was relevant indirect evidence that provided a proper context in which to weigh the qualifiedtechnician's evidence; 3. The trial judge found that the SAS was suitable. His finding of fact must be givendeference on appeal and cannot be interferedwith unless it is unreasonable or the trial judge committed a palpable and overriding error.

Further, the trial judge was correct in findingthat SAS evidence cannot on its own rebut the presumption of accuracy; 4. The trial judge did not draw an adverse inference from Mr. Zimmerman not entering his notes in evidence. In any event, at bestthis is an inconsequential error that had no effect on the outcome such that the curative proviso in s. 686(2)(b)(iii) of the Criminal Code

should be applied; 5. The trial judge was correct that SAS suitability is not relevant to the admissibility of the certificate of analysis and the availabilityof the presumptions in s. 258(1); and 6. The trial judge was correct in finding that the constitutional challenge was moot as a result of his rejection of Mr. Zimmerman'sevidence of consumption. Further, the reasons given by the trial judge as to why he did not consider the constitutional challenge wereadequate. Case Law [16] Both parties submitted an extensive list of cases in support of their arguments.

I will only refer to the cases as necessary forthe purposes of this decision. [17] The following were referred to by the Appellant. R.v. Luth [2009] A.J. No. 975 (QB); R. v. Boymook [1988] AJ No 1251, ABPC 115, 1998 ABPC 115 , 234 AR 47 (Alta PC); R. v. Barry [2007] A.J. No. 1234, ABPC 312; R. v. Phillips [2009] OJ 1107, (OSCJ); R .v Kroeger (SK CA), [1992] SJ No.91, 36 MVR (2d) 55, 97 Sask R. 2663,12 WAC 263 (Sask CA); R. v. Hall [2003] AJ No. 921, ABPC 124. 2003 ABPC 124 , 341 AR 33; R. v. JMH 2011 SCC 45 , [2011] SCJ No. 45, 3 SCR 197, 421 N.R. 76; R. v.

Truong [2009] BCJ 29, BCSC 22,2009 BCSC 22 , 78 MVR (5th) 7 (BCSC), Affirmed [2010] BCJ 2346 (BCCA); [18] The following cases were referred to by the Respondent: R. v. Hruby [1980] AJ No. 574 (CA); R. v. Tidlund [2010) A.J. No. 82, ABPC 29. 92 MVR (5th) 306; R. v. Shepherd [2002] 1 SCR 869, 2002 SCC 26 , SCJ 30, SCC 26; R. v. Hruby (1980), 1980 ABCA 20 , 11 Alta LR (2d) 347, 1980 CarswellAlta 4 (CA); R. v. Hall (1981), 1981 ABCA 13 , 14 Alta LR (2d) 326, 1981 CarswellAlta 2 (CA); R. v. Davis (1983) 1983 ABCA 15 , 42 AR 185, 1983 CarswellAlta 476 (CA); R. v. Yan, 2010 ABCA 218, 2010 CarswellAlta 1175; R. v.

Disney, 2008 ABQB 751, 2008 CarswellAlta 197; R. v. Beaudoin, 2008 ABQB 656, 2008 CarswellAlta 1609; R. v. Brown (1980), 27 AR 407, 1980 CarswellAlta 416 (QB); R. v. Ragan (1985), 37 MVR 220, 1985 CarswellAlta 310 (QB); R. v. McLeod (1983), CarswellAlta 486 (QB);

R. v. Oakley (1980), 6 MVR 158, 1980 CarswellAlta 145 (QB); R. v. Cardinal, 2001 ABQB 872, 2001 CarswellAlta 1427; R. v. Kroeger (1992), (SK CA), 36 MVR (2d) 55, 1992 CarswellSask 1 (CA); R. v. Crosthwait, [1980) (SCC), 1 SCR 1089, 1980 CarswellNfId 1; R. v. Chapman, 2007 BCSC 903, 2007 CarswellBC 1434; R. v. MacEachern (1993), 1 MVR (3d) 268, 1993 CarswellNS 2 (SC); R. v. Floate, 2001 ABPC 193, 2001 CarswellAlta 1373; R. v. Abbey, [1982] SCR 24, 1982 CarswellBC 230; R. v. Graat, (SCC), [1982] 2 SCR 819, 1982 CarswellOnt 101; R. v. Arp, (SCC), [1998] 3 SCR 339, 1998 CarswellBC 2545; R. v.

Boswell, 2011 ONCA 283, 2011 CarswellOnt 2428; R. v. Blea, 2012 ABCA 41, 2012 CarswellAlta 159; R. v. B.(R.H.), (SCC), [1994] 1 SCR 656, 42 BCAC 161; R. v. Bergamin (1996), 1996 ABCA 372 , 187 AR 333, 1996 CarswellAlta 857 (CA); R. v. St. Pierre, (SCC), [1995] 1 SCR 791, 96 CCC (3d) 385; R. v. Boucher, 2005 SCC 72, [2005] 3 SCR 499; R. v. Gibson, 2008 SCC 16, [2008] 1 SCR 397; R. v. Lightfoot, (SCC), [1981]1 SCR 566, 1981 CarswellOnt 1578; R. v. Magee (1981), 1981 ABCA 165 , 29 AR 86, 1981 CarswellAlta 43 (CA); R. v. Harding (1994), (ON CA), 70 OAC 340, 1994 CarswellOnt 25 (CA); R. v.

O’Brien, 2011 SCC 29, 2011 CarswellNS 350; R. v. Khan, 2001 SCC 86, [2001] 3 SCR 823; R. v. Hibbert, 2002 SCC 39, [2002] 2 SCR 445; R. v. Brace, 2009 YKCA 1, 2009 CarswellYukon 1; Air Canada v. Manitoba, [1980) (SCC), 2 SCR 303 1980 CarswellMan 170; Skapinker v Law Society of Upper Canada, (SCC), [1984] 1 SCR 357, 1984 CarswellOnt 796; Phillips v. Nova Scotia (Commissioner Public Inquiries Act), (SCC), [1995] 2 SCR 97, 1995 CarswellNS 12; R. v. Kinnear, (ON CA), 2005 CarswellOnt 2423, 198 CCC (3d) 232 (CA); Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342, 1989 CarswellSask 241; Schachter v.

Canada, (SCC), [1992] 2 SCR 670, 1992 CarswellNat 1006; R. v. Dineley, 2009 ONCA 814, 2009 CarswellOnt 7170; R. v. Clark, 2010 ABCA 335, 2010 CarswellAlta 2170; R. v. Duff, 2010 ABPC 319, 2010 CarswellAlta 1962; R. c. Drolet, 2010 QCCQ 7719, 2010 CarswellQue 9778; R. c. Maalouf, 2010 QCCQ 12569. [19] I am also aware that the appeal from the constitutional decision in R. v. St. Onge-Lamoureux, 2010 QCCQ 8552 ,2010 QCCQ8552 to the Supreme Court of Canada has been argued and is on reserve. It is unknown when the decision will be handed

down. Statutory Provisions [ 20 ] The following sections of the Criminal Code are relevant in this appeal: Section 258(1): In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), [...] (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Not in force]. (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused ’ s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending 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; (

d) if a sample of the accused ’ s blood has been taken under subsection 254(3) or

section 256 or with the accused ’ s consent and if (

i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4), (ii) both samples referred to in subparagraph (

i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed, (iii) both samples referred to in subparagraph (

i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iv) both samples referred to in subparagraph (

i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and (

v) an analysis was made by an analyst of at least one of the samples, evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused ’ s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things – that the analysis was performed improperly, that the improper performance 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; (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused ’ s blood was performed improperly, does not include evidence of (

i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused ’ s body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused ’ s blood would have been at the time when the offence was alleged to have been committed; (d.

l) if samples of the accused ’ s breath or a sample of the accused ’ s blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused ’ s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused ’ s consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused ’ s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused ’ s blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken; (

e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; (

f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

[...] is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate. Section 686(1): On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal [...] (

b) may dismiss the appeal where [...] (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or [...] Analysis 1. No Proof of Suitability of SAS [ 21 ] Mr. Zimmerman's argument is that the Crown's evidence as to the SAS created a reasonable doubt as to the accuracy of the breathalyzer test. [ 22 ] The qualified technician who conducted the breath testing on Mr.

Zimmerman, Constable Torraville, testified that he was an approved technician and described his use of the Intoxilizer 5000C in testing Mr. Zimmerman's breath. His evidence was to the effect that the Intoxilizer (an approved instrument) was working properly, and that the approved instrument's analysis was accurate, based on his understanding of the test procedures he employed. [ 23 ] Constable Torraville testified that he changed the SAS relied on in his calibration and operation of the approved instrument in accordance with his training.

As to ensuring that the SAS was suitable, he relied on his observations that the seal on the SAS bottle was intact, and that the SAS had not passed the expiry date noted on the bottle. He had taken the test solution bottle from a shelf at the Barrhead detachment. He had no knowledge of the sample's suitability beyond that. [ 24 ] Sergeant Dodds was also called to testify. His evidence was that lot 20682 was the only alcohol solution present in the Barrhead detachment, and he introduced in evidence a sealed bottle from that lot.

He testified that the solution had been obtained from K Division stores in Edmonton, and he also produced a certificate of suitability with respect to lot 20682. The log for the specific approved instrument, however, indicated that lot 20650 had been used for Mr. Zimmerman's breath testing. Sergeant Dodds ’ testimony related to current procedures at the Barrhead detachment. [ 25 ] No specific evidence was led as to the suitability of lot 20650, and Sergeant Dodds was not working at the Barrhead detachment when Mr.

Zimmerman was tested. [ 26 ] On this issue, the trial judge held at page 663, line 11: It is my finding that the accused has not produced evidence to the contrary by the presumption. First of all, let me say I have no concern with Constable Torrville ’ s evidence concerning the standard alcohol solution. I will not repeat that evidence here; but suffice it to say nothing in his evidence leads me to the conclusion -- to any conclusion other than that the standard alcohol solution used was a suitable one and used by him properly and in accord with his training as a breath technician.

What he did and has testified about what he did in calibrating the machine with the solution was far removed from that which was done or testified about being done by the technician in the Bainment (phonetic) decision.

[ 27 ] Mr. Zimmerman relies, amongst cases from other various levels of court in Alberta and other provinces, on Fradsham P.C.J.'s decision in R. v. Boymook , [1988] A.J. No. 1251 , where he stated at paras. 7 and 8: 7 I am satisfied that Constable Chu mechanically went through the steps he understood to constitute the necessary calibration procedure. However, he never turned his mind to the statements he was making in the Certificate of Analyses and which he was certifying to be true. He was simply "filling in the blanks". It was no more than an exercise in paperwork.

The form had to be completed, but he never considered its contents, or whether they were accurate or not. Further, he assumed that the alcohol solution with which he conducted the calibration tests was appropriate for the purpose. He knew nothing of it, either personally or through conversation with any other person. He assumed that it was placed there by a person whose initials appeared on the seal, and he assumed that person had used an appropriate solution. There is no evidence before me of the reputation of that person, or whether Constable Chu considered that he or she was reliable.

The evidence discloses nothing upon which Constable Chu based his assumptions (with the possible exception of the assumption that the person whose initials appeared on the seal was involved in placing the solution in the glass jar component of the instrument, and of that person we know nothing). 8 I am mindful that Constable Chu testified that he relied on the seal "with the person's name on it who stated that he change this solution on a certain date and time." His other evidence was to the effect that he had spoken to no one about the alcohol solution.

There is no explanation as to where the information about the "date and time" came from, and it is inconsistent with his earlier admissions. I do not believe his testimony concerning somehow being made aware of a change of solution on a "certain date and time. [ 28 ] In this case, Constable Torraville's evidence on cross-examination was that his understanding of the use of the SAS was that the approved device would verify the reliability of the SAS. Mr.

Zimmerman argues that this demonstrated a fundamental misunderstanding as his approach would render the use of any SAS meaningless, requiring that the device be presumed accurate. [ 29 ] This misunderstanding on the part of Constable Torraville, he argues, removes the deeming provisions under s. 258(1), similar to the situation in Boymook . [ 30 ] Boymook was distinguished by Fradsham P.C.J. in R. v. Hall , 2003 ABPC 124 , although that case turned on the sufficiency of the demand under s. 254(3) and his consideration of Boymook was dicta .

He stated at para. 55: Given my answer concerning the admissibility of the Certificate of Analyses, it is not strictly necessary for me to answer this issue. However, as a courtesy to both counsel who have clearly worked very hard in crafting their thoughtful and helpful submissions, I will provide my thoughts on this issue which arises from time to time. [ 31 ] In Hall , Fradsham P.C.J. found factual differences between the knowledge and actions of the qualified technician in Boymook , and the qualified technician in Hall , Constable Luxen.

He stated at paras. 63 through 66: 63 Constable Luxen turned his mind to the question of what solution was being used to test whether the instrument was properly working. The qualified technician in R. v. Boymook , supra, did not. Constable Luxen concluded that the solution he was using to test the instrument was the standard alcohol solution because the person to whom fell the responsibility of placing standard alcohol solution in the simulator had represented that he had done so (through the notations on the seal).

The evidence before me in this case was much more complete than the evidence which was before me in R. v. Boymook , supra. 64 The accused submits that Constable Luxen simply assumed that the solution in the simulator was proper standard alcohol solution. With respect, I disagree.

Constable Luxen concluded that the solution in the simulator was proper standard alcohol solution based on his information that an Alcohol Coordinator of the Calgary Police Service who was known to him had placed the solution in the simulator some five days before as was his duty to do so. 65 Constable Luxen did not assume that the solution in the simulator was proper; rather, he assumed that Constable Butler did his job

65 Constable Luxen did not assume that the solution in the simulator was proper; rather, he assumed that Constable Butler did his job properly. That assumption (or, more accurately, presumption) is one which, in my view, he was entitled to make. In my view, Constable Luxen was entitled to rely on the principle of omnia praesumuntur rite et solemniter esse acta : all things are presumed to be correctly and solemnly done. It is important to note at the outset that I am not suggesting that the Crown should be able to rely on that presumption to prove some element essential to the prosecution.

However, I am of the view that Constable Luxen, in the performance of his duties as a qualified technician, was entitled to presume, in the absence of contrary indications, that another constable, whose duty as an Alcohol Coordinator was to put proper standard alcohol solution in the simulator of the Intoxilyzer so that technicians could test the Intoxilyzer before using it, had indeed properly discharged that duty.

Constable Luxen, when reaching his conclusion as to whether the instrument (Intoxilyzer) had been proven through the use of a standard alcohol solution to be working properly, was entitled to take into account, together with other relevant facts, the fruit of that presumption, namely, that the solution in the simulator was a proper standard alcohol solution. 66 Consequently, in my view, the facts in this case, unlike those in R. v.

Boymook , supra, show that Constable Luxen had a factual foundation for the statements he made in the Certificate of Analyses about the use of a standard alcohol solution in testing the Intoxilyzer. [ 32 ] Here, the trial judge contrasted the Boymook technician with the technician who had testified before him, and was satisfied with Constable Torraville's knowledge and application of his training. [ 33 ] Mr. Zimmerman also relies on the decision of LeGrandeur P.C.J. in R. v. Barry , [2007] A.J.

No. 1284 (P.C.) , at paras. 8 and 9 : 8 Although the technician in the certificate describes the alcohol standard employed as suitable for use in the approved instrument, it is clear that he does not know that it is suitable for use, he simply presumes that to be the case. 9 Clearly it is not necessary that the technician know personally, in the sense of actually having tested the solution himself, that it is a solution suitable for use in an approved instrument.

However, he must have information or knowledge gained from some other appropriate source that leads him to the conclusion that it is a suitable solution. He did not testify as to where it came from, as to whether the solution was marked or identified as a standard alcohol solution, he did not testify to having been advised by someone he understands would know the suitability of the solution as to the fact that it was a suitable alcohol standard. He did not testify to the fact that Calwave is to his knowledge based on his experience, the producer of an alcohol standard suitable for use.

The technician in this case did not give any meaningful evidence as to why he believed the alcohol standard he identified in the certificate was suitable for use in an approved instrument. [ 34 ] LeGrandeur P.C.J. approved and applied Boymook, and gave no weight to the evidence of the breath sample readings. [ 35 ] Mr. Zimmerman argues that Cst.

Torraville's lack of knowledge of the suitability of the solution used, other than that it came from a sealed bottle and was not beyond the expiry date noted on the bottle, is similar to the constable's lack of knowledge in Barry , and creates reasonable doubt as to the suitability of the solution sufficient to oust the presumptions in s. 258(1). [ 36 ] I note that Constable Torraville's evidence went somewhat further than that of the technician who testified in Barry , in that Constable Torraville checked the seal and the expiry date of the bottle he believed to be a standard alcohol solution. [ 37 ] In R. v.

Phillips , [2009] O.J. 1107 (O.S.C.J.) , Bryant J. upheld an acquittal in a breathalyzer case on the basis that the trial judge had a reasonable doubt as to the suitability of the solution. The evidence created a reasonable doubt that the solution used had expired. That came from the evidence of the technician, and not conjecture, speculation, or the absence of any evidence on point. Phillips appears to be the only superior court judgment supporting Mr. Zimmerman's position on the SAS.

The facts in that case are readily distinguishable from the facts here, in any event. [ 38 ] The Crown's response is that the issue is determined by the Court of Appeal decision in R. v. Hruby where the Court stated at paras. 18 - 20:

18 I might add that the certificate of analyses (entered at the trial as Exhibit A for identification) shows that one sample was taken at1:44 a.m. on August 27, 1978, 28 minutes after the respondent was stopped by the constable, and the second at 2:07 a.m. 19 A sample not taken "then or as soon thereafter as is practicable" would not affect the admissibility of the certificate of analyses butmight very well affect the probative value of the certificate. 20 In this prosecution all the prerequisites necessary for the admission of the certificate of analyses, as required by s. 237(1)(

f) havebeen met and the certificate ought to have been admitted in evidence by the learned trial judge. [39] Hruby was affirmed in 2010, in R. v. Yan, 2010 ABCA 218. [40] At the Queen's Bench level, in R. v. Ragan, 1985 CarswellAlta 310, McFadyen J. (as she then was) held that issues arisingfrom the SAS evidence did not affect the admissibility of the certificate. [41] In R. v. Cardinal, 2001 ABQB 872, Watson J. (as he then was) held that times erroneously recorded in the certificate did notaffect the admissibility of the certificate. [42] Similar arguments to Mr.

Zimmerman's were rejected by the Saskatchewan Court of Appeal in R. v. Kroeger, (SK CA), 1992 CarswellSask 1, where the absence of proof of the suitability of the SAS was held not to affect the admissibility ofthe certificate. [43] I agree with the Crown that the decisions in Boymook and Barry are irreconcilable with Hruby as they relate to theadmissibility of the certificate of analysis. Hruby was not considered in either decision. The conclusion of the Saskatchewan Court ofAppeal in Kroeger, which deals directly with the arguments raised by Mr.

Zimmerman, is compelling. [44] At page 10 of its decision, the Saskatchewan Court of Appeal stated: As Culliton C.J.S. in the Brady case and Cameron J.A. in the Paulson case have stated, clause 258(1)(

g) is simply a statement of thecontents of what must be in the technician's certificate. If a piece of paper contains the information required by clause 258(1)(g),including the information that the approved instrument has been ascertained by the technician to be in proper working order by means ofan identified alcohol standard, that is suitable for use with an approved instrument, it is "evidence of such facts without proof of thesignature or the official character of the person appearing to have signed the certificate". The certificate is then used to provide thecrucial elements of proof required by clause 258(1)(

c) to set up the rebuttable presumption contained therein. That

section makes noreference to a need for a check test or a need for information that would be found in the analyst's certificate referred to in clause 258(1)(f). The information required by clause 258(1)(

c) is limited to the timing of the taking of each sample, the receipt of each sample into anapproved instrument that is operated by a qualified technician and that each sample was analyzed by means of an approved instrumentoperated by a qualified technician. Once that evidence is supplied, the evidence of the results of the analyses so made is "in the absenceof evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was allegedto have been committed was . . . the concentration determined by the analyses . . ." The 1985 amendment has not changed the interactionof clause 258(1)(

c) and clause 258(1)(g). It merely expands the information that is required by the technician's certificate and therebyrequires the check test to be made, but if the technician can state that he or she has ascertained the breathalyzer to be in proper workingorder by means of an alcohol standard, that ends the matter, unless, of course, there is reason to go further in either the evidence of theCrown or the accused. As found by the trial judge there is no such reason in this case. It is my conclusion that the amendment to clause 258(1)(

g) does not change the purpose of the analyst's certificate and the Brady,Baskier and Paulson cases continue to be applicable as to whether the analyst's certificate need be produced automatically as part of theCrown's case or when the technician is called. [45] R. v. Squires, (1994), (NL CA), 87 C.C.C. (3d) 430 (Nfld. C.A.) and R. v. Ware, (1975), 30 C.R.N.S. 308(Ont. C.A.) both held that the Crown need not prove the suitability of the SAS unless there is evidence to the contrary that the solutionwas unsuitable. The conclusions in Kroeger, Squires and Ware are consistent with Hruby, and I apply them here.

[46] The most that can be taken from Boymook and Barry, and other cases which rely on them, is that the testimony of thequalified technician may be such that it creates a reasonable doubt as to the accuracy of the certificate, where the reliability of thesampling process is called into question. Those issues are questions of fact and not law. As discussed later, the standard of review forsuch issues is reasonableness and the trial judge is entitled to deference. [47] I agree with the trial judge that the certificate in this case was admissible in evidence, and was properly admitted by him. 2.

The trial judge erred in relying on Sgt. Dodds' evidence on the SAS a. Sergeant Dodds did not have personal knowledge about the solution used [48] The trial judge considered Sergeant Dodds' evidence in his decision and stated at page 663, lines 19-23: Further I find that the evidence of Sergeant Dodds while in no way referencing the specific solution used in Mr.

Zimmerman’s testing,but as a description of the general practice of the RCMP generally regarding standard alcohol solutions and the Barrhead detachmentspecifically, gives me further comfort that the standard alcohol solution was suitable. [49] Admissibility of evidence is a matter of law, and the standard of review is generally correctness: R. v.

B.(C.R.), (SCC), [1990] 1 S.C.R. 717, although as pointed out by Kerans and Willey in Standards of Review Employed by Appellate Courts,2nd Ed., Edmonton: Juriliber 2006, at pages 134 and 135, that is now not an absolute and many evidentiary rulings are now appropriatelyreviewed on the unreasonableness standard. [50] The test to be applied to the admission of irrelevant evidence is whether the party defending the decision can establish thatthe irrelevant evidence played no

part in the decision process. See Kerans & Willey at page 299 and cases cited therein. [51] Sergeant Dodds was not in the Barrhead detachment at any relevant time. He testified as to procedures adopted by theBarrhead detachment after his arrival. He introduced into evidence a solution bottle and test certificate for a SAS from a different batchthan that used by Constable Torraville to calibrate the Intoxilyzer. He testified as to where he had located that bottle and how that bottlehad come to be in the Barrhead detachment. None of his evidence related to the time when Mr.

Zimmerman was being dealt with at theBarrhead detachment, or the solution used by Constable Torraville. [52] The Crown supports the trial judge's use of Sergeant Dodds’ evidence on the basis that it is "relevant indirect evidence" aboutthe suitability of the SAS used by Constable Torraville. It cites R. v. Boswell, 2011 ONCA 2428, as support for this. [53] In Boswell, the issue was the admissibility of expert evidence. Citing R. v.

Abbey, 2009 ONCA 624, the Court described thetest as requiring that the evidence be "logically relevant...and sufficiently probative to justify admission" (at para. 24). [54] A better starting place here is R. v. Arp, (1997), (SCC), 129 C.C.C. (3d) 321 (S.C.C.), where Cory J. statedat p. 338 that evidence, to be relevant, "must tend to increase or diminish the probability of the existence of a fact in issue".

Therefore,does the evidence make the existence of the fact in issue more probable or likely? [55] Evidence can be direct (meaning that it comes from a witness who actually saw, heard or felt the subject of the questions)which if accepted, proves the existence of the fact in issue without the need for inferences or presumptions, or it may be indirect orcircumstantial (meaning that it is tendered for the purpose of providing a basis for an inference to be made about the fact in issue) whicheven if accepted may not be conclusive about the fact in issue.

[56] Context may be of assistance to the trier of fact in assessing evidence. For example, in Boswell, the Ontario Court of AppealCourt found no objection to the use of evidence as to a "cone of silence" in the community, which was said to "provide context for thejury to understand the cultural mores at play in the affected Rexdale community that may have caused a community member like Sharpto lie to the police." (At para. 26) [57] The Crown argues that the trial judge's finding is entitled to substantial deference on appeal.

Clearly a trial judge is entitled toconsiderable deference on a decision as to whether to admit circumstantial evidence, as held in R. v. Blea, 2012 ABCA 41. However,there is no deference relating to the admission of irrelevant evidence. [58] After-the-fact evidence about procedures now and solutions received now is neither logically relevant, nor does it make thereliability of the samples used by Constable Torraville any more or less likely. In my view, the evidence of Sergeant Dodds on thesubject should not have been admitted. Had he been at the detachment at the time of its interaction with Mr.

Zimmerman, that wouldhave been another thing, and would have been relevant indirect evidence, and admissible. The issue then would have been theappropriate weight to give to it. Inadmissible evidence is entitled to no weight at all. [59] That does not resolve the issue, however. Did the admission of inadmissible evidence affect the result? [60] Mr. Zimmerman argues that R. v. J.M.H., 2011 SCC 45, applies.

That case holds that it is an error of law for the trial judgeto make a finding of fact for which there is no evidence, although that case is about the effect such errors have on Crown appeals fromacquittal. [61] The trial judge stated here that he was satisfied from Constable Torraville's evidence that the standard alcohol solution wassuitable and that the Intoxilyzer had been properly calibrated. He held that Sergeant Dodds’ evidence "gives me further comfort that thestandard alcohol solution was suitable." [62] Sergeant Dodds' evidence was not the only evidence as to the suitability of the SAS.

The fact that the trial judge got "furthercomfort" from Sergeant Dodds' testimony is not an essential finding of fact. It is, in my view, gratuitous to the decision. If necessary, Iwould apply the curative provisions of s. 686(2)(b)(iii) of the Criminal Code to this error by the trial judge. It did not affect the result. [63] In any event, I accept the Crown's position that the evidence as to the suitability of the SAS is not a precondition to theadmissibility of the certificate. While R. v.

Crosthwait, (SCC), [1980]1 S.C.R. 1089, in commenting on theadmissibility of the certificate, noted that "this does not mean that the accused is at the mercy of the technician", that case also held thatdoubts based on a mere conjectural possibility do not suffice, and findings based on such conjectures will be set aside on appeal (at para.18). b. Sergeant Dodds did not know if Constable torraville followed his training [64] As I have held above, Sergeant Dodds’ evidence as to the SAS or practice in the Barrhead detachment should not have beenomitted as being irrelevant.

I have also concluded that the error made by the trial judge did not affect the result of the case. SergeantDodds’ lack of knowledge concerning Constable Torraville’s training does not affect that result. 3. The trial judge erred in relying on the certificate of analysis when there was evidence raising a reasonable doubt aboutthe SAS suitability, which rebutted the presumption of accuracy [65] Mr.

Zimmerman argued that Constable Torraville's lack of knowledge as to the source of the SAS he retrieved from thedetachment shelves constituted evidence to the contrary and created a reasonable doubt as to the accuracy of the result.

[66] Constable Torraville's evidence was that he had taken a bottle from the shelf in the detachment, checked to make sure the sealon the bottle was not broken and that the expiry date on the bottle had not passed, and then followed his training with respect to the useof the SAS and the approved instrument. [67] On cross-examination, he acknowledged that he did not know where the SAS he used came from apart from the fact that itwas at the detachment, and that he took no steps to verify the suitability of the SAS.

He was also confused on cross-examination as towhat tested what – the SAS testing the proper functioning of the breathalyzer, or the breathalyzer testing the SAS. [68] Mr. Zimmerman argues that Constable Torraville's misunderstanding as to the nature of the testing, and his failure to takesteps to verify the suitability of the SAS, constitute evidence to the contrary and create a reasonable doubt as to the accuracy of thebreathalyzer. [69] It is clear from Hruby that the Crown does not need to prove the suitability of the SAS used to calibrate the breathalyzer.

It isup to the accused to adduce, whether by cross-examination of Crown witnesses or on behalf of the accused, evidence which rebuts thepresumptions under s. 258(1) or creates a reasonable doubt as to the accuracy of the test results. [70] The trial judge found as a matter of fact that the SAS solution was suitable. He relied on Constable Torraville's evidence as tothe seal on the bottle and his checking of the expiry date. [71] What is the standard of review on this issue? Essentially, the trial judge made a finding of fact, which is entitled to deference:R. v. Euler, 2008 ONCA 526.

Where the trial judge has made fact findings for which there is no supporting evidence, however, an errorof law has been committed: Schuldt v. The Queen, (SCC), [1985] 2 S.C.R. 592. [72] Here, the trial judge made a finding of fact that he was not required to make in connection with the Crown's case.The Crownis not required to prove the suitability of the solution. According to Mr.

Zimmerman, the trial judge erred by making that fact findingand should instead have found that the Crown had failed to prove the suitability of the solution and that such failure constituted or shouldhave constituted a reasonable doubt as to the validity of the test results. I do not accept those arguments. [73] Firstly, there was evidence on which the trial judge could find that the solution was suitable.

He was entitled to drawinferences from the evidence before him, and it is not a leap of logic to infer that sealed bottles taken from a shelf understood by the userto contain standard alcohol solutions for the purpose of testing the Intoxilyzer before use, which have not expired according to their label,contain a suitable testing solution. [74] There was no evidence or suggestion that Constable Torraville did not know how to test the breathalyzer with the SAS, orthat he did not follow his training in doing so.

The fact that he may have misunderstood, or been confused, about exactly why the SAS isused does not in itself create any doubt as to the accuracy of the testing itself. [75] His evidence that he believed he was using a SAS, that he checked the seals and the expiry date, is some evidence of thesuitability of the solution. With inferences that the trial judge was entitled to make, his finding of fact is in my view entitled to deferenceand is neither unreasonable nor tainted by any palpable and overriding error.

It is thus not capable of being rejected by the court onreview. [76] On the evidence before him, he was neither compelled to find that the SAS was unsuitable, or to have any reasonable doubtas to its suitability. There was nothing in the evidence to contradict the contents of the certificate in any event. [77] This ground of appeal fails. 4. The trial judge erred in drawing an adverse interest from Mr. Zimmerman's failure to tender his notes of alcoholconsumption at trial

[78] In connection with the trial judge's rejection of Mr. Zimmerman's evidence as to alcohol consumption, Mr. Zimmerman refersto R. v. Truong, 2009 BCSC 22. There, Stolberg-Stein J. considered whether the Bill C-2 amendments which had recently come intoforce were to be given prospective or retroactive effect. She concluded that they were effective from the date of coming into force,regardless of the offence date. [79] Truong provides a good analysis of the pre-Bill C-2 amendments to s. 258.

In dealing with the existing presumptions,Stolberg-Stein stated at paras. 18 to 25 as follows: 18 Prior to examining the impacts of the Bill C-2 amendments, it is necessary to understand the evidentiary presumptions operatingwithin s. 258(1). Section 258(1) operates under three presumptions, "legal or evidentiary shortcuts designed to bridge difficultevidentiary gaps", that assist the Crown in prosecuting over .08 offences: the presumption of accuracy and two presumptions of identity:R. v. Gibson, 1 2008 SCC 16, [2008] 1 S.C.R. 397 at para 14; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499 at para.14; R. v.

St.Pierre, (SCC), [1995] 1 S.C.R. 791 at para. 23, [1995] S.C.J. No. 23. Prior to the Bill C-2 amendments, eachpresumption was rebuttable and only operable in the absence of evidence to the contrary. The standard of proof required to rebut thepresumptions is evidence capable of raising a reasonable doubt and the burden of proof never shifts to the accused: Gibson, at para 17;Boucher, at para. 15. Prior to the Bill C-2 amendments, the trier of fact determined what evidence was capable of constituting evidenceto the contrary. a.

The Presumption of Accuracy 19 The presumption of accuracy establishes that the blood alcohol readings obtained by the qualified technician provide an accuratedetermination of the blood alcohol level at the time of the testing. Prior to Bill C-2, the presumption flowed from the joint operation of s.258(1)(

g) of the Criminal Code and s. 25(1) of the

Interpretation Act, R.S.C. 1985, c. I-21.

The presumption has been clarified and isnow particularized in s. 258(1)(c). 20 The presumption of accuracy recognizes the accuracy of the instrument and the breath readings obtained, permitting the results ofthe breath tests recorded by the instrument, as alleged by the qualified technician, to be admissible in evidence and deemed to beestablished where there is no evidence to the contrary. 21 Evidence to the contrary commonly admitted to displace the presumption of accuracy includes improper maintenance of theinstrument; improper conduct of the test by the qualified technician; use of an unsuitable standard alcohol solution; and, prior to Bill C-2,"Carter" defence evidence that the amount consumed by the accused could not have produced the readings recorded through the use ofexpert evidence and evidence of the amount of alcohol consumed by the accused. b.

The First Presumption of Identity 22 The presumption of identity arises from s. 258(1)(

c) of the Criminal Code which provides that the accused's blood alcohol level atthe time of the alleged offence is the same as the blood alcohol level recorded at the time of the breathalyzer test. This legal fictionrelieves the Crown of extrapolating the accused's blood alcohol level back to the time of the alleged offence. The normal process ofabsorption or elimination of alcohol is not evidence to the contrary to rebut the presumption of identity as such evidence would beavailable in almost every case and would undermine Parliament's intent in enacting the presumption of identity: St. Pierre; Boucher.

Noris expert evidence of the Breathalyzer's margin of error: R. v. Morceau, (SCC), [1979] 1 S.C.R. 261, 89 D.L.R. (3d)449; nor is "straddle evidence": Gibson, at para. 32. 23 The presumption of identity can be displaced by evidence which raises a reasonable doubt that the blood alcohol level at the timeof the alleged offence and at the time of the test was the same.

Evidence commonly admitted to rebut this presumption is evidence thatthe accused consumed alcohol just prior to driving which had not been absorbed at the time of driving ("last drink"); the accused drankcopious amounts of alcohol which had not been fully absorbed at the time of driving ("bolus drinking"); or the accused consumed liquorafter driving but before the tests. c. The Second Presumption of Identity

24 The second presumption of identity was enacted in 1996 in response to the Supreme Court of Canada's decision in St. Pierre. Inthat case, the accused provided Breathalyzer readings over .08 but claimed she had consumed two miniature bottles of vodka jut prior tothe breath tests.

The Court held that in order to displace the presumption of identity it was only necessary for the accused to provideevidence which raised a reasonable doubt that the accused's blood alcohol level at the time of driving was the same as the time of testing;the accused did not have to show that her blood alcohol level at the time of driving was below .08.

With the accepted evidence that theaccused had consumed vodka subsequent to driving, the presumption of identity had been displaced and the Crown was unable to securea conviction without expert evidence extrapolating the readings to the time of driving. 25 In response, Parliament enacted s. 258(1)(d.1), which created a second presumption of identity to reinforce the presumption ofidentity and effectively overruled the St. Pierre decision.

Section 258(1)(d.1) was enacted and created a presumption that if the bloodalcohol level exceeded .08 at the time of testing, the blood alcohol level was presumed to have exceeded .08 at the time of the allegedoffence. [80] These are good statements of the pre-Bill C-2

interpretation of the s. 258 presumptions. The issue in that case was whether inlight of the Bill C-2 amendments, the accused could still present a Carter defence. [81] I do not read the trial judge's statement at page 663 as misstating the law, or placing an untoward burden on Mr.Zimmerman. He was simply stating the effect of what s. 258 required and what Mr.

Zimmerman was attempting to do at trial with Dr.Malicky's evidence: Page 663: Finally, I wish to note that even if I’m wrong concerning Constable Torrville (sic) or Sergeant Dodds’ evidence regarding the standardalcohol solution, it is incumbent upon the accused pursuant to section 258(1)(g), the decision of R vs. St.

Pierre and then at section258(1)(d.1) to also, in order to raise a reasonable doubt, rely on evidence showing not just error or possible error, but that his bloodalcohol concentration was under the legal limit at the time of the alleged offence, that is, the driving. [82] The trial judge's statement was not in the context of a finding that a reasonable doubt had been raised as to the accuracy of thetest results, but rather was an alternative analysis of Mr.

Zimmerman's arguments. [83] Essentially, in my analysis, what the trial judge was attempting to say (if imperfectly) was that in the absence of any doubt asto the accuracy of the readings, the accused could still raise a reasonable doubt by credible evidence of consumption. [84] The trial judge heard extensive evidence as to consumption from both Mr. Zimmerman and from Dr. Malicky. He noted atpage 663, line 40 to page 664, line 2 that finding that Mr. Zimmerman's blood alcohol level was under .08 was dependent on hisacceptance of Mr. Zimmerman's evidence. [85] He gave a detailed analysis of Mr.

Zimmerman's evidence and ultimately rejected it and held that "there was nothing in hisevidence which raises a reasonable doubt in my mind." (At p. 669, lines 1 to 3.). [86] As to the standard of review on appeal relating to credibility findings and fact findings generally, it is clear that the test isreasonableness: R. v. B.(R.A.), (SCC), [1994] 1 S.C.R. 656; R. v. Bargain, (1996), 1996 ABCA 372 , 187A.R. 333 (C.A.). [87] The suggestion of a fundamental error in his analysis arises from reference by the trial judge to Mr. Zimmerman notintroducing his notes of consumption into evidence.

He stated at p. 664, lines 29 - 36:

Mr. Zimmerman testified that within a few days of his release from custody, he had occasion to recollect and make notes concerning hisalcohol consumption leading up to his arrest. Those notes were not produced in evidence; and, further, notwithstanding that they weremade soon after the events in question, there was still imprecision particularly as to times of consumption, not great imprecision,however.

Having said that, Courts are often suspicious when testimony about events some 18 months prior is given which is too precise.Given that here that notes were made so soon, I believe, gives me reason to expect more. [88] I do not read this passage as suggesting that the trial judge drew an adverse inference from Mr. Zimmerman not putting hisnotes in evidence. The trial judge was commenting on the lack of detail in Mr. Zimmerman's testimony. The judge was in effect sayingthat if Mr.

Zimmerman made notes shortly after the events, as he testified he had, he would have expected more detail in Mr.Zimmerman's evidence, because he would have had the notes from which to refresh his memory. The point made by the trial judge isthat Mr. Zimmerman's testimony lacked credibility because of the absence of precision, not that Mr. Zimmerman should have introducedthe notes. [89] I find no error in this passage, or the trial judge's approach to that aspect of Mr. Zimmerman's testimony. [90] R. v.

O'Brien, 2011 SCC 29, is applicable here: the reasons do not show that the trial judge used evidence as to Mr.Zimmerman's notes improperly. Absence of the notes was not a reason given by the trial judge for rejecting Mr. Zimmerman's evidence;it was part of a discussion as to why Mr. Zimmerman's evidence was not credible because it lacked detail. R. v. Brace, 2009 YKCA 1, isauthority for treating this as an inconsequential error in the circumstances, if it were found to be an error. [91] The trial judge explained in detail his reasons for rejecting Mr. Zimmerman's credibility and his evidence of consumption.

Inreviewing his analysis and reasons, I find no basis to interfere. There is nothing unreasonable about his conclusions. He made nofundamental error in his analysis or approach. [92] Since he rejected Mr. Zimmerman's evidence about consumption and found that there was nothing in his evidence to raise areasonable doubt, there was nothing in Mr. Zimmerman's evidence or Dr. Malicky's evidence which could support a finding of "evidenceto the contrary" as required under the pre-Bill C-2 provisions of s. 258. [93] This ground of appeal fails. 5.

The trial judge erred in finding the suitability of the SAS was irrelevant once the prerequisites in R. v. Hruby, (1980), 1980ABCA 20 , 11 Alta. L.R. (2d) 347 (C.A.), have been met [94] This ground of appeal is answered by R. v. Lightfoot, (SCC), [1981] 1 S.C.R. 566, and the analysis of Hrubyunder ground 1 above. As noted by the Crown, even if the trial judge erred in finding that the SAS was suitable on the evidence beforehim, the Crown was not obliged to prove suitability and the failure to prove suitability does not lead to the conclusion that there is areasonable doubt as to its suitability.

There may simply be an evidentiary vacuum which helps (or hurts) neither party. 6. The trial judge erred in not hearing the constitutional challenge and in not providing adequate reasons for why he did not doso [95] I see no error on the part of the trial judge in the manner of his decision-making. Constitutional arguments are to be arguedin the context of a proper factual background. They should not be made where the argument is moot to the result: Skapinker v.

LawSociety of Upper Canada, (SCC), [1984] 1 S.C.R. 357, and cases following it. [96] Here, the trial judge approached the case on the basis of seeing whether or not the evidence led him to the Bill C-2amendments. To get there, he would have to have been satisfied that but for the Bill C-2 amendments, Mr. Zimmerman had made out hisCarter defence. That in turn would have required the trial judge to find that Mr. Zimmerman's evidence of consumption, and the analysisof that consumption by the expert, Dr. Malicky, raised a reasonable doubt as to the accuracy of the test results. Having rejected Mr.

Zimmerman's evidence and expressly finding that nothing in it created a reasonable doubt, Dr. Malicky's evidence was irrelevant to theresult. [97] Mr. Zimmerman argues that R. v. Tidland, 2010 ABPC 29, is authority requiring the trial judge to deal with theconstitutional argument whether "evidence to the contrary" was raised on the application or not. [98] Here, Mr. Zimmerman elected to put his "evidence to the contrary" before the trial judge.

Having made the fact findings andlegal rulings he did, it would have been moot for the trial judge to carry on and consider constitutional arguments which had no bearingon the case. I find no error in his not dealing with the constitutional arguments in the circumstances of this case. [99] A trial judge is not required to deal with moot arguments, such that R. v. Shepherd, 2002 SCC 26 , [2002] 1 S.C.R.869, on the duty to give reasons, is not applicable here. Result [100] Mr. Zimmerman has not satisfied me that any reviewable errors were made by the trial judge.

Accordingly, his appeal isdismissed. [101] I am grateful to counsel for their detailed and able arguments in this matter. Heard on the 14th day of June, 2012. Dated at the City of Edmonton, Alberta, this 28th day of September, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Jason Russell for the Respondent Andrew L. Zebak

for the Appellant