2019 QCCA 198, 2019 QCCA 198

Célant c. R. 2019 QCCA 198 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003427-171 (655-36-000115-167) (655-01-008304-130) DATE: February 5, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. SIMON RUEL, J.A. CAROL COHEN, J.A. ( AD HOC ) NICOLAS CÉLANT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT * [ 1 ] On appeal from a judgment rendered on September15, 2017 by the Superior Court (the Honourable Richard Grenier), District of Baie-Comeau, who found the appellant guilty of the offence of operating a motor vehicle with a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood and thus overturned the verdict of acquittal pronounced in the Court of Quebec . [ 2 ] For the reasons of Duval Hesler, C.J. with which Ruel and Cohen ( ad hoc ), JJ.A., concur; THE COURT : [ 3 ] DISMISSES the appeal.

NICOLE DUVAL HESLER, C.J.Q. SIMON RUEL, J.A. CAROL COHEN, J.A. ( AD HOC ) Mtre Christian Maltais For appellant Mtre Alex Turcotte Counsel for Criminal and Penal Prosecutions For respondent Date of hearing: January 8, 2019

REASONS OF DUVAL HESLER, C.J.Q. [ 4 ] This is an appeal from a Superior Court judgment overturning an acquittal by the Court of Quebec on a charge of operating a motor vehicle with a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood. [ 5 ] The facts are as follows. [ 6 ] In the early hours of the morning of April 5, 2013, the appellant, while driving, was intercepted by the police. Showing signs of impairment, he was asked, by demand, to submit to a screening test with an approved instrument.

After a first aborted attempt due to insufficient exhaling, the appellant failed the test on his second try. He was arrested at 3:20 a.m. and conveyed to the police station to undergo a standard breathalyzer test. [ 7 ] At 3:45 a.m., a first sample was collected by a sergeant who was a qualified technician. The analysis showed a blood alcohol level of 173 mg of alcohol in 100 ml of blood. [ 8 ] Fifteen minutes later, a second sample was demanded. During execution, the appellant abruptly ceased exhaling.

The breathalyzer nevertheless produced a result, which to this day remains unknown, the qualified technician having judged that the breath was not sufficiently deep to provide deep lung (alveolar) air and having therefore canceled the sequence by pressing the “ABORT” button. He did so without looking at the display screen.

The test was obliterated, since pressing that button completely, irreversibly and permanently eliminates whatever reading was obtained. [ 9 ] At 4:11 a.m., the appellant provided a third sample which tested at 160 mg per 100 ml of blood. [ 10 ] At trial, the sergeant who had acted as a qualified technician explained that he had rejected the second sample because it was in his opinion inadequate, even though the breathalyzer had produced a result based on its minimal parameters.

He also testified that he had not looked at the result so as not to create a bias in his mind regarding the rejection of the sample, as he had been taught at the police academy. [ 11 ] The defence’s expert, a toxicologist, delivered in his written report a somewhat ambivalent opinion, saying that “[TRANSLATION] breathalyzers should not offer the possibility of interrupting a test sequence or to erase test results without the “Abort” message being printed on a sheet with an error code ” (Emphasis added).

While he acknowledged that a qualified technician may refuse a sample that he or she considers inadequate, he contended that the protocol also requires the technician to look at the display during the sampling, and therefore had difficulty accepting that a qualified technician would eliminate a sample without looking at the result, a fairly gratuitous assertion. [ 12 ] In its judgment rendered orally, the Court of Quebec judge concluded that “(TRANSLATION) the breathalyzer had been incorrectly used” … “since three (3) samples had been in fact analyzed, not two (2)”.

This led him to entertain a reasonable doubt regarding the reliability of the tests. [1] [ 13 ] The Superior Court allowed the prosecution’s appeal on the basis that the trial judge erred in law by putting aside, without valid cause, the presumption of accuracy of the results referred to in the qualified technician’s certificate, as provided in section 258(1)(

c) Cr.C. According to the Superior Court judge, the expert testimony of Mr. Robitaille, the toxicologist, raised no doubt as to the proper operation of the breathalyzer and, therefore, no evidence had been presented to suggest that “(TRANSLATION) the technician’s certificate did not correctly reflect the blood alcohol level at the time of the sampling.” [2] [ 14 ] Leave to appeal was granted on the following questions of law: [3] 1. What are the criteria that allow a qualified technician to determine whether the breath sample permits a suitable analysis, pursuant to section 254(3) (a)(

i) of the Criminal Code ? 2. When a qualified technician finds that the breath sample does not allow for a suitable analysis, but the breathalyzer nonetheless produces a result, is the qualified technician required to record that result and to include it in his/her report for eventual disclosure to the accused? 3. Are the answers to those questions capable of rebutting the presumptions of accuracy and of identity provided at section 258(1) (

c) of the Criminal Code , because of an improper operation of the breathalyzer? [ 15 ] Section 254(3) (a)(

i) Cr.C . provides:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood (…) 254

(3) L’agent de la paix qui a des motifs raisonnables de croire qu’une personne est en train de commettre, ou a commis au cours des trois heures précédentes, une infraction prévue à l’article 253 par suite d’absorption d’alcool peut, à condition de le faire dans les meilleurs délais, lui ordonner :

a) de lui fournir dans les meilleurs délais les échantillons suivants : (

i) soit les échantillons d’haleine qui de l’avis d’un technicien qualifié sont nécessaires à une analyse convenable permettant de déterminer son alcoolémie , […] (Emphasis added) [ 16 ] It has long been recognized in the case law that, pursuant to this provision, the qualified technician has the authority to ensure the adequacy of the samples in order to obtain a suitable analysis and that a sample or an analysis rejected based on his or her opinion does not constitute a sample within the meaning of section 258(1) (

c) Cr.C. , which confers upon the breathalyzer results a presumption of accuracy and of identity. [4] As Justice Howland, of the Ontario Court of Appeal, wrote in R. v. Perrier : [5] In my opinion the words "each sample" in s. 237(1)(c)(ii) (iii) and (iv) [6] must be interpreted in conjunction with s. 235(1) [7] .

The words "each sample" in these subsections means each sample which in the opinion of a qualified technician is necessary to enable a proper analysis to be made within s. 235(1). […] The words "each sample" in s. 237(1)(c)(ii) (iii) and (iv) do not include any sample of which in the opinion of the qualified technician a proper analysis cannot be made. (…) If each sample within s. 237(1)(

c) included a sample of which a proper analysis could not be made, then it would unduly limit the operation of the presumption in that

section and would not give proper effect to s. 235(1). It is also hard to credit that Parliament intended a sample to be analyzed which was not capable of proper analysis. […] [ 17 ] Justice Howland however specified that “[i]t is of course important that a chemical analysis be made of each sample of which a proper analysis can be made so that the accused will not be deprived of an analysis which may be more favourable to him”.

Therefore, the qualified technician must exercise the power he or she is given reasonably. [ 18 ] In the Perrier case, the qualified technician’s decision to reject the sample resulting from an adequate exhaling that subsequently partially escaped from the instrument because of a disconnected pipe was considered a reasonable exercise of the discretion granted him or her by s. 254(3) (a)(

i) Cr.C . [ 19 ] That being said, the exercise of the technician’s discretion is not restricted to those cases where the inadequacy of the sample for the purposes of a suitable analysis results from a malfunctioning instrument despite a satisfactory exhalation. The sample may also be considered inadequate by the technician due to insufficient exhaling by the accused. In R. v.

Bell , Judge Salhany explained that the insufficiency of the breath can take two forms: [8] 4 Constable Culham testified that he advised the appellant to make a tight seal with his lips around the mouthpiece and blow as long and as hard as he could into the breathalyzer machine. The machines requires at least 56-1/2 millilitres of breath sample to raise the piston to the top. Once the piston reaches the top, a green light is activated indicating that there is a sufficient sample for analysis.

Since the breathalyzer is intended to analyze deep lung air, the technician is required to ensure that the sample of breath inserted into the machine comes from the lungs and not the mouth of the subject. The Criminal Code recognizes the necessity of entrusting to the technician the discretion to require from the subject "samples of his breath as in the opinion of a qualified technician . . . are necessary to enable a proper analysis to be made . . ." ( s. 235(1) of the Criminal Code ). In my view, this envisages two possible situations.

The first is where the technician concludes that there is not a sufficient sample "capable" of analysis because the piston has not been raised to the top of the machine. The second situation is where the sample itself is not "suitable" for analysis because it is not deep lung air. Once these two criteria are met then, in my view, the officer is not entitled to refuse arbitrarily to analyze the sample.

His refusal to analyze a sample must be bona fides (…) (Emphasis added) [ 20 ] Contrary to the appellant’s contention, nothing prevents the technician from refusing a sample even if the instrument has triggered or produced an analysis. The mere fact that there has been an analysis does not mean that the sample was suitable for analysis. Of course, the technician must provide the reasons for his/her decision. As Judge Salhany wrote: “(…) it was incumbent on the police officer to explain what he meant by a suitable analysis.

As indicated earlier, it is not a discretion to be exercised arbitrarily or capriciously”. [9]

[ 21 ] Notwithstanding subsequent advances in breathalyzer technology, those teachings have generally been followed. [ 22 ] Indeed, in the case of R. v. Rourke , the qualified technician had rejected the second sample provided by the accused and analyzed by the instrument on the ground that the accused had suddenly stopped blowing. As in the present case, the technician testified that even though the quantity of air sufficed to automatically trigger an analysis, the breath in his opinion was insufficient for an adequate sample of deep lung air. Sitting in appeal of the

summary conviction, Justice Belzil, of the Alberta Court of Queen’s Bench, wrote: [10] 30 The wording of s. 254(3)(

a) has not been amended, and it must be noted that over the years a number of more advanced types of breathalyzer instruments have been certified for use in Canada, and one can only presume that as technology continues to evolve, newer and more advanced machines will be certified for use in the future. 31 The fact remains, however, that the advent of more advanced technology has not ousted the requirement that a qualified technician obtain the breath samples. 32 Surely, when Parliament in s. 254(3) (

a) used the words "as in the opinion of a qualified technician..." it intended that there would be a discretion vested in the technician to determine whether the sample is or is not suitable for analysis.

This clearly incorporates a subjective element as it would be impossible to incorporate an objective test which would cover all technicians in all circumstances for all accused. (…) 43 It seems to me that if the Appellant's argument were accepted, this would lead to the result that the discretion vested in the technician by Parliament would be rendered nugatory by the electronic operation of a machine. 44 In my view, the advent of new computerized technology has not ousted the discretion vested in the technician by Parliament, and that in circumstances such as these where the finding that the discretion was properly exercised is supported by the evidence, no error can be found. [ 23 ] As Justice Pronovost wrote in a decision cited by the prosecution in its factum: “(TRANSLATION) It is the technician who decides the quality of the samples, not the device”. [11] [ 24 ] In R. v.

Lessard , Justice Trudel wrote for his part that the qualified technician has the power to decide whether a breath sample is valid “(TRANSLATION) without regard to the fact that it has been analyzed or not by the instrument”, [12] otherwise section 254(3) would be deprived of meaning”. [13] [ 25 ] On this note, it is appropriate to quote the remarks of Judge Chapdelaine in the case of R. v.

Drolet regarding the role of the qualified technician in respect of the reliability of two breathalyzers, the Alco-Sensor IV-RBT IV (used in this case) and the Intoxilyzer 5000C : [14] (TRANSLATION) [87] According to all experts, breathalyzers are scientific instruments used to make scientific measures, but those devices are operated in conditions different from those of a traditional laboratory environment. [88] That is why, in the opinion on all those who have had a say on the question, the training of the qualified technician is very important and the role he plays in the sampling and analysis process of the breath samples is crucial . (…) [92] All experts agree in saying that the process of sampling breath is paramount. (…) [96] He [the qualified technician] must give clear explanations on the manner to provide the breath sample for he needs to obtain the last third of a deep exhalation.

The disparity between analysis results is, in a proportion higher than 80%, attributable to the sampling. The technician must make sure that the subject is not hypoventilating nor hyperventilating , conditions that could respectively underestimate or overestimate the blood alcohol level of the subject by close to 15%. [97] The qualified technician is also the person who determines during the sampling process whether the breath sample is suitable. In addition, he must enter a number of data in the device.

Finally, he is required to record some information. [98] It is possible for the qualified technician to modify the time of sampling. He can also, on one of the breathalyzers (Alco-Sensor IV-RBT IV), cancel the analysis of a sample after the display of the result, before it is printed. (Emphasis added) [ 26 ] The evidence presented in the Drolet case, to which Justice Deschamps refers in R. c. St-Onge Lamoureux , [15] supports the premise that the qualified technician is not a mere executant whose role is limited to activating the device and then letting it do all the work.

On the contrary, his or her professional judgment is crucial in order to collect samples that allow a reliable analysis of the accused’s blood alcohol level.

[ 27 ] As previously mentioned, the legislators have decided to entrust the task of insuring the reliability of results to the qualified technician, not to the device. [ 28 ] Thus, the only question that needs answering is whether the qualified technician exercised his/her discretion appropriately when rejecting a sample or an analysis. To that end, it is necessary that s/he testify. In this regard, Justice Fontana wrote, in R. v.

Cunningham : [16] 19 So then the issue becomes, did the qualified breath technician properly exercise his discretion (…) We know of course that he has no untrammelled discretion to discard those readings. (…) The opinion which the officer provides to the effect that one or more of the samples were not suitable must be founded upon a proper grounding of fact.

It may be that he is not obliged to disclose his reasoning or the fact to the accused at the time of breath sampling but certainly he has an obligation to disclose it to the court so that the court can make the assessment as to whether the opinion, his opinion, is fully grounded. The court cannot assess whether the officer's discretion was properly exercised in the absence of evidence of that fact (…) [ 29 ] The court’s assessment must be made on a case by case basis, contingent on the particular circumstances of each instance.

In addition, the decision of the qualified technician must never be arbitrary [ 30 ] Accepting the appellant’s position would be tantamount to saying that when the breathalyzer provides an analysis, the qualified technician may discard the test only in the case of a malfunction. Such a thesis is not consistent with the case law discussed above and has clearly been rejected by the Ontario Court of Appeal in R. v.

Dobrowolski : [17] 1 The appellant asserts that once a qualified breathalyzer technician submits a breath sample for analysis and an approved instrument produces a result, absent any indication that the approved instrument has malfunctioned, the sample is a sample "necessary to enable proper analysis" within the meaning of s. 254(3) of the Criminal Code and the technician has no discretion to reject it. We do not accept that submission.

On a plain reading of s. 254(3) there is no such limitation in the section. [ 31 ] In the same matter, Justice Power, of the Ontario Superior Court, for his part had written that: [18] 33 In conclusion, therefore, in my opinion, an "analysis", as the word is used in ss. 254 and 258(2), means an analysis which, in the opinion of an approved qualified technician, is a reliable one. In other words, where there is credible evidence that the result is not reliable it, the unreliable result need not be taken into account even though the reading might be the lower or lowest of two or more.

It can be rejected because it will not permit a "proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood ..." 34 I conclude that there are no valid policy reasons why a breath technician cannot, in circumstances such as here, reject a reading where he or she, honestly exercising his or her professional training and experience, knows to be an unreliable one, even where there is no evidence of the device malfunctioning, but where there is evidence that the accused contributed to the low reading by his or her conduct. [ 32 ] In the case at bar, neither the appellant nor the trial judge question the fact that, during the taking of the second sample, the appellant abruptly stopped exhaling prior to the qualified technician asking him to do so. [19] This makes it difficult to question the good faith of the qualified technician when he testified that the sample was in his opinion inadequate and would not provide a suitable analysis of the blood alcohol level of the appellant.

It is interesting to note that the defence’s expert writes in his opinion that technicians are taught to “(TRANSLATION) make sure of the flow, volume, complete exhalation and time criteria”. [20] He also mentions that the device used in this case triggers an analysis when “(TRANLATION) the minimal volume of breath required” is obtained.

Consequently, the sergeant’s testimony that the appellant’s breath was not sufficient to provide an adequate sample of alveolar air, despite having met the minimal requirements of the device, is not surprising; quite the opposite. [ 33 ] That being said, did the permanent erasure of the second test by the qualified technician, in the circumstances of this case, deprive the appellant of evidence relevant to the conduct of his defence? The Ontario Court of Appeal answered this very question in the negative in R. v. Melville : [21] 2 The second ground of appeal arises out of the conduct of the intoxilyzer test.

After a proper demand, the appellant provided a sample of his breath which registered a reading of .93. The technician then, following the established practice, waited fifteen minutes and demanded the second sample contemplated by the statutory scheme. The appellant provided a breath sample and the machine began to analyze that sample. The readings that appeared on the machine as it analyzed the sample initially increased in small amounts, but then dropped precipitously causing the technician to abort the analysis, determine that the sample was unsuitable and demand a further sample.

That sample yielded a reading of .103. 3 Counsel for the appellant forcefully argues that the failure to keep a printout or other record of the aborted second analysis contravenes the appellant's rights under s. 7 of the Charter and invalidates the analysis of the other two samples upon which the conviction was based. 4 We disagree. The language of s. 254(3) of the Criminal Code as interpreted in R. v. Dobrowski , [2005] O.J.

No. 2576 contemplates that a qualified technician may in the course of administering a test, determine that a sample is unsuitable in which case a demand for a further sample may be made under the scheme. In this case, the qualified technician made the assessment based on her training that the second sample provided by the appellant was not suitable for analysis. Whether she was ultimately, as a matter of science, right or wrong in that assessment is irrelevant. Under the statutory scheme, she was entitled to make that assessment in good faith.

Her good faith was not challenged in this proceeding . 5 Once it is accepted, as it must be on the authorities, that the qualified technician was entitled to reject the second sample as

inadequate, the results of the partial or aborted analysis of that inadequate sample could not have potentially assisted the appellant in anyway in his defence on the "blowing over" charge. (Emphasis added) [34] The appellant contends that the Supreme Court’s decision in R. v. St-Onge Lamoureux changed the state of the law on thematter. Such is not the case.

In that instance, the majority refused to decide on the nature and extent of the evidence that could berelevant to an accused who is striving to raise a reasonable doubt with respect to the good functioning or the proper operation of the approved instrument:[22] [42] Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not beappropriate to rule on the specific limits of that evidence.

I will merely note that, in light of the evidence accepted by the trial judge,there are several pieces of evidence that can be provided to a person who is charged under s. 253(1)(

b) Cr.

C., including the breathalyzerreadings, the qualified technician’s certificate and the analyst’s certificate concerning the sample of the alcohol standard. [35] While it is true that Justice Deschamps, in this paragraph, was referring to the breathalyzer readings, she went on to specify thatthe accused has a right to the disclosure of all relevant elements in order to present a “real defence”: [78] Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument,this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard.

Theaccused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. Ifthe prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure(see R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411). (…) (Emphasis added) [36] I share the view of the Ontario Court of Appeal in Melville, supra, that a sample rejected on a valid ground by the qualifiedtechnician is of no aid to the accused’s defence.

In this case, even had the sergeant printed the result of the analysis rather than erasing it,the appellant had nothing to gain insofar as one accepts the testimony of the qualified technician that the incomplete exhaling did notpermit a suitable analysis. [37] It is also true that the Supreme Court, in R. v.

Gubbins,[23] specified that the readings established at the time of the analyses aredocuments relevant to the issue of the malfunctioning of the instrument. [38] One can easily conceive that, pursuant to the particular circumstances of each case, the irrevocable cancellation of an analysisby a qualified technician following a malfunction of the device or its improper operation could be helpful to the accused in order tofashion an explanation of events and to attempt to raising a reasonable doubt as to the reliability of the results, thus rebutting thepresumption of accuracy and of identity.

It is however a lot more difficult to accept this type of reasoning when the cancellation of ananalysis results not from a deficiency related to the malfunctioning or to the improper operation of the breathalyzer, but, as in this case,from the accused’s behaviour, whether voluntary or not. [39] Last December 6, in R. v. Cyr-Langlois, the Supreme Court summarized in the following terms the burden of proof incumbent upon an accused seeking to rebut the presumptions of inaccuracy and of identity:[24] [4] The accused’s burden is discharged if the following conditions are met: (

i) the accused adduces evidence relating directly to themalfunctioning or improper operation of the instrument, and (ii) the accused establishes that this defect tends to cast doubt on thereliability of the results. Each of these conditions has a theoretical element and a practical element. Therefore, for the improper operationof the instrument to be established, it must first be found that a specific procedure is generally required (theoretical element), and it mustthen be shown that the procedure was not in fact followed (practical element).

The evidence from which it can be inferred that the defecttends to cast doubt on the reliability of the results must be looked at in the same manner. The theoretical element is satisfied where it isproved that the purpose of the procedure in question is to ensure the reliability of the results.

On the practical element, the evidence mustestablish that, in the particular case, the defect could have affected the reliability of the results. [40] It was held by the majority that in order to raise a reasonable doubt, the possibility that the defect in the functioning or the operation of the device “affected the reliability of the results” must be “serious”.[25] Evidence of an improper operation that does not in and of itself cast doubt on the reliability of the results will not suffice.[26] [41] The weakness in the appellant’s position, which the trial judge unfortunately retained, lies precisely in the fact that the oneaborted analysis for incomplete exhaling, out of the three tests performed in this case, does not cast any doubt on the reliability of theresults from samples 1 and 3.

The reading of the second test, had it been printed, would have been of no use to the appellant as its lack ofreliability resulted from a breath not deep enough to contain the alveolar air sought by the qualified technician, and not from anydeficiency of the breathalyzer or its improper operation such that the reliability of the other two results, which have not been challenged,would be affected. The Superior Court judge was right in overturning the verdict. [42] For these reasons, I propose that the appeal be DISMISSED. NICOLE DUVAL HESLER, C.J.Q.