R. v. Buick Date:, 2015 BCPC 239

Citation: R. v. Buick Date: 20150522 2015 BCPC 0239 File No: 194360-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal) REGINA v. SCOTT BUICK RULING ON VOIR DIRE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: A. Jantunen Counsel for the Defendant: D. Gosal Place of Hearing: Surrey , B.C. Dates of Hearing: August 6, 7, 2014; March 2, 3, April 15, 2015 Date of Judgment: May 22, 2015

[ 1 ] THE COURT : The defendant is charged with impaired operation of a motor vehicle and operation of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood. The incident occurred on March 9th, 2012. The prosecution has completed its case. I admitted into evidence a Certificate of Qualified Technician which indicates that the results of the analysis of the breath samples supplied by Mr.

Buick were both 160 milligrams of alcohol per 100 millilitres of blood. [ 2 ] Pursuant to s. 258(1)(c)(iii) of the Criminal Code the defendant called evidence which he asserts constitutes evidence to the contrary in that it creates a reasonable doubt that the instrument used by the qualified technician was functioning properly when the breath samples were taken and analyzed. This is the procedure that is necessitated as the result of a decision of the Supreme Court of Canada in R. v. St-Onge Lamoureux .

The only burden on the defence here is to raise a reasonable doubt as to whether the breath test instrument was operated properly or functioned properly. That is, the evidence must point to the possibility that the instrument was not operated properly or that it malfunctioned. [ 3 ] I heard evidence from two experts, one for the Crown and one for the defence. The defence argues that the maintenance records kept by the RCMP concerning the particular breath test instrument used in this case do not show that the instrument and its critical parts were properly maintained.

The Crown submits that the evidence shows that the instrument was properly maintained and, in any event, that the defence argument amounts to mere speculation. The Crown further points out that the defence does not assert that the qualified technician did not operate the instrument properly.

Thus says the Crown, the records generated by the instrument before and during these tests show that the instrument could not have malfunctioned. [ 4 ] Section 258(1)(c)(iii) of the Code provides that evidence of the results of the analyses of the breath samples if taken in accordance with the other provisions of the Criminal Code constitute proof that the defendant's blood alcohol level was at the level of the lowest result of the samples taken.

A defendant can rebut the inference if he or she is able to introduce "evidence to the contrary." This is defined as evidence tending to show that the approved instrument was malfunctioning or was operated improperly. The burden on the defendant is to raise a reasonable doubt concerning either of those issues. The defendant did not seek to cross-examine the qualified technician and did not allege that the qualified technician operated the instrument improperly.

Instead, the defence focused on what it says are deficiencies found in the maintenance records of the instrument. [ 5 ] The defence argues that the records fail to show that two critical components of the DataMaster instrument used in this case were properly inspected and calibrated during the annual maintenance of the instrument. The simulator and thermometer are particularly important to the process of the analysis of breath samples provided by subjects into the DataMaster.

A standard alcohol solution of a known concentration of alcohol is pumped into the instrument which then analyzes the alcohol concentration. Only if the analysis is within plus or minus ten milligrams percent of the known alcohol concentration will the instrument be deemed to be in proper working order and capable of analyzing breath samples provided by the subject. [ 6 ] The standard alcohol solution must be kept at a temperature very close to 34 degrees Celsius to simulate a human breath sample.

The thermometer is necessary to confirm to the technician that the solution is at that level before it is introduced into the instrument for analysis. These components are perhaps the most important components of the breath testing process because they permit the qualified technician to confirm that the instrument is working properly and because the actual analysis of the subject's breath sample is accomplished by the instrument comparing the effect of infrared light on the alcohol present in the breath sample, comparing that to the effect of infrared light on the alcohol present in the standard alcohol solution.

If the thermometer does not accurately record that the standard alcohol solution was within the very narrow temperature range required then it cannot be said that the solution which was diffused into the instrument was accurately analyzed. It would not constitute a proper simulation of a human breath sample. In turn, the subsequent analysis of the defendant's breath samples if carried out would be unreliable because of this malfunctioning of the instrument. [ 7 ] The evidence on the application consisted of the testimony of two experts, Audrey Jakus for the defence and Brian Image for the Crown.

The Crown objected to Ms. Jakus being permitted to testify as an expert, but I reserved my decision until I had heard her evidence. It is my view that her education, training and experience are sufficient to qualify her as an expert to testify about the theory and operation of the DataMaster, as well as about the issues surrounding the maintenance and calibration of the instrument. For the most part she confined her evidence to those issues. The defence took no issue with Mr. Image's qualifications as an expert.

My assessment is that he is an eminently qualified expert. [ 8 ] It is important at this point to attempt to focus on the particulars of the defence submission. First of all, it may be helpful to look at what the defence is not submitting. First, the defence does not submit that the qualified technician operated the DataMaster improperly and did not perform all of the required procedures in taking and analyzing the breath samples provided by Mr. Buick.

Second, the defence does not submit that the records of the inspection, maintenance and calibration of the DataMaster showed that the technicians who did the work made any apparent errors in their work. Third, the defence does not suggest that these technicians omitted or neglected to do something which was necessary to properly maintain the instrument. Fourth, the defence does not suggest that the persons who did the maintenance and calibration were not qualified to do so.

Fifth, the defence does not suggest that there is any evidence of actual malfunction in the DataMaster in analyses done after the last annual maintenance and before the tests were done on Mr. Buick's breath samples. [ 9 ] The essence of the defence argument is that the maintenance records of the instrument are defective in that they do not show that any inspection, maintenance or repair was done on the simulator or the thermometer. There is just no way to determine, in the defence submission, whether the components were functioning properly or not.

The maintenance reports do not identify either the simulator or the thermometer by serial number even though they both have serial numbers. Thus, it is impossible, says the defence, to know whether the simulator and thermometer used when Mr. Buick's breath samples were analysed, were functioning properly. [ 10 ] It is important to note at this point that the Crown is not required to prove that the instrument was properly maintained and calibrated.

As well, however, it is important to point out that it is necessary for the defence to point to evidence which raises a reasonable doubt that the instrument was functioning properly. Of course, it must be emphasized that the defence is not required to prove that the instrument was actually malfunctioning.

[ 11 ] There is no dispute that the instrument used in this case underwent annual inspection, maintenance and calibration. I take from Mr. Image's evidence that the procedure was done by employees of a company called DAVTECH and that the procedures done to maintain the instrument were extensive. Even though there was no specific record of the maintenance work done on specific thermometers or simulators identified by serial number, he said that he expected that the DAVTECH technicians had in fact done the appropriate inspection and maintenance of these components.

His simple point was that if the company was paid for this service that he expected that they performed the service. It is obvious from the nature of the maintenance and calibration work done on the instrument that there were several tests done to determine whether the instrument was working properly, and in particular whether it could properly analyze a known alcohol standard on four different tests where the alcohol concentration was at different levels for each test. To do these tests the technician would have to use a simulator and a thermometer which were working properly. Mr.

Image said that the maintenance and calibration of the DataMaster was done properly. [ 12 ] My view is that Mr. Image was correct to assume that the technicians doing the maintenance work did such work on the simulator and thermometer. After all, it is very clear that the technicians did extensive inspection, maintenance and calibration of the breath test instrument; actually the breath test instruments, there was more than one. There is just no rational basis upon which to conclude that they did not examine and evaluate the simulator and thermometer.

On that basis alone I would find that there is no basis in the evidence led before me that the simulator and thermometer used in the instrument which analyzed the breath samples of Mr. Buick were malfunctioning in any way. To find otherwise would be pure speculation. [ 13 ] In addition, I accept Mr. Image's evidence that the best way to determine whether an instrument is working properly is determine whether all of the required procedures in taking breath samples and analyzing them were properly performed by the qualified technician when the tests were taken.

The defence did not dispute that where this is the case the instrument is apparently working properly, but the defence took the position, quite properly, that this is a kind of "illusion" because it could well be that the malfunctioning thermometer or simulator could be causing it to produce erroneous analyses of breath samples.

As I have said, however, there is no basis in my opinion to conclude that there is any rational basis to infer that there was any such malfunction in the instrument. [ 14 ] My conclusion is further supported by the fact that all of the previous breath samples or breath tests taken from other subjects after the annual maintenance was done and before the breath samples were taken from Mr. Buick, accurately analysed the alcohol concentration in the standard alcohol solution.

While it is quite possible that an instrument could malfunction suddenly after many instances of proper functioning, it is significant that in this case there was a consistent pattern of accurately analyzing the standard alcohol solution. [ 15 ] In my view, there is no air of reality to the defence argument. The DataMaster C is a scientific instrument which is designed to produce accurate analyses of breath samples to determine the alcohol concentration in the subject's blood.

The operator of the instrument must conform to a strict protocol in operating the instrument and all of the steps required in that protocol are recorded on tickets printed by the instrument after the breath tests are obtained and analyzed.

Strict adherence to these checks and balances ensures that the analyses are correct. [ 16 ] Nonetheless, the defence argues that although the samples may appear to be accurate and although there is no evidence whatsoever that the instrument actually malfunctioned in the past, that is, gave incorrect analyses of breath samples or had to be repaired, for example, that there is nonetheless, says the defence, a possibility that the instrument was not working properly. This argument is made without reference to any scientific opinion that such a situation could realistically occur. Ms.

Jakus' opinion is that based upon her examination of the maintenance records, the lack of documentation about any maintenance or calibration of the thermometer and simulator that it cannot be said that the results of the analyses of Mr. Buick's breath samples is accurate. Not surprisingly, Mr. Image disagreed with that proposition. The defence did not point to any experiments done by Ms. Jakus or any other professionals in the field which would support this assertion.

Neither did the defence point to any reference in the scientific literature which would support this assertion. [ 17 ] The defence assertion that it is possible that the instrument could have been malfunctioning despite the fact that every objective criterion available strongly supported the inference that it was operating properly, is therefore pure speculation. [ 18 ] I find, therefore, that the evidence called on this voir dire by the defendant does not establish that there is a reasonable doubt that the instrument was either operated improperly or that it was not functioning properly.

There is just no evidence to support a rational inference that it is possible that the instrument was malfunctioning. So I find there is no reasonable doubt. (RULING ON VOIR DIRE CONCLUDED)