R. v. Aleixo, 2013 ABQB 732

Court of Queen ’ s Bench of Alberta Citation: R. v. Aleixo , 2013 ABQB 732 Date: 20131211 Docket: 120853361S1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Manuel Eduino Aleixo Accused/Appellant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _________________________________________ ______________ Introduction [ 1 ] Manuel Aleixo (hereinafter referred to as the “Appellant” or the “Accused”) challenges the decision of Alberta Provincial Court Judge Burgess on May 28, 2013.

The Trial Judge convicted the Appellant of operating a motor vehicle while impaired: Criminal Code , R.S.C. 1985, c. C-46, s. 253(1)(b): 1) unlawfully operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to section 253(1) (

a) of the Criminal Code , and

2) unlawfully operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] The impaired conviction was conditionally stayed. [ 3 ] The Appellant appeals the over .08 conviction, and also appeals the finding of guilt on the stayed impaired charge. Evidence at Trial [ 4 ] On June 29, 2012, Terry Rogers was operating a motor vehicle that was stopped at a red light behind two other vehicles on 118 Avenue at Wayne Gretzky Drive when he was hit from behind by the Appellant’s car. He had been stopped for about 8 seconds.

The impact pushed his vehicle forward approximately 9 inches. [ 5 ] Rogers followed the Appellant who went through the lights and made a right hand turn towards a Husky gas station. The Appellant parked his vehicle. The Appellant fumbled around for his insurance (retrieved the insurance information, then dropped it and picked it up) and then got out of his car.

Rogers did not note anything irregular in the Appellant’s drive to the gas station, nor any problems in the Appellant’s exit of his vehicle. [ 6 ] Rogers told the Appellant that the Appellant had hit Rogers’ vehicle and drew the Appellant's attention to damage on the rear bumper of a Rogers’ vehicle where the plastic was cracked. The Appellant had his arms crossed and kept saying that there was "no damage". Rogers kept pointing to the damage and the Appellant kept bending over and staring.

Rogers testified that the Appellant was not losing his balance but he was moving slowly. [ 7 ] As Rogers talked to the Appellant he noted redness of the Appellant's eyes and the smell of alcohol and Rogers said, "You're drinking, aren't you?" Rogers could smell the alcohol when he was around 5 to 8 inches from the Appellant. The Appellant indicated he had been drinking but he would go right home. Rogers told the Appellant that he could not let him drive and asked him for his keys. The Appellant gave his keys to Rogers.

The Appellant asked Rogers how he was going to get his keys back and Rogers said he would have to get them from the police. [ 8 ] Rogers and the Appellant walked to a Husky gas station and Rogers called the police. Rogers testified that it took around 15 minutes for the police to arrive. Rogers stated that the time from the accident until the police arrived was approximately 15 to 20 minutes. [ 9 ] Cst. Moore responded to a call at 19:38 and she and her partner arrived at 19:46.

Rogers provided them with some details about the collision, that he had taken the Appellant's keys, that the Appellant had said he was drinking, and that Rogers thought that the Appellant had been drinking. Rogers gave the keys to his vehicle to the police. [ 10 ] Cst. Moore testified that as she and the Appellant walked to his vehicle, he almost fell into her and his balance appeared to be unsteady. She testified that she detected a strong to moderate odor of liquor coming from the Appellant and his eyes were redder than normal.

In response to a question about consumption, the Appellant stated that he had consumed two to three beers. [ 11 ] Cst. Moore asked the Appellant for his vehicle documents. The Appellant indicated that no damage had been sustained by his vehicle. However, Cst. Moore went to the front of the Appellant's car and saw that there was fresh damage; the hood was crumpled up a bit. The Appellant stated that the car was not damaged before the collision and said, "Wow" when he saw the damage. [ 12 ] The Appellant was slow and deliberate when trying to find the insurance and registration documents. He got in his car. Cst.

Moore had to ask for the documents a second time. When the Appellant was standing up, he fell back into his car. There were no hazards or snow. There was nothing unusual about his footwear that made Cst. Moore think that his footwear was making him fall. [ 13 ] The Appellant only provided vague details about the collision when asked about his direction of travel and what had happened. [ 14 ] By 19:52, Cst. Moore believed the Appellant’s ability to operate a motor vehicle was impaired. She gave the Charter information at 19:54 and read an intoxilyzer demand at 19:54.

The Appellant was transported to the station, and was cooperative and polite the entire time. A smell of alcohol continued to emanate from the Appellant when he was in the police car and at the downtown station. [ 15 ] Cst. Moore stated that there was nothing abnormal about the Appellant’s speech, he had no difficulty walking a flight of stairs from outside the police station to the entrance, he had no difficulty retrieving the phone in the phone room, walking to the breathalyzer room, or standing at attention to provide a sample of breath. [ 16 ] Cst.

McConnell was a technician and was qualified to operate the Intoxilyzer 5000C. At the time he took the samples in question, he had completed 168 tests as a qualified technician. [ 17 ] Before testing the Appellant, Cst. McConnell took a number of steps with respect to the instrument in question: a. He prepared the machine using the pre-testing procedure. b. The propeller was turning. c. The simulator temperature was within range. d. The simulator seal was intact.

e. The manufacturer of the alcohol standard (Calwave) was recorded as was the lot number. f. The change date of the alcohol standard was noted as June 25, 2012 and the person involved as Cst. Ian Brooks. g. The expiry date of the alcohol standard was noted as the end of July 2012. h. Everything was in place and in order. i. He received Cst. Moore's watch. He noted the timing on the instrument. j. He noted the correct date of June 29, 2012 on the instrument. k. He took steps to enter appropriate information to identify the Appellant and the investigation. l. He used an air blank and it was correct. m.

He observed the calibration check. n. He recorded the temperature of the simulator which was within range. o. He again completed an air blank and got a correct result. p. An appropriate message was displayed by the Intoxilyzer 5000C instructing the subject to blow. [ 18 ] As a result of his preparation and pre-testing of the Intoxilyzer 5000C Cst. McConnell formed the opinion that it was capable of obtaining suitable samples of breath. [ 19 ] Cst. McConnell provided instructions to the Appellant.

He testified (Transcript, p 56, ll. 28-34): There’s some instructions given to the subject, which are printed on a small piece of paper on the wall above the Intoxilyzer. I read those aloud. There were no questions at that point. And I placed a sterile mouthpiece on the breath tube of the Intoxilyzer 5000C and asked Mr. Aleixo to proceed with providing a sample. So that was at 2035 hours, 8:35 PM. During that sample he stopped once. I coached him to start again. He then provided a very good long sample.

His cheeks were puffed out as he was providing it, and there was a good seal around the mouth – around the mouthpiece. [ 20 ] He took a sample at 20:35 but the record of the first sample of breath showed that there was some interference introduced into the instrument (Transcript, p 56, ll. 36-39): Now, this first sample didn’t go without a bit of a hitch in it. As the test record card shows, it was a – an interference subtracted sample, which means that there was some interference introduced into the instrument, and the instrument made some sort of a correction in order to provide a result. [ 21 ] Cst.

McConnell obtained a second sample at 20:56 with a reading of “186 milligrams percent of alcohol within 100 millilitres of blood” truncated to 180, and another one at 21:16 with a reading of “173 milligrams percent alcohol in 100 millilitres of blood” truncated to 170 (Transcript, p. 57). [ 22 ] The Crown later asked Cst. McConnell to clarify (Transcript, p 58, ll. 11-16): Q: . . . you've testified to 170 and 180 in this case. A: M-hm. Q: What is it a measurement of, please? A: It's a measurement of milligrams of alcohol per 100 millilitres of blood. [ 23 ] Cst.

McConnell noted that the Appellant had a moderate odour of an alcoholic beverage on his breath. The Appellant's eyes were very, very bright red and very bloodshot - a lot different than they looked on the date he testified. Cst. McConnell recalled that the Appellant on the offence date was waving and just trying to keep his balance - not walking with the determination and stability that he noted prior to court on the date he testified.

Trial Decision [ 24 ] At trial, the Appellant alleged a breach of s. 8 of the Charter , arguing that the investigator did not have reasonable and probable grounds to make a demand pursuant to s. 254(3).

The trial judge ruled that there were very significant reasonable and probable grounds, both subjective and objective. [ 25 ] No Charter notice was provided in relation to the breath technician evidence, but the Appellant argued that the technician's evidence must at least comply with the evidence that is required on a Certificate of Analysis, and that the officer had to prove that the apparatus (Intoxilyzer 5000C) was in working order.

The Appellant also argued that the technician had used the terms “186 milligrams percent of alcohol in 100 millilitres of blood” and “173 milligrams percent of alcohol in 100 millilitres of blood” which raised a reasonable doubt as to the reading. [ 26 ] The trial judge reviewed the evidence that the technician had conducted a pre-test and that the apparatus was able to take an accurate sample. The trial judge found that the evidence clarified the readings as each being the stated number of milligrams of alcohol in

100 millilitres of blood. [27] The trial judge was satisfied that both charges were proven beyond a reasonable doubt, and entered a conditional stay withrespect to the impaired count (s. 253(1)(a)) at the invitation of the Crown. Appellant’s Position [28] The Appellant submits that the Crown can only rely on the presumption of accuracy in s. 258(1)(

g) where the techniciantestifies as to the prerequisites set out in that section. He argues that the technician at no time testified that the breathalyzer he used wasin working order. [29] The Appellant cites R v Calles, 2001 ABPC 79 at para 15 where the technician gave specific evidence that the breathalyzerdevice was in working order. [30] The Appellant also argues that in stating the result as “X milligrams percent of alcohol in 100 millilitres of blood”, the resultswere based on a percentage of a milligram, in other words, 1.70 mg and 1.80 mg of alcohol in 100 millilitres of blood.

He cites R vNyman (1998), (ON CA), 113 OAC 356, 131 CCC (3d) 124 (CA) where the Court held that testimony as to a readingof “.145 grams percent” did not conform to the language of s. 253(b).

The Court held at para 12 that while such evidence need not parrotthe language of the section, it must make clear beyond a reasonable doubt that the test results measure this ratio. [31] The Appellant further submits that the trial judge erred in giving weight to the Certificate of Analysis on the charge ofimpaired driving in the absence of expert evidence interpreting the significance of a particular reading in terms of what effect suchconsumption had on the Appellant, citing R v Randell (1994), (SK KB), 118 Sask R 48, [1994] SJ No 14 (QB) andcases to a similar effect.

Crown’s Position [32] The Crown observes that there was no Charter notice in relation to the breath technician evidence, and relies on R vMorrison, 2012 ABQB 544, 555 AR 88, R v Rilling, (SCC), [1976] 2 SCR 183, 5 NR 327 and R v Charette, 2009ONCA 310, 94 OR (3d) 721 for the proposition that in the absence of Charter notice and challenge at trial, a Certificate of Analysis isadmissible as evidence and the presumptions of identity and accuracy apply. [33] In this case, there was no Certificate; the technician gave viva voce evidence.

The Crown argues that R v McQuaid, 2003ABQB 170, 334 AR 137 does not require that the technician’s viva voce evidence conform to the contents of a Certificate of Analysis andthat there is no requirement that the evidence of the technician mimic the Certificate. [34] The Crown notes that following the Supreme Court’s reading of s. 258 (c)(iv) in R v St Onge-Lamoureux, 2012 SCC 57, theresults of the breath samples are taken at face value in the absence of evidence that the machine was malfunctioning or was operatedimproperly. [35] The Crown further submits that courts in Alberta have accepted various types of wording to replace the words "milligrams ofalcohol per 100 millilitres of blood".

In any event, the technician clarified his evidence on subsequent questioning, removing any doubtin this regard. [36] Finally, the Crown submits that a conviction under s. 253(1)(

a) should be reinstated if the Appellant succeeds on the appeal asit relates to s. 253(1)(b), citing R v Terlecki, 1983 ABCA 87 at paras 24-26. [37] The Crown submits that although breathalyzer results cannot support an inference that the person had ingested a particularquantity of alcohol or even a significant amount of alcohol, they can be used by the court to corroborate the investigator’s observations ofinsobriety and thus strengthen the conclusion that the impairment of the ability to drive was by reason of the consumption of alcohol: Rv Sandhu, 2013 ABPC 208 at para 102-105.

The Crown argues that the results in this case were included with a long list of indicia ofimpairment. [38] The Crown further submits that if there is sufficient evidence before the court to prove that the accused's ability to drive waseven slightly impaired by alcohol, the judge must find him guilty: R v Stellato, (SCC), [1994] 2 SCR 478. An inferenceof any impairment of the ability to drive can reasonably be drawn from conduct that exhibits a marked departure from the norm: R vAndrews, 1996 ABCA 23, 178 AR 182. There was ample evidence of impairment in this case.

Standard of Review [39] Section 830(1) of the Criminal Code provides: 830(1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction … of asummary conviction court on the ground that (

a) it is erroneous in point of law; (

b) it is in excess of jurisdiction; or (

c) it constitutes a refusal or failure to exercise jurisdiction.

[ 40 ] The standard of review on a question of law is correctness. Findings of fact are not to be reversed unless the judge made a "palpable and overriding error": Housen v Nikolaisen , 2002 SCC 33 . The appeal court must show great deference to the trier of fact's assessment of witness credibility: R v WH , 2013 SCC 22 . [ 41 ] The test for determining if the verdict of finding the Appellant guilty of impaired driving is unreasonable is whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered: R v Biniaris , 2000 SCC 15 at par 36 .

Analysis [ 42 ] The trial judge in this case expressly found that the technician was qualified, he administered the test properly, the machine was working properly, and the machine gave the results that he stated. [ 43 ] These findings were supported by the evidence.

In particular, there was evidence before the trial judge (Transcript, pp. 55-58) upon which the judge could conclude that the breathalyzer was in working order and that the test was administered properly. [ 44 ] It is true that the technician expressed the result as “ X milligrams percent of alcohol in 100 millilitres of blood”, however he subsequently clarified (Transcript, p. 58) that the results were a measurement of milligrams of alcohol per 100 millilitres of blood. [ 45 ] My conclusions on these points are sufficient to support dismissal of the appeal.

However, I will address the Appellant’s argument on the impaired conviction. [ 46 ] The trial judge thoroughly considered the evidence in the case, including that the readings were very high and the Appellant was still showing symptoms of impairment, as observed by the technician, a considerable time after the accident.

The trial judge concluded (Transcript, p. 74, l. 32 to p. 75, l. 16): First of all there was an admission of consumption of alcohol; he said two or three beer […T]he indicia […] included; he was unstable on his feet, he almost fell into the officer, there was a strong smell of alcohol, his eyes were red more than normal, he was very vague when talking about the details of the collision, he was very slow and deliberate in his actions and in finding his documents he had difficulty, he could not find them at first the officer had to ask for the documents the second time, he finally produced them, he got out of his vehicle and he fell back into his vehicle, simply because he was unsteady on his feet.

The accused also was fumbling when trying to get his driver’s license out of his wallet when first approached by the police officer. To me those are the most salient indicators of impairment. Comments of Constable McConnell are probably - - are of less importance as they occur considerably after the accident but it is worth noting in that context that the readings were very high and that he was still showing symptoms of impairment. …The first sample was taken at 8:35 in the evening and the last sample was at 16 minutes after 9:00 in the evening and the initial time that the police were on scene was 7:46.

So it was an hour and a half later but they have to be taken into account. Constable McConnell testified as to the accused being unsteady on his feet, very red eyes, et cetera. What we have here is a situation when you look at it as a whole the accused was significantly impaired quite frankly.

His motor skills were considerably diminished based on the evidence I have in front of me. [ 47 ] Although the trial judge may have taken more care in explaining the purpose for which he was referencing the readings, he had clearly already found impairment on the basis of the evidence of the officers at the scene, and his focus overall was properly on diminished motor skills. Conclusion [ 48 ] The appeal is dismissed. Heard on the 28 th day of November, 2013. Dated at the City of Edmonton, Alberta this 11 th day of December, 2013.

Don J. Manderscheid J.C.Q.B.A. Appearances: Susan Yake Phillipe Crown Prosecutors’ Office for the Crown Theodore H. Kantor Barrister & Solicitor for the Accused