R. v. Bensette, 2011 ONCJ 30

COURT FILE No.: 09 15001 Citation: R. v. Bensette , 2011 ONCJ 30 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TIMOTHY LARENCE BENSETTE Before Justice Gregory A. Campbell Heard on December 1 st , 2010 and January 11 th , 2011 Released January 21, 2011 RULING Mr. S. Kerwin for the Crown Mr. B. Ducharme for the accused Timothy Lawrence Bensette CAMPBELL G. J. THE PROCEEDING 1 . This Ruling concerns an Application brought by Mr.

Bensette seeking production of what has been referred to as ADAMS/COBRA DATA which I understand to be information stored in the RAM of the Intoxilyzer 5000C that was used to obtain a sample of Mr. Bensette’s breath on Saturday, February 14 th , 2009 at the City of Windsor. 2 . The materials filed for my review indicate that the Intoxilyzer 5000C is capable of storing the results of diagnostic tests, error and exception messages, calibration checks and breath tests results.

Evidence from a toxicologist indicated that the instrument is capable of storing one hundred subject breath tests, fifty calibration tests and fifty diagnostic checks all of which apparently can be downloaded in data form from the instrument. 3 . The proposed data however, is not stored indefinitely. After the maximum number of tests from subjects has been reached, the oldest record will be disposed of on a “first in first out” basis. I have no evidence to indicate that the ADAMS/COBRA DATA that is being sought in relation to or surrounding the time of Mr. Bensette’s tests is still available. 4 .

The evidence that has been placed before me for consideration consists of an Agreed Statement of Facts as to drinking pattern of Mr. Bensette, and acknowledgement that the instrument was operating properly at the material time and reliance upon transcripts of evidence from a separate proceeding wherein two witnesses who testified were qualified as experts capable of giving opinion evidence with respect to the theory, principles of operation and use of the intoxilyzer 5000C as well as the absorption, elimination and distribution of alcohol in the human body.

5 . The agreed Statement of Facts provide that Mr. Bensette was driving his motor vehicle after having consumed alcohol on Saturday, February 14 th , 2009 at approximately 8:15 p.m. when he was stopped for inspection prior to entry into Canada at the Ambassador Bridge at Windsor. A demand for a sample of his breath was made and he provided two suitable samples for analysis by a qualified breath technician. The results of those tests were that he had a blood alcohol content that exceeded 80 mg of alcohol in 100 millilitres of blood. Mr.

Bensette states that between 2:00 and 4:00 p.m. he drank two twelve ounce cans of beer and then had another can of beer between 6:00 and 7:00 p.m. with dinner. Based on this drinking pattern, and Mr. Bensette’s age, height and weight his blood alcohol content at 8:15 p.m. would have been below 80 milligrams of alcohol in 100 millilitres of blood. 6 . The Applicant submits that the ADAMS/COBRA DATA found in the RAM of the Intoxilyzer 5000C ought to be downloaded and should have been disclosed by the Crown as relevant information the accused must have the benefit of in order to make full answer and defence. 7 .

The Crown has taken the position that the data sought is not relevant, was not the product of the investigation that led to the charge against Mr. Bensette and is not something that is within the Crown’s possession or control. THE LAW 8 . The recent amendments to Section 258(1) of the Criminal Code significantly altered the means by which the statutory presumption could be challenged.

The Code now provides that evidence of the results of the analysis of the approved instrument is conclusive proof that the concentration of alcohol in the accused’s blood both at the time of testing and at the time when the offence was alleged to have been committed, was the concentration determined by the analysis in the absence of evidence tending to show all of the following three things: That the approved instrument was malfunctioning or was operating improperly; That the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood; and That the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. 9 .

The Applicant has put before the Court evidence to support an argument that the concentration of alcohol in his blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. 10 . Prior to the amendments such evidence, if it were believed, may have been sufficient to raise a reasonable doubt. However, that evidence alone is no longer sufficient to rebut the statutory presumption.

The Court must now also have some evidence to indicate that the instrument was malfunctioning or was operated improperly and that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused blood exceed 80 milligrams of alcohol in 100 millilitres of blood. 11 . Accordingly, the Applicant has moved for production of the ADAMS/COBRA DATA on the basis that it is relevant information for the purpose of addressing these evidentiary considerations. MATERIAL FACTS 12 . The Applicant relied on a report of Dr.

Ward, a toxicologist, dated February 22 nd , 2010 and his testimony previously given in the case of R. v. Hay on February 16 th , 2010 at Sarnia. Dr. Ward indicated that the internal system checks that the Intoxilyzer 5000C goes

through throughout the course of a breath alcohol concentration analysis are not printed on the Intoxilyzer 5000C test records. 13 . The argument, as I understand it is that it is not possible to determine directly from the test records whether the instrument has met or passed those internal checks. The test records do not cover all of the operational considerations. However, the historical data is apparently downloaded to the central computer (ADAMS/COBRA). 14 . Dr. Ward acknowledged that the Intoxilyzer 5000C is a reliable instrument when operated properly.

He indicated that although the test record will reflect the calibrations done with respect to the subject test, the test record will not necessarily reflect the number of other calibrations done on a particular instrument. The ADAMS/COBRA DATA apparently records all of the calibrations. 15 . Dr. Ward provided examples where the ADAMS/COBRA DATA could be of assistance in determining the number of calibration checks that have occurred relative to the alcohol standard solution being changed.

He indicated that while that data being sought may not show a malfunction on the part of the instrument in question, it could, for example, raise an issue in regard to the failure to follow the Centre of Forensic Science recommendations with respect to the changing of the alcohol standard, and the failure to follow those recommendations would be relevant to a consideration as to whether the instrument was operated properly. 16 . Dr. Ward also indicated that the historical data could provide insight in regard to calibration checks not only done but also checks that were not done when they ought to have been.

This could relate to system checks unrelated to the subject test. Dr. Ward stated that just as the historical data can be used for the purpose of confirming the instrument was working properly, it could also serve as a basis for an opinion that the instrument was not operating properly or was malfunctioning. 17 . The ADAMS/COBRA DATA would apparently contain error records. In Dr. Wards opinion, a number of error messages generated by the instrument could form the basis for an opinion that the instrument was not functioning properly. 18 .

I asked counsel during submissions if there was any evidence to suggest that the instrument used to obtain the breath samples from Mr. Bensette malfunctioned. I was told there was no such evidence in the record. I also asked if there was any evidence before me on this application to indicate that the qualified breath technician who administered the test to Mr. Bensette failed to follow proper procedures or failed to administer the test properly. I was told there is no evidence in the record in that regard.

In response to these inquiries, counsel indicated that there was no way for the defence to know about any malfunction or operator error until such time as they had an opportunity to review the ADAMS/COBRA DATA. 19 . Dr. Ward’s report dated February 22 nd , 2010 at Page 4 references the CFS Intoxilyzer 5000C information sheet.

In particular he states that an Intoxilyzer 5000C test record is not sufficient to guarantee the requirements of the alcohol test committee had been met and that certain information is essential and relevant to ensure compliance with the alcohol test committee recommendations and proper scientific procedure. To this end he listed, amongst other things, all downloaded data from the instruments with emphasis on data collected around the time of the breath alcohol analysis of the individual charged. 20 . A copy of the October 23 rd , 2009 CFS Intoxilyzer 5000C information sheet referenced by Dr.

Ward was filed on the Application. Page seven of that eight page document addresses the ADAMS/COBRA DATA. My review of the information sheet indicates that the CFS commented only on the usefulness of the data with respect to the subject test : “At any given point in time the Intoxilyzer 5000C retains the results of one hundred previous completed subject test sequences, fifty diagnostic checks, fifty calibration checks and fifty operational error messages in its ram it acts as memory “RAM”.

These data, which can be reviewed by downloading with specific software (e.g., ADAMS or COBRA), pertains to a wider range of tests and subjects before and/or after the breath tests relevant to the case-at-hand. The CFS does not make any recommendations to police services, whether or not to use/acquire this software. The downloaded data do not provide specific information concerning whether or not the Intoxilyzer 5000C was functioning properly at the time of the subject’s breath test and do not include data recorded on the test record by the qualified technician ”. [emphasis added] 21 .

I understand from reviewing the testimony of Jean-Palmentier that the alcohol test committee is a committee operating under the Canadian Society of Forensic Sciences and is responsible for making recommendations for breath testing in Canada. Mr. Palmentier also indicated that the Centre of Forensic Sciences has three members on the alcohol test committee.

22 . Mr. Palmentier’s evidence is not inconsistent with Dr. Ward’s. Both men hold the opinion that the Intoxilyzer 5000C is a reliable instrument. Mr. Palmentier stated that the instrument will not perform breath analysis unless it is functioning properly. He indicated that if any of the system and internal standard checks are deficient and if the calibration check is not within range the breath testing sequence will be terminated by the instrument itself.

The technician would then have to correct the situation and any errors in that regard will appear on the test record that is produced by the instrument and provided as part of the crown disclosure. He added that while the technician must provide the subject with instructions about how to provide a suitable sample, the instrument nevertheless controls for the suitability of that sample and again a failure to receive a suitable sample will result in a fail and that too will be recorded on the test record. 23 . Based on the foregoing, Mr.

Palmentier held the opinion that the ADAMS/COBRA DATA would be of no assistance in determining if the instrument was operating properly at the time of the testing as the subject test records provide all of the information necessary to assess whether the instrument was operating properly at the time of the testing. ANALYSIS 24 . The best I can determine from the whole of the application is that production of the ADAMS/COBRA DATA might provide examples of error messages at some point prior to and/or subsequent to the subject test and in the event that such information could be identified, Dr.

Ward would have less confidence with the results or accuracy of the analysis at issue. 25 . If the data at issue is relevant and in the control of the Crown or readily available to it, then the Crown is obliged to produce the data. The Crown maintains that it not only has no control over the data but that it is also clearly irrelevant. 26 . If the ADAMS/COBRA DATA is something that is in the possession of a third party, then the Applicant would have the burden of proof to demonstrate that the information sought is likely relevant and therefore ought to be produced. 27 .

The parties were not ad idem in regard to who had the burden of proof but didn’t quarrel about the standard of proof. It seems to me that before the burden and standard for proof can be addressed, I must first determine who has dominion and control over the ADAMS/COBRA DATA. 28 . I didn’t receive a great deal of assistance in regard to where or how this information would be retrieved.

The best I can glean from the material and submissions of counsel is that it is something that could be downloaded from the computer memory of the instrument itself with the benefit of software that is not presently owned by the Windsor Police Services. 29 . I have no particulars in regard to the availability of that software. Counsel for the Crown indicated during submissions that the software would cost several thousand dollars to purchase.

It would appear from a review of Page 7 of the CFS Intoxilyzer 5000C Information Memorandum dated October 23 rd , 2009 that the CFS does not make any recommendations to Police Services, whether or not to use/acquire this software. Counsel for the applicant offered no assistance in regard to the cost or steps that would be involved to retrieve the data. 30 . Moreover, I have no information in regard to the identity or availability of any particular individual who might have the requisite knowledge or expertise necessary to aquire, install and operate the software to retrieve the data. 31 .

The best I can determine is that the ADAMS/COBRA DATA that is being sought would be a hard copy of information that is within the memory of a computer program that is used to operate the approved instrument and was used to obtain samples of breath from Mr. Bensette; and that the instrument, and presumably the operating system and/or Adams Cobra software that compiles the data is owned by the WPS. 32 . As I understand the principle of disclosure involving a first party record, the police are required to produce documentation and disclose information to the prosecution that is the fruit of its investigation.

The Crown may not withhold that material or information unless it is privileged, clearly irrelevant or beyond the Crown’s control.

33. To my mind, the ADAMS/COBRA DATA that is being sought is not something that was the product of this police investigation. Itdid not form any basis for the charge against Mr. Bensette. The legislative provisions at issue contemplate the preparation and deliveryof a Certificate of Analysis by a Qualified Breath Technician and the production of test records which are generated by the Intoxilyzer5000C. These records are within the control of the police officer who conducted the breath analysis which formed part of theinvestigation and as such would be turned over to the prosecution for disclosure.

The data however that is being sought would be derivedfrom within the approved instrument’s computer memory and relates to the instrument’s operation prior to and subsequent to the subjecttests. This data, if it still exists, is far removed from the evidence that was gathered, considered or touched upon as part of the policeinvestigation and as such it is not something that would be the subject of first party disclosure in relation to the accused’s right to makefull answer and defence. The data is not within the possession or control of the prosecution.

The data, again if it exists at all, has nodirect connection to the subject tests and is contained within property owned by the Windsor Police Services. This does not appear to meto be a situation where the Crown is withholding information related to the investigation or prosecution. 34. I am satisfied that the data being sought is not a first party record.

To my mind, an application for production of third party recordsought to have been served on the Windsor Police Services and perhaps the manufacturer of the Intoxilyzer 5000C and its software aseither or both entities may have a proprietary interest in the operating system and software at issue. The procedure outlined by theSupreme Court of Canada in O’Connor, (SCC), [1995] 4 S.C.R. 411 ought to have been followed. Only then I believewould I be in a suitable position to fairly and properly rule on this application. 35.

By proceeding with an application in this regard, all parties who might be affected by the order sought would receive notice as thirdparties. Any party who might be affected ought to be provided an opportunity to be heard. Often an application for production of thirdparty records will not be met with any resistance and will proceed on consent. In this case, however, the third party has not been affordedthe opportunity to consider the matter or make an informed decision in regard to how it might want to respond to the request for data.

Itis important to appreciate that the production of the data being sought is outside of the usual and ordinary use of this equipment. Therelief being sought is an order to compel the production of information that would result in the third party having to incur considerableexpense and inconvenience. I am told that if I were to order the data to be produced, the WPS would have to spend thousands of dollarsto purchase the software. No doubt there would consequential costs associated with acquiring, installing and retrieving the data. 36.

Separate and apart from the financial consequences and interfering with the usual and ordinary course of business that would have adirect effect on the third party, there is a collateral benefit to the court by affording the target of the order an opportunity to attend courtand be heard. By doing so the court may gain a better understanding about the subject matter that is at issue for production.

The thirdparty stands in the unique position of having care and control of the documentation or in this case the equipment and information that isbeing sought and as such the third party may in many circumstances be better able to inform the court in regard to the availability andusefulness of the information or documentation and the costs and inconvenience associated with obtaining it and reproducing it for thecourt. As indicated earlier, it has been nearly two years since the subject tests were administered. The data being sought may now belong gone.

To make an order compelling a party to incur an expense and be inconvenienced in a situation that might serve no usefulpurpose is counterproductive to the proper administration of justice. At the very least, I am of the opinion that a formal written inquiryought to have been made to the WPS to determine if the data being sought was still available. Neither party could give me any indicationin this regard. 37. I am satisfied that this application ought to be dismissed. The record is devoid of many specifics I would require before making anorder for production of the Adams/Cobra data.

The application ought to have been served on every entity that may have been affected bythe order that was being sought. 38. In the event that a reviewing court holds the opinion that the data that was being sought on this application is in fact a first partyrecord, I am in that event satisfied that the Crown has discharged its onus and persuaded me that the ADAMS/COBRA DATA is clearlyirrelevant. 39. Both parties acknowledge that the Intoxilyzer 5000C is a sophisticated instrument that is highly reliable when it is operated properly.

The statutory scheme and presumptions provided for in the Code together with a long history of jurisprudence recognizing this fact makethat abundantly clear 40. Moreover, the recent amendments reaffirm parliament’s acceptance of the reliability of the instrument by indicating that evidence ofdrinking pattern alone will not be sufficient to rebut the statutory presumption. There can be no doubt of parliament’s desire to signal itssatisfaction with the reliability of the approved instrument.

With these amendments, Parliament donned both a belt and suspenders whenit further added the provision that even evidence of malfunction and or operator error will not be sufficient to rebut the presumption butthat proof would also be required to show that evidence of malfunction and or operator error also resulted in the determination that theconcentration of alcohol in the subject’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

41 . The record in support of the application I have had to consider has convinced me of little more than the feeling that I have been asked to grant a licence to permit the defence to embark on an all expense paid fishing expedition. On February 16 th , 2010 Dr. Ward was asked what he hoped to find in the Adams/Cobra data. At Page 43, the following exchange took place: Q. You’ve candidly said that, that you haven’t. Ok. So really, if you agree with me and let me know if you agree with me on this.

If you were provided this information, you’d have no idea what you would expect to see or what you would actually do with it if you had it. A. Until I see it that is correct. Q. You can’t tell the Court look, I am looking for something specific here where you can generally, I am looking for these types of problems because they mean this. You can’t say that can you? A. No, because I’ve never seen the downloaded data. 42 .

It would have been more persuasive to me if I had some evidence, perhaps from the accused or video recording, to suggest there might be reason to believe there was a failure to comply with standard practices in relation to the operation of the instrument. Or, some evidence pointing to an anomaly that arose during the start up or operation of the instrument either observed, heard or perhaps documented by a witness or qualified breath technician. Not one scintilla of evidence was placed before me on this application to support even a belief that there may have been operator error or an instrument malfunction.

What I am left with then is essentially an attack on the approved instrument itself. CONCLUSION 43 . For reasons previously indicated, the application is dismissed. The record is devoid of many specifics I would require before making an order for production of the Adams/Cobra data and the application ought to have been served on third parties who would likely have been affected by the order that was being sought. 44 .

Alternatively, if the information sought is indeed a first party record, I am satisfied that the Crown has discharged its burden of proof in demonstrating that the ADAMS/COBRA DATA is clearly irrelevant. Released: January 21, 2011 Gregory Campbell, OCJ