R. v. Guichon Date:, 2010 BCPC 335

Citation: R. v. Guichon Date: 20101221 2010 BCPC 0335 File No: 28547 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GERALDINE LOIUS GUICHON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Crown: W. Herdy and J. Dufour Counsel for the Defendant: G. Wool Place of Hearing: Williams Lake , B.C. Dates of Hearing: August 8, 2008, January 22, 2010 Date of Judgment: December 21, 2010 [ 1 ] Geraldine Louis Guichon is charged with Impaired Driving and Over .08 contrary to ss. 253 (

a) and (

b) of the Criminal Code respectively. [ 2 ] The principal issue in this case is whether there is evidence “tending to show” that the breathalyzer test done on Ms. Guichon produced a result that was not accurate. This is what used to be called “evidence to the contrary”. [ 3 ] For the reasons which follow I have decided that I must find Ms. Guichon guilty of count #2 – Driving Over .08. The officer conducted a less than perfect observation period prior to the first breath test, and, as such, it can be said that there is evidence “tending to show” improper operation of the approved instrument.

However, I find that it would be speculative to conclude, in the circumstances of this case, that there was also evidence “tending to show” the other two things now required by s. 258(1)(

c) to rebut the presumption of accuracy. More specifically, I find that it would be speculative to conclude that there was evidence tending to show that the failure by the officer to conduct a perfect observation period resulted in the over .08 reading and that it would be speculative to conclude that there was evidence tending to show that Ms. Guichon’s blood alcohol concentration would not have exceeded .08 at the time when the offence was alleged to have been committed. [ 4 ] I will now explain my reasons for this decision in more detail.

Evidence [ 5 ] Geraldine Guichon was driving a group of friends along Highway 20 at Anahim Lake on the late afternoon of September 22 nd , 2007. Cst. Spoor of the RCMP was conducting a stationary road check at the time. He was stopping all vehicles coming past his location checking for impaired drivers and vehicle maintenance. Noting a strong odour of liquor emanating from Ms. Guichon’s vehicle, he directed her to pull to the side. After conducting a routine impaired driving investigation he arrested Ms. Guichon and drove her to the detachment with a view to taking breath samples. Ms.

Guichon gave two breath samples. The results were 110 mg/% and 100 mg/%.

[ 6 ] The observation periods conducted by Cst. Spoor prior to each of these two breath tests are of particular concern so I will focus on that aspect of the evidence. [ 7 ] Anahim Lake is a small community with a small police detachment. Cst. Spoor was working on his own when he dealt with Ms. Guichon. He was both the investigator and the Qualified Technician. [ 8 ] Cst. Spoor knew that the purpose of the two observation periods was to observe Ms.

Guichon in order to ensure that she did not take anything by mouth that might contaminate the breath sample and also to ensure that alcohol did not enter her mouth from the regurgitation of stomach contents by way of burping, belching or vomiting: Transcript, August 8, 2008, p. 34, l. 37-p.35, l. 20. I infer that he knew that “mouth alcohol” from any of these sources could cause a falsely high breathalyzer result.

He also knew, from his training, that the breathalyzer operator’s certification manual, as it was worded at the time, stated that the observation of the subject should be “direct, face to face observation”: Transcript, August 8, 2008, p. 23, ll. 25-29 and p. 43, ll. 34-38. See also Exhibit 4, Written Opinion of Audrey Jakus, p. 2, paragraph 2. [ 9 ] Cst. Spoor positioned himself at a desk facing the end wall in the small breathalyzer room at the Anahim Lake detachment. He seated Ms. Guichon in a chair to the left of the desk, between the side wall of the room and the side of the desk, facing out into the room.

Exhibit 2 is a sketch which shows how they were seated and it is clear that Ms. Guichon was in a “kitty cornered” position relative to Cst. Spoor, across the left side of the desk. Cst. Spoor testified that they were about ½ metre apart, “within arm’s reach almost”. Transcript, August 8, 2008, p. 40, ll. 3-19. [ 10 ] The first observation period started at18:34 hours and ended 24 minutes later at 18:58 hours with the taking of the first sample. During 9 minutes of that time (18:47 to 18:56 hours: Transcript, August 8, 2008, p. 42, ll. 6-8 ) Cst.

Spoor was filling out a two page form called the “C 256 Investigational Guide”. [ 11 ] Cst. Spoor admitted that during this 9 minute period while he was reading out the questions on the form and while he was writing out Ms. Guichon’s answers or looking up the answers on, for example, her driver’s licence, he was not maintaining “direct, face to face observation” of Ms. Guichon. The following excerpt is a fair

summary of his evidence: [ 12 ] Transcript, August 8, ,2008, p. 26, ll. 33 to 44: “Q: Now, if Ms. Guichon was to get in the witness stand here and say “Constable Spoor in the – in that little room where I made the phone call, he had his head down and he was writing on a form ” would she be correct? A: Yeah, she would be correct, and that at certain points in the interview I had looked down, yes .

Q: Well, yeah, but – yeah, you were – I mean, you had to look down to fill – because they are all spaced in here, like – A: I agree, yes, I wasn’t staring at her eyes the entire time .” [emphasis added] [ 13 ] During the last few minutes of the observation period, just before taking the first sample, Cst. Spoor stood up and moved to stand in front of the breathalyzer instrument which was positioned along the side wall, a short distance in front of where Ms. Guichon was seated. Ms. Guichon was now to his right. Cst.

Spoor estimated that she was still only about 2 or 3 feet or ½ metre away from him: Transcript, August 8 th , 2008, p. 38, l. 10 to p. 40, l. 19. During these few minutes, Cst. Spoor was preparing the breathalyzer instrument to take the first test. He had to check the temperature on the simulator and enter this, and other data, into the instrument and he admits that here again he was not maintaining “direct, face to face observation” of Ms.

Guichon: [ 14 ] Transcript, August 8, 2008, p. 30, ll. 12-36: “Q: While you are typing in these – detailed numbers like 5193362, you’re – you are concentrating on the machine; right? A: I am concentrating on the numbers that I am typing, yes. As – while I’m typing and while I’m writing, obviously I have to look down, but that doesn’t mean that I don’t look up as well. Q: All right. But you’re – you – you have to admit that this is a – A: While I am typing the number 3, no, I’m not – I’m staring at the number 3.

Q: You’re staring at a number – A: Yeah, I’m not – Q: And there is – A: -- staring at her face .” [emphasis added] [ 15 ] And at p. 31, l. 40 – p. 32, l. 5: “Q: So, if she says again “Well, the officer had his head down writing on some paper,” she would be correct; right? A: At certain – like I said, for moments I would have my head down and for other times I would have my head up. Q: All right. A: That would be one of the reasons why we sit right close to the – or the instrument is very close to the individual so that we can use all of our senses to –

Q: Sure, you’re – A: -- determine –“ [emphasis added] [ 16 ] And again at p. 40, ll. 20 – 31 : “Q: And when you said “we use all our senses”, what were you referring to there? A: Obviously, if someone burps or belches or vomits, it’s a – there’s an auditory sound that goes along with that, so we use that, and most of the time there’s a smell associated with that as well.

So when you’re in very close proximity to somebody, I don’t think that when – when we say face-to-face we’re talking direct eye contact the entire time, we’re using obviously all the senses we’re given to – to maintain a close proximity to that person to ensure that they don’t belch or burp or vomit.” [emphasis added] [ 17 ] During the second observation period, which lasted for 20 minutes, between 18:58 hours and 19:18 hours, Cst. Spoor followed the same general procedure. He was sitting at the desk facing the wall. Ms. Guichon had her back to the wall, facing out into the room a little to his left.

However, this time, Cst. Spoor did not fill out any form; he simply sat and talked with Ms. Guichon. She asked about the result of the first sample but, for reasons he did not explain, he did not tell her the result. Then she sat quietly and then they talked about her grandson: Transcript, August 8, 2008, p. 42, ll. 13-24. Towards the end of the second observation period Cst. Spoor stood up and moved to the instrument where he entered Ms. Guichon’s driver’s license number, the temperature and other data in preparation for taking the second breath test. [ 18 ] It is clear from this evidence that Cst.

Spoor was doing more than one thing for about 11 minutes [1] of the first, 24 minute observation period and for the last couple of minutes of the second observation period. During these times he was observing Ms. Guichon, but also writing up a form or, observing Ms. Guichon, but also preparing the breathalyzer instrument to receive a sample. Sometimes he had his head up, looking Ms. Guichon in the face, other times he had his head down as he read out the questions, wrote down her answers or typed data into the instrument. When he was not actually looking at her, Cst.

Spoor was relying on his sense of hearing and his sense of smell to detect whether Ms. Guichon was burping or belching. [ 19 ] It is also clear from his evidence that Cst. Spoor observed nothing to indicate that Ms. Guichon did actually burp, belch or vomit during either observation period. Transcript, August 8, 2008, p. 10, l. 34 – p. 11, l. 33 and p. 35, ll. 6-26. [ 20 ] Audrey Jakus was the only other witness to testify. She is an alcohol analyst and testified as an expert witness on behalf of Ms. Guichon. She had reviewed Cst.

Spoor’s evidence as set out in the August 8 th , 2008 transcript and provided a written opinion, marked Exhibit 4. She was cross examined on that opinion by the Crown when the trial continued on January 22 nd , 2010. [ 21 ] Ms. Jakus’s opinion is that Cst. Spoor did not conduct a proper observation period prior to the first breath test because he could not possibly maintain “direct, face to face observation” of Ms. Guichon while filling out the C256 form. Exhibit 4, p. 3, paragraph 1; Transcript, January 22, 2010, p. 20, ll. 1-39.

Direct, face to face observation was what the breathalyzer operator’s certification manual required at the time. Shortly afterwards, in October, 2007, the manual was changed to require that the observer be in “close proximity to the subject, in a quiet area, so that audible indications of burps can be hear (sic), and that the subject is in the field of view in order to observe for physical clues of burping.” Exhibit 4, p. 3, paragraph 2. Ms. Jakus’ opinion is that even when judged against this more flexible standard, Cst. Spoor did not conduct a proper observation. She concedes he was in close proximity to Ms.

Guichon as he was sitting at the desk filling out the form, but in her opinion Ms. Guichon was not “in the field of view” of Cst. Spoor because he would often have been looking down as he filled out the paperwork. [ 22 ] As for the few minutes at the end of both the first and second observation periods when Cst. Spoor moved to face the breathalyzer instrument against the side wall and stood there entering data into the instrument, Ms. Jakus’ opinion is that this was also not proper observation because Ms. Guichon would not have been within the officer’s “field of view”.

She was to his right but there is no evidence she was within a 45 degree angle from the centre of his visual field which, according to Ms. Jakus, is what was required to be within his “field of view”: Exhibit 4, p. 3, paragraph 3. [ 23 ] As for Cst. Spoor’s evidence that, when he was not actually looking at Ms. Guichon, he was able to “use all [his] senses” to detect the sound or smell of regurgitation such as a burp or a belch, Ms. Jakus’ opinion is that this was not good enough. In her opinion Ms.

Guichon may have burped or belched silently and the regurgitation may not have produced an odour: Exhibit 4, p. 3, paragraph 3. Or, if it did produce a smell, the smell may have gone undetected because of the general odour of liquor that may have been emanating from Ms. Guichon: Transcript, January 22, 2010, p. 21, ll. 10-22. [ 24 ] Ms.

Jakus stated that the BAC Datamaster C instrument has an “INVALID SAMPLE” status message which can abort the taking of samples of breath which are elevated by mouth alcohol but this feature can not be relied upon to detect mouth alcohol where the subject’s blood alcohol concentration is low, for example, between 20 and 40 mg/%: Exhibit 4, p. 2, paragraph 4. She said that it is only through a properly conducted observation period that one can rule out the possibility of a falsely high reading due to mouth alcohol. [ 25 ] Ms. Jakus also said that the fact two breath samples were taken from Ms.

Guichon in the case at bar and the results – 110 and 100 – were within the required 20 mg/% of one another was not a guarantee of an absence of mouth alcohol contamination and was not a substitute for a proper observation period: “…[B]ecause as I say, if you don’t have a proper observation period for one or more tests, you cannot rely on that sample because you can still get readings that appear to agree within 20 milligram percent but are entirely wrong. …[I]t is one criteria that is considered, but it cannot …be used by itself instead of …the observation periods that are required.” Transcript, January 22, 2010, p. 39, ll. 37-47.

Issues

[ 26 ] The issues which emerge from this evidence and counsel’s argument may be defined as follows: 1. What evidentiary standard is set by the term “evidence tending to show” contained in s. 258(1)(c)? 2. Is there evidence in this case “tending to show” improper operation of the breathalyzer instrument? 3. If so, is there also evidence in this case “tending to show” the other two requirements in s. 258(1)(

c) as amended – that the improper operation caused the breath readings to be over .08 and that Ms. Guichon’s blood alcohol concentration would not have exceeded the legal limit at the time of driving? 1. What evidentiary standard is set by the term “evidence tending to show” contained in s. 258(1)(c)? [ 27 ] Section 258(1)(

c) was amended on July 2 nd , 2008. Even though the investigation of Ms. Guichon happened about 10 months before the law was amended, she is subject to the new law as it has been found to apply retroactively. See R. v. Truong, 2010 BCCA 23460 . [ 28 ] One of the changes in the law was the replacement of the phrase “evidence to the contrary” with the words “evidence tending to show”. The parts of the

section which apply in Ms.

Guichon’s case now read as follows: “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), …. evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, … the lowest of the concentrations determined by the analyses , in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improperly , that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood , and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;” [emphasis added] [ 29 ] It seems clear that the two phrases, “evidence to the contrary” and “evidence tending to show”, have the same meaning at common law.

The phrase “evidence tending to show” has been in use in s. 258(1)(d.1) since 1996. In Gibson and MacDonald, 2008 SCC 16 at ¶ 52 Justice LeBel held that “the difference in wording is not meaningful for the purpose of determining what type of evidence will rebut these presumptions.” And at ¶ 54 “It has always been evidence that could raise a reasonable doubt as to the presumed fact”. 2. Is there evidence in this case “tending to show” improper operation of the breathalyzer instrument? [ 30 ] Section 258(1)(

c) provides that the breath tests are conclusive proof of the concentration of alcohol in Ms. Guichon’s blood in the absence of evidence tending to show – or evidence that could raise a reasonable doubt about - “all of the following three things”: (

a) Instrument malfunction or improper operation of the instrument; (

b) That the malfunction or improper operation resulted in the ‘Over .08’ reading; and (

c) That the concentration of alcohol in Ms. Guichon’s blood would not, in fact, have exceeded the legal limit at the time she was driving. [ 31 ] Ms. Guichon’s lawyer says that there is evidence tending to show the first of these three things – improper operation of the instrument. Cst. Spoor was filling out the form during the first observation period and he spent the last few minutes of both observation periods standing in front of the approved instrument preparing it to take a sample. Ms. Jakus said this was not good enough because Cst. Spoor was required to observe Ms.

Guichon face-to-face or, at a minimum, to have Ms. Guichon in his “field of view” so that he could see if Ms. Guichon silently burped or belched. Mr. Wool argues that failing to conduct a proper observation of Ms. Guichon during the 15 minutes leading up to the taking of each of the breath samples amounts to improper operation of the instrument. He cites R. v. Duffy, 2003 BCPC 264 at ¶ 41 and 42 . [ 32 ] Crown Counsel responds by saying that it is only the first observation period, when Cst. Spoor was filling out the form, that could possibly be criticized here.

And, only 9 minutes out of the total 24 minute observation period was taken up with completing the form. During that time Cst. Spoor was seated in close proximity – within arm’s reach – of Ms. Guichon in a quiet room so he was in a good position to hear or smell if she burped or belched even when he was not looking directly at her. As for the last couple of minutes when he stood up and turned to prepare the approved instrument, Crown Counsel says that Cst. Spoor was still in close proximity to Ms. Guichon and able to hear or smell any burp or belch of significance. Cst.

Spoor was working on his own in a small detachment. He had many duties and he was ‘multi-tasking’ but it is speculative according to the Crown to say that this in any way diminished the quality of his investigation or the accuracy of the breath sample results. Ms. Jakus admitted there is no requirement that two officers be present – one observing the subject and the second preparing the instrument. Cst.

Spoor may not have complied strictly with the requirement for direct face-to-face observation which existed at the time, but the Crown argues he was aware of the problem posed by mouth alcohol and the reason why an observation period was important, he was alert for any sign of regurgitation, and he was so close to Ms. Guichon that it would be speculative to say that there may have been a silent burp or belch which he did not detect. Accordingly, Crown argues, proper operation of the instrument is proven beyond a reasonable doubt. [ 33 ] In my view, Ms. Jakus’ evidence, in combination with Cst.

Spoor’s evidence, does amount to “evidence tending to show …that the approved instrument was operated improperly”. Put another way, I am left with a reasonable doubt about whether the instrument was

operated properly because Cst. Spoor did not conduct a proper observation prior to the first breath sample. [ 34 ] The BAC Datamaster C Certification Manual, as it was then worded, required “direct, face-to-face” observation of Ms. Guichon. While the contents of the Certification Manual are not law, the standards set do, I think, take on more importance with the requirement in s. 258(1)(

c) that the court specifically consider whether there was evidence of “improper operation” of the approved instrument. Cst. Spoor did not conduct a “direct face-to-face” observation of Ms. Guichon for about 9 minutes of the 24 minute observation period prior to the first sample because he was filling out a form. [ 35 ] Cst. Spoor also did not conduct a “direct, face-to-face” observation for about 2 minutes at the end of both the first and the second observation period because he got up and turned to face the approved instrument and began to prepare it for taking samples of Ms. Guichon’s breath.

Since the Certification Manual did not and does not require that there be two officers present every time a breath sample is taken – one to conduct the observation and one (the Qualified Technician) to prepare the approved instrument – it would appear that the manual as it was then worded set an impossible standard for officers working on their own.

Certain information has to be typed into the instrument and checks done and one officer working alone could not also maintain “direct, face-to-face” observation of the subject while doing these things. [ 36 ] Perhaps because of this conundrum, the Certification Manual was amended just a month after the investigation of Ms. Guichon, in October, 2007, to set out the more flexible “close proximity” and “field of view” standard described by Ms. Jakus in Exhibit 4. It is not necessary for me to express an opinion about whether Cst.

Spoor’s actions would have constituted proper observation procedure under this more flexible wording because it was not the standard which applied at the time Ms. Guichon was investigated. [ 37 ] In

summary, I find that there is evidence tending to show improper operation of the approved instrument in Ms. Guichon’s case because Cst. Spoor did not maintain “direct, face-to-face” observation of Ms. Guichon throughout both observation periods. 3. Is there also evidence in this case “tending to show” the other two requirements in s. 258(1)(

c) as amended? [ 38 ] To reiterate, section 258(1)(c), as amended, now requires “evidence tending to show all of the following three things” before the presumption that Ms. Guichon’s breath test results are accurate, is rebutted: i. Malfunction or improper operation of the instrument; ii. That the malfunction or improper operation resulted in the over .08 breath test result; and iii. That the concentration of alcohol in Ms.

Guichon’s body would not, in fact, have exceeded the legal limit at the time of driving. [ 39 ] I have found there is evidence tending to show the first of these things - improper operation of the instrument, because Cst. Spoor failed to conduct a proper observation period. Is there also evidence tending to show the second thing listed: that this improper operation resulted in the determination that Ms. Guichon had more than the legal limit of alcohol in her blood? [ 40 ] It is argued by counsel for Ms.

Guichon that if I find, as I have, that there is evidence tending to show improper operation of the instrument, I must inevitably also find that there is evidence tending to show the second requirement, and, for that matter, the third requirement. R. v. Powichrowski, 2009 ONCJ 490 at ¶ 31 is cited in support: “The new subsection does not require separate attacks or doubts to be raised under each heading, considered separately. This is important because, on one reading – and this initially caused me considerable concern – the new s. 258(1)(

c) would seem to require that a defendant who succeeded in showing a material malfunction or error in the machine would still be required to prove or separately raise a doubt that he was under 80 at the time of the offence. However, Crown Counsel Mr. Doyle has convinced me that the proper

interpretation should be that if material malfunction or error is shown (or doubt raised) there would then be no reliable evidence of B[lood] A[lcohol] C[oncentration] in the case at all and necessarily a doubt would also have been raised as to the accused being over 80 at the time of the offence. Such an

interpretation is not only the proper one but also a necessary one in order to preserve the constitutionality of the

section .” [emphasis added] [ 41 ] With respect, I have some difficulty accepting this reasoning to the extent that it purports to dictate what evidence will or will not constitute evidence tending to show each of the three requirements in s. 258(1)(c). [ 42 ] In any case, it is my view that Powichrowski is distinguishable because it deals with the constitutionality of the recent amendments whereas in Ms. Guichon’s case the issue is the

interpretation of the amendments and their application to the ‘evidence to the contrary’ present in this case. [ 43 ] R. v. Vardy, 2010 ONCJ 255 is more directly on point because it was an ‘evidence to the contrary’ case, like Ms. Guichon’s, where the accused sought to rebut the presumption of accuracy. The court in that case explained the paragraph from Powichrowski which I have cited, saying the following at ¶ 95: “ I do not think that Justice Duncan interpreted s. 258 (1) as meaning that a reasonable doubt does not have to be raised with regard to all three areas.

I interpret his holding to mean that if a material malfunction or error with the operation and or functioning of the Intoxilyzer 5000C is established, then per force a reasonable doubt is raised with respect to the remaining two areas because there would be “ no reliable evidence of BAC in the case at all”. Therefore, there would be no need to launch a separate attack on them . So in that sense I agree with Mr. Adler.

However, this does not mean that a reasonable doubt does not have to be raised in respect to all three areas.” [emphasis added] [ 44 ] The court in Vardy found that the expert’s evidence called in that case was speculative in nature and failed to amount to evidence tending to show improper operation and malfunction of the approved instrument. Accordingly, the court was left with no doubt on the

first and second requirements in s. 258(1)(

c) as amended. As to the third requirement, the defendant was also unsuccessful in pointing to evidence tending to show that his blood alcohol level was below the legal limit at the time of driving; he called evidence of his drinking pattern on the occasion in question but this was rejected as being unreliable by the court.

Vardy was convicted. [ 45 ] I respectfully dis agree with the view expressed in Vardy at ¶ 95 that if there is evidence tending to show malfunction or improper operation of the approved instrument this inevitably results in the court also having a reasonable doubt with respect to the second and third requirements – that the over 08 readings resulted from the malfunction or improper operation and that the accused’s blood alcohol level was actually below the legal limit at the time of driving. It seems to me these are issues that have to be addressed on a case by case basis.

Sometimes the evidence of malfunction or improper operation will be such that it amounts to evidence tending to show “…no reliable evidence of the BAC in the case at all and necessarily a doubt would also have been raised as to the accused being over 80 at the time of the offence.” Powichrowski , ¶ 31 . At other times the evidence of malfunction or improper operation will not rise to this level or have this inevitable result. [ 46 ] In my view, that is the situation in the case at bar. I have concluded that there is a reasonable doubt about whether Cst. Spoor properly operated the approved instrument in Ms.

Guichon’s case because he conducted portions of both observation periods in a way that was not in strict compliance with the Certification Manual requirement for “direct, face-to-face” observation. However, when I consider all of the evidence I am not left with a reasonable doubt on the two other issues which I am now required to consider under s. 258(1)(c). [ 47 ] Specifically, I am not left with a doubt – there is no evidence tending to show - that Ms. Guichon’s over 08 readings resulted from the improperly conducted observation periods. Cst. Spoor testified that Ms.

Guichon did not burp, belch or vomit before either the first or the second sample: Transcript, August 8, 2008, p. 10, ll. 44-47 and p. 11, ll. 28-33 and p. 35, ll. 21-26. I find that his evidence on this point is not only truthful, it is also reliable, despite the fact that he was filling out a form for about 9 minutes during the first observation period and preparing the instrument for about 2 minutes at the end of both the first and the second observation periods and during those times was not always looking directly at Ms. Guichon as a result. [ 48 ] I conclude that Cst. Spoor’s evidence that Ms.

Guichon did not regurgitate is reliable for several reasons. [ 49 ] First, he had received training as a Qualified Technician and as such was well aware that the purpose of the observation periods was to, among other things, ensure that the breath samples were not contaminated by mouth alcohol from regurgitation of stomach contents by burping, belching or vomiting. [ 50 ] Second, he was positioned very close to Ms. Guichon – about ½ metre away, “within arm’s reach almost”. Transcript, August 8, 2008, p. 40, ll. 15-19.

His opportunity to observe regurgitation with his other senses – hearing and smell – was therefore very good even on those occasions when his eyes were on the form he was filling out or on the instrument he was preparing. The only things he could not have detected were silent and odourless burps and belches. Not surprisingly, the most that Ms. Jakus could say is that there was a risk that such a regurgitation could occur: “Q: So you’re speculating that the …results could be wrong based on an inaudible, non-smelling regurgitation that Cst. Spoor did not detect?

A: I’m talking to you in a hypothetical situation, why it could be a problem. Now, was it a problem, I can’t say because we are unable to recreate that situation, but we know it is a situation that we have to be concerned about.” Transcript, January 22, 2010, p. 50, l. 46-p. 51, l. 6. [ 51 ] In my view it is not a ‘doubt based on reason’ but rather, speculation, to say that one or more regurgitations occurred which went undetected by Cst.

Spoor given his position of observation and the fact that he was alert to the problem. [ 52 ] I pause here to note that it may well be speculation and not a ‘doubt based on reason’ to say that any such regurgitations that did occur were the reason the readings were over the legal limit. In this regard see R. v. Gillespie, 2010 BCPC 207 , a case which concerned the constitutionality of the amendments to s. 258(1)(c).

At ¶110 the court found, on the expert evidence called in that case, that there was no documented case of mouth alcohol from regurgitation causing falsely high breathalyzer readings. “While theoretically possible, it is not reasonably possible.” Cst. Spoor may have been alluding to this when he said that he had seen some recent literature that said regurgitation may actually not effect breath sample results: Transcript, August 8, 2008, p. 35, ll. 2-15. However, Ms. Jakus was not asked specifically about the science behind her assertion that regurgitation can cause falsely high breath test results.

It was treated as an accepted fact in her evidence and I have proceeded on that basis in my analysis because that is the evidence before me in this case. [ 53 ] The third piece of evidence that leads me to conclude that Cst. Spoor’s evidence that Ms. Guichon did not regurgitate prior to either of the breath samples is the fact that the readings (110 mg/% and 100 mg/%) were within the acceptable range of 20 mg/% of one another. Ms. Jakus agreed that this is one of the criteria which is considered in determining the reliability of breath test results.

However, she insisted it was not conclusive unless there had been proper observation periods prior to each sample. She said it was possible that one or both of the results was falsely high due to mouth alcohol from regurgitation, but still ended up within 20 mg/% of the other result. For example, Ms. Guichon’s true blood alcohol concentration could have been 80 mg/% but falsely elevated to 110 mg/% due to regurgitation. See Transcript, January 22, 2010, p. 40, l. 39-p.41, l. 8. In my view this evidence is speculative. These possibilities do not constitute a reasonable doubt – a doubt based on reason.

I am left with the fact that Ms. Guichon’s two readings fell within 20 mg/% of one another. While this is not conclusive proof that both readings were accurate, it is a piece of evidence pointing towards that conclusion which I can consider. [ 54 ] In

summary on this second question – is there evidence tending to show that Cst. Spoor’s failure to conduct a proper observation period resulted in the determination that Ms. Guichon’s blood alcohol concentration exceeded the legal limit – I find that there is speculation that there may have been silent and odourless regurgitation which produced mouth alcohol sufficient to falsely elevate one or both of the breath samples. However, I find that there is no actual evidence (or lack of evidence) tending to show this. Put another way, I cannot find ‘a doubt based on reason’ that the officer’s failure to conduct a proper observation resulted in the over .08 readings.

[ 55 ] The third and final issue for consideration under s. 258(1)(

c) as amended is whether there is evidence tending to show that the concentration of alcohol in Ms. Guichon’s blood would not in fact have exceeded the legal limit at the time of driving. [ 56 ] Unlike R. v. Vardy , 2010 ONCJ 255 , there was no drinking pattern or consumption evidence called in this case. Counsel’s position is once again that if the court finds improper operation – and I have – then the court must also find that there is no reliable evidence of Ms. Guichon’s blood alcohol concentration and must, inevitably, be left with at least a reasonable doubt about whether Ms.

Guichon was over the legal limit at the time of driving. Counsel points to the evidence of Ms. Jakus that she could not put any reliance on the accuracy of the breath samples given the lack of proper observation periods: Transcript, January 22, 2010, p. 55, l. 36-p. 57, l. 43. [ 57 ] For the reasons already stated – Cst. Spoor’s training, his close proximity, the two results within 20 mg/% of one another - I conclude that it would be speculative to find, in this case, evidence tending to show that Ms. Guichon’s breath test results were unreliable. Ms.

Jakus states that she would not rely on them but I am not bound to accept her opinion since, in my view, it is based on speculation rather than on actual evidence or lack of evidence. Further, Ms. Jakus was, understandably, unable to say that Ms. Guichon’s actual blood alcohol level would have been or ought to have been below the legal limit since she had no pattern of consumption from which to extrapolate. Conclusion [ 58 ] Parliament amended s. 258(1)(

c) to require more ‘evidence to the contrary’ to rebut the presumption that an approved instrument produces accurate readings. While there is evidence tending to show improper operation – specifically, improper observation prior to the breath samples – in Ms. Guichon’s case there is no evidence tending to show the other two things now required by the section. I therefore find that the lowest of the two readings obtained from Ms. Guichon, 100 mg/%, is conclusive proof of her blood alcohol concentration at the time of driving.

As this is over the legal limit of 80 mg/% I find her guilty of count 2. [ 59 ] With respect to count 1 I find that Ms. Guichon operated her vehicle properly during her brief dealings with Cst. Spoor at the roadblock. She was coherent and reasonable in her manner throughout. For these reasons I conclude there is insufficient evidence that Ms. Guichon’s ability to operate a motor vehicle was impaired and I therefore find her not guilty of count #1. ____________________ Bayliff, E.L., P.C.J.