R. v. Cardwell, 2022 BCPC 308

Citation: R. v. Cardwell 2022 BCPC 308 Date: 20221104 File Nos: 42719-1; 42719-2 Registry: Gold River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SIMON ROBERT CARDWELL ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. HUTCHESON Counsel for the Crown: R. Carot Counsel for the Accused: D. Marion, K.C. Place of Hearing: Courtenay , B.C. Dates of Hearing: November 19, 2021, May 20, October 18, 2022 Date of Judgment: November 4, 2022 [ 1 ] THE COURT: These are my oral reasons for judgment. Mr. Cardwell is charged, on Information number 42719, in Count 1,

with driving while impaired, contrary to s. 320.14(1)(a), and, in Count 2, with driving while over .08, contrary to s. 320.14(a)(b). [ 2 ] The Crown conceded, during the course of the trial, that it would be unable to prove the impaired charge in Count 1. I find, then, that the Crown has not proven the allegations in Count 1 and I acquit Mr. Cardwell on that count. [ 3 ] The defence says that I should also acquit Mr.

Cardwell on Count 2 because the Crown has failed to prove that the qualified technician used an alcohol standard that was certified by an analyst when he was carrying out the two required system calibration checks on the breathalyzer instrument that was being used. Using an alcohol standard that has been certified by an analyst is a requirement set out in the presumption of accuracy found in s. 320.31(1)(a). [ 4 ] I also note the defence concedes that the actions of the police officers related to Count 2, including the demand for breath samples and the taking of samples, were all properly carried out.

The defence also advised that no Charter breaches or other defences were being raised, apart from the one very narrow issue that I have just noted above. [ 5 ] I also note, for context, that the defence had intended to argue that the Crown could not rely on hearsay evidence to prove that the alcohol standard was certified by an analyst. In support of this argument, defence was going to rely upon R. v. Goldson , 2021 ABCA 193 and R. v. McDonald , 2021 BCPC 244 . In the interim, R. v. MacDonald , reported at 2022 YKCA 7 , was released, which decision was to the opposite effect of R. v. Goldson .

Counsel agreed that, while R. v. MacDonald was not binding on me, it was persuasive authority and should be applied in the case at bar. I agree. [ 6 ] In

summary, then, the sole remaining issue, then, is whether the Crown has proved that the alcohol standard used by the qualified technician Constable Palmer, in the two system calibration checks, was approved by an analyst. [ 7 ] Turning, then, to the facts. Mr. Cardwell was driving his vehicle in Gold River on December 18, 2019 when he was pulled over by the RCMP. Upon request, Mr. Cardwell provided a breath sample for use in an approved roadside screening device. The result of that test was a fail, and Mr. Cardwell was then given a demand to provide breath samples.

He was taken to the detachment for the samples to be given and tested. [ 8 ] The investigating officer called for Constable Palmer, a qualified technician, to come to the detachment to administer the breath tests. The instrument to be used was an Intox EC/IR II, which was an instrument that Constable Palmer was a qualified technician on. Tests were taken and Mr.

Cardwell blew two readings of .210. [ 9 ] At trial, the Crown did not rely on a certificate under s. 320.32 from either the qualified technician or from the analyst to prove that, in conducting the system calibration checks, the qualified technician used an alcohol standard that had been certified by an analyst. [ 10 ] Instead, the Crown called the qualified technician Constable Palmer to give viva voce evidence to prove, among other things, that the alcohol standard that he used had been certified by an analyst, as required in s. 320.31(1)(a). [ 11 ] In addition to relying on Constable Palmer's viva voce evidence, the Crown also filed, pursuant to s. 320.33, a printout from the breath machine, which printout was signed and certified by Constable Palmer to be the printout from the breathalyzer instrument he used for the tests in question.

This printout was entered as Exhibit 2. [ 12 ] Turning, next, to the position of the parties. The position of the defence is that a close scrutiny of Constable Palmer's evidence leaves a reasonable doubt as to whether the alcohol standard used was certified by an analyst. It was argued that there remained a question as to what document Constable Palmer looked at to determine that the alcohol standard was certified.

As defence counsel said, the Crown was entitled to lead hearsay evidence to prove the solution was certified by an analyst, but they just failed to lead enough evidence to meet the onus on the Crown. [ 13 ] The Crown, in response, argued that the evidentiary hurdle on the Crown is a low one and, in fact, a close examination of Constable Palmer's viva voce evidence and Exhibit 2, establishes that the Crown has met its burden. [ 14 ] Turning next to the evidence, I am just going to refer to some passages from the transcript, first starting at page 25, line 26: Q And Constable Palmer, are you a qualified technician qualified on the INTOX EC/IR II approved instrument?

A Yes, I am, Your Honour. Next, page 27, starting at line 18: Q And that's how -- that's one of the -- or that's what you do to determine if the approved instrument is in proper working order, is that right? A That's correct, we do a calibration check and the calibration check is an alcohol standard test which determines if the instrument is in full and proper working condition Q Okay, I'm going to ask you some more questions about the system blank check and the system calibration check in a moment. A Okay. Q You -- the approved instrument that you were using was which instrument? A It's the INTOX EC/IR II.

Q Okay, and does that approved instrument use an alcohol standard?

A Yes, it does, Your Honour. Q Okay, and who was the manufacturer of the alcohol standard that you used for the tests on Mr. Cardwell on December 18, 2019? A It was the air gas. THE COURT: Sorry? A Air gas. THE COURT: Air gas? A Yes. CNSL J. PETTY: Q And what was the lot number that you used of that alcohol standard? A The lot number I believe was AG821102. Then, at page 28, starting at line 11, Q All right, and you mentioned that you also conducted a system calibration check, is that right? A Yes, I did, Your Honour. Q Okay, and what was the result of the system calibration check.

A The system calibration check results were within ten percent of the target value of the approved alcohol standard, which is approved by analyst. Then, lower down, at line 43, CNSL J. PETTY: All right, so I'm just going to go back and ask this officer the question again. Q You indicated, Constable Palmer, that you conducted a system calibration check, right? A Yes. Then, over onto page 29: Q And what was the result of that system calibration check, can you just review that again.

A The system calibration check the results were that -- those are performed before each sample, and the results were within plus or min -- within 10 percent -- sorry, within 10 percent of the target value of the alcohol standard, which was approved by the analyst. Q What was approved by the analyst? A The alcohol standard. Q Okay, and was the alcohol -- was the alcohol standard certified by an analyst? A Yes, it was. Q And how -- how do you, or how did you as the qualified technician who was conducting tests on Mr.

Cardwell on that date, December 18, 2019, how did you know or how did you satisfy yourself that the alcohol standard had been certified by an analyst? A There is a certificate -- THE COURT: Can I just stop you for a second. How did you know or satisfy yourself that -- CNSL J. PETTY: That the alcohol standard was certified by an analyst. THE COURT: Yes, go ahead. A Okay, Your Honour, the alcohol standard when it's shipped to our office, it comes with the certificate and the certificates are posted in a conspicuous spot in the breath room. CNSL J.

PETTY: Q So the approved instrument is in a particular room in the detachment, is that right? A That's correct, Your Honour. Q And there's a certificate of analyst?

A Certificate of analyst, yes. Q And it's in the room as well? A Yes, it is, Your Honour. Q And where is it in relation to the approved instrument? A Usually posted on the wall just right next door or nearby the instrument itself. Q So you review that prior to taking samples? A As I say, I've only done -- I've only done the two -- Q Right. A -- samples in my career so far but yeah, I look at the certificate to make sure that everything is valid. I am over on page 30 now. Continuing on: Q Okay.

Now you said you did a system -- I'm going to go back and ask you just a little bit more about the system calibration check, okay. A Okay. Q You said that you did a system calibration check and that it was within 10 percent of the target value of the alcohol standard, is that right? A That's correct, Your Honour. Q What is the target value of the alcohol standard? A On an A-gas alcohol standard the target value is 82 percent -- I'm sorry, is 82 milligrams per 100 millilitres of blood. Q 82 milligrams of what? A Eighty-two milligrams of alcohol per 100 millilitres of blood.

Q And how do you know what that target value is? How do you know that it's 82 milligrams of alcohol in a 100 millilitres of blood? A The target value is -- there's a label that comes with the A-gas, the dry gas bottle, and it states on there clearly that at sea level the value is 82 milligrams of alcohol per 100 millilitres of blood. Q Do you get any training about the target values in your qualified technician training? A As a qualified tech -- when I did my training, Your Honour, that was -- that was made clear to us that that's what the value was.

Then, at page 33, lines 26: Q All right, and at any point during the sampling process, did the approved instrument malfunction or not otherwise perform as expected? A No, Your Honour, the instrument was working perfectly fine. Page 34, line 15: Q You said in your evidence that you did a system calibration check on the approved instrument or during the sampling process on this occasion, is that right? A That's correct. Q And you said that -- and you said in your evidence that the system calibration check was within 10 percent of the target value of the alcohol standard, is that right?

A That's correct, Your Honour. Q And you said that the alcohol standard target value was 82 milligrams of alcohol in 100 millilitres of blood, right? A That's correct, Your Honour. Q Okay, can you just tell us what the system calibration check result was in this case? A Yes, Your Honour, I can tell you that on both sequences on the subject test report, the results appear on the line which says STD, it says 79 on breath sequence one, and on breath sequence two it also says 79.

Q So the calibration check result was 79 in respect of each of the - prior to each sample, is that right? A That's correct, Your Honour. And again, the 79 is 79 milligrams of alcohol per 100 millilitres of blood. Q And you needed to satisfy yourself that that number, that 79, was within 10 percent of the target value, which is 82. A That's correct, Your Honour. Q And you were so satisfied, I take it. A Yes, I was. Then, over to page 35, line 1: Q You said that the alcohol standard that you used was certified by an analyst? A Yes, it was, Your Honour.

Q And you knew that because of the document that was posted next to the instrument, is that right? A That's correct, Your Honour, yes. [ 15 ] Exhibit 2 also contains additional evidence. As noted, Exhibit 2 was certified by Constable Palmer. He gives his badge number and the date of certification. Exhibit 2 sets out the results for the two system blank checks and for the calibration checks. It also sets out the maker of the standard, which was Air Gas. It also sets out the lot number; and it also sets out the expiry date of the cylinder, which is noted to be 2020.07.30. Exhibit 2 also sets out the test results.

The one thing it does not set out is whether or not the alcohol standard was certified by an analyst. [ 16 ] In cross examination, Constable Palmer testified as follows, and this is starting at page 35, line 21: Q Your determination that it was certified by an analyst was made by looking at a document. A That's correct, Your Honour, the certificate is posted -- Q All right. A -- in the breath room. Q Okay, who signed that document? A The analyst that certified that it was -- the alcohol standard was up to standard. Q And who was that? A Your Honour, I couldn't tell you that information off the top of my head.

Q Do you know what the date of the document was? A No, I don't know off the top of my head what the document date was. Q Do you know what the expiry date on the document that you were looking at was? A No, Your Honour, I can't tell you that information either at this point. Q Do you know whether . . . Sorry, next, over to page 36. Oh, I will just continue: Q Do you know whether the doc -- This is at line 40: Q Do you know whether the document referred to it being under s. 2 -- just bear with me a minute -- . . . . . . . . . Q No, s. 254(1) of the Criminal Code . A I'm sorry, Mr.

Marion, could you ask me the question again? Q Did the document, the certificate of the analyst that you were looking at, did it reference a person designated to -- pursuant to ss. 254(1) of the Criminal Code of Canada ?

A I don't know, Your Honour. Q All right, the reason I'm asking you this is that I've been -- I've received some certificates as disclosure, and you're familiar with that, they refer to s. 254 and I'm wondering if the document you were looking at referred to s. 254. A Yes, and I don't know the answer to that question, Your Honour. Q All right, so you don't know who signed it, and you don't know what

section of the Criminal Code it was based under, is that correct? A That is correct. Q Can you explain -- I'm going to suggest to you that the defence received two certificates signed by different analysts, do you know anything about that? A I -- my understanding, Your Honour, is that the certificate is signed off by the two persons that have to sign off on the certificates [indiscernible/overlapping speakers]. Q All right, did the certificate have two signatures on it or are we talking about two different signa -- two different certificates?

A I believe, Your Honour, it's two different signatures, two different people that have to -- but I, you know, without looking at a -- at a certificate in front of me right now, I couldn't -- I couldn't say. Q You're not sure. A No, and I'm not about to guess. Q All right -- Then continuing down to line 41: Q Okay, so basically what you're telling us is that your determination that the -- that the alcohol standard was certified by an analyst is entirely from a document, correct? A That's correct, Your Honour.

Then, over on page 37, starting at line 4: Q Did you provide to Crown Counsel a document that indicated that the manometer had failed its device specification? A No, Your Honour, I don't remember providing anything of that nature. Q Okay, do you know what a manometer is? A No, I do not, I have no idea. Q Do you know who Karen Shan [phonetic] is? A Not off the top of my head, I don't. Q Do you know a Clifton Yick Hang Ho [phonetic]. A No, Your Honour, that name is not familiar to me. Q All right, do you know an Amy Eng Minh [phonetic]? A No, Your Honour.

Q At any point did you provide to Crown Counsel a copy of the certificate of an analyst that you read on the wall? A No, Your Honour, my -- my involvement was just a qualified technician. Constable Phillippe was the lead investigator. Q All right, and you said you've done two tests -- A That's correct, Your Honour. Q -- is Mr. Cardwell the first? A Yes, he was, Your Honour, he was my first.

I was qualified in February of 2019 and it was December of 2019 that I was called to give my -- do my first sample. [ 17 ] I am satisfied that, upon considering the totality of Constable Palmer's evidence I have set out and the evidence contained in Exhibit 2, that the Crown has proven the following beyond a reasonable doubt: 1) when the alcohol standard is shipped to the Gold River detachment, it comes with a certificate from an analyst, in which the analyst certifies the alcohol standard;

2) the certificate that came with the alcohol standard was posted in a conspicuous spot in the breath room; 3) Constable Palmer looked at the certificate of the analyst that was posted on the wall near the breath instrument in the breath room to confirm that the alcohol standard had been certified by an analyst; and 4) the breathalyzer machine appeared to be working properly. [ 18 ] There was no evidence to the contrary led to suggest any doubt over these findings.

Further, there was no question or suggestion put to Constable Palmer in cross examination that there was some chance that he was looking at the wrong certificate, or that there was some chance that the wrong certificate had been posted, or any suggestion that he could not say with certainty what document he looked at. [ 19 ] That being said, it is clear that Constable Palmer was unable to name the analyst, the date the analyst certified the alcohol standard, what

section of the Criminal Code the analyst was designated under, and whether there were one or two signatures on the certificate or if there were two certificates, and what the expiry date was on the certificate. [ 20 ] The question is whether this lack of information raised by the defence in cross examination leaves the Court with a reasonable doubt that the Crown has proven that the alcohol standard was certified. I do not find any such doubt. [ 21 ] First, there is nothing in s. 320.31(1)(

a) that requires the Crown to prove the information that the defence says is missing. All that

section requires is that the Crown must prove that the alcohol standard was certified by an analyst. There is no reference to proving the name of the analyst, the date of certification, what

section the analyst was designated under, or whether one or two signatures were required on the certificate. [ 22 ] From a logical point of view, the absence of this information does not raise a doubt. For example, it is not necessarily required to know the analyst's name to know whether the alcohol standard was certified or not by an analyst.

Likewise, it is not necessarily required to know the date of certification to know that the alcohol standard was certified. [ 23 ] From an evidentiary point of view, when Constable Palmer admitted that he did not know the answers to the defence questions, he did not resile from, or express uncertainty over, or change his evidence that the alcohol standard that he used was certified by an analyst. His inability to answer those questions did not detract from his evidence that he looked at the certificate and could say that the alcohol standard that he used was certified.

As noted already, there was no suggestion put to the officer in cross examination that he might have been wrong in some fashion, perhaps by looking at the wrong certificate. [ 24 ] Second, the authorities set out that the hurdle that the Crown faces is low. In R. v. MacDonald , supra , the court made it clear that all that was required is proof, whether by certificate or oral evidence, that the alcohol standard was certified. Starting at paragraph 57 of R. v.

MacDonald , supra : [57] In my view, it has always been the case that utilizing only an alcohol standard “suitable for use” has been a necessary condition to the admission of the qualified technician’s certificate, or a practically necessary condition when proceeding by way of a qualified technician’s oral evidence in support of the reliability of the test results. Then, at paragraph 63: [63] There is no longer a distinction in the statutory text between the evidence-by-certificate and evidence-by-testimony approach.

The reorganization renders the evidentiary requirements more uniform between these two approaches—no matter which approach the Crown uses to establish the preconditions for the presumption of accuracy, it must now always establish in its case that the qualified technician used an alcohol standard that was certified by an analyst. I would not call this an “elevation” of the requirement, but rather, a standardization of the requirement.

In my view, it was a statutory anomaly that the Crown had previously only been required to introduce evidence about the suitability of the alcohol standard at first instance when proceeding by way of the technician’s certificate. Paragraph 75: [75] In my view, the reasons of the Supreme Court of Canada in Lightfoot , applied by the Court of Appeal for British Columbia in Moore , continue to apply to the scheme created by the 2018 Amending Act . It is not necessary for the Crown to go beyond the qualified technician’s certificate or oral evidence as to the fact of the alcohol standard’s certification.

If the accused in any case wishes to put that fact in further issue, they may avail themselves of the procedures set out in ss. 320.32(2), (3) . . .

Last, paragraph 77: [77] The trial judge’s concern was that the qualified technician did not testify and “there was no evidence that [the arresting officer] or [the qualified technician] ever looked at the Certificate of Analyst,” that there was no evidentiary foundation that in making this statement about the analyst’s certification Constable Caron “had actually done something to satisfy himself that this was the case.” It will be seen that this concern is not necessarily driven by resolving the issue of statutory

interpretation. In my view, however, the concern is completely answered by the record before the trial judge. The certificate says that the qualified technician conducted the appropriate calibration check using an alcohol standard “which was certified by an analyst.” That is evidence of “the facts alleged.” There was no evidence to the contrary before the trial judge; a conviction necessarily follows. [ 25 ] Based on R. v. MacDonald , supra , it is clear that the burden on the Crown is a low one and is to simply prove that the alcohol standard was certified.

On the evidence before the Court, the Crown has met that burden and has proved beyond a reasonable doubt that the alcohol standard used was certified by an analyst. [ 26 ] Third, to accede to the defence argument is to engage in speculation or conjecture. I note that, if there was any concern more than speculation or conjecture, then defence could have brought an application for further disclosure or could have applied to cross examine

the analyst. [ 27 ] I am satisfied, then, that the Crown has proven that the qualified technician Constable Palmer did use an alcohol standard that was certified when conducting the two system calibration checks. As a result, the Crown is entitled, in this case, to rely upon the presumption of accuracy set out in s. 320.31(1)(a); and I find that Mr. Cardwell's blood alcohol concentration at the time the tests were taken was .210 milligrams of alcohol in 100 millilitres of blood; and I find him guilty, then, on Count 2. (JUDGMENT CONCLUDED)